text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA, Plaintiff, vs. Frank McLaughlin, Defendant.
    No. DC 96-102 AMENDED JUDGMENT AND COMMITMENT TO THE STATE PENITENTIARY
    DATED this 25th day of March, 1997.
   On July 22, 1996, it was the sentence and judgment of this court as follows: 1. The court finds the defendant guilty of Aggravated Assault, a Felony, in violation of Section 45-5-202, MCA. 2. For the offense of Aggravated Assault, a Felony, the defendant is committed to the Department of Corrections for a period of twenty-five (25) years. Twenty years for the offense of Aggravated Assault and 5 years for the use of a weapon. The Court makes no recommendation regarding placement. 3. The defendant shall pay restitution to the Crime Victims Compensation Fund in an amount to be determined by the department and the fund. 4. The Court finds the mandatory minimum sentence of two years is inapplicable in this case as the defendant was less than 18 years old at the time the offense was committed. 5. The defendant shall receive credit for two hundred tweniy-eight (228) days previously served since his arrest on December 7, 1995.

On February 21, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Tara Javid, legal intern, of the Montana Defender Project. The state was not represented.

The Defendant having been duly informed of the amended judgment and commitment, and having waived his right to appear before the undersigned for this pronouncement of sentence, whereupon,

IT IS ORDERED, ADJUDGED AND DECREED that the defendant shall be committed to the Department of Corrections for a term of twenty (20) years for the offense of Aggravated Assault, a Felony. All other conditions as stated in the July 22, 1996 judgment shall remain the same as imposed.

Reasons for the amendment are because this sentence is consistent with the plea agreement. Also, the use of the enhancement is inconsistent with the sentencingjudge’s findings.

This judgment and sentence is to be as of the 21st day of February, 1997.

Ted L. Mizner, District Court Judge


source: Caselaw Access Project

license: Public Domain

text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.

      STATE OF MONTANA, Plaintiff, vs. Richard Warren Paige, Defendant.
    NO. 12084 DECISION
    DATED this 4th day of March, 1997.
   On June 11, 1996, it was adjudged and decreed that the defendant was guilty of the offense of Burglary, a Felony. It is the judgment of the Court that Richard Warren Paige be and is hereby sentenced to a term of twenty (20) years on Count IV in the Montana State Prison in Deer Lodge, Montana. The sentence shall run concurrently with the sentence imposed in Cause No. 12009 and the sentence the defendant is currently servingin Ravalli County Cause No. CR 92-81. Defendant shall receive credit for time served at Missoula County Jail from March 16, 1996, through date of sentencing, June 11, 1996, in the amount of eighty-eight (88) days.

On February 20,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the application shall be dismissed with prejudice.

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.


author: JUSTICE REGNIER

text:
    JAROLD R. WOOD and DARA WOOD, Plaintiffs, Appellants, and Cross-Respondents, v. OLD TRAPPER TAXI; JAMES HAGEN; JAMES KOZORA; KTCM and its successor television stations; UNR INDUSTRIES, INC., a Delaware corporation; and ROHN, a division of UNR INDUSTRIES, Defendants, Respondents, and Cross-Appellants.
    No. 97-260.
    Submitted on Briefs September 17, 1997.
    Decided November 25, 1997.
    54 St.Rep. 1263.
    286 Mont. 18.
    952 P.2d 1375.

      For Appellants: John C. Doubek; Small, Hatch, Doubek & Pyfer; Helena.
    For Respondents: L. D. Nybo; Conklin, Nybo, LeVeque & Murphy, PC.; Great Falls (for Respondents UNR Industries and ROHN).
   JUSTICE REGNIER

delivered the Opinion of the Court.

Jarold R. Wood and his wife, Dara Wood, filed suit in the First Judicial District Court, Lewis and Clark County, to recover damages as a result of injuries sustained by Jarold when a radio tower he was erecting collapsed. The Woods sued the above-named defendants and specifically sought damages against the manufacturers of the tower, UNR Industries, Inc., and Rohn, a division of UNR Industries, under product liability theories alleging a manufacturing defect and failure to warn. Defendants Old Trapper Taxi and James Hagen settled in full with the plaintiffs. The District Court granted summary judgment in favor of defendant James Kozora, which has not been appealed by the Woods. Defendant KTCM was named as a party but was never served. The District Court also granted summary judgment in favor of UNR and Rohn and against the Woods which is the subject of this appeal. Defendants UNR and Rohn have cross-appealed from the District Court’s denial of their motion to dismiss. We reverse in part and affirm in part.

The dispositive issues on appeal are:

1. Did the District Court err in granting summary judgment in favor of UNR and Rohn and against the Woods on their manufacturing defect claim?
2. Did the District Court err in granting summary judgment in favor of UNR and Rohn and against the Woods on their failure to warn claim?
3. Did the District Court err in denying the motion to dismiss filed by UNR and Rohn?

FACTUAL BACKGROUND

Prior to 1965, UNR Industries, Inc., and Rohn, a division of UNR Industries (hereinafter the defendants) manufactured and sold a Model PT-64 radio tower. This tower was eventually sold in a used condition to James Kozora in Ohio, sometime between 1970 and 1972. The chain of ownership prior to Kozora is unknown. Kozora erected the tower in Sagamore Hills Township, Ohio, and apparently used it in connection with his ham radio. In 1975, Kozora disassembled the tower. In 1976, he moved from Ohio to Helena, Montana, and transported the tower to Helena in a U-Haul truck/trailer.

Upon moving to Helena, Kozora stored the tower in sections at his residence and never again assembled or used the tower. However, sometime after his arrival in Helena, Kozora sold the tower, along with guy wires, to James Hagen for $125. Hagen, the owner of defendant Old Trapper Taxi, purchased the tower with the intent to use it as part of a communications system for his business. Hagen took delivery of the tower and guy wires and stored the equipment inside his offices.

In the summer of 1990, Hagen hired plaintiff Jarold Wood, the owner of a Helena communications business, to erect the tower. On September 4, 1990, while attempting to erect the tower, Jarold was injured when he fell approximately forty-five feet due to the collapse of the tower.

The Woods filed suit in the First Judicial District Court, Lewis and Clark County, on March 26,1991. In their second amended complaint filed on September 3, 1993, they claim that the tower collapsed due to the failure of one of the legs which they allege had been altered and reinforced with a welded section of plumbing pipe and then painted over. Significantly, the Woods assert that the defendants performed this repair at their facilities prior to selling the tower. In addition, the Woods claim that the defendants were negligent and strictly liable for failing to warn or advise potential users that they should never attempt to erect the tower after it has been repaired or modified. The Woods further claim that the defendants were liable for failing to warn potential users that the tower should not be erected without the use of guy wires.

The defendants admit that the tower collapsed due to a failure of one of the legs. However, the defendants vigorously assert that the tower was not altered or repaired at their facility and, therefore, they are not responsible.

The critical physical evidence, namely, the failed leg section of the tower is missing. However, the remaining parts of the tower, as well as a videotape of the tower before the collapse, were available to both parties and examined by their respective experts.

On February 7, 1996, the defendants moved for summary judgment on the Woods’ product liability claims. In their supporting brief, the defendants also moved to dismiss the case because the failed leg section was missing and, thus, they argue they could not adequately defend themselves without this key piece of evidence.

On May 15, 1996, the District Court granted summary judgment in favor of the defendants on the manufacturing defect claim. The court reasoned that since the key piece of evidence was not available and the expert testimony was conflicting on the crucial question of whether or when a defect existed, the Woods were unable to prove that the tower was defective when it left the defendants’ control. The District Court denied the defendants’request for summary judgment on the failure to warn claim, however, concluding that there were questions of fact on this issue to submit to the jury. Although the defendants’ motion to dismiss was not directly addressed in the District Court’s memorandum and order granting summary judgment, it is clear from a review of the record that this motion was denied.

Both sides were unsatisfied with the District Court’s ruling. On October 11, 1996, the Woods filed their motion to alter or amend the District Court’s May 15,1996, summary judgment order, arguing that the manufacturing defect claim should also be submitted to the jury. Shortly thereafter, the defendants countered by filing a motion to alter or amend the District Court’s order on the failure to warn claim. On January 14,1997, the District Court denied both parties’ motions to alter or amend judgment.

On February 18, 1997, the parties presented additional oral argument to the District Court on the failure to warn claim. On March 13, 1997, the defendants filed a motion for reconsideration, asking the District Court to reconsider its January 14,1997, memorandum and order on the failure to warn claim in light of the additional argument. On March 26, 1997, the District Court issued an order granting summary judgment in favor of the defendants on all claims.

The Woods appeal from the District Court’s orders granting summary judgment to UNR and Rohn. UNR and Rohn cross-appeal the failure of the District Court to dismiss the Woods’ claims due to missing evidence, the repaired section of the tower.

STANDARD OF REVIEW

This Court reviews an order granting summary judgment de novo by utilizing the same criteria used by a district court initially under Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903; In re Estate of Lien (1995), 270 Mont. 295, 298, 892 P.2d 530, 532. Furthermore, on review, all reasonable inferences that might be drawn from the offered evidence should be drawn in favor of the party opposing summary judgment. Payne Realty & Housing, Inc. v. First Sec. Bank of Livingston (1992), 256 Mont. 19, 25, 844 P.2d 90, 93; Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511.

Summary judgment is a remedy which should not be granted when there is any genuine issue of material fact; the procedure should never be substituted for trial if a material factual controversy exists. Rule 56(c), M.R.Civ.R; Payne Realty, 256 Mont. at 24, 844 P.2d at 93; Cereck, 195 Mont. at 411, 637 P.2d at 511.

The party seeking summary judgment has the burden of demonstrating a complete absence of any genuine factual issues. D’Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924. This Court looks to the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits to determine the existence or nonexistence of a genuine issue of material fact. Ulrigg v. Jones (1995), 274 Mont. 215, 218, 907 P.2d 937, 940. The party opposing summary judgment must present material and substantial evidence, rather than merely conclusory or speculative statements, to raise a genuine issue of material fact. B.M. by Berger v. State (1985), 215 Mont. 175, 179, 698 P.2d 399, 401.

ISSUE 1

Did the District Court err in granting summary judgment in favor of UNR and Rohn and against the Woods on their manufacturing defect claim?

The Woods argue that the District Court erred in granting summary judgment to UNR Industries and Rohn on the manufacturing defect claim. The Woods contend that there are genuine issues of material fact regarding the important question of whether the tower was defective when it left the defendants’ facilities.

The defendants counter that the Woods are unable to prove that the tower was defective when it left their facilities; therefore, summary judgment should be granted as a matter of law.

After review of the record in this case, we conclude that the District Court erroneously took it upon itself to resolve disputed issues of material fact. Although the defendants argue that the documents and affidavits submitted do not create genuine issues of material fact, we conclude that the documents were sufficient to meet the Woods’ burden in opposing summary judgment.

The heart of the Woods’ claim is strict liability in tort. A person who sells a product in a defective condition unreasonably dangerous to a user or consumer is liable for the physical harm caused by the defective product. Restatement (Second) of Torts § 402A(1965); § 27-1-719, MCA. This Court adopted § 402A in the case of Brandenburger v. Toyota Motor Sales, U.S.A., Inc. (1973), 162 Mont. 506, 513 P.2d 268. In a products liability action, in order to establish a prima facie case in strict liability, a plaintiff must prove the following elements:

(1) The product was in a defective condition, “unreasonably” dangerous to the user or consumer;
(2) The defect caused the accident and injuries complained of; and
(3) The defect is traceable to the defendant.

Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 105, 576 P.2d 711, 717.

Under a manufacturing defect theory, the central question is whether the product is flawed due to improper construction. In Rix v. General Motors Corp. (1986), 222 Mont. 318, 723 P.2d 195, we defined manufacturing defects as

imperfections that inevitably occur in a typically small percentage of products of a given design as a result of the fallibility of the manufacturing process. A defectively manufactured product does not conform in some significant aspect to the intended design, nor does it conform to the great majority of products manufactured in accordance with that design.

Rix, 222 Mont. at 326, 723 P.2d at 200 (quoting James A. Henderson, Jr., Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Co. L. Rev. 1531, 1543 (1973)).

The Woods assert, and the defendants do not deny, that the tower collapsed due to the failure of one of the legs which, at some unknown point since its original manufacture, had been reinforced with a welded section of plumbing pipe and then painted over. The Woods assert that the defendants performed the repair at their facilities prior to selling the tower.

The Woods presented the affidavit of their expert witness, Ronald Glovan, in support of their theory. Ronald Glovan’s affidavit filed on March 4,1996, sets forth why he believes that the tower was defective before leaving the control of the defendants:

First it is my opinion that the manufacturer performed the repair. This is based upon the nature of the repair as well as the clear evidence in the other two legs of the involved segment which show no deformation. Further, the repair was most likely a repair of a welding burn-through that was a direct result of the manufacturing process, which I have concluded was defective.
Clearly I stated that the repair to the leg was not caused by a previous collapse of the tower nor by any excessive bending loads that might have been placed on it during erection (or the disassembly thereof). I further stated that the video shows that the two remaining legs had not been given similar repairs and had not been substantially deformed as would have happened if the tower had suffered a previous collapse. Clearly that points to the manufacturer for having repaired the tower.

In their motion for summary judgment, the defendants argue that there was no proof that they had repaired the tower because the pipe was not galvanized, which was a step in the manufacturing process, and because the repair was painted over and painting is not a part of the manufacturing process.

The Woods addressed these arguments in Jarold’s affidavit. Jarold stated:

When I was asked by Mr. James Hagen, owner of Old Trapper Taxi, to erect the involved tower for him I very carefully laid each of the tower sections out on the ground before I began the erection process. I very carefully inspected it. I did not see any weld which was different from any other weld. I did not see any place on any of the tower sections where there had been spray paint or some other kind of coating which was in any way different in appearance from the rest of the tower. The entire tower, all of the sections and the legs, appeared to have been galvanized. I also did not detect any rusty spots on any of the tower sections.
Sometime after the tower collapsed I carefully examined the same. Again I did not see any spray paint anywhere on the tower, or [on] any of its legs, or on the piece of pipe that had been inserted into one of the legs. The threads of the pipe appeared galvanized and not painted over.

Although the District Court considered the affidavit, it concluded that the Woods’ evidence suggested only a weak possibility that the key section of the tower was shipped from UNR Industries’ facility more than three decades ago in a defective condition. The District Court explained that the parties’ respective experts “differ about the condition of the tower when it left Defendants’ facility and whether a manufacturing defect existed at the time the tower was in Defendants’ possession.” The District Court further stated that “[a] jury should not be asked to evaluate the credibility of experts concerning the defectiveness of a radio tower when it left the hands of Defendants, which the experts have neither seen nor can see, and which was manufactured more than 30 years ago.” Therefore, the District Court granted summary judgment in favor of the defendants on the Woods’ manufacturing defect claim.

Summary judgment is never to be a substitute for trial if there is an issue of material fact. Payne Realty, 256 Mont. at 24, 844 P.2d at 93. All reasonable inferences that may be drawn from the offered proof must be resolved in favor of the party opposing summary judgment. If there is any doubt regarding appropriateness of a summary judgment motion, it should be denied. Payne Realty, 256 Mont. at 24, 844 P.2d at 93.

It is apparent that the District Court was genuinely concerned that the absence of the failed piece, combined with conflicting expert testimony, rendered this case virtually impossible for a jury to decipher. We should never underestimate, however, the collective wisdom of the American jury to sort out complex problems such as this. Claims or defenses which are good “on paper” often evaporate when subjected to the time-honored test of cross-examination by skilled trial counsel. Juries have an uncanny ability to evaluate the credibility of a witness, especially an expert. Problems presented in a case such as this, namely conflicting expert testimony and missing evidence, are best solved by juries.

Considering the evidence in a light most favorable to the Woods, as we must, we conclude that a jury could reasonably find that the tower was in a defective condition before it left the defendants’ facilities. Although the District Court concluded that the Woods’ evidence suggests a “weak possibility’ of a manufacturing defect, we conclude that, based on the affidavits in the record, reasonable minds could differ in this regard. Furthermore, on review, all reasonable inferences should be drawn in favor of the party opposing summary judgment. As long as there is a material issue of fact in dispute, as exists under the circumstances here, summary judgment is not appropriate.

In sum, we conclude that the evidence submitted by the Woods in opposition to the defendants’ motion for summary judgment adequately discharged their burden of demonstrating genuine issues of material fact. We do not suggest that the disputed facts discussed herein are the only disputed facts that remain to be determined in this case. However, the facts discussed are indicative of the presence of disputed issues of fact that preclude the resolution of the Woods’ manufacturing defect claim by summary judgment.

We hold that the District Court erred in granting summary judgment for the defendants on the Woods’ claim based on manufacturing defect.

ISSUE 2

Did the District Court err in granting summary judgment in favor of UNR and Rohn and against the Woods on their failure to warn claim?

The Woods contend that the District Court erred in granting summary judgment to the defendants on the failure to warn theory. The Woods argue that the defendants were negligent and strictly liable for failing to warn potential users of the tower that they should not attempt to repair or modify the tower and then attempt to erect it. The Woods also contend that the tower was defective because it was sold without guy wires and without a warning that guy wires should be used when erecting the tower.

Defendants maintain that the Woods simply cannot establish that any failure to warn on their part caused the accident and injuries. They reiterate that the tower collapsed due to a defective weld which was applied in a repair which they specifically deny making. In the alternative, they argue that even if they had provided the warnings or instructions urged by the Woods, Jarold would not have heeded them.

In orders filed May 15, 1996, and January 14, 1997, the District Court denied the defendants’ motions for summary judgment on the failure to warn claim. On March 26, 1997, after hearing oral argument on the issue, the District Court revisited the matter and granted summary judgment in favor of the defendants on all claims. In its order granting the summary judgment, however, the District Court provided no basis or rationale for its reversal on the failure to warn issue.

Montana law recognizes failure to warn as a distinct cause of action under the theory of strict products liability. We have previously held that “a failure to warn of an injury causing risk associated with the use of a technically pure and fit product can render such product unreasonably dangerous.” Brown, 176 Mont. at 110, 576 P.2d at 718. As with a manufacturing defect, a strict liability claim for failure to warn requires proof that the product was in a defective condition, “unreasonably” dangerous to the user or consumer, that the defect caused the accident and injuries complained of, and that the defect is traceable to the defendant. Riley v. American Honda Motor Co. (1993), 259 Mont. 128, 132, 856 P.2d 196, 198; Brown, 176 Mont at 110, 576 P.2d at 718.

Under the first element, the Woods must prove that the tower was in a defective condition, unreasonably dangerous to the user or consumer. As stated above, the failure to warn of an injury-causing risk associated with the use of a technically pure and fit product can render such product unreasonably dangerous. The product is automatically defective if it is unreasonably dangerous and a warning is required but not given. Krueger v. General Motors Corp. (1989), 240 Mont. 266, 278, 783 P.2d 1340, 1348. A product may be defective if purchasers and likely users have been misinformed or inadequately informed about either the risks or dangers involved in the use of the product or how to avoid or minimize the harmful consequences from such risks. Streich v. Hilton-Davis (1984), 214 Mont. 44, 54, 692 P.2d 440, 445.

The Woods presented affidavit testimony to the District Court in support of their theory that the tower was defective and unreasonably dangerous because it lacked an effective warning. Ronald Glovan’s affidavit filed on February 16, 1996, related to the potential dangerous propensities of the tower and included the following statements:

I have also pointed out in my report that the tower was design defective because it was not guyed. The company should have provided by literature, warning or actual guying assembly information to the buyer to use guy wires when erecting the tower. The Company knows that this is true in light of its literature promoting the use of guying assembly.

Furthermore, in supplemental answers to interrogatories, the Woods informed defendants that Dale Bussman, one of their expert witnesses

will testify that the tower was defective in that, considering the height of the tower, guy wires should have been used. Further, he will testify that the tower was defective because it should have been sold with a guying assembly. He will testify that the tower was defective because there should have been included a warning regarding the use or lack of the use of guy wire, guy wire assembly and also because such tower should not be repaired or re-erected. Mr. Bussman will testify that the literature which was likely used in connection with the sale of the particular tower, or at least which likely accompanied the tower at the time of the sale of the tower, included language ... which ... conveyed a false sense of security and could easily lead the buyer to believe that repairs could be made to the tower and that the tower could thereafter be used. Using the terms ‘wind loading at a minimum’ does the same thing, that is, provide a false sense of security to the purchaser/user of the tower.

The question before the District Court was whether genuine issues of material fact existed regarding the potential danger of erecting the tower without an appropriate warning and failing to sell the tower without a guy wire assembly, as well as failing to advise the user that the tower should not be erected without guy wires. In light of the affidavit testimony presented by the Woods, we conclude that the District Court erroneously resolved these issues in favor of the manufacturers.

Under the second element, a showing of proximate cause is necessary for recovery in strict liability. Brown, 176 Mont. at 110, 576 P.2d at 719. This Court has adopted a flexible standard of proof on causation which may be met by circumstantial, as well as direct, evidence. Brown, 176 Mont. at 106, 576 P.2d at 716. While causation is ordinarily a question of fact in a failure to warn claim, it may be determined as a matter of law where reasonable minds can reach only one conclusion regarding causation. See Broham v. State (1988), 230 Mont. 198, 202-03, 749 P.2d 67, 70. Causation for a failure to warn claim can be satisfied by evidence that a warning would have altered the plaintiff’s use of a product or prompted the plaintiff to take precautions to avoid the injury. Riley, 259 Mont. at 133, 856 P.2d at 199.

In Jarold Wood’s affidavit, he stated:

This tower, I had been told by Rohn literature at the time I erected it, was sold as a free standing tower. Accordingly, I did not use guy wires. Further, there was no guy wire assembly which was part of this tower. Knowing what I know now I would never erect such a tower without using guy wires or having a guying assembly in place on the tower. This tower would not have fallen over if a guying assembly had been a part of this tower. If it had been a part of the tower I know I would have used it.

At a minimum, pursuant to Riley, this evidence raises a genuine issue of material fact regarding causation.

Moreover, the Woods present other evidence which raises a genuine issue of material fact regarding causation. First, Glovan’s affidavit filed on February 16, 1997, stated, “It is my opinion that had this tower been guyed the accident would not have occurred.” Second, in an answer to interrogatories, the Woods stated that Bussman “will further testify that if guy wires had been utilized in the erection of the involved tower that the catastrophic event would not have occurred.”

The defendants acknowledge this testimony, but point out that Jarold Wood’s affidavit contradicts earlier testimony he gave in a deposition taken on October 26, 1995. In that deposition, Jarold testified that he did not need any instructions before erecting the tower and that “[g]uy wires on this type of tower were not needed below 48 feet.” The defendants contend that Jarold changed his testimony to defeat the motion for summary judgment. The District Court ruled that any inconsistency between Jarold’s affidavit and earlier deposition testimony was not clearly contradictory or motivated to defeat defendants’ motion for summary judgment.

In Stott v. Fox (1990), 246 Mont. 301, 309, 805 P.2d 1305, 1309-10 (quoting Wilson v. Westinghouse (8th Cir. 1988), 838 F.2d 286, 289), this Court stated that:

While the district courts must exercise extreme care not to take genuine issues of fact away from juries, ‘[a] party should not be allowed to create issues of credibility by contradicting his earlier testimony’... Ambiguities and even conflicts in a deponent’s testimony are generally matters for the jury to sort out, but a district court may grant summary where a party’s sudden and unexplained revision of testimony creates an issue of fact where none existed before. Otherwise, any party could head off a summary judgment motion by supplementing previous depositions ad hoc with a new affidavit, and no case would ever be appropriate for summary judgment.

See also Fenger v. Flathead County (1996), 277 Mont. 507, 510-12, 922 P.2d 1183, 1184-86; Kaseta v. Northwestern Agency of Great Falls (1992), 252 Mont. 135, 138-40, 827 P.2d 804, 806-07.

The District Court observed that any inconsistencies in Jarold’s testimony was not a sudden and unexplained revision of testimony to create an issue of fact where none existed before. We will not second guess the District Court on this issue. We conclude that any conflict or ambiguity in Jarold’s testimony should be for a jury to sort through and ultimately resolve.

ISSUE 3

Did the District Court err in denying the motion to dismiss filed by UNR and Rohn?

In their brief in support of summary judgment the defendants requested that the District Court dismiss the Woods’ case because the failed section of the tower was missing. The defendants specifically allege that the Woods failed to preserve the evidence. We note that the District Court did not explicitly deny their motion; however, it is clear from the memoranda and orders granting summary judgment to the defendants that the court denied the defendants’ motion.

Although the conduct of the Woods or their attorneys was not seriously at issue, the defendants’ motion was essentially a request to dismiss the action as a sanction under Rule 37(b)(2)(C), M.R.Civ.P. Our standard of review of sanctions imposed under Rule 37 is whether the district court abused its discretion. First Bank (N.A.)—Billings v. Heidema (1986), 219 Mont. 373, 375, 711 P.2d 1384, 1386.

The crux of the defendants’ claim is that the case should be dismissed because it is impossible for them to examine and evaluate the failed section of the tower. Without this opportunity they claim that they are highly prejudiced and their ability to present a defense is significantly impaired.

The absence of the failed section of the tower certainly makes litigation of the manufacturing defect claim difficult for both parties. This Court has stated, however, that a claim of product defect may be proven by circumstantial evidence and inferences therefrom, as well as by direct evidence. Eisenmenger by Eisenmenger v. Ethicon, Inc. (1994), 264 Mont. 393, 401, 871 P.2d 1313, 1318, cert. denied (1994), 513 U.S. 919, 115 S.Ct. 298, 130 L.Ed.2d 211; Brandenburger, 162 Mont. at 517, 513 P.2d at 274. A plaintiff does not meet his or her burden of proof, however, by merely establishing that an accident occurred. Brown, 176 Mont. at 106, 576 P.2d at 717. In Brandenburger, we adopted the following standard of proof to establish a defect in a manufacturer’s product:

The nature and quality of evidence used in products liability cases to show the defect and the nexus between the defect and the accident naturally varies. The most convincing evidence is an expert’s pinpointing the defect and giving his opinion on the precise cause of the accident after a thorough inspection. If an accident sufficiently destroys the product, or the crucial parts, then an expert’s opinion on the probabilities that a defect caused the accident would be helpful. If no such opinion is possible, as in the present case, the user’s testimony on what happened is another method of proving that the product was defective. If the user is unable to testify, as where the accident killed him or incapacitated him, no other witness was present at the time of the accident, and the product was destroyed, the fact of the accident and the probabilities are all that remain for the party seeking recovery. At this point the plaintiff can attempt to negate the user as the cause and further negate other causes not attributable to the defendant. These kinds of proof introduced alone or cumulatively are evidence which help establish the presence of a defect as the cause of the damage.

Brandenburger, 162 Mont. at 518, 513 P.2d at 275 (quoting Stewart v. Budget Rent-A-Car Corp. (1970), 52 Haw. 71, 75, 470 P.2d 240, 243). Here, both sides have offered testimony through their expert affidavits on the presence of a defect and when it occurred even though the failed part is missing.

Accordingly, we conclude that the District Court did not abuse its discretion in denying the defendants’ motion to dismiss because of the missing evidence.

CONCLUSION

After review of the record in this case, we conclude that the evidence submitted by the Woods was sufficient to withstand the defendants’ motion for summary judgment. We hold that the District Court erred in granting summary judgment in favor UNR and Rohn on the Woods’ manufacturing defect and failure to warn claims. We affirm the District Court’s denial of the defendants’motion to dismiss which was premised on the missing evidence.

In conclusion, the judgment of the District Court is affirmed in part and reversed in part. This matter is remanded for further proceedings consistent with this opinion.

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


text:
    FROM: The District Court of the 10th Judicial District. County of Fergus.
    STATE OF MONTANA, Plaintiff, vs. George Daniel Roane, Defendant.
    NO. DC 95-17 DECISION
   On August 27, 1996, it was the sentence and judgment of the court as follows: 1. The defendant shall be sentenced to the Montana State Prison for a period of fifteen (15) years, with seven (7) years of such term suspended. As a credit against such sentence, the defendant shall be given credit for time previously served in the Fergus County Jail of 26 days. 2. The sentence imposed herein shall run concurrently with the sentence imposed in Cause Number DC 94-32, wherein the defendant’s deferred imposition of sentence was revoked, and he was sentenced on the underlying offense of felony deceptive practices. 3. The defendant shall enroll in and successfully complete both phase one and phase two of the sex offender treatment program available at the Montana State Prison, and he shall do so before he will be eligible for release or parole. Upon release or parole from prison, the defendant shall be required to enroll in and fully participate in an aftercare treatment program for sex offenders, the extent and duration of such aftercare program being in the discretion of a state certified and licensed therapist. 4. During the portion of the sentence which is suspended, the defendant shall be under the supervision of the Adult Probation and Parole Bureau, and shall abide by all terms and conditions of his parole, which shall include conditions as stated in the August 27,1996 judgment.

DATED this 4th day of March, 1997.

On February 20,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the application shall be dismissed with prejudice.

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Anthony Michael Sereduck, Defendant.
    NO. DC 95-264 DECISION
   On January 2, 1997, it was the judgment of this Court that the defendant be incarcerated at the Montana State Prison for the offense of Four Counts of Felony Theft by Deception for a term of forty (40) years (ten (10) years on each count, to be served consecutive.) Should the defendant be allowed parole, he must immediately resume his restitution payments as a condition of his release from custody. Of this period of incarceration, thirty (30) years are suspended, subject to the conditions imposed by this Court’s Judgment of April 4, 1996. The defendant must also reimburse the State of Montana for $742.20 in extradition costs. The defendant is to be given credit for twenty-two (22) days served in the Flathead County Detention Center pending final disposition in this matter. Given the amount of restitution still to be paid in this matter, the defendant is not to be given credit for time otherwise served on probation.

On February 20,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

DATED this 4th day of March, 1997.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. ffm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Anthony Michael Sereduck for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Michael Jack Speiser, Defendant.
    NO. 11986 DECISION
    DATED this 4th day of March, 1997.
   On June 3, 1996, it was the judgment of the Court that Michael Jack Speiser be and is hereby committed to the Department of Corrections for a term of ten (10) years on Count II (Theft, a Felony) for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the judgment of the Court that Michael Jack Speiser be and is hereby sentenced to a term of six (6) months each on Count III through VI (misdemeanors) in the Missoula County Jail in Missoula, Montana. The sentences shall run concurrently with each other. Defendant shall receive credit for time served at Missoula County Jail from January 3, 1996, through date of sentencing, June 3, 1996, in the amount of one hundred fifty-two (152) days.

On February 20, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Michael Jack Speiser for representing himself in this matter.


text:
    FROM: The District Court of the 1st Judicial District. County of Lewis & Clark.
    STATE OF MONTANA, Plaintiff, vs. Roland Levon Starkey, Defendant.
    NO. CDC 96-94 DECISION
    DATED this 4th day of March, 1997.
   On October 10, 1996, it was hereby ordered, adjudged and decreed that for the offense of Count I - Driving or in actual physical control of a motor vehicle while under the influence of alcohol and/or drugs (6th offense), a felony, the defendant is sentenced to the Montana Department of Corrections for a period of ten (10) years, with five (5) years suspended, upon the conditions hereinafter set forth. The Department may place the defendant into an appropriate community based program, facility, or a State correctional institution. It is further ordered, adjudged and decreed that for the offense of Count II - Driving after having been adjudged an habitual traffic offender, a misdemeanor, the defendant is sentenced to the Lewis and Clark County Jail for a period of one (1) year, with all of that time suspended upon the conditions hereinafter set forth. It is further ordered, adjudged and decreed that for the offense of Count III - Driving without liability insurance in effect, a misdemeanor, the defendant shall pay a fine of $350.00 and the mandatory surcharge of $20.00. The sentence imposed for Count II shall run consecutively to the sentence imposed for Count I. The conditions of defendant’s parole/probation are stated in the October 10, 1996 judgment. The defendant is granted six (6) days’ credit for time served prior to sentencing.

On February 20,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Roland Levon Starkey for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Mineral.

      STATE OF MONTANA, Plaintiff, vs. Peter J. Surges, Jr., Defendant.
    NO. C-560 DECISION
    DATED this 4th day of March, 1997.
   On December 31, 1996, it was ordered that the ten (10) year suspended portion of the sentence imposed by this Court upon the defendant on March 15, 1989 be and the same is hereby revoked and Peter J. Surges, Jr., committed to the Montana State Prison at Deer Lodge, Montana to serve the remaining portion of said ten (10) year term. As previously specified by this Court’s Order of March, 1989, the portion of the defendant’s sentence hereby revoked and imposed shall run consecutive to the remainder, if any, of the original ten (10) year prison sentence not suspended. The Defendant is given credit for all time served in custody and designated as a non-violent offender. The Court hereby recommends and directs that prior to placement at the Montana State Prison, the Defendant be screened for Pre-Release with the intention that he be placed at an appropriate Pre-Release facility if he is deemed suitable and be transferred to the Montana State Prison in the event he is not suitable for Pre-Release.

On February 20, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Peter J. Surges, Jr. for representing himself in this matter.


text:
    FROM: The District Court of the 13th Judicial District. County of Carbon.
    STATE OF MONTANA, Plaintiff, vs. Jason Scott Tomlinson, Defendant.
    NO. DC 96-22 DECISION
   On December 30, 1996, it was ordered that the defendant, for the crime of Aggravated Kidnapping, be and hereby is committed to the Montana State Prison pursuant to 46-18-201(l)(e), Mont. Code Ann., for a term of thirty (30) years, with ten (10) of those years suspended; it is further ordered that the defendant, for the use of a firearm during the commission of the above crime, be and hereby is committed to the Montana State Prison pursuant to 46-18-221, Mont. Code Ann., for a term of five (5) years. Said sentence is to run consecutively with that sentence imposed above. Defendant shall receive credit, in the amount of 123 days, for time served in the Carbon County Jail. It is further ordered that that portion of the sentence that is suspended is subject to conditions as stated in the December 30, 1996 judgment.

DATED this 4th day of March, 1997.

On February 20,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Jason Scott Tomlinson for representing himself in this matter.


text:
    FROM: The District Court of the 1st Judicial District. County of Lewis & Clark.
    STATE OF MONTANA, Plaintiff, vs. David Dwight Williams, Defendant.
    NO. ADC 96-144 DECISION
   On December 9,1996, it was ordered, adjudged and decreed that for the offense of Partner or Family Member Assault, a felony, the defendant is sentenced to the Montana Department of Corrections for a period of five (5) years, with two (2) suspended, upon the conditions hereinafter set forth. The Department may place the defendant into an appropriate community based program, facility, or a State correctional institution, with the Court’s recommendation that the defendant be placed in the Butte Pre-Release Center. The foregoing sentence shall run concurrently with the sentence imposed in Cause No. BDC 96-35 of the above-entitled Court. Conditions of defendant’s probation/parole are stated in the December 9, 1996 judgment. The defendant is granted 106 days’ credit for time served prior to sentencing (including time at treatment).

On February 20, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

DATED this 4th day of March, 1997.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the application shall be dismissed with prejudice.

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.
    STATE OF MONTANA, Plaintiff, vs. Nick Lenier Wilson, Defendant.
    NO. DC 95-11 DECISION
   On June 14,1995, the Court ordered that the defendant be punished by confinement in the Montana State Prison for a term of fifty (50) years on Count I, with ten (10) years suspended and for a term of fifty (50) years on Count II, with ten (10) years suspended, to run concurrent with Count I, for a total of fifty (50) years in the Montana State Prison with ten (10) years suspended. Excluding the 90 days spent in jail on Justice Court charges, the defendant shall receive credit for time served. The Court further orders that the defendant is hereby designated a dangerous offender for parole eligibility purposes based on his prior record. The Court further orders that the suspended sentence shall be upon the conditions as stated in the June 14, 1995 judgment, and the court reserves the right to impose additional conditions of probation. On February 21, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present via phone conference call from Spur TX, and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended as follows:

The defendant shall be punished by confinement in Montana State Prison for a term of fifty years on count I, with twenty (20) years suspended and for a term of fifty (50) years on Count II, with twenty (20) years suspended, to run concurrent with Count I, for a total of fifty (50) years with twenty (20) years suspended. All other conditions as stated in the June 14,1995 judgment shall remain the same.

The reasons for the amendment are that it would bring the defendant’s sentence more in line with similar sentences and more in line with the seriousness of his offense. The original sentence gave the appearance of punishing the defendant because he went to trial.

Done in open Court this 21st day of February, 1997.

DATED this 4th day of March, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Nick Lenier Wilson for representing himself in this matter.


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.
    STATE OF MONTANA, Plaintiff, vs. Nick Lenier Wilson, Defendant.
    No. DC 95-11 AMENDED JUDGMENT AND COMMITMENT TO THE STATE PENITENTIARY
    DATED this 27th day of March, 1997.
   On June 14,1995, the Court ordered that the defendant be punished by confinement in the Montana State Prison for a term of fifty (50) years on Count I, with ten (10) years suspended and for a term of fifty (50) years on Count II, with ten (10) years suspended, to run concurrent with Count I, for a total of fifty (50) years in the Montana State Prison with ten (10) years suspended. Excluding the 90 days spent in jail on Justice Court charges, the defendant shall receive credit for time served. The Court further orders that the defendant is hereby designated a dangerous offender for parole eligibility purposes based on his prior record. The Court further orders that the suspended sentence shall be upon the conditions as stated in the June 14, 1995 judgment, and the court reserves the right to impose additional conditions of probation.

On February 21, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present via phone conference call from Spur, TX, and proceeded Pro Se. The state was not represented.

The Defendant having been duly informed of the amended judgment and commitment, and refusing to waive his right to appear before the undersigned for this pronouncement of sentence, whereupon,

IT IS ORDERED, ADJUDGED AND DECREED that after careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended as follows:

The defendant shall be punished by confinement in Montana State Prison for a term of fifty years on count I, with twenty (20) years suspended and for a term of fifty (50) years on Count II, with twenty (20) years suspended, to run concurrent with Count I, for a total of fifty (50) years with twenty (20) years suspended. All other conditions as stated in the June 14, 1995 judgment shall remain the same.

The reasons for the amendment are that it would bring the defendant’s sentence more in line with similar sentences and more in line with the seriousness of his offense. The original sentence gave the appearance of punishing the defendant because he went to trial.

This judgment and sentence is to be as of the 21st day of February, 1997.

Ted L. Mizner, District Court Judge


text:
    APRIL 1997 CALENDAR
    FROM: The District Court of the 6th Judicial District. County of Park.
    STATE OF MONTANA, Plaintiff, vs. John William Francis, Defendant.
    No. 95-84 DECISION
    DATED this 30th day of April, 1997.
   On December 18, 1995, it was ordered that the defendant, John William Francis, a/k/a Jack Richard Rich, be sentenced to Montana State Prison for a term of ten (10) years for the offense of Theft, a Felony, under Section 46-18-101(3)(b) and defendant is ineligible for parole or supervised release for the entire ten (10) years within the provisions of Section 46-18-201.

On April 18,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Kristina Guest, legal intern of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 18th day of April, 1997.

Chairman Hon. G. Todd Baugh, Member Hon. Richard G. Phillips and Member Hon. Russell Fagg.

The Sentence Review Board wishes to thank Kristina Guest, legal intern of the Montana Defender Project, for representing John William Francis in this matter.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.

      STATE OF MONTANA, Plaintiff, vs. Frank Fuhrmann, Defendant.
    No. DC 93-322 DECISION
    DATED this 30th day of April, 1997.
   On December 15,1994, it was adjudged and decreed that the said Frank Fuhrmann be punished by imprisonment in the Montana State Prison at Deer Lodge, Montana, for the term of eighty (80) years for the offense of Deliberate Homicide, a Felony. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, from July 8, 1993 through December 15, 1994, for 526 days. It is further ordered that because the defendant, while engaged in the commission of the offense of Deliberate Homicide (Felony) knowingly used a weapon, to wit: a knife; he is hereby sentenced to the term of ten (10) years in the Montana State Prison under the authority of46-18-221, Montana Code Annotated. This term of imprisonment shall be served consecutively with the term imposed for the commission of the crime of Deliberate Homicide (Felony) as charged in the Information. It if further ordered that defendant shall not be eligible for parole placement in any supervised release program or for placement in any program or facility besides Montana State Prison for the first twenty (20) years of the sentence imposed in this case. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court.

On April 18,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present via phone conference call from Spur, TX, and proceeded Pro Se. The state was represented by Brent Brooks, Yellowstone Deputy County Attorney.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition shall be dismissed with prejudice.

Done in open Court this 18th day of April, 1997.

Chairman, Hon. G. Todd Baugh, Member Hon. Wm. Neis Swandal and Member Hon. Richard G. Phillips.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.

      STATE OF MONTANA, Plaintiff, vs. Dawn Ann Gauchay, Defendant.
    No. DC 96-009 DECISION
    DATED this 30th day of April, 1997.
   On February 9, 1996, it was the judgment of this Court that the defendant be committed to the Department of Corrections for forty (40) years for the offense of Deliberate Homicide for appropriate placement by that agency. Given the nature of her offense and this Court’s concerns about her future behavior, the defendant is to be ineligible for parole until she completes all treatment programs deemed appropriate for her rehabilitation and is no longer considered a danger to others by her supervising officers and treatment providers. Should the defendant be allowed parole and/or probation, conditions of her release from custody are to be imposed which are stated in the February 9,1996 judgment. The defendant is to be given credit for one hundred forty-one (141) days served in the Flathead County Detention Center pending final disposition in this matter.

On April 18,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Julie Weddle, legal intern of the Montana Defender Project. The state was represented by Ed Corrigan, Flathead Deputy County Attorney.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed with the modification that the defendant receive a complete psychological evaluation by Warm Springs State Hospital personnel and after that time, appropriate placement for the defendant will be determined by the Department of Corrections.

Reasons for the amendment are because it does not appear that appropriate placement was made initially, based upon the defendant’s age and the limited amount of background information which was made available to the Department of Corrections.

Done in open Court this 18th day of April, 1997.

Chairman, Hon. G. Todd Baugh, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Julie Weddle, legal intern of the Montana Defender Project, for representing Dawn Ann Gauchay in this matter and also Ed Corrigan, Flathead Deputy County Attorney, for representing the State.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.

      STATE OF MONTANA, Plaintiff, vs. Jean Marie Loeffler, Defendant.
    No. 9340 DECISION
    DATED this 30th day of April, 1997.
   On March 3, 1997, the Court found the defendant in violation of the conditions of her suspended sentence for the offense of Criminal Possession of Dangerous Drugs With Intent to Sell, a Felony, and it is the judgment of the Court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and she is hereby committed to the Department of Corrections for a term of ten (10) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. Due to the defendant’s failure to comply with the terms and conditions of her suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that she is not entitled to receive, and shall not receive, credit for any elapsed time between the date of her conviction and the date of this Order.

On April 18,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was represented by Joe Cobel, Yellowstone Deputy County Attorney.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 18th day of April, 1997.

Chairman, Hon. G. Todd Baugh, Member Hon. Wm. Neis Swandal and Member Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Jean Loeffler for representing herself in this matter and also Joe Cobel, Yellowstone Deputy County Attorney, for representing the State.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Debra Rice, Defendant.
    No. 11652 DECISION
   On November 12,1996, the Court found the defendant in violation of the conditions of her suspended sentence and it is the judgment of the Court that defendant’s prior suspended sentence for the offense of Forgery, a Felony, is hereby revoked and that the defendant be and she is hereby committed to the Department of Corrections for a term of ten (10) years for suitable placement, which may include an appropriate community based program, facility, or a State Correctional Institution. The sentence shall run concurrently with the sentence imposed in Cause No. 11647. It is the recommendation of the Court that the defendant be considered for placement in a pre-release center. It is the recommendation of the Court that as conditions of any parole or early release that the defendant abide by all of the conditions and provisions of the Judgment done in open court on the 14th day of November, 1995. Due to the defendant’s failure to comply with the terms and conditions of her suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that she is not entitled to receive, and shall not receive, credit for any elapsed time between the date of her conviction and the date of this Order, except that she shall receive credit from May 26, 1995, through June 1, 1995; and from October 17, 1996, through date of sentencing, November 12, 1996, for thirty-four (34) days jail time which she has previously served.

DATED this 30th day of April, 1997.

On April 18,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 18th day of April, 1997.

Chairman, Hon. G. Todd Baugh, Member Hon. Wm. Neis Swandal and Member Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Debra Rice for representing herself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Debra Rice, Defendant.
    No. 11647 DECISION
   On November 15,1996, the Court found the defendant in violation of the conditions of her suspended sentences and it is the judgment of the Court that defendant’s prior suspended sentences are hereby revoked and that the defendant be and she is hereby committed to the Department of Corrections for a term of five (5) years each on Count I (Assault, a Felony) and Count II (Custodial Interference, a Felony) for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. (The sentence on Count III: Obstructing a Peace Officer, a Misdemeanor, has expired.) The sentences shall run concurrently with each other and concurrently with the sentence imposed in Cause No. 11652. It is the recommendation of the Court that if the defendant is paroled that she be paroled to a pre-release center. Due to the defendant’s failure to comply with the terms and conditions of her suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that she is not entitled to receive, and shall not receive, credit for any elapsed time between the date of her conviction and the date of, this Order, except that she shall receive credit from May 26, 1995, through June 1, 1995; and from October 17, 1996, through date of sentencing, November 15, 1996, for thirty-seven (37) days jail time which she has previously served.

DATED this 30th day of April, 1997.

On April 18,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 18th day of April, 1997.

Chairman, Hon. G. Todd Baugh, Member Hon. Wm. Neis Swandal and Member Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Debra Rice for representing herself in this matter.


text:
    MAY 1997 CALENDAR
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA Plaintiff, vs. Tareque A. Ahmed, Defendant.
    NO. DC 94-84 DECISION
   On January 31,1995, it was the sentence and judgment of this Court as follows: 1. Based on the court’s written judgment of October 7,1994, the court finds the defendant guilty of Count I, Aggravated Kidnaping, a Felony, in violation of Section 45-5-303, MCA. 2. Based on the court’s written Judgment of October 7,1994, the court finds the defendant guilty of Count 2, Felony Assault, a Felony, in violation of Section 45-5-202, MCA. 3. For the offense of Aggravated Kidnaping, a Felony, the defendant shall serve a period of twenty (20) years at the Montana State Prison in Deer Lodge, Montana. Pursuant to Section 46-18-221, MCA, the court finds that the defendant used a handgun and a knife in the course of committing the offense of Aggravated Kidnaping. The court finds that none of the exceptions found in Section 46-18-222, MCA, apply in this case. The court therefore imposes an additional sentence of five years in the Montana State Prison for the defendant’s use of dangerous weapons, which shall be served consecutively to the sentence imposed for Aggravated Kidnaping. The defendant’s sentence under Count I is therefore twenty-five (25) years in the Montana State Prison. 4. For the offense of Felony Assault, a Felony, the defendant shall serve a period of ten (10) years at the Montana State Prison in Deer Lodge, Montana. Pursuant to Section 46-18-221, MCA, the court finds that the defendant used a handgun and a knife in the course of committing the offense of Felony Assault. The court finds that none of the exceptions found in Section 46-18-222, MCA, apply in this case. The court therefore imposes an additional sentence of five years in the Montana State Prison for the defendant’s use of dangerous weapons, which shall be served consecutively to the sentence imposed for Felony Assault. The defendant’s sentence under Count 2 is therefore fifteen (15) years in the Montana State Prison. 5. The sentences imposed above shall be served concurrently. The Court finds that the defendant represents a substantial danger to other persons or society. Pursuant to Section 46-18-404(l)(b), MCA, the defendant is hereby declared a dangerous offender for the purposes of parole eligibility. 7. Should the defendant be paroled, under no circumstances may he be released to any state or territory of the United States. The defendant shall remain in custody at all times unless, having been paroled, he is deported. Further, the defendant shall be ineligible for re-entry into the United States, and shall be subject to arrest and imposition of any time remaining on his sentence should he re-enter the United States or its territories. The defendant shall receive credit for three hundred two (302) days previously served in New York and the Gallatin County Detention Center from March 14, 1994, through January 11, 1995, and shall receive credit at the Gallatin County Detention Center after January 11, 1995, until his transportation to the Montana State Prison by the Gallatin County Sheriff.

DATED this 13th day of June, 1997.

On May 9,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by John Houston Pope, Attorney at Law, via phone conference call. The state was represented by Marty Lambert, County Attorney of Gallatin County.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 9th day of May, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Alternate Member, Hon. Robert Boyd.

The Sentence Review Board wishes to thank John Houston Pope, Attorney at Law, for representing Tareque Ahmed in this matter and also Marty Lambert, County Attorney of Gallatin County, for representing the State.


text:
    FROM: The District Court of the 13th Judicial District. County of Big Horn.
    STATE OF MONTANA, Plaintiff, vs. Hiram Vine Armajo, Defendant.
    NO. DC 93-07 DECISION
   On January 17, 1997, the defendant, Hiram Vine Armajo, was found to be in violation of the terms and conditions of his previously probationary sentence for the offense of Felony Assault. That as a result of that violation the defendant be, and is hereby sentenced to the Department of Corrections for a term of four (4) years for placement in an appropriate facility or institution. The defendant shall be required to pay any restitution remaining imposed under the original sentence.

On May 8,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

DATED this 13th day of June, 1997.

Done in open Court this 8th day of May, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Alternate Member, Hon. Robert Boyd.

The Sentence Review Board wishes to thank Hiram Vine Armajo for representing himself in this matter.


author: JUSTICE TRIEWEILER

text:
    IN RE ESTATE OF DAVID BENNIE HAAGENSON, Deceased.
    No. 97-297.
    Submitted on Briefs November 6, 1997.
    Decided November 25, 1997.
    54 St.Rep. 1271.
    286 Mont. 34.
    952 P.2d 1385.

      For Appellants: Bradley D. Dantic; Worden, Thane & Haines; Missoula.
    For Respondent: Michael Sol; Sol & Wolfe Law Firm; Missoula. Guardian Ad Litem: Alice E. Kennedy; Attorney at Law; Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Sara and Benjamin Haagenson filed a petition in the District Court for the Fourth Judicial District in Missoula County in which they sought removal of Darla Zenker-Haagenson as personal representative, and for supervised administration of the Estate of David B. Haagenson. Following a hearing, the petition was denied. Sara and Benjamin appeal. We affirm the order of the District Court.

The issue on appeal is whether the District Court abused its discretion when it denied the appellants’ petition.

FACTUAL BACKGROUND

David B. Haagenson and Kathy Finneman married in 1974. They had two children, Sara and Benjamin, who are now 18 and 17 years old, respectively. David and Kathy divorced in August 1988. Afterward, they shared joint custody and support of the children.

In November 1988, David married Darla Zenker. In April 1991, David suffered a heart attack and stroke from which he was permanently disabled. He lost much of his ability to speak, write, and read, as well as many other motor functions. Nonetheless, David maintained his ability to drive and remained intellectually competent. Shortly after he became disabled, he and Darla stopped living together. During the following years, both David and Darla expressed their desire to divorce, and Darla filed a petition for dissolution of marriage with the District Court in April 1996, two weeks before David’s death. However, due to David’s hospitalization, she did not inform David of the petition and ultimately withdrew it. At the time of David’s death on April 30, 1996, they were still married.

After David’s disability, he and Darla brought a malpractice action against the doctors who had been responsible for his treatment following his heart attack and stroke. The suit was eventually settled for approximately $900,000; Darla received approximately $200,000; and David received approximately $700,000. The parties to the settlement were bound by a confidentiality agreement not to disclose specific details of the settlement, although the terms of the agreement permitted disclosure to immediate family members.

After David received the settlement funds, he established a conservatorship at First Trust Company of Montana to protect and manage most of his financial affairs. David’s parents and Kathy were under the impression from David that a trust of some type had also been established to provide for the children, although none had actually been created. Despite the requests of Darla, Sara and Benjamin, and other family members, David did not have a will prepared or do any other estate planning prior to his death at age forty-two in April 1996.

On June 5, 1996, Darla applied to the District Court for appointment as personal representative of David’s estate, and she was appointed. Darla continued to use First Trust Company of Montana to administer the estate. She gave public notice to potential creditors of the estate and paid all creditor claims, except four claims made by the appellants in November 1996. She also arranged for an auction of items from the estate and sold David’s new truck; all proceeds from the sales and from other assets of the estate were deposited with First Trust Company of Montana.

In January 1997, the appellants filed a petition for removal of Darla as personal representative and for supervised administration of the estate. After a hearing on March 28, 1997, the District Court denied the petition.

DISCUSSION

Did the District Court abuse its discretion when it denied the appellants’ petition?

We review a district court’s decision regarding removal of a personal representative to determine whether the district court has abused its discretion. See In re Estate of Peterson (1994), 265 Mont. 104, 108, 874 P.2d 1230, 1232; In re Estate of Nelson (1990), 243 Mont. 276, 278, 794 P.2d 677, 678; In re Estate of Stone (1986), 223 Mont. 327, 330, 727 P.2d 508, 511.

Pursuant to § 72-3-526(2), MCA, a district court may find cause for removal of the personal representative:

(a) when removal would be in the best interests of the estate; or
(b) if it is shown that... the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office.

The appellants did not allege in their petition for removal that Darla had disregarded an order of the court. They alleged only that due to a conflict of interest with the children and with David she had become unable to discharge the duties of a personal representative, and that she mismanaged the estate and had failed to perform the duties of her office.

Among the specific allegations made by the appellants was their contention that Darla’s failure to pay support claims made by the children justified her removal. The claims, however, listed no basis for the requested amounts, which totaled approximately $200,000. The appellants rejected Darla’s attempts to learn the basis of the claims and did not provide grounds for the amount, nor did they present testimony at the hearing to justify the specific claims. In fact, there was testimony that the children were receiving approximately $600 each month as Social Security benefits because of David’s disability. Furthermore, Darla explained that she doubted whether in her fiduciary capacity she could deplete the children’s share of the estate by essentially paying a support claim to the children’s mother, who did not have an interest in the estate. As a result of her hesitation, she moved for, and the District Court appointed, a guardian ad litem to protect the children’s interests. Therefore, in light of the overwhelming evidence to support Darla’s initial denial of the claims and the appellant’s failure to present evidence other than the initial allegations, we conclude that the District Court did not abuse its discretion when it found Darla’s denial insufficient grounds on which to base her removal.

Another allegation was that Darla improperly disposed of estate items, including a claim that she sold David’s truck without first giving notice to or allowing the children to purchase it. The appellants offered no evidence at the hearing regarding Darla’s disposal of the items, and rely almost exclusively on their pleadings to assert that it is “uncontroverted” that Darla mismanaged the estate by the manner in which she disposed of the items. The District Court heard testimony that all proceeds from any items of the estate which had been sold were deposited with the remainder of the estate funds, and that Darla accounted for all items of the estate. We conclude that the District Court did not abuse its discretion when it determined that the appellants’ mere allegations were an insufficient basis on which to find that she mismanaged the estate and that she should be removed as personal representative.

The appellants alleged that Darla was at fault for her actions related to the malpractice suit, and that she has a concomitant conflict of interest with the estate that renders her unable to perform her duties as personal representative. They contend that she manipulated David’s decisions during the lawsuit, unjustifiably seized a substantial share of the settlement, failed to pursue malpractice claims against David’s attorneys on behalf of the estate, and deceived family members about the terms of the settlement and the confidentiality agreement.

At the hearing, however, the testimony from David’s family members merely stated their surprise at being excluded from the lawsuit and at eventually learning that no trust for the children had been established. It also addressed the poor relationship between Darla and David. There was conflicting testimony about David’s competency, but most of the testimony affirmed that David was in fact competent and able to make and communicate his own decisions. The appellants’ evidence at the hearing ultimately failed to address the potential impropriety of Darla in her role as personal representative. Instead, it implicitly challenged David’s lifetime financial decisions to not prepare a will, to not disclose details of the settlement, and to not create a trust for the children.

The testimony did not address Darla’s involvement between the time that David received the settlement and created the conservator-ship, and the time that he died. Nor did it establish a connection between Darla’s role in the lawsuit and her alleged inability to act in the best interests of the estate. Therefore, the only relevant evidence regarding the malpractice claim which was before the District Court was that Darla acquired control at David’s death of his settlement proceeds, the only significant asset in the estate. However, evidence before the District Court that Darla planned to distribute the estate according to the laws of intestacy established that whatever Darla’s conduct may have been with regard to the lawsuit, that conduct gave rise to no conflict of interest that might affect her duties as personal representative. We conclude that the District Court did not abuse its discretion when it denied Darla’s removal as personal representative based on her involvement in David’s medical malpractice claim.

Finally, the appellants contend that Darla’s failure to comply with certain notice provisions and other administrative duties constitutes grounds for her removal. Beyond their pleadings, however, they provided the District Court with no other evidence of these alleged omissions. They also cite Darla’s failure to determine and allow for a family allowance, but the appellants presented no evidence at the hearing regarding a family allowance and, in fact, filed the petition for family allowance after the hearing. As such, that issue was not properly before the District Court and cannot be raised for the first time on appeal. See Cenex, Inc. v. Board of Comm’rs for Yellowstone County (1997), 283 Mont. 330, 337, 941 P.2d 964, 968 (citing State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491); Rasmussen v. Lee (1996), 276 Mont. 84, 88, 916 P.2d 98, 100. Therefore, we conclude that the District Court did not abuse its discretion when it found the evidence of Darla’s alleged failure to conduct her duties insufficient for her removal.

The appellants contend for the first time in their reply brief that the District Court did not allow them a fair and adequate opportunity to present their case because it gave each party a limited time to present evidence. However, we will not address on appeal the merits of an issue presented for the first time in a reply brief. See Rule 23(c), M.R.App.P.; Loney v. Milodragovich, Dale & Dye, P.C., (1995), 273 Mont. 506, 512, 905 P.2d 158, 162; Denend v. Bradford Roofing & Insulation (1985), 218 Mont. 505, 509-10, 710 P.2d 61, 63-64. Accordingly, the appellants’ assertion that they should not be prejudiced for their failure to produce evidence at the hearing in support of their allegations is not properly before this court.

We conclude that based upon the record and the testimony at the hearing, the District Court did not abuse its discretion when it was unconvinced by the appellants’ allegations and denied their petition for removal and supervised administration. We affirm the order of the District Court.

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


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Robert Phillip Baker, Defendant.
    NO. DC 93-237 DECISION
    DATED this 19th day of May, 1997.
   On October 10, 1996, it was the order of the Court that defendant’s imposition of sentence is hereby revoked and the defendant is now sentenced to the custody of the Department of Corrections for a period of ten (10) years. The Court imposes the original terms and conditions of the Court’s previous judgment and sentence dated December 22, 1993. Additionally, the Court orders parole conditions which are stated in the October 10, 1996 judgment. The defendant is entitled to credit for time served as follows: 1. 37 days. 2. 190 days credit for time served on probation. 3. 30 days incarceration in California and on transport. 4. 125 days incarceration in Montana to 10/10/96. 382 TOTAL DAYS.

On May 8,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed because of a pending appeal before the Montana Supreme Court.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition shall be dismissed without prejudice.

Done in open Court this 8th day of May, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Alternate Member, Hon. Robert Boyd.