text:
    REBECCA HUNTER, a minor child, by her Guardian and Grandfather, ALBERT HUNTER, Plaintiff and Appellant, v. MISSOULA COMMUNITY HOSPITAL, Charles E. Bell, M.D. and Daniel A. Harper, M.D., Defendants and Respondents.
    No. 87-295.
    Submitted Jan. 5, 1988.
    Decided Feb. 10, 1988.
    750 P.2d 106.

      Small, Hatch, Doubek & Pyfer, John C. Doubek argued, Helena, for plaintiff and appellant.
    Garlington, Lohn & Robinson, Larry E. Riley argued, Missoula, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

In this medical malpractice case, we hold that there was no genuine issue of material fact where plaintiff failed to produce a medical expert competent to establish by testimony the applicable standard of medical care and a departure from that standard. Therefore, the District Court, Fourth Judicial District, Missoula County, correctly granted a summary judgment in favor of the medical personnel. We also determine that the doctrine of res ipsa loquitur is not applicable to this case.

In so holding, we determine that plaintiff’s case does not come within the rule that third party expert testimony is not necessary if a medical defendant’s own testimony establishes the standard of care and departure from it.

Rebecca Hunter was one of twins born on June 29, 1979, at Missoula Community Hospital. Her twin brother was delivered naturally, but Rebecca was delivered by Caesarean section. Rebecca was premature with a birth weight of 3 pounds 4 ounces, born at 32 weeks. Her attending physician was Dr. Charles Bell, and on the day of her birth, Dr. Bell called in Dr. Daniel Harper, a neonatologist, for consultation. Thereafter, she was under the care of these doctors until her discharge from the hospital.

On the day of her birth, Rebecca was placed in an oxygen hood. Her condition, however, was deteriorating, and it was determined that she had hyaline membrane disease, a lung deficiency resulting from her prematurity. Approximately 30 hours after her birth, Dr. Harper inserted in Rebecca’s right nostril a nasal tracheal tube (NT tube), which extended through the external nose to the posterior pharynx past the vocal cords into the larynx. Dr. Harper testified that the placement of the tube was necessary to “preserve life and function.” The external end of the tube was attached by means of an adaptor to the respirator. The mechanical result was that a mixture of air was forced through the NT tube into the lungs of the child to expand the lungs. The pressure was stopped at intervals during which the air was expelled from the child’s lungs. The NT tube was 3.0 millimeters in diameter, strong enough to take the pressure and at the same time flexible enough to be inserted as described.

The medical notes of the doctors and nurses indicate that the NT tube was in the child from June 30, 1979 until July 3, 1979, when it was removed. During the period that the tube was present in the child, as shown by the nurses’ notes, one of the nurses attempted to reposition the NT tube to relieve pressure on the nasal cartilage. On the day following the removal, July 4, 1979, according to the medical records, there was a brown mucous discharge from the child’s right nostril. All the medical evidence agrees that stenosis, or narrowing of the orifice, occurred. One of the nurses noted a questionable necrotic condition.

After the removal of the NT tube, the doctors ordered the insertion of a feeding tube or tubes. These tubes were necessary until the child acquired the sucking reflex. One of the tubes was inserted far enough in the internal organs of the child to take the food past the stomach. Later a tube was utilized to insert food into the stomach itself. The medical records do not show whether these tubes were inserted through the right nostril, the left nostril, or through the mouth, nor do they show the duration of time that the tube or tubes were left inserted in the child. The medical testimony indicates that the feeding tubes were more flexible than the NT tube.

Dr. Harper’s deposition testimony with respect to the placement of the NT tube is that the tube exited the right nostril in line with the air passage, and then was taped across the moustache area to the side of the face. A further tape was placed on the tip of the nose, straight up the bridge of the nose to the forehead, so as to present a triangular pattern. Dr. Harper testified that it would be impossible to tape the NT tube in any other way because it would not be long enough. The external end of the NT tube was cut to fit the respirator adaptor.

During the time that the baby was in the hospital, until her discharge in July, 1979, she was frequently visited by her grandfather, grandmother and mother. Each of these witnesses maintained that the NT tube or a tube like it was in the right nostril of the child from June 30 until the date of her discharge and that if more than one tube was used, that in all cases the tube was inserted in the right nostril of the baby. Moreover, they maintained that the NT tube from where it exited the right nostril, was taken directly up over her nose, past the left eye, and taped to her forehead in such manner that the pressure from the tube on the cartilage of the baby’s nostril was increased. They contend that this condition prevailed for the entire time that the baby was in the hospital from June 30.

On July 23, Dr. Bell noted that Rebecca had a “stenotic R nares” and brought in one Dr. French, an ear, nose and throat specialist for consultation. It was determined that further treatment would not be undertaken at that time until the child had grown older and stouter, sufficiently able to undertake medical repair. At the time of the deposition (1985), the medical repair had not been undertaken. It is contended that the nose of the child is distorted and that the right nares is almost, if not completely blocked. The condition may be irreparable.

The allegations of malpractice against the medical personnel, as cited by the appellant in brief are that the initial insertion and the way in which the NT tube was positioned and affixed to the face of the baby was improper, and that it was thereafter improper to insert another tube into the same stenotic right nostril of the baby; and that this subsequent tube or tubes were similarly and improperly affixed and maintained to the face of the baby.

Dr. Harper testified in his deposition that if the NT tube had been affixed to the baby’s face as described by the grandparents and mother, such placement of the tube would have been improper. He contended, however, that his practice was to affix the tube in the manner that he described and that the NT tube was not long enough to be affixed in the manner described by the lay witnesses. There is no medical dispute that stenosis of the child’s right nostril occurred, and this irrespective of the manner in which the tube was affixed to the face of the child. Dr. Harper also testified that he was aware of two other instances where stenosis had developed from the use of an NT tube, but no further explanation was sought as to the circumstances of those instances.

During the course of discovery in this case, counsel for the medical defendants, by interrogatories, demanded from plaintiff the names of any expert witnesses he intended to call, the subject matter upon which the experts would testify, and a summary of the grounds of each opinion. In response, plaintiff’s counsel gave two names of doctors who would testify as experts, but whose testimony eventually failed to materialize. Counsel attempted by various means to locate other such experts but those efforts, though substantial, have been ineffectual. Counsel for plaintiff has located a plastic surgeon who would testify that the damage to Rebecca’s nose is consistent with the placement of tubes described by the lay witnesses, but who would not testify as to a standard of care outside of his field of plastic surgery.

Complaint in this cause in the District Court was filed on December 11, 1984. On December 4, 1986, the district judge entered an order regulating pretrial proceedings, providing that discovery would be closed on January 2, 1987, and that witnesses not identified at that time could not be called at trial. On January 5, 1987, the defendants moved under Rule 56, M.R.Civ.P., for summary judgment in their favor. The motion fot summary judgment was amended, and thereafter briefed and on February 17, 1987, the District Court granted an additional three months to plaintiff’s counsel in which to secure necessary expert witnesses, and ordered that if counsel failed to secure such witnesses and to inform the court and opposing counsel as to their identities by May 1, 1987, the court would dismiss the complaint. In entering that order, the District Court noted that there were questions of fact, (1) as to how many tubes were involved with respect to the right nares of the plaintiff; (2) for what period of time did the tube or tubes remain in the right nares of the plaintiff; and, (3) whether the NT tube was properly stationed or affixed following its insertion. Nevertheless, the District Court noted that there remained other questions of fact relating to whether proper medical protocol was maintained, whether defendants departed from the recognized standard in their treatment and care of the child, and what precisely constituted the applicable standard of care.

The plaintiff failed to produce the names of his experts by May 1, 1987. On May 5, 1987, the motion for summary judgment was renewed by the medical defendants, and on May 25, 1987, the District Court entered summary judgment dismissing the action of the plaintiff.

On appeal, counsel for the plaintiff maintains that the deposition testimony of Dr. Harper established the proper standard of care with respect to the placement of the NT tube and that the testimony of the lay witnesses is sufficient to create a material issue of fact with respect to whether the proper standard of care had been followed. Moreover, he contends that this case, on its face, it governed by the doctrine of rés ipsa loquitur.

In Hill v. Squibb and Sons, E.R. (1979), 181 Mont. 199, 592 P.2d 1383, we noted:

“It is true that in several recent cases we have cited with approval Evans v. Burnhard (1975), 23 Ariz.App. 413, 533 P.2d 721, for the proposition that third party expert testimony is not necessary if a defendant doctor’s own testimony establishes the standard of care and departure from it. (Citing cases.) Further, in Thomas v. Merriam (1959), 135 Mont. 121, 337 P.2d 604, we indicated that negligence of a doctor may be shown by his own admissions . . . .”

Resort to the foregoing rule, however, is not feasible here. What is missing from Rebecca’s case before the District Court is testimony that under the circumstances prevailing, the damage to her nostril would have not occurred if the applicable standard of medical care had been followed by the medical personnel. All of the facts argued for by Rebecca’s counsel can be assumed to be true, and yet the biggest question remains: Was the stenosis avoidable by adherence to a proper standard of medical care in this case? The answer to that question is beyond the knowledge of lay persons. Thus it may be that the position of, the number of, and the duration of the tubes, as observed by Rebecca’s lay witnesses, were the causes of the stenosis, and eventual damage. On the other hand, it may be that the position of, number of, and duration of the tubes, as testified to by the medical personnel would in the circumstances here also produce the same conditions. It may further be that the possibility of stenosis is a risk that must be accepted under the applicable standard of medical care if the child’s life was to be saved. Lay persons do not know the answers to these questions. It requires experts in the field to tell us and here we have no experts.

Thus, we have before us a case in which, though there are genuine issues of fact between the observations of the lay witnesses as to the method of treatment accorded Rebecca and the treatment reflected by the medical notes and the testimony of the medical personnel, these issues are not yet material issues of fact. They will not become material until, by the testimony of competent medical experts, a standard of proper medical care is established and a departure therefrom, without which the stenosis would not have occurred. In other words, even assuming the testimony of the lay witnesses to be accurate, the test of proximate or legal cause has not been met. In the absence of material facts, the summary judgment was proper. See Montana Deaconess Hospital v. Gratton (1976), 169 Mont. 185, 545 P.2d 670.

In the same manner, the doctrine of res ipsa loquitur is not available here. The doctrine does not apply when there is no evidence to show that the result ordinarily would not have occurred had the defendant exercised due care, or that the result was not to be anticipated. Negaard v. Estate of Feda (1968), 152 Mont. 47, 52, 446 P.2d 436, 439. For the same reasons that we affirm summary judgment in this case, we must deny the applicability of res ipsa loquitur. See Clark v. Norris (Mont. 1987), [226 Mont. 43,] 734 P.2d 182, 44 St.Rep. 444.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    GREGG GLASPEY, Plaintiff and Appellant, v. THOMAS WORKMAN, Bernadette Workman, and Bernadette’s, Inc., Defendants, Respondents and Cross-Appellants.
    No. 87-402.
    Submitted on Briefs Jan. 14, 1988.
    Decided Feb. 10, 1988.
    749 P.2d 1083.
    Lynch & Best, Elizabeth A. Best, Great Falls, for plaintiff and appellant.
    Hartelius, Ferguson & Baker, Channing J. Hartelius, Great Falls, for defendants, respondents and cross-appellants.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Following a joint motion for summary judgment, the District Court of the Eighth Judicial District, Cascade County, issued findings of fact, conclusions of law and judgment piercing the corporate veil of Bernadette’s, Inc. Glaspey appeals the portion of the judgment which denied attorneys fees and allegedly denied punitive damages. We affirm in part and reverse in part.

The issues on appeal are:

1. Did the District Court incorrectly conclude that there is no statutory authorization for the payment of attorneys fees when an employee is forced to pierce the corporate veil in order to collect a judgment for wages?

2. Did the District Court incorrectly conclude punitive damages are not available under such circumstances?

The controversy at hand arose as a result of the insolvency of Bernadette’s, Inc., a Great Falls eatery. Glaspey had been employed by Bernadette’s, Inc. as a chef, until June, 1984. At that time, Bernadette’s, Inc. failed to pay Glaspey’s wages which were due and owing.

Following a successful wage claim action, Glaspey sought to collect the amount of the judgment. However, when the Sheriff of Cascade County attempted to execute on the judgment, he was only able to obtain $5.49. Glaspey then initiated the instant action to pierce the corporate veil of Bernadette’s, Inc. His complaint further alleged that Workman’s employment of the corporate veil to escape a wage claim judgment constituted a species of fraud and breach of the covenant of good faith and fair dealing.

The first issue before the court concerns the propriety of attorneys fees. Glaspey contends the District Court erred in concluding that there is no statutory authorization for the payment of attorneys fees when an employee is forced to pierce the corporate veil in order to collect a judgment for wages. We agree.

The controlling statute regarding attorneys fees in wage collection actions is Section 39-3-214, MCA, which provides:

“39-3-214. Court costs and attorneys’ fees. (1) Whenever it is necessary for the employee to enter or maintain a suit at law for the recovery or collection of wages due as provided for by this part, a resulting judgment must include a reasonable attorney’s fee in favor of the successful party, to be taxed as part of the costs in the case. (Emphasis added.)
“(2) Any judgment for the plaintiff in a proceeding pursuant to this part must include all costs reasonably incurred in connection with the proceeding, including attorneys’ fees.”

In construing Section 39-3-214, MCA, this Court will adhere to Montana’s well established rules pertaining to the construction and interpretation of statutes which we recently affirmed in Murphy v. State of Montana (Mont. 1987), [_ Mont. _,] 748 P.2d 907. 908. 44 St.Rep. 2030, 2032. In Murphy, this Court held:

“The intention of the legislature must first be determined from the plain meaning of the words used, and if interpretation of the statute can be so determined, the courts may not go further and apply any other means of interpretation.”

Citing State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333.

It is clear to us from the plain meaning of the words utilized in Section 39-3-214, MCA, that the legislature’s intent in passing the statute was to provide an employee who wins a judgment for wages due against an employer a vehicle by which to receive attorneys fees and thus be made whole. Further, it is equally clear that attorneys fees must be awarded “whenever it is necessary for the employee to enter or maintain a suit at law for the recovery or collection of wages . . .” Section 39-3-214, MCA.

Section 39-3-214, MCA, is applicable to the case at bar as it was “necessary” for the plaintiff to maintain an action to pierce the defendant’s corporate veil in order to recover and collect on the previous judgment awarded him on his wage claim action. As such the action to pierce the corporate veil was a continuation of the wage claim action and the plaintiff is entitled to attorneys fees. Section 39-3-214(1), MCA.

Glaspey also contends that the District Court’s alleged refusal to submit the issue of punitive damages to a jury constituted error. However, the District Court did not address the issue in the findings of fact, conclusions of law, and judgment. Nor did Glaspey provide this Court with a transcribed record of the proceedings. The purported statements of the District Court contained within Glaspey’s brief do not constitute a record subject to appellate review. We, therefore, do not address the issue. See, Lutzenhiser v. Holsworth (Mont. 1984), [213 Mont. 260,] 690 P.2d 990, 41 St.Rep. 2102.

We affirm the refusal to submit the issue of punitive damages to the jury. We reverse the denial of attorney fees, and remand for a determination of such fees. Costs on appeal to Glaspey.

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


author: MR. JUSTICE WEBER MR. JUSTICE SHEEHY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TIMOTHY L. MORRIS, Defendant and Appellant.
    No. 87-017.
    Submitted on Briefs Oct. 16, 1987.
    Decided Feb. 11, 1988.
    749 P.2d 1379.

      Michael Sol, Sol & Wolfe, Missoula, William Dee Morris, Butte, for defendant and appellant.
    Mike Greely, Atty. Gen., Kimberly A. Kradolfer, Asst. Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Morris appeals his conviction in the Fourth Judicial District, Missoula County, for possession of a dangerous drug in violation of Section 45-9-102, MCA.

He presents four issues for review.

1. Did the District Court err in denying defendant’s motion to dismiss based upon lack of speedy trial?

2. Did the District Court err in denying defendant’s suppression of evidence motions?

3. Did the District Court err when it admitted evidence over defendant’s chain of possession objection?

4. Did the District Court err in denying defendant’s motion for a new trial?

On March 13, 1985, around 11:30 p.m. in Missoula, Mr. Morris was driving a recently purchased used car. His heater was not working properly so he decided to pull into a shopping center parking lot to fix the heater. He parked underneath a street light, positioned himself under the dashboard, and using a knife and some pliers, began working on his car.

City police officer Jim Neumeyer was patrolling the area that night when he saw the Morris vehicle parked with lights on and engine running. Officer Neumeyer testified at trial that he could see no one in the car so he decided to investigate. The officer expressed his concern that perhaps someone had pulled off the street and had fallen asleep or that a crime might be taking place. As he approached the car, he saw an empty gun holster in the back seat and some knives on the dashboard. He then saw Mr. Morris underneath the dashboard. As a safety measure, Officer Neumeyer pointed his flashlight directly into the eyes of Mr. Morris to momentarily blind him. Mr. Morris was in an awkward position, and as he rolled out of the car, the officer confronted him with the flashlight and a drawn revolver.

Mr. Morris testified that the officer never identified himself but only shouted, “You’ll be dead before you hit the ground. Don’t try it. I’ll blow your brains out.” Officer Neumeyer testified that Mr. Morris had a knife in his hand as he was coming out of the car. For his own safety he drew his revolver and ordered Mr. Morris out of the car. The officer agrees that Mr. Morris immediately assumed a spread-eagle position and volunteered that he had a gun under his jacket. The officer says that he then took possession of the gun, handcuffed Mr. Morris, and performed a brief pat-down search for any other weapons. The officer then arrested Mr. Morris for carrying a concealed weapon.

During the booking procedure at the jail, the jail officer found a vial of white powder inside Mr. Morris’ pants pocket. The defendant was charged later that day in justice court with one count of criminal possession of a dangerous drug (felony) and one count of carrying a concealed weapon (misdemeanor).

On March 25, 1985, an amended complaint was filed in justice court adding a second count of criminal possession of a dangerous drug, relating to a separate arrest and search of defendant. This count was dismissed during the trial and is not directly at issue in this appeal. The justice court docket indicates that Mr. Morris requested a preliminary examination on all counts although the court never conducted one.

On August 16, 1985, the State requested leave to file an information in district court. The information was filed that same day. Arraignment was held on September 9, and the omnibus hearing was on November 7. At this time Mr. Morris moved to dismiss for delay in arraignment which motion was denied. The matter eventually went to a jury on June 10, 1986. Mr. Morris was found guilty of one count of possession of a dangerous drug.

I

Did the District Court err in denying defendant’s motion to dismiss based upon lack of speedy trial?

The right to speedy trial attaches at the moment a defendant is accused, and that may occur at the time of arrest, at the time of the filing of a complaint or information, or at the time of indictment. State v. Larson (Mont. 1981), [_ Mont. _,] 623 P.2d 954, 957-58, 38 St.Rep. 213, 215. Mr. Morris stood accused and his right to speedy trial attached the day he was arrested. We must balance four factors together with any other relevant circumstances to determine whether Mr. Morris’ constitutional right to a speedy trial has been violated: length of delay, reason for-delay, the defendant’s assertion of the right, and prejudice to the defendant. Larson, 623 P.2d at 957.

Mr. Morris was arrested the first time on March 14, 1985, and was tried 453 days later on June 10, 1986. This certainly is enough delay to raise a presumption of prejudice to defendant. State v. Steward (1975), 168 Mont. 385, 543 P.2d 178.

In considering reason for delay, we will deduct the delay attributable to defendant’s own actions from the total delay. State v. Grant (Mont. 1987), [227 Mont. 181,] 738 P.2d 106, 109, 44 St.Rep. 994, 997. The State did not request leave to file an information in district court until August 16, 1985. The arraignment was 24 days after the information was filed, and the omnibus hearing was held 59 days after arraignment. Thus far, 237 days had elapsed since initial arrest. Mr. Morris made several waivers of speedy trial for qualified periods of time. He also made a motion to dismiss due to delay in arraignment and additional consolidated motions. Trial was set for January 1986.

On January 13, the defendant requested a continuance, a transcript, and independent testing of the substance in the vials. The court granted these motions. From the record we understand that Mr. Morris waived speedy trial for a period of time perhaps extending beyond March 1986. He did not initiate or promote transfer of the vials for testing, and they were not tested until late May, several weeks before trial. At a May 5 hearing on the State’s motion to set a trial date, the court offered to try the case in May. Defense counsel could not calendar for trial in May, so trial was set for June.

In total, the defendant was responsible for 253 days of delay. This leaves 200 days remaining. The burden of explaining the reason for this delay rests with the State, and the question is whether prosecution was pursued with reasonable diligence. Grant, 738 P.2d at 109. We note a marked lack of diligent prosecution in the present case. The State failed to request leave to file an information until 154 days after the initial arrest. Prior to this time the defendant was afforded no hearing to determine probable cause for the charges against him, and the State offers no sufficient excuse. Another 46 days is attributable to institutional delays. So, we conclude that 154 days of delay directly reflect the prosecution’s lack of reasonable diligence.

We now look to the defendant’s assertion of his right to speedy trial. On two occasions prior to trial, Mr. Morris moved to dismiss all counts because of lack of speedy trial, once at the omnibus hearing and once on the day before trial. Mr. Morris, somewhat inconsistently with his speedy trial argument, waived speedy trial three times during the process. One month before trial, his attorney indicated a complete waiver. We note however that these waivers were given partially for convenience of the court and its trial calendar, and partially to accommodate the defense. We conclude that Mr. Morris properly asserted his right to speedy trial.

Lastly we consider whether the delay prejudiced Mr. Morris. The burden of showing absence of prejudice rests with the State. Grant, 738 P.2d at 109. The right to speedy trial serves three interests of the defendant: 1) to prevent oppressive pretrial incarceration, 2) to minimize anxiety and concern of the accused, and 3) to limit the possibility that the defense will be impaired. State v. Waters (Mont. 1987), [228 Mont. 490,] 743 P.2d 617, 620, 44 St. Rep. 1705, 1708. Mr. Morris was out on bond for the entire period after the second arrest so the first interest was protected. Considering the second interest, a certain amount of anxiety and concern is expected when one stands accused, yet Mr. Morris has not alleged excessive anxiety as a result of the delay. As for impairment of the defense, the State argues that the delay did not impair the defendant’s case. Mr. Morris alleges that his defense suffered due to the lack of memory of State’s witnesses. He presented no witnesses at trial nor does he complain that the delay caused him to lose witnesses. Lack of memory in this instance may weaken the State’s case, and indeed the record reflects that one count of possession of dangerous drugs was dismissed, partially as a result of this very problem. However, the lack of memory of State’s witnesses does not of itself constitute impairment of the defense. We conclude that the State has sufficiently rebutted the presumption of prejudice to Mr. Morris by the delay.

Of the four factors we have considered, “[n]o single factor is determinative. Each facet of the analysis is weighed in light of the surrounding facts and circumstances.” Waters, 743 P.2d at 619. Considering these four factors and the record as a whole, we conclude that the delay did not result in even minimal prejudice. We hold, therefore, that Mr. Morris’ right to a speedy trial was not denied. While the facts do not require dismissal, we are seriously disturbed by the unexcused 154 day delay before the State brought Mr. Morris before a court for determination of probable cause and the additional 24 days before arraignment. We emphasize that this type of delay without cause is totally inappropriate. Mr. Morris argues that this delay of itself demands dismissal for lack of speedy trial. This argument fails, however, since we have concluded that Mr. Morris suffered no prejudice by the delay.

II

Did the District Court err in denying defendant’s suppression of evidence motions?

Mr. Morris contends that the gun and the alleged drugs are evidence which the court should have suppressed as the result of an illegal arrest. He argues that the arrest was illegal in that the officer lacked probable cause to arrest and failed to comply with stop and frisk requirements.

This Court in State v. Gopher (Mont. 1981), [_ Mont. _,] 631 P.2d 293, 296, 38 St.Rep. 1078, 1082, explained the standard for a valid stop and search:

“[W]e now hold that when a trained police officer has a particularized suspicion that the occupant of a vehicle is or has been engaged in criminal activity, or witness thereto, a limited and reasonable investigatory stop and search is justified.”

Probable cause is not the standard for a valid stop. Rather, the officer must have a particularized suspicion to justify a stop. We further explained “particularized suspicion” in Gopher, 631 P.2d at 296:

“The State’s burden has two elements: (1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.”

In this case, an officer of nine years’ experience noticed a car parked in an otherwise empty parking lot, sometime around midnight. The engine was running and the headlights were on yet the officer could not see an occupant in the car. The officer then decided he should investigate to determine whether someone was in need of assistance, whether the driver was intoxicated, unconscious, or asleep or whether an individual was in the process of an auto theft or other crime. As he approached, the officer saw an empty gun holster and several knives inside the car. He then saw a man lying under the dashboard of the car. We conclude from these facts that the officer reasonably suspected wrongdoing and reasonably took precautionary measures for his own safety.

At that point, a reasonable investigatory search was justified. Mr. Morris testified that he voluntarily assumed a spread-eagle position and warned the officer that he had a gun under his jacket. The officer had not searched or frisked the defendant’s person to this point, and the gun was not the result of a search. The District Court, therefore properly denied suppression of the gun as evidence.

Mr. Morris further complains that Officer Neumeyer did not follow the stop and frisk procedures of Section 46-5-402, MCA. The procedures of that statute apply once the officer has lawfully stopped a person and so apply specifically to the “frisk” portion of the process. Once Mr. Morris volunteered the fact that he possessed a gun under his jacket, the officer had probable cause for arrest for possession of a concealed weapon. “A founded suspicion to stop for investigative detention may ripen into probable cause to arrest through the occurrence of facts or incidents after the stop.” State v. Sharp (Mont. 1985), [217 Mont. 40,] 702 P.2d 959, 963, 42 St.Rep. 1009, 1013. The subsequent pat-down at the scene and the search upon booking at the jail were proper and valid searches incident to arrest. Section 46-5-101(1), MCA. We hold that the District Court properly denied defendant’s motion to suppress the vial which was found during booking procedures.

Mr. Morris also argues that the officer’s actions violated his constitutional right of privacy. The Montana Constitution, Article II, Section 10, provides,

“The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

Mr. Morris contends that the officer had no basis for believing that he was involved in criminal activity; therefore, there was no compelling state reason for infringing his privacy. However, we have already concluded that this officer had a particularized suspicion to investigate as required by Gopher. When a trained and experienced officer is confronted with circumstances which that officer believes demand investigation, within the parameters of Gopher, that officer has a duty to investigate.

“Effective law enforcement requires some latitude to be given to investigating officers to react to and follow up on their observations. Drawing artificial distinctions or ‘time lines’ in situations such as these does not comport with reality or common sense.”

Sharp, 702 P.2d at 963. We hold that the District Court properly denied defendant’s suppression motion which was based on invasion of privacy.

Ill

Did the District Court err when it admitted evidence over defendant’s chain of possession objection?

Mr. Morris argues that the chain of possession of Exhibit 2 is flawed in numerous respects. Exhibit 2 is the vial found during the booking procedure. This exhibit was admitted into evidence without defense objection. When the State rested its case, the defense, as part of a motion to dismiss, challenged the chain of possession of the exhibit. The pertinent portions of the motion appear as follows:

“I could not follow the chain of possession of Exhibit 2 .... I have had a very difficult time following the chain of possession .... I don’t think we can trace the possession of that bottle of amphetamine to Timothy Morris and that jailer, not a deputy, but a jailer not covered by the presumption of regularity of carrying official functions. The jailer found and passed it on and I really couldn’t follow the chain of possession.”

Other than his concern about the jailer, the defense only generally objected to the exhibit. Such a general statement as, “I could not follow the chain of possession . . does not preserve a valid objection for appeal. Further, Mr. Morris did not at trial or on appeal cite any authority for his concern that the chain of possession is somehow tainted by the fact that the jailer was a civilian rather than a peace officer. We hold that the District Court properly overruled Mr. Morris’ objection to the chain of possession of Exhibit 2.

IV

Did the District Court err in denying defendant’s motion for a new trial?

Mr. Morris bases his motion for new trial on the ground of newly discovered evidence. He indicates that some facts became clear only during trial and after review of the trial transcript. Section 46-16-702(1), MCA, allows the court discretion to grant defendant a new trial “if required in the interest of justice.” The Commission Comments to this statute provide in part:

“[Section 46-16-702] does not specify the grounds which may be the basis for a motion for a new trial. . . [It] encompasses the various grounds set forth in the existing Montana law plus it permits the granting of a motion for a new trial for any other reason the court may find to be in the interest of justice . . . .”

In State v. Greeno (1959), 135 Mont. 580, 586-87, 342 P.2d 1052, 1055, this Court enumerated certain rules which govern a motion for new trial based on newly discovered evidence. We need consider only the first one: the evidence must have come to the knowledge of the applicant since trial. The granting or denial of a motion for new trial rests within the sound discretion of the trial court. State v. Gallagher (1973), 162 Mont. 155, 164, 509 P.2d 852, 857.

Mr. Morris contends that the State was conducting an undercover operation to locate a “drug factory”. As part of this operation, the State put pressure on him because he was suspected to be involved or to have knowledge of the factory. As part of this pressure, he contends, the vial which was “found” on him during booking was actually “planted” on him during arrest. All of the facts upon which Mr. Morris bases his motion were available to him before and during trial. In fact, he argued this conspiracy and undercover operation theory at trial. The only new evidence that Mr. Morris mentions is some exculpatory evidence which the State allegedly has in its hands but refused or failed to turn over to the defense. He cites Section 26-1-602(5), MCA, which states it is presumed that “[e]vidence willfully suppressed would be adverse if produced.” He argues that the State failed to present evidence to controvert this disputable presumption. However, Mr. Morris produced no evidence indicating that the State was willfully suppressing exculpatory evidence. His allegations of newly discovered evidence simply are unfounded. The District Court, in denying new trial, stated that it believed the defense was aware of the “drug factory implications” prior to trial. We agree with the court. The defense makes only allegations — the same allegations made at trial. We hold that the District Court exercised sound discretion when it denied Mr. Morris’ motion for new trial.

The judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON, HUNT and McDONOUGH concur.

MR. JUSTICE SHEEHY,

specially concurring:

I agree with the results. On the speedy trial issue, the time taken to bring this case to trial was inordinately long. There was no speedy trial here, but I agree with the result because the record demonstrates that Morris really did not want a speedy trial. See Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.


author: MR. JUSTICE McDONOUGH

text:
    JANET D. WEBB, Personal Representative of the Estate of Dale W. Decker, Deceased, Plaintiff and Appellant, v. MAURICE E. WOLFE, James H. Wolfe, and Wolfe Hereford Ranch, a corporation, Defendants and Respondents and Cross-Appellants.
    No. 87-145.
    Submitted on Briefs Oct. 29, 1987.
    Decided Feb. 11, 1988.
    749 P.2d 531.

      Schulz, Davis & Warren, John S. Warren, Dillon, for plaintiff and appellant.
    Max Hansen, Dillon, for defendants, respondents and cross-appellants.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Janet Webb, personal representative of the estate of Dale W. Decker, appeals the decision of the Fifth Judicial District Court, Beaverhead County, Montana, that the surviving partners of the CL Ranch partnership were indebted to the estate of Dale Decker for $32,238.05. We affirm issues 1 and 3 and reverse issue 2.

In 1978, Decker wished to purchase a ranch from the personal representative of Dale Metlen. Decker was a close friend of Metlen and was given the first option to purchase the Metlen Ranch. Metlen’s personal representative held the ranch until Decker could determine if he could arrange financing.

Decker was unable to secure financing so he approached Maurice (Ed) Wolfe. A partnership, the CL Ranch partnership, between Decker, Ed and James (Harve) Wolfe was formed by oral agreement in order to purchase, operate and improve the Metlen Ranch. The partnership interests were divided as follows: Ed Wolfe 37.5%, Harve Wolfe 37.5% and Dale Decker 25%. (The Wolfe brothers’ interest is referred to as Wolfe Hereford Ranch.) The partnership agreement provided that Decker would live on the ranch and operate and improve it.

The District Court found that Decker contributed no capital. He contributed his option, operated the”ranch, and in return became a 25% partner. The court also found that the Wolfe Hereford Ranch paid the $59,500 in cash down for the Metlen Ranch and financed the remainder through a Federal Land Bank loan.

On May 30, 1983 Decker died and his personal representative, Janet Webb, requested an accounting of the partnership interest belonging to the Decker estate. The parties disputed the value of Decker’s 25% interest. Three issues are raised on appeal, the third by respondents.

1. Does the evidence support the District Court’s finding that Dale Decker did not make an initial capital contribution to the CL Ranch partnership?

2. Does the evidence support the District Court’s finding that the value of the Federal Land Bank debt was $185,399.30?

3. Did the District Court commit error by valuing Dale Decker’s partnership interest as of the date of his death?

ISSUE I

The District Court found that Dale Decker made no capital contribution to the partnership. The court also stated in its findings of fact that the partnership tax returns support this holding and that Decker’s 25% interest was n the operation, management and contemplated resale of the property by the partnership.

The standard of review for reviewing a district court’s findings of fact, grants the district court much discretion. “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Rule 52(a), M.R.Civ.P. Findings of fact shall not be overturned “unless there is a clear preponderance of evidence against them, recognizing that evidence may be weak or conflicting, yet still support the findings.” In re the Marriage of Jensen and Jensen (Mont. 1981), [_ Mont. _,] 629 P.2d 765, 768, 38 St.Rep. 927, 930. See also Round v. Reikofski (Mont. 1985), [216 Mont. 54,] 699 P.2d 72, 74, 42 St.Rep. 634, 636. In this case substantial credible evidence exists to support the District Court’s findings. The partnership tax accounts, which were prepared with information provided by Decker, show no capital contribution from Decker. Appellants argue that the District Court was incorrect because testimony existed that Ed Wolfe loaned Decker his share of the purchase price. The District Court acknowledged and considered this evidence in its findings of fact. It was within the discretion and province of the District Court to hold that the evidence supported a finding of no capital contribution. Affirmed.

ISSUE II

The parties originally agreed that the CL Ranch partnership debt would be listed on the pretrial order as $185,399.30. However, at the beginning of trial the parties agreed to amend the pretrial order to show a Federal Land Bank debt of $175,799.30. The District Court in its findings of fact used the $185,399.30 figure for the mortgage on the Metlen Ranch. If the fact stipulated to is material, then the stipulation is binding on the court. “The purpose of such a stipulation is to relieve the parties from the necessity of introducing evidence as to the ultimate fact covered by it. If the fact is material, the court is, as to it, bound by the stipulation. It amounts to a special finding.” Spaulding v. Stone, 129 P. 327, 328, 46 Mont. 483, 487. The amount of the Federal Land Bank debt is material in this case because if affects the calculation of Decker’s 25% interest in the CL Partnership. We reverse on this issue.

ISSUE III

After Decker’s death, his personal representative requested an accounting of his partnership interest. Webb was dissatisfied with the Wolfe’s accounting and commenced the action below. The District Court made its own accounting and valued Decker’s 25% interest as of the date of death, May 30, 1983. Respondents object to the valuing of Decker’s partnership interest as of the date of death. They assert that only upon completion of the winding up process will the partnership terminate and Decker’s interest can be determined.

In its findings of fact the District Court states that, “There was no agreement, implied of otherwise, with respect to a continuation of the partnership.” (Finding of Fact No. 14). Based upon this finding, the lower court held that Section 35-10-614, MCA, did not apply, but valued Decker’s interest at the date of death. Section 35-10-614, MCA, provides:

“When any partner retires or dies and the business is continued under any of the condition set forth in subsections (1), (2), (3), (5), or (6) of 35-10-613, or 35-10-610(2)(b) without any settlement of accounts as between him or his estate and the person or partnership continuing the business, unless otherwise agreed, he or his legal representative as against such person or partnership may have the value of his interest at the date of dissolution ascertained and shall receive as an ordinary creditory an amount equal to the value of his interest in the dissolved partnership with interest or at his option or at the option of his legal representative, in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership; provided that the creditors of the dissolved partnership, as against the separate creditors or the representative of the retired or deceased partner, shall have priority on any claim arising under this section, as provided by 35-10-613(3).”

The evidence, however, demonstrates that the surviving partners continued the business, continued to graze their cattle on the partnership land and did not elect to liquidate partnership assets. The business was continued under subsections (2) and (3) of Section 35-10-613, MCA, here a partner died and the business was continued without liquidation of partnership affairs. In this event, Section 35-10-614, MCA, is properly applied and Decker’s interest valued as of the date of his death. “Where the conclusion of the District Court is correct, if is immaterial, for the purpose of affirmance on appeal, what reasons the District Court gives for its conclusion.” Norwest Bank of Billings v. Murnion (Mont. 1984), [210 Mont. 417,] 684 P.2d 1067, 1071, 41 St.Rep. 1132, 1136. See also Bolz v. Myers (Mont. 1982), [220 Mont. 287,] 651 P.2d 606, 39 St.Rep. 1747. We affirm this issue and remand for further proceedings in accordance with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES GULBRANDSON, SHEEHY and HUNT concur.


author: MR. JUSTICE GULBRANDSON MR. JUSTICE SHEEHY,

text:
    JACK E . GALT, Louise R. Galt, Phil Rostand, Robert E. Saunders, Clarence Edward (Ted) Lucas, James Bottomly, J. Harrison Saunders, Jake Frank, Franklin Grosfield and Lowell E. Hildreth, Plaintiffs and Respondents, v. STATE OF MONTANA, acting by and through THE DEPARTMENT OF FISH, WILDLIFE and PARKS, Defendant and Appellant.
    No. 87-255.
    Submitted Nov. 12, 1987.
    Decided Feb. 11, 1988.
    749 P.2d 1089.

      Poore, Roth & Robinson, Urban L. Roth argued, Butte, Bob Lane, Dept, of Fish, Wildlife & Parks, Helena, for defendant and appellant.
    Harrison, Loendorf & Poston, Philip W. Strope argued, Helena, for plaintiffs and respondents.
    Mike Greely, Atty. Gen., Helena, Joe Roberts, Asst. Atty. Gen., Helena, for amicus curiae.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Appellant/defendant State of Montana (the State) appeals a District Court award of $21,080 in attorneys’ fees made to respondent/ plaintiffs Galt et al. (Galt). Galt brought this action pursuant to the Uniform Declaratory Judgment Act, Section 27-8-101 through Section 27-8-313, MCA, and sought an order declaring House Bill 265, the “Stream Access Bill,” Section 23-2-301 et seq., MCA (1985), unconstitutional as a taking of private property without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article II, Section 29 of the Montana Constitution. The District Court granted summary judgment to the State and Galt appealed.

This Court, in Galt v. State Department of Fish, Wildlife, and Parks (Mont.1987 ), [225 Mont. 142,] 731 P.2d 912, 44 St.Rep. 103, partially reversed the District Court and found Sections 23-2-302(2)(d), (e), (f), and portions of Section 23-2-311(3)(e), MCA (1985), unconstitutional. This Court entered declaratory judgment in Galt’s favor.

On February 17, 1987, Galt filed a “Memorandum of Costs, Disbursements and Attorneys’ Fees” in the District Court. The State objected to Galt’s bill of costs and attorneys’ Fees and moved that the same be taxed by the District Court. The District Court heard the motion orally and ordered that the State pay plaintiffs’ attorneys’ fees and costs pursuant to Mont. Const. Art. II, Section 29 which provides the following:

“Eminent domain. Private property shall not be taken for public use without just compensation to the full extent of the loss having first been made to or paid into the court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded the court when the private property owner prevails.” ( Emphasis added. )

We affirm with instructions.

The District Court reasoned that the unconstitutional provisions “[i]mposed easements for public use upon Plaintiffs’ private property without any compensation” and found that plaintiffs were entitled to attorneys ‘ fees and costs because they prevailed in this action when the Supreme Court ruled in their favor. The State of Montana appeals the District Court award of attorneys’ fees and raises the following issues:

(1) Whether Article II, Section 29 of the 1972 Montana Constitution applies to declaratory judgment actions brought solely to challenge the constitutionality of a legislative enactment?

(2) Did the District Court err in concluding that private property was taken or damaged for public use?

The District Court’s award of attorneys’ fees will not be reversed absent a clear showing of an abuse of discretion. Simkins-Hallin Lumber Co. v. Simonson (Mont. 1984), [214 Mont. 36,] 692 P.2d 424, 427, 41 St.Rep. 2305, 2309. As a preliminary matter, both parties recognize that attorneys’ fees are not recoverable absent an express agreement between the parties or statutory authority. Thornton v. Commissioner of Dept. of Labor and Industry (Mont. 1980), [190 Mont. 442,] 621 P.2d 1062, 1066, 37 St.Rep. 2026, 2030. It is undisputed that no express agreement allowing attorneys’ fees exists between the parties. Galt contends that Mont. Const. Art. II, Section 29 specifically authorizes an award of attorneys’ fees in this case.

The State of Montana does not question the amount of attorneys’ fees awarded to Galt. The State does, however, argue in its first issue that Mont. Const. Art. II, Section 29 applies strictly to condemnation proceedings or actions for inverse condemnation. A private property owner, the State contends, is entitled to “just compensation” only when private property is actually “taken or damaged” for public use. The District Court found that the State’s “argument places form over substance” and awarded attorneys’ fees and costs to Galt under Mont. Const. Art. II, Section 29. We agree with the District Court’s analysis and conclusions concerning the applicability of Mont. Const. Art. II, Section 29 to the particular circumstances of this case.

The State claims that the plain meaning of the statute requires either a condemnation proceeding or an action for inverse condemnation and that a declaratory judgment action cannot qualify Galt for an award of attorneys’ fees. Although we must, when possible, determine the intent of the legislature from the plain meaning of the words used in the statute, our reading of the statute does not coincide with the State’s interpretation. State v. Cardwell (1980), 187 Mont. 370, 373, 609 P.2d 1230, 1232. The statute does not define what legal procedures must be followed to qualify a particular legal action as an eminent domain proceeding.

We recognize that the legislature has provided statutory procedures for the State’s exercise of its eminent domain rights. Section 70-30-101, et seq., MCA. These statutes specifically authorize an award of the necessary expenses of litigation to the private property owner who “prevails by receiving an award in excess of the [State’s] final offer . . .” Section 70-30-305(2), MCA. Statutory condemnation proceedings, however, are not the exclusive method by which the State may be taken to task by a private property owner for exercising its right of eminent domain. The State has, in some circumstances, taken private property without an actual physical appropriation of land. Knight v. City of Billings (1982), 197 Mont. 165, 642 P.2d 141; Rauser v. Toston Irr. Dist. (1977), 172 Mont. 530, 565 P.2d 632. The private property owner often responds in such circumstances by filing an action for inverse condemnation. Rauser, 565 P.2d 632.

This Court held in Rauser, supra, that the private property owner who prevails in an action for inverse condemnation may recover attorneys’ fees pursuant to Mont. Const. Art. II, Section 29. Rauser, 565 P.2d at 641. In so holding, this Court reasoned that the State’s failure to follow the statutory condemnation proceedings “may not be used to deny [the private property owners] their attorney fees.” Rauser, 565 P.2d at 641. (Additions ours.) Similarly, Galt’s election to settle this matter in a declaratory judgment action cannot be used by the State to deny an award of attorneys’ fees in this case.

The Fifth Amendment of the United States Constitution has also been construed by the United States Supreme Court to allow compensation to the private property owner in legal proceedings other than traditional condemnation actions. Jacobs v. United States (1933), 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142. In recognizing inverse condemnation actions, Jacobs noted the following with respect to the compensation requirements of the Fifth Amendment:

“[The right to recover just compensation for property taken by the United States] was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty imposed by the Amendment. The suits were founded upon the Constitution of the United States.” (Additions ours.)

Jacobs, 290 U.S. at 16, 54 S.Ct. at 27. We find the reasoning in Jacobs to be equally applicable to the instant case. The right to recover just compensation is guaranteed in Montana by both the Fifth Amendment of the United States Constitution and Article II, Section 29 of the Montana Constitution. The form of the action, in this case a declaratory judgment, does not qualify the right to compensation. The right to just compensation rests upon the constitutional mandates. Just compensation in Montana includes attorneys’ fees. Mont. Const. Art. II, Section 29.

The State also claims that the legislative intent of the eminent domain statute does not include situations as presented by this appeal. In our review of the legislative history of Article II, Section 29, we will construe the statute to give effect to the legislature’s intent. Section 1-2-102, MCA; Caldwell v. Great Western Sugar Co. (Mont. 1987), [229 Mont. 448,] 746 P.2d 627, 628, 44 St.Rep. 2123, 2124. The object of the statute must be given foremost consideration and our interpretation of the statute must give effect to that object. Section 1-2-103, MCA; Dover Ranch v. Yellowstone County (1980), 187 Mont. 276, 284, 609 P.2d 711, 715.

This Court reviewed .the legislative history of Article II, Section 29, in Callant v. Federal Land Bank of Spokane (1979), 181 Mont. 400, 593 P.2d 1036, and noted the following:

“[I]n the case of the state taking private property there is an imbalance between the resources available to the parties which should be redressed by requiring the state to bear full financial burden of the individual whose property is being condemned . . . Excerpts from the Montana Constitutional Convention Vol. VII, pages 5631-5633, indicate that this imbalance underlay the adoption of Article II, Section 29, 1972 Montana Constitution.”

Callant, 593 P.2d at 1039. In State Department of Highways v. Olsen (1975), 166 Mont. 139, 531 P.2d 1330, this Court described the legislature’s intent as follows:

“The proceedings at the Constitutional Convention make it abundantly clear that it intended Article II, Section 29 to make the landowner whole in eminent domain proceedings to the extent that the amount of the judgment for the taking of his land and improvements would be a “net recovery” with expenses of litigation assessed against the State, where the landowner prevailed. “

Olsen, 531 P.2d at 1335.

We have again reviewed the legislative history of Article II, Section 29, and are convinced that an award of attorneys’ fees in this case is consistent with the intent of the constitutional framers. The 1972 Constitutional Bill of Rights Committee comments on Article II, Section 29, include the following:

“Delegate [George] James: [T]he committee unanimously approved substantive changes in the eminent domain section. The thrust of the committee effort was to assure the full and just compensation — that full and just compensation be made in all eminent domain actions. Without it, some of the costs of eminent domain action fall where they do not belong — on the person whose property is being condemned. In order to give substance to the citizen’s effort to challenge the compensation figure of the condemnor, the last sentence of this provision was added. Those testifying in opposition to the committee’s original eminent domain proposal agreed that this sentence which awards necessary expenses of litigation to the private property owner when he is the prevailing party, is just. The committee intends, by “necessary expenses of litigation”, all costs including appraiser’s fee, attorney fees and court costs. It is felt that when this stipulation will produce a climate in which the condemnor’s offer for compensation will be more — will more adequately reflect the compensation to which the property owner is entitled. The property owner will have a chance to collect expenses he incurs in challenging the condemnor’s action. In addition, it will redress the imbalance between the vast resources brought to bear by the state and those available to the individual property owner in contested cases. The committee recommends this section to the [Constitutional] Convention as insurance that the compensation to the private property owner will, in fact, be just. Delegate Proposal Number 75 was amended to accomplish this provision. I think you’re all familiar with the term “the public good”. Sometimes this is rather elusive and is used to condemn property and a figure which may be unjust to the property owner is not contested because of the cost of litigation. This [provision], I believe, will correct this situation.” (Additions ours.)

Verbatim transcript, Montana Constitutional Convention, March 9, 1972, Vol. VI at 1825-1826. If we adopt the State’s argument in this case, the costs of this litigation would undoubtedly fall where they do not belong — on private property owners who are forced to bring a legal action in defense of their property rights. We believe that an award of attorneys’ fees to the private property owners in this case reflects the compensation to which they are entitled. Such an award will also serve to redress the imbalance of resources between the State and the private property owners.

It is obvious that the instant case is not a traditional eminent domain proceeding in the form of a condemnation proceeding or inverse condemnation action. In bringing this action, Galt sought a declaratory judgment that certain portions of the Stream Access Bill, Sections 23-2-301, et seq., MCA, were unconstitutional as a taking of private property without just compensation. Eminent domain is defined as the State’s right “[t]o take private property for: public use.” Section 70-30-101, MCA. It was the legislature’s enactment of statutes which resulted in an unconstitutional taking of private property without just compensation that characterizes this case as an eminent domain proceeding. As previously noted, the right to just compensation does not depend on the form of the action. Jacobs, supra. Accordingly, Article II, Section 29 is applicable to the specific circumstances of this case.

In its second issue, the State argues that, even if Article II, Section 29 applies, there was no actual “taking” for which Galt can be compensated. The District Court correctly identified the prerequisites of an award of attorneys’ fees under Article II, Section 29 as being (1) a taking or damaging of private property for public use, (2) litigation, and (3) the private property owner prevailing in the litigation. State v. Standley Brothers (Mont. 1985), [215 Mont. 475,] 699 P.2d 60, 64, 42 St.Rep. 563, 568; Bozeman Parking Com’n. v. First Trust Co. (Mont. 1980), [190 Mont. 107,] 619 P.2d 168, 171, 37 St.Rep. 1610, 1614. The State agrees that these are the statutory prerequisites and concedes that the second and third prerequisites have been met.

The State asserts that the District Court erred in concluding that private property had been taken or damaged for public use. The District Court relied on language in Galt, supra, to conclude that private property was taken for a public use easement. The State contends that Galt did not consider or determine whether private property was taken or damaged for public use and that Galt simply determined that portions of the Stream Access Bill were invalid.

The State overlooks the fact that portions of the Stream Access Bill were held to be unconstitutional for the very reason that those statutes served to take private property without just compensation. Galt, 731 P.2d at 913. The Galt decision specifically “reaffirms well established constitutional principles protecting [private] property interests from confiscation [by the State.]” Galt at 916. (Additions ours.) Because of our decision in Galt, the State is collaterally estopped from now raising the “taking” issue. Accordingly, the District Court was correct in concluding that all three of the statutory prerequisites for an award of attorneys’ fees were met in this case.

We hold that Article II, Section 29, specifically authorizes an award of attorneys’ fees to the private property owners under the particular circumstances of this case. We limit this holding to the facts of this case and to the recognition that just compensation, including necessary expenses of litigation, is constitutionally required where the State takes private property for public use.

Galt requests an award of expenses of this appeal. An award to Galt of expenses on appeal, including attorneys’ fees, is proper as “necessary expenses of litigation” under Article II, Section 29 of the Montana Constitution. In addition, Section 25-10-104(2), MCA, provides that costs of appeal must be awarded to the successful party. See also Rule 33, M.R.App.P. This Court requires that the District Court hold an evidentiary hearing to determine the amount of reasonable attorneys’ fees and costs. State v. Helehan (Mont. 1980), [_ Mont. _,] 615 P.2d 925, 37 St.Rep. 1516. Accordingly, this case is referred to the District Court with instructions to calculate and award reasonable attorneys’ fees and cost of this appeal to Galt.

Affirmed with instructions to calculate and award attorneys’fees and costs of this appeal to Galt.

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

MR. JUSTICE SHEEHY,

dissenting:

I dissent, though in so doing I realize that the District Court judge, in granting attorney fees, found his hands tied by the improvident decision of the majority in Jack E. Galt v. State of Montana and the Department of Fish, Wildlife and Parks (1987), [225 Mont. 142,] 731 P.2d 912, 44 St.Rep. 103.

That majority decision took away from the people of this State and from the legislature the right to the full use of riverbeds up to the high water mark, a right before that decision recognized by state and federal statutes and courts. It is classic irony that the people now have to pay attorney fees to the parties that diminished their rights to use the riverbeds. Such are the consequences of departure from settled case law.

MR. JUSTICE HUNT concurs with the dissent of MR. JUSTICE SHEEHY.


author: MR. JUSTICE HUNT

text:
    BILL J. BISCHOFF, Linda L. Bischoff, Frank J. Filopoulos, and Michele C. Groom, Plaintiffs and Respondents, v. HIGH SCHOOL DISTRICT NO. 4. OF LINCOLN COUNTY, Montana, Cathy Ann Jenkins, Lawrence H. Sverdrup, Walter L. Womack, Edith C. Kair, Melanie L. Wood, Ted M. Boyd and Lenore Goyen, the trustees thereof, Defendants and Appellants.
    No. 87-343.
    Submitted on Briefs Jan. 7, 1988.
    Decided Feb. 11, 1988.
    749 P.2d 533.
    Scott B. Spencer, Deputy Co. Atty., Libby, for defendants and appellants.
    Douglas & Sprinkle, William A. Douglas, Libby, for plaintiffs and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Defendants, High School District No. 4 of Lincoln County and its trustees, appeal the granting of a writ of prohibition by the District Court, Nineteenth Judicial District, Lincoln County.

We affirm.

The sole issue in this case is whether Section 20-9-428, MCA, gives a school district board of trustees the authority to determine which electors are not qualified to vote and then deduct those they find to be unqualified from the list of registered voters used as the basis to compute the result of a bond election.

The facts are undisputed. On May 12, 1987, the appellant High School District No. 4 of Lincoln County held an election to approve a bond issue of $1,698,000.00 for renovation of the Libby Senior High School building. Total votes cast were 1,623 with 1,048 in favor and 575 opposed. The certified list of registered voters contained 5,479 names. The total number voting was less than 30 percent of the total number of names on the list. Under Section 20-9-428(1)(f), MCA, if this percentage is less than 30 percent the school bond proposition is deemed to have been rejected. On May 14, 1987, the board of trustees canvassed the election. The Board disqualified 296 persons who appeared on the certified list and reduced the count of registered voters accordingly to 5,183. This adjusted the percentage to above 30 percent and the Board then determined that the bond issue had passed. Plaintiff filed a petition for a writ of prohibition to prevent the Board from issuing the bonds which the District Court granted.

The high school district and its trustees argue that Section 20-9-428(1), MCA, is clear on its face in granting them the authority to determine whether certain individuals are or are not qualified to vote under their power to canvass. Besides being supported by case law, any other interpretation would give unqualified people voting power to which they are not entitled and in effect would unlawfully require a “super-majority.”

Respondents argue, on the other hand, that Section 20-9-428, MCA, does not presuppose this kind of authority and that the process of removing names from the certified list requires some due process which is already embodied in other statutes. The disputed statute reads in pertinent part:

“(1) When the trustees canvass the vote of a school district bond election under the provisions of 20-20-415, they shall determine the approval or rejection of the school bond proposition in the following manner:
“(a) determine the total number of electors of the school district who are qualified to vote under the provisions of 20-20-301 from the list of electors supplied by the county registrar for such school bond election;
“(b) determine the total number of qualified electors who voted at the school bond election from the tally sheet or sheets for such election;
“(c) calculate the percentage of qualified electors voting at the school bond election by dividing the amount determined in subsection (l)(b) by the amount determined in subsection (l)(a);”

Section 20-9-428(1), MCA.

The appellants argue that Subsection (l)(a) allows them to reject registered voters because they must “determine” the total number of electors “who are qualified to vote . . . from the list.” When read by itself this statute supports appellants’ contentions and would seem to authorize the procedure followed by the appellant trustees of the school district. However, Section 20-9-428(1), MCA, is only a part of the rule that determines this issue.

We held in Woolsey v. Carney (1963), 141 Mont. 476, 378 P.2d 658, that the validity of school elections must be determined by the rules governing general elections. See also Hehn v. Olson (1960), 138 Mont. 576, 358 P.2d 431. Therefore, Section 20-9-428, MCA, must be interpreted and read in conjunction with other statutes governing elections, particularly in this case, Section 20-20-303, MCA, Section 13-15-101, et seq., MCA, and Section 13-13-301, MCA.

An elector or voter is qualified to vote in a school election if he meets the requirements of Section 13-1-111, MCA, and is a resident of the school district. Section 20-20-301, MCA. Under Section 20-20-303, MCA, an elector’s qualifications may be challenged under either Section 13-2-404, MCA, or Section 13-13-301, MCA. Section 13-2-404 governs challenges prior to the election and Section 13-13-301 provides for challenges made on election day and is the statute most relevant to this case. Part 3 of Chapter 13 of this title sets out specific procedures by which a determination of qualifications is to be made. See Section 13-13-301, et seq., MCA. Nothing in these provisions indicate that school boards may sidestep these procedures as appellants did here. In addition to the foregoing, the appellant trustees are bound by the general canvassing statutes found in Section 13-15-101, et seq., MCA.

This Court has recognized that the function of a canvassing board is purely ministerial. State v. Batani (1936), 103 Mont. 353, 362, 62 P.2d 565, 568; State v. District Court, Etc. (1936), 103 Mont. 515, 517, 63 P.2d 147, 149. The board has only that authority given it by statute and cannot take on a judicial or quasi-judicial role unless authorized. The legislature has not given canvassing boards such a role. School districts are bound by the election procedures set forth in the statutes discussed herein.

The District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, SHEEHY, GULBRANDSON and McDONOUGH concur.


author: MR. JUSTICE WEBER

text:
    DAVID E. REISER, Claimant and Respondent, v. CARDINAL DRILLING COMPANY, Employer and Home Indemnity Company, Petitioner and Respondent, and State Compensation Insurance Fund, Defendant and Appellant.
    No. 87-364.
    Submitted on Briefs Dec. 3, 1987.
    Decided Feb. 11, 1988.
    750 P.2d 109.
    Charles Adams, Helena, for defendant and appellant.

      Ugrin, Alexander, Zadick & Slovak; Gary M. Zadick, Jardine, Stephenson, Blewett & Weaver, James E. Aiken, Great Falls, Veeder, Broeder & Michelotti, Robert J. Waller, Billings, for respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The State Compensation Insurance Fund (State Fund) appeals the judgment of the Workers’ Compensation Court that State Fund was the insurer on risk for the claim brought on behalf of Mr. Reiser. We affirm.

The issue is whether the court erred in finding that State Fund was on risk for workers’ compensation coverage on October 6, 1985. State Fund asserts the judgment was wrong for two reasons:

1. The court did not take into consideration State Fund’s right to approve or reject an application for insurance coverage;

2. The court found that coverage with Home Indemnity Company (Home) terminated on September 13, 1985, although Home never provided notice of cancellation to the division of workers’ compensation pursuant to Section 39-71-2205, MCA.

Beginning September 11, 1984, Cardinal Drilling Company (Cardinal) had workers’ compensation coverage with Home. The next year, Home notified Cardinal that the policy would not be renewed beyond September 11,1985. Home did not provide written notification to the division of workers’ compensation that the policy was canceled, as required by Section 39-71-2205, MCA. Cardinal, through a Denver brokerage firm, applied for coverage with State-Fund in September 1985. On October 6, Mr. Reiser was fatally injured while employed by Cardinal. State Fund and Home have stipulated that Cardinal had workers’ compensation coverage, leaving only the issue of which company is the insurer.

On October 7, the vice president of administration for Cardinal phoned State Fund to notify it of the fatal accident and to inquire about coverage. He spoke with an administrative clerk at State Fund, but she could not find the Cardinal application. She later testified that due to a three-month backlog, the application had not been reviewed by her office until the October 7 call by Cardinal. The application had been stamped as received by the State Fund on September 13, 1985. The administrative clerk noted that the application submitted -by Cardinal’s broker was obsolete. At the same time, she told him over the phone that coverage was bound as of September 13, 1985, the day State Fund received the first application. The clerk, testifying by deposition, stated that State Fund never revoked this binder of coverage. Therefore, Cardinal assumed that coverage existed.

Soon after this conversation, the administrative clerk called the brokerage firm in Denver. She informed an account assistant there that new applications would have to be resubmitted for each of the six companies listed on the original application. The brokerage firm received the new applications on October 14 and did not fill them out until November 5. State Fund received them on November 7 and notified Cardinal that coverage was effective that date.

On December 31, 1985, State Fund agreed to pay benefits without accepting liability. On February 28,1986, the division ordered Home to pay benefits. Home then filed with the Workers’ Compensation Court a petition to determine insurer. In its June 26,1987, judgment the court concluded that State Fund was the insurer on risk on October 6, 1985, the date of the fatality.

I

Did the Workers’ Compensation Court err in not considering State Fund’s right to approve or reject an application for insurance coverage?

Section 39-71-2303, MCA, provides in part:

“The division shall prescribe the procedure by which employers may elect to be bound by compensation plan No. 3, the effective time of such election, and the manner in which such election is terminated for reasons other than default in payment of premiums.” Pursuant to this section and Section 39-71-203, MCA, the division adopted Section 24.29.3501, ARM, which reads as follows:
“SELECTING COVERAGE UNDER PLAN THREE (1) An employer may request coverage with the State Compensation Insurance Fund either by mail, phone, or in person. Coverage will not be extended to any employer having a delinquent account. In all cases, coverage is subject to the approval of the State Fund. Coverage obtained pursuant to this rule will extend only to those employments not listed in Section 39-71-401, MCA, unless the procedures in Rule 24.29.3502 A.R.M. are followed.
“(2) By phone. An employer who requests coverage by telephoning Policy Services (Underwriting), State Fund, at headquarters in Helena, Montana, may have coverage effective at 12:01 a.m. on the day following the telephone request, provided the following requirements are met:
“(a) A completed State Fund application, form 210, is received by the State Fund within 15 days after the telephoned request, or, if the employer requests the State Fund to supply application forms, within 15 days after the date the State Fund mails application forms to the employer.
“(b) Payment in full of the initial deposit is received within 15 days after the billing date shown on the statement for initial deposit, form 403.
“(3) By mail. An employer who mails a completed application, form 210, to the State Fund, may have coverage effective as of the date the application form is received at the office of the State Fund in Helena, Montana, provided the State Fund receives payment, in full, of the initial deposit within 15 days after the billing date shown on the statement for initial deposit, form 403.
“(4) In person. An employer who delivers a completed application, form 210, to the State Fund in person may have coverage effective at 12:01 a.m. the day following delivery, provided the State Fund receives payment, in full, of the initial deposit within 15 days after the billing date shown on the statement for initial deposit, form 403.”

On September 13, 1985, State Fund received in the mail Cardinal’s application for coverage; thus the procedure of subsection (3) as recited above applies to this situation. State Fund does not contest that the initial deposit was received within 15 days of the billing date. However, the application form which Cardinal initially mailed was not form 210 as required by the regulation. The State Fund administrative clerk testified that when an obsolete application form is received, new forms are sent to the applicant for resubmission, and coverage is bound retroactively to the date on which the obsolete application was received by State Fund. The employee gave no indication that State Fund denies coverage simply because an obsolete form is mailed by the applicant. Three factors apparent from the record support this practice. Although the regulation requires that the employer mail “a completed application form 210,” form 210 is an obsolete form. The form eventually accepted by State Fund was form PF 100A “Formerly Form 210”. Additionally, the form submitted initially by Cardinal and the form eventually accepted contained substantially the same information. Also, unless applications were accepted and coverage backdated to the date of receipt by State Fund, employers could go as long as 3 months without coverage due to the backlog at State Fund. Yet State Fund argues that it did not approve the obsolete application and, therefore, did not approve coverage for September 13. State Fund bases its position on a sentence found in subsection (1) of the regulation: “In all cases, coverage is subject to the approval of the State Fund.” State Fund argues that three facts support its assertion that “[cjlearly coverage pursuant to this application was not approved”: 1) the application of September 13 was an obsolete form; 2) six entities were combined on one form; 3) a box on the initial form which read “approved for coverage . . .” was not marked by State Fund. We have already discussed the first two of these facts. State Fund regularly accepts coverage upon receipt of obsolete forms but does require new forms be resubmitted. Cardinal properly complied with this requirement on November 7, 1985. The fact that six entities were combined on one form also was corrected by resubmission of new forms, forms which contained substantially the same information with regard to Cardinal’s coverage. Finally, although the box on the obsolete form was not marked by State Fund as “approved” this fact does not convince us that coverage was “rejected”. The forms currently used by State Fund contain no such box or other space for distinguishing an application “approved” from one “rejected”. In making this technical argument, State Fund disregards the uncontroverted testimony of its employees which established that coverage was bound as of September 13, 1985, and never revoked. Without deciding whether State Fund has a valid right to approve or reject coverage, we conclude that Cardinal complied with Section 24.29.3501(3), A.R.M., by mailing a completed application to State Fund and by delivering the initial deposit within 15 days after billing date. We also conclude that coverage was bound and remained in effect as of September 13, 1985.

State Fund next argues that the new forms should have been returned within 15 days of the October 7 phone call from Cardinal to State Fund. The Workers’ Compensation Court addressed this issue adequately in its conclusions of law:

“[T]he State Fund contends that, in some manner, Mr. Leonhardt’s call to the State Fund on October 7, 1985, in effect transformed the employer’s written application to a telephone application and subjected the employer to the 15-day limit of Subsection (2) of A.R.M. 24.29.3501. Since the employer did not return the correct application within 15 days, the Fund reasons that the initial coverage date of September 13, 1985, is ineffective and the new date is the date of receipt.
“This reasoning cannot stand close scrutiny. First, it is obvious that, had the State Fund been current in the processing of their applications, this matter would have been resolved prior to the accident. However, since the Fund was some three months behind, Cardinal Drilling Company’s written application languished until Mr. Leonhardt called on October 7, 1985, with notice of the tragic accident. What transpired, or what was said, in the phone conversations between Cardinal Drilling, the State Fund and the Fred S. James brokerage house is immaterial to this matter. The crucial facts are that this was a written application and not subject to the 15-day return limit of a phone application.”

We approve the court’s reasoning and affirm the holding of the Workers’ Compensation Court that State Fund had approved and bound coverage for Cardinal effective September 13, 1985.

II

Did the court err in finding that Home’s coverage terminated on September 13, 1985, although Home never provided notice of cancellation to the division pursuant to Section 39-71-2205, MCA?

Section 39-71-2205, MCA, states in full the following:

“The policy remains in effect until canceled, and cancellation may take effect only by written notice to the named insured and to the division at least 20 days prior to the date of cancellation. However, the policy terminates on the effective date of a replacement or succeeding workers’ compensation insurance policy issued to the insured. Nothing in this section prevents an insurer from canceling a policy of workers’ compensation insurance before a replacement policy is issued to the insured.”

We have affirmed the court’s conclusion that the effective date of the State Fund coverage was September 13, 1985. Consequently, pursuant to Section 39-71-2205, MCA, the Home policy terminated that same date, the effective date of the replacement or succeeding workers’ compensation insurance policy. We affirm the holding of the court that Home’s coverage terminated on September 13, 1985, the effective date of State Fund coverage.

We hold that State Fund was the insurer on risk for Cardinal on October 6, 1985. Affirmed.

MR. JUSTICES HARRISON, GULBRANDSON, HUNT and Mc-DONOUGH concur.


text:
    KIRK HAMMERQUIST, d/b/a Kirk Hammerquist Construction, Plaintiff and Appellant, v. EMPLOYMENT SECURITY DIVISION OF the MONTANA DEPARTMENT OF LABOR AND INDUSTRY, Defendant and Respondent.
    No. 87-441.
    Submitted on Briefs Jan. 7, 1988.
    Decided Feb. 11, 1988.
    749 P.2d 535.
    Richard DeJana, Kalispell, for plaintiff and appellant.

      David Scott, Dept, of Labor & Industry, Helena, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The Montana Unemployment Insurance Division ruled that Kirk Hammerquist must pay unemployment insurance taxes on certain earnings of Charles Hornbacher, whom Mr. Hammerquist argued was his partner or a joint venturer, not an employee. The District Court for the Eleventh Judicial District, Flathead County, affirmed the administrative ruling. Mr. Hammerquist appeals. We affirm.

We restate the issue as whether the District Court and the hearing officer incorrectly applied the law in determining whether the parties were in a joint venture or partnership.

Mr. Hammerquist is a building contractor in the Flathead Valley. During 1984, he was low bidder on a contract for building a home and on two smaller projects. Charles Hornbacher performed construction work on all three projects. For his work on the home, Mr. Hornbacher was paid $500 per week out of Mr. Hammerquist’s checking account. Mr. Hornbacher also bid and completed other jobs by himself during this time. Both Mr. Hornbacher and Mr. Hammerquist have testified that they were partners in the jobs on which they worked together.

The Montana Unemployment Insurance Division determined in July 1986 that work performed by Mr. Hornbacher on the Hammerquist projects during 1984 was employment for unemployment insurance tax purposes. Mr. Hammerquist appealed that determination and a hearing was held before a hearing officer. The hearing officer also concluded that the work performed by Mr. Hornbacher for Mr. Hammerquist was employment. That decision was appealed to the Board of Labor Appeals, which also sustained the decision. Mr. Hammerquist then petitioned for judicial review, and the District Court affirmed the agency decision, concluding that “substantial evidence exists in the administrative record to support the decision made by the appeals referee.”

Did the District Court and the hearing officer incorrectly apply the law in determining whether the parties were in a joint venture or partnership?

Our standard of review of agency findings of fact is discussed at some length in City of Billings v. Billings Firefighters (1982), 200 Mont. 421, 430-31, 651 P.2d 627, 632. Section 2-4-704(2)(e), MCA, allows findings of fact to be overturned when they are clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record. In City of Billings we concluded that if there is substantial credible evidence in the record to support the findings of fact, then the findings are not “clearly erroneous” and the findings will be affirmed. We also pointed out that conclusions of law are subject to an “abuse of discretion” review because of the Court’s expertise in interpreting and applying the law.

Montana’s Unemployment Insurance Law, Title 39, Chapter 51, MCA, requires that employers make contributions to the Department of Labor and Industry with respect to wages paid for employment. Section 39-51-1103, MCA. Mr. Hammerquist does not dispute that he is an employer. The hearing officer’s findings and conclusions first set forth the definition of wages in Section 39-51-201(18)(a), MCA: “all remuneration payable for personal services . . . .” The hearing officer then discussed the issues of whether the $500 Mr. Hornbacher received each week was “wages” and whether Mr. Hornbacher was a partner of Mr. Hammerquist:

“The income received by Mr. Hornbacher falls within the term ‘wages’ as defined above. The $500.00 per week ‘draw’ was remuneration for personal services in construction of the buildings completed. While the employer prefers to designate the wages as profits, the record will not support such a finding. Therefore, no inference of a partnership is drawn and the existence of a partnership must be established from some other area.
“The employer defines the relationship between him and Mr. Hornbacher as a ‘partnership’. No partnership agreement was ever executed. A partnership name does not appear on any document. Checks were issued but only to the employer, and neither filed income tax as a partnership. Additionally, no accounts or correspondence identified them as partners. Quite to the contrary, the home owner individually hired Mr. Hammerquist. T hired Kirk Hammerquist . . . and knew Mr. Hornbacher worked with him in partnership.’ This appears to be a broad application of the word partnership by the owner. Based on the record presented which shows all the materials, correspondence, and payments made individually to Mr. Hornbacher [sic], and the absence of any documentation showing the existence of a partnership, the hearing officer is unable to make a finding that a partnership existed as that term is defined in Montana law.”

The hearing officer then went on to analyze the “ABC test” used under Section 39-51-203(4), MCA, to distinguish employment from work by an independent contractor.

Mr. Hammerquist argues that the hearing officer improperly used the “ABC test” to determine that Mr. Hornbacher was his employee. Mr. Hammerquist asserts that this test is only proper when the question is whether the person is an independent contractor or an employee, not when the question is whether the person is a joint venturer. However, the hearing officer set forth the above discussion before he applied the “ABC test”. The above discussion represents the consideration of the partnership or joint venture argument. The discussion is phrased in terms of partnership instead of joint venture, as was the testimony of the witnesses at the hearing. After reaching a conclusion that he was unable to make a finding that a partnership existed, the hearing officer discussed the “ABC test”. We conclude that the hearing officer did not use the “ABC test” to determine whether there was a partnership or joint venture, and we hold that the legal standard employed by the hearing officer was proper.

Mr. Hammerquist also argues that there is no evidence contradicting the existence of a joint venture, and that the decision of the hearing officer should therefore be reversed. One of the elements necessary to show joint venture is an equal right to a voice in the direction of the enterprise, giving an equal right of control. Sumner v. Amacher (1968), 150 Mont. 544, 554, 437 P.2d 630, 635. The facts that the contract was signed only by Mr. Hammerquist and payments were made only to him do not indicate equal control of the venture. Mr. Hammerquist and Mr. Hornbacher had no partnership or joint venture accounts, did not file income tax as a partnership, and did not sign any contract or papers as a partnership or joint venture. Any materials purchased for the jobs were purchased through Mr. Hammerquist’s personal accounts with the suppliers. We conclude that Mr. Hammerquist failed to prove the existence of a joint venture. We hold that substantial evidence supports the hearing officer’s finding and conclusion that no partnership or joint venture was shown.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and HUNT concur.