text:
    TIMOTHY D. SUPOLA, Petitioner and Appellant, v. MONTANA DEPARTMENT OF JUSTICE, DRIVERS LICENSE BUREAU, Respondent and Respondent.
    No. 95-508.
    Submitted on Briefs August 22, 1996.
    Decided October 18, 1996.
    53. St.Rep. 984.
    278 Mont. 421.
    925 P.2d 480.

      For Appellant: Bryan C. Tipp, Tipp and Buley, Missoula.
    For Respondent: Joseph P. Mazurek, Attorney General, Micheál S. Wellenstein, Assistant Attorney General, Helena; Alan J. Hall, Deputy City Attorney, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Timothy D. Súpola (Súpola) appeals the order of the Thirteenth Judicial District Court, Yellowstone County, concluding that he was not entitled to a jury trial on his petition to challenge the suspension of his driver’s license.

Affirmed.

On February 13, 1995, Súpola was arrested for driving under the influence of alcohol. Following his arrest, Súpola refused to submit to a breath test to determine the level of his intoxication. Because of this refusal, Supola’s driver’s license was automatically suspended pursuant to § 61-8-402(3), MCA, the implied consent law.

Súpola subsequently filed a petition in the District Court challenging the validity of the license suspension. He also requested that the matter be heard by a jury. The District Court denied his request for a jury trial, concluding that Súpola was not constitutionally entitled to a jury in a proceeding to challenge the suspension of his driver’s license. Súpola appeals.

The sole question presented on appeal is whether the District Court erred in concluding that Súpola was not entitled to a jury trial on his petition challenging the § 61-8-402(3), MCA, automatic suspension of his driver’s license.

It is a question of law whether an individual is entitled to a trial by jury. In re Matter of C.L.A. and J.A. (1984), 211 Mont. 393, 395, 685 P.2d 931, 933. This Court reviews a district court’s conclusions of law de novo, to determine whether they are correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601).

Súpola first argues that the statute which provides for an appeal from a driver’s license suspension does not, by its terms, prohibit a trial by jury and that, therefore, he should be allowed to have a jury trial if he so chooses. The pertinent statute, § 61-8-403, MCA, provides in part:

(1) Within 30 days after notice of the right to a hearing has been given by a peace officer, a person may file a petition to challenge the license suspension or revocation in the district court in the county where the person resides or in the county where the arrest was made.
(2) The court has jurisdiction and shall set the matter for hearing. ...
(3) Upon request of the petitioner, the court may order the department to return the seized license or issue a stay of the suspension or revocation action pending the hearing.
(4) (a) The court shall take testimony and examine the facts of the case ....
(b) The court shall determine whether the petitioner is entitled to a license or whether the petitioner’s license is subject to suspension or revocation.

(Emphasis added.)

When construing a statute, “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. When a statute is “plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe.” Curtis v. Dist. Court of the Twenty-first Judicial Dist. (1994), 266 Mont. 231, 235, 879 P.2d 1164, 1166 (quoting State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333).

The plain language of § 61-8-403, MCA, dictates that the court shall both examine the facts and determine the merits of the petition. The statute does not contemplate the role of a jury in such a hearing; rather, it presumes a jury will not be present and assigns to the court the task of determining both facts and law. No other interpretation is possible from a plain reading of the statute. We therefore conclude that § 61-8-403, MCA, does not provide for a jury trial.

Súpola next argues that § 61-8-403, MCA, as interpreted, violates his constitutional right to a trial by jury. Article II, Section 26 of the Montana Constitution provides:

The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury or before fewer than the number of jurors provided by law. In all civil actions, two-thirds of the jury may render a verdict, and a verdict so rendered shall have the same force and effect as if all had concurred therein. In all criminal actions, the verdict shall be unanimous.

Súpola contends that this section provides a right to a jury trial in all controversies, including a hearing regarding the propriety of his driver’s license suspension. We disagree.

The inviolate right to a jury trial is not a prospective one, automatically granted in every new proceeding which may arise. Rather, the right which is constitutionally preserved is that right to a jury trial which existed at the time the constitution was enacted. In other words, “the rule in Montana is that our state constitution only guarantees the right to a jury trial in the class of cases in which the right was enjoyed when the constitution was adopted.” Matter of C.L.A., 685 P.2d at 933 (citations omitted).

There is not, and never has been, a right to a jury trial in purely equitable actions in Montana. Downs v. Smyk (1982), 200 Mont. 334, 341, 651 P.2d 1238, 1242. In fact, an attempt was made dining the 1972 constitutional convention to extend the right to a jury trial to actions in equity, but this attempt failed. Therefore, “in equity cases, the judge may call a jury to his assistance if he chooses, but is not bound to do so.” Downs, 651 P.2d at 1242 (quoting Little v. Mackel (1968), 151 Mont. 421, 425, 443 P.2d 891, 893-94).

Suspension or revocation of a driver’s license pursuant to the implied consent law is a civil administrative sanction, not a criminal penalty. In re Petition of Burnham (1985), 217 Mont. 513, 518, 705 P.2d 603, 607. It is not intended to punish the driver, but to protect the public. Burnham, 705 P.2d at 607 (citing State ex rel. Griffith v. Brustkern (1983), 202 Mont. 438, 658 P.2d 410; In the Matter of France (1966), 147 Mont. 283, 411 P.2d 732). The hearing to determine the propriety of the driver’s license suspension is an action in equity because compensatory or punitive damages, the traditional relief afforded by a court of law, are not permitted. Instead, the only possible relief is the reinstatement of the driver’s license and the consequent resumption of driving privileges. Because the hearing is an action at equity, no right to a trial by jury exists and the hearing is not subject to the constitutional protections afforded by Article II, Section 26 of the Montana Constitution.

We are careful, however, to distinguish this purely equitable matter from other controversies which might involve both issues of equity and of law. In such cases, the presence of a legal question may serve to trigger the parties’ right to a jury trial even though equitable questions are also presented. See, for example, Gray v. City of Billings (1984), 213 Mont. 6, 689 P.2d 268. In Gray, this Court held:

where equitable and legal claims are joined in the same action, there is a right to jury trial on the legal claims which must not be infringed either by trying the legal issues as incidental to equitable ones or by a court trial of a common issue between the claims.

Gray, 689 P.2d at 272 (quoting Ross v. Bernhard (1970), 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729). Conversely, in the case at bar the issue presented and the possible relief afforded are purely equitable.

But Súpola argues that the suspension hearing is not a purely equitable action because his driver’s license cannot be returned to him unless and until he pays a $100 reinstatement fee. Section 61-2-107, MCA. He contends that this fee constitutes a punishment of the driver, which in turn converts the equitable action into a legal one and triggers his right to a jury trial.

Súpola argues that the reinstatement fee is a punishment but at the same time concedes that, under Burnham, the suspension itself is not. He draws this distinction on the grounds that the reinstatement fee does nothing to protect the public, while protection of the public is the rationale underlying the suspension itself. Again, Súpola misconstrues the plain language of the statute.

Section 61-2-107(1), MCA, provides:

License reinstatement fee to fund county drinking and driving prevention programs. Notwithstanding the provisions of any other law of the state, a driver’s license that has been suspended or revoked under 61-5-205 or 61-8-402 must remain suspended or revoked until the driver has paid to the department a fee of $100 in addition to any other fines, forfeitures, and penalties assessed as a result of conviction for a violation of the traffic laws of the state.

The stated purpose of this statute, as articulated in its title, is “to fond county drinking and driving prevention programs,” not to punish the driver. Drinking and driving prevention programs have the obvious effect of protecting the public by increasing public awareness of the dangers of drunk driving. Suspension of the license pursuant to § 61-8-402, MCA, is a civil sanction, Burnham, 705 P.2d at 607, and so is payment of the reinstatement fee required by § 61-2-107, MCA. Neither constitutes a criminal penalty and neither will serve to convert the suspension hearing from a proceeding at equity to a proceeding at law.

For these reasons, we hold that a driver is not entitled to a jury in a proceeding to determine the propriety of an automatic driver’s license suspension imposed pursuant to § 61-8-402(3), MCA. The decision of the District Court is affirmed.

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


source: Caselaw Access Project

author: JUSTICE GRAY CHIEF JUSTICE TURNAGE,

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH BROKEN ROPE, JR., Defendant and Appellant.
    No. 96-054.
    Submitted on Briefs August 15, 1996.
    Decided October 18, 1996.
    53 St.Rep. 987.
    278 Mont. 427.
    925 P.2d 1157.

      For Appellant: John I. Petak, III, Deputy Yellowstone County Public Defender, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Carol Schmidt, Ass’t Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Daniel L. Schwarz, Deputy Yellowstone County Attorney, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Joseph Broken Rope, Jr. (Broken Rope) appeals from the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on his guilty pleas to charges of carrying a concealed weapon, criminal possession of dangerous drugs and criminal possession of drug paraphernalia, having reserved the right to appeal the court’s denial of his motion to suppress. We reverse and remand.

The dispositive issue on appeal is whether the District Court erred in finding that a particularized suspicion existed to justify an investigative stop of Broken Rope under § 46-5-401, MCA.

The following facts are undisputed. On March 21,1995, at approximately 1:00 a.m., Deputy Kevin Evans (Evans) of the Yellowstone County Sheriff’s office was on patrol near the Lockwood Kwik Way convenience store in Billings, Montana. He observed a vehicle occupied by two individuals, later identified as Elton Belgarde (Belgarde) and Broken Rope, traveling west on Highway 87 East. Evans ran the vehicle’s license number through a records check which revealed that the vehicle was registered to Belgarde and that a warrant had been issued for his arrest for fish and game violations.

When Belgarde and Broken Rope arrived at the Kwik Way, they left the vehicle and went inside the store. Evans watched the two men from his patrol car, planning to wait until they were back in their vehicle before approaching them. Belgarde and Broken Rope exited the store after a short time. When they noticed Evans, they began using the telephone, moving around in the store’s parking lot, and staring at Evans. Evans decided that Belgarde and Broken Rope were not going to get back into Belgarde’s vehicle while he was present, so he radioed his backup, Deputy M. J. Mullikin (Mullikin), for assistance.

When Belgarde and Broken Rope saw Evans and Mullikin drive into the immediate area, they began putting their hands into their pockets. The deputies told them to keep their hands out of their pockets and, when Broken Rope attempted a second time to put his hands into his pockets, the deputies told him again to keep his hands out of his pockets. Evans then arrested Belgarde on the outstanding fish and game warrant.

Mullikin frisked Broken Rope and asked him if he had any weapons, knives or needles on his person. Broken Rope said that he had a knife in his belt. In addition to the knife, Mullikin found a .38 caliber Smith & Wesson handgun in Broken Rope’s waistband under his shirt. When asked about additional weapons or drugs, Broken Rope said that he had some marijuana in his pants pocket. Mullikin searched Broken Rope a second time and felt a hard object in Broken Rope’s pants pocket which Broken Rope identified as a marijuana pipe. Evans also searched Broken Rope and, in addition to the marijuana pipe containing suspected marijuana residue, he found a black canister containing a white powdery substance in Broken Rope’s other pants pocket. Broken Rope was taken to the Yellowstone County detention facility and booked. Evans then removed the back seat of his patrol car and found a baggie containing a rock-like substance under where Broken Rope had been sitting.

The State of Montana (State) charged Broken Rope by information with the felony offenses of carrying a concealed weapon and criminal possession of dangerous drugs, and the misdemeanor offense of criminal possession of drug paraphernalia. After pleading not guilty, Broken Rope moved to suppress the evidence seized by the deputies. The parties agreed that the District Court could decide the issue without a hearing, and the court subsequently denied Broken Rope’s motion.

Broken Rope later pled guilty to the charged offenses, reserving the right to appeal the court’s denial of his motion to suppress. The District Court entered judgment and sentence and Broken Rope appealed. The court and the parties filed an “Agreed Statement of Facts for Record on Appeal” pursuant to Rule 9(e), M.R.App.P.

Did the District Court err in finding that a particularized suspicion existed to justify an investigative stop of Broken Rope under § 46-5-401, MCA?

In denying Broken Rope’s motion to suppress, the District Court found that Evans had a particularized suspicion, based on his training and experience as a peace officer and Broken Rope’s actions, that Broken Rope had been or was engaged in criminal activity. On that basis, the District Court concluded that the investigative stop and search of Broken Rope was justified and denied the motion to suppress.

Broken Rope contends that the District Court’s finding regarding Evans’ particularized suspicion to justify the investigative stop pursuant to § 46-5-401, MCA, is clearly erroneous and, therefore, that the court erred as a matter of law in applying the statute and denying his motion to suppress. We review such findings of fact by a district court to determine whether they are clearly erroneous; we review a district court’s conclusions of law to determine whether they are correct. See Bauer v. State (1996), 275 Mont. 119, 122, 910 P.2d 886, 888; State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021 (citing State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94).

When a law enforcement officer seizes a person, such as in an investigative stop, the right against unreasonable searches and seizures guaranteed by the Fourth Amendment to the United States Constitution applies. Bauer, 910 P.2d at 889. As a result, the Montana legislature amended Montana’s investigative stop statute in 1991 to conform with both United States Supreme Court and Montana Supreme Court case law on that subject. State v. Reynolds (1995), 272 Mont. 46, 49, 899 P.2d 540, 542. Section 46-5-401, MCA, provides:

Investigative stop. In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

(Emphasis added.)

In light of the requirement that some objective manifestation must exist to support a particularized suspicion that a person is engaged in criminal activity before a stop can be made, we have adopted a two-part test to determine whether an officer had sufficient cause to stop a person. Anderson v. State Dept. of Justice (1996), 275 Mont. 259, 263, 912 P.2d 212, 214 (citing State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293). First, the State must establish objective data from which an experienced officer can make certain inferences. Second, the State must show a resulting suspicion that the person is, or has been, engaged in wrongdoing or was a witness to criminal activity. Anderson, 912 P.2d at 214. Whether a particularized suspicion exists is a question of fact which is dependent on the totality of the circumstances. Anderson, 912 P.2d at 214 (citing Reynolds, 899 P.2d at 542-43).

The initial, and primary, thrust of the analysis is whether objective data existed from which an experienced officer could conclude that the person stopped is, or has been, engaged in criminal activity. In Bauer, for example, the deputy observed Bauer driving well over the speed limit, crossing the center line more than once and braking hard around curves. Bauer, 910 P.2d at 887, 890. We concluded that, under the totality of the circumstances, the evidence supported the deputy’s particularized suspicion that Bauer had committed an offense. Bauer, 910 P.2d at 890.

Similarly, in Anderson, the officer testified that she saw Anderson shuffle and stumble toward his car between 1:00 a.m. and 2:00 a.m. and fail to use his vehicle’s turn signals at every turn for several blocks; in addition, he did not stop when she asked him to. Anderson, 912 P.2d at 213. The officer also testified that, even from ten to fifteen feet away, she could smell a very strong odor of intoxicants emanating from Anderson. Anderson, 912 P.2d at 213. Those facts were sufficient, under the totality of the circumstances, to support the officer’s particularized suspicion that Anderson had committed the offense of driving under the influence of alcohol. Anderson, 912 P.2d at 215.

In other cases, however, this Court has held, under the totality of the circumstances, that the evidence did not support a particularized suspicion that the person stopped had committed, or was committing, an offense. In Reynolds, the deputy sheriff testified that he observed a pickup moving through an intersection “bordering on traveling too fast” for the conditions and hesitating seven to ten seconds at the intersection where the deputy was waiting, but that the driver had not necessarily violated the law. Reynolds, 899 P.2d at 542-43. Other than those observations, the deputy did not see any violations of the law and Reynolds did not exhibit behavior consistent with a person driving while under the influence of alcohol. Reynolds, 899 P.2d at 543. We concluded that, under the totality of the circumstances, a possible traffic violation — in the absence of any other objective evidence of criminal activity — did not support a particularized suspicion that Reynolds had been engaged in wrongdoing. Reynolds, 899 P.2d at 543. On that basis, we held that the investigative stop was not justified under § 46-5-401, MCA. Reynolds, 899 P.2d at 543.

In the present case, the objective data Evans observed was Broken Rope entering and leaving the Kwik Way at approximately 1:00 a.m., using the telephone, moving around in the Kwik Way parking lot, putting his hands in his pockets, and staring at Evans. These actions do not support a particularized suspicion that Broken Rope was, or had been, engaged in criminal activity.

The State contends that Evans and Mullikin also relied on the existence of an outstanding warrant for “one of the men” as objective data supporting their investigative stop and search of Broken Rope. However, the undisputed fact is that the warrant for fish and game violations was for Belgarde, not for Broken Rope. The State cites to no authority under which a person merely being in the company of someone for whom an arrest warrant has been issued is sufficient— on either a stand-alone basis or in conjunction with objective data of the type that existed in this case — to create a particularized suspicion that that person had committed, or was committing, an offense so as to justify an investigative stop.

The State also contends that the deputies could draw upon their training and experience as peace officers to conclude that Belgarde and Broken Rope were acting in a suspicious and nervous manner, thereby justifying an investigative stop. At the outset, we observe that the agreed facts before us contain no information about the deputies’ training and experience or how such training and experience could lead them to conclude that Belgarde and Broken Rope’s activities were “suspicious” and “nervous.” Indeed, no agreed fact states that the deputies reached such a conclusion.

Moreover, there is nothing inherently suspicious about Broken Rope using a pay telephone, moving around in a convenience store parking lot, putting his hands in his pockets or staring at a sheriff’s deputy. As to whether these activities were “nervous,” many law-abiding citizens may well be nervous when their activities are being watched by law enforcement officers. On this record, Broken Rope’s actions did not form the basis for inferences resulting in a particularized suspicion that Broken Rope was, or had been, engaged in criminal activity.

We conclude that, under the totality of the circumstances, the record is insufficient to support the District Court’s finding that Evans had a particularized suspicion that Broken Rope was engaged in criminal activity; therefore, the court’s finding is clearly erroneous. On that basis, we further conclude that the District Court erred in determining that the investigative stop of Broken Rope was justified pursuant to § 46-5-401, MCA.

The remainder of the State’s arguments relate to the officers’ entitlement to “frisk” a person and seize certain objects pursuant to § 46-5-402, MCA. According to the State, however, § 46-5-402, MCA, applies “[o]nce a peace officer has lawfully stopped a person under § 46-5-401 ....” Based on our conclusions that no particularized suspicion existed and that the investigative stop of Broken Rope was not justified under § 46-5-401, MCA, we need not address the remainder of the State’s arguments.

We hold that the District Court erred in denying Broken Rope’s motion to suppress.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES TRIEWEILER, HUNT and NELSON concur.

CHIEF JUSTICE TURNAGE,

dissenting:

I respectfully dissent.

The District Court found that Deputy Sheriff Kevin Evans had particularized suspicion for a reasonable investigative stop of the defendant and subsequent search for weapons as reasonable police procedure for officer protection. This finding and the order denying suppression of the criminal contraband found on the person of defendant is supported by the record in this case.

The majority’s review of the objective data in this case is notable for its brevity. Now the rest of the story.

At approximately 1:00 a.m. on March 21,1995, Deputy Evans was patrolling a rural area of Yellowstone County near the Lockwood Kwik Way convenience store when he observed a vehicle with two occupants traveling west on Highway 87. After running a license plate record check, the deputy was notified that the vehicle was registered to Elton Belgarde and that a warrant for Belgarde’s arrest was outstanding.

The Belgarde vehicle stopped at the Kwik Way convenience store, and the two occupants entered the store. The two individuals, one of whom was Elton Belgarde and the other the defendant herein, Joseph Broken Rope, exited the store, noticed Deputy Evans’ car, began using the telephone and stared at the deputy. Deputy Evans called for Deputy Sheriff Mullikin to assist him.

Upon seeing the deputies pull into the immediate area, Belgarde and Broken Rope began putting their hands into their pockets. The officers told them to take their hands out of their pockets. Defendant Broken Rope again reached to put his hands into his pockets and was told not to do so.

Deputy Evans placed Belgarde under arrest on the outstanding warrant. Deputy Mullikin, in preparing to frisk defendant Broken Rope, asked him if he had any weapons. Broken Rope told the deputy he had a knife on the back of his belt concealed under his shirt. Deputy Mullikin proceeded with a frisk of the defendant and in addition to the concealed knife found, also concealed in his waistband under his shirt, a five-round, fully loaded Smith & Wesson revolver. In addition, he found on defendant’s person certain contraband drugs and a marijuana pipe.

Notwithstanding the unjustified reversal of the District Court’s denial of a motion to suppress based on a claim of unconstitutional search and statutory violation, the rational and reasonable officer’s protection procedure in finding the concealed .38 may not only have saved the deputies from harm, but may have prevented one more dead convenience store clerk.

The District Court carefully and correctly articulated its reasoning in holding that the stop and search of the defendant complied with applicable constitutional, statutory and case law. The District Court’s order states in relevant part:

Regarding the Defendant, upon his exiting of the Kwik Way store, the Deputy believed that he and Mr. Belgarde were acting in a nervous and suspicious manner. The two men were closely watching the Deputy. They walked around the parking lot, made some telephone calls, and evidenced an intention not to return to their automobile. In addition, because the Deputy knew about the warrant for Mr. Belgarde, their nervous actions were all the more suspicious.
As a result, the Deputy stopped, frisked and arrested Mr. Belgarde on the warrant. In addition, pursuant to State v. Gopher and sections 46-5-401 and 46-5-402, MCA, the Defendant was stopped and frisked. The stopping and frisking of the Defendant was proper because the Deputy had “particularized suspicion” that the Defendant had been engaged in wrongdoing. See Gopher, 631 P.2d at 296. The “particularized suspicion” was based on the previously mentioned suspicious actions of the Defendant and Mr. Belgarde upon leaving the Kwik Way store. In addition, it was appropriate to pat down the Defendant for safety purposes in order to secure the situation for the arrest of Mr. Belgarde based on the warrant. Section 46-5-402(1), MCA.
Additionally, it was appropriate for the Deputy to ask the Defendant if he possessed any weapons, knives or needles prior to the pat down for officer safety purposes. Id.
The Defendant admitted possessing a concealed knife on the back of his belt under his shirt. (Defendant’s brief in support of motion to suppress, p. 2, line 16 & 17) However, the Deputy found not only a concealed knife, but also a fully loaded .38 caliber handgun hidden in the waistband of the Defendant’s belt under his shirt. (Id. at line 18 & 19) Based on these discoveries, three conclusions are inescapable.
First, upon uncovering the concealed weapons, the Deputy had probable cause to arrest the Defendant for carrying concealed weapons. As the Court in State v. Sharp, 217 Mont. 40, 702 P.2d 959 (1985) stated, “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.” Sharp, 217 Mont, at 46.
Second, the discovery of the concealed weapons verified the Deputy’s reasonable belief that a pat down was reasonably necessary for officer protection. And third, the discovery of concealed weapons demonstrated the necessity to search further. The Defendant had stated that he was carrying a knife, but made no mention of the handgun. As a result, the Defendant’s comments as to the contents in his front pants pockets, i.e., marijuana and a marijuana pipe, did not render the subsequent officer safety search unreasonable. On the contrary, it was entirely reasonable to believe the Defendant possessed other weapons even though the Deputy specifically asked him if he had any drugs.
Therefore, because the Deputy had particularized suspicion that an offense had been, was being, or was about to be committed, based on the actions of the Defendant and the training and experience of the Deputy, a reasonable investigative stop and search of the Defendant was appropriate. An arrest of Mr. Belgarde was appropriate based on the issued warrant for his arrest. After stopping the Defendant and frisking him for officer protection, concealed weapons were found. Further officer protection search, demonstrated to be reasonable based on the previously uncovered weapons, resulted in discovery of controlled substance possession by the Defendant. The Court believes that all the uncovered evidence can properly be used against the Defendant in a criminal trial. As a result, the Court is persuaded that the Defendant’s constitutional rights against unreasonable search and seizure have not been violated.

I agree with the District Court and therefor dissent.


author: JUSTICE NELSON

text:
    IN RE THE ESTATE OF MARGARET DECOCK, JOYCE HERT, Appellant and Cross-Appellee, v. JAMES DECOCK and ROBERT DECOCK, Respondents and Cross-Appellants.
    No. 95-293.
    Submitted on Briefs March 14, 1996.
    Decided October 22, 1996.
    53 St.Rep. 992.
    278 Mont. 437.
    925 P.2d 488.

      For Appellant: Robert L. Stephens, Jr., Billings; George Radovich, Radovich Law Firm, Billings.
    For Respondent: James A. Hubble, Hubble & Ridgeway, Stanford.
   JUSTICE NELSON

delivered the Opinion of the Court.

Appellant Joyce Hert, appeals the decision of the Sixteenth Judicial District Court, Treasure County, finding that Joyce’s mother, Margaret DeCock, had testamentary capacity to execute her 1984 will and that Joyce exerted undue influence over Margaret in the transactions surrounding several Certificates of Deposit (CDs). Joyce’s brothers, Robert and James DeCock, cross-appeal as to the District Court granting Joyce’s motion for a new trial with respect to the validity of the Instrument of Revocation. We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

Joyce presents the following issues for review:

1. Whether the District Court erred in not amending the judgment and setting aside the jury’s finding that certain transactions regarding Margaret’s CDs were the result of undue influence by Joyce.

2. Whether the District Court erred in granting a new trial only as to the validity of Margaret’s attempted revocation of her 1984 will.

3. Whether the District Court erred in limiting cross-examination regarding the settlement agreement.

Robert and James cross-appeal on the following issue:

Whether the District Court erred in granting a new trial with respect to the validity of the Instrument of Revocation.

FACTUAL AND PROCEDURAL BACKGROUND

Oscar and Margaret DeCock operated a farm and ranch near Hysham, Montana for many years. They had five children: Gary, Marlene, Joyce, Robert and James. In 1962, Oscar and Margaret made identical wills wherein all of their holdings were left to the surviving spouse. In the event that no spouse survived, all of their estate would pass to their five children in equal shares.

In 1968, Oscar wrote a new will in which he left a little over nine sections of farm and ranch land to his oldest son, Gary, subject to the condition that Gary pay one-fifth of the appraised value of the land to each of the other four children. The payment was to be secured by a mortgage and note to the other four and was payable over a ten-year period, without interest. The balance of the estate was given one-half to Margaret and one-half to the five children. Gary, Robert and James were given the option to purchase all of the interest in land that was given to Joyce and Marlene.

Oscar died in 1970, and his 1968 will was admitted to probate. After Oscar’s death, Margaret repeatedly promised the four other children that she would make up for the perceived disparity in treatment under their father’s will. To that end, Margaret created a number of CDs and savings accounts in her name and the names of some or all of her children.

By early 1980, Margaret’s health was declining. During one hospitalization in 1982, her attending physician noted the presence of symptoms indicative of early dementia. In January 1983, Margaret was again hospitalized and both attending physicians identified symptoms of mild senility, senile dementia or organic brain syndrome. After Margaret’s release from the hospital, Joyce began assisting Margaret in picking up her mail and taking Margaret to her doctor’s appointments, to the grocery store and to the bank.

In April 1984, unbeknownst to the other three children, Robert and James took Margaret to an attorney in Miles City for the purpose of preparing a new will. This will, dated April 23, 1984, disinherited Gary entirely and gave Joyce and Marlene a bequest of only $40,000 each. Robert and James were to receive all of Margaret’s real estate along with all livestock, motor vehicles, tools, and farm machinery. The real estate alone had an appraised value of more than $570,000. The remainder of Margaret’s estate was to be divided equally among Robert, James, Marlene and Joyce.

A few days after signing this will, Margaret phoned Joyce claiming that she could not remember what she had signed. At Joyce’s insistence, Margaret asked the attorney who prepared the will to send her the original by registered mail. However, within a day or two of Margaret’s receiving the will in the mail, Robert and James took possession of it to prevent it from being destroyed.

As a result of Margaret’s increasing agitation over this will, Joyce contacted an attorney in Billings who prepared an Instrument of Revocation for Margaret’s signature. During a visit to Margaret’s doctor on May 18, 1984, Margaret again became agitated over the provisions of the will. Joyce, who had accompanied her mother to the doctor’s office, produced the Instrument of Revocation, which Margaret signed in the presence of her doctor and his nurse.

Margaret was placed in a nursing home in Forsyth, Montana in October 1985. The doctors concluded that she was no longer able to live independently due to the continuing advance of Alzheimer’s disease. Joyce visited Margaret at the nursing home once or twice each week and helped Margaret make out checks to pay her bills. After Joyce moved to Billings in August 1986, she visited Margaret about once a month. In 1988, a conservatorship was established for Margaret wherein all of her assets were administered by Norwest Capital Management.

Margaret died on May 1, 1993, at the age of 83. On May 10, 1993, Robert and J ames filed an Application for Informal Probate under the terms of the April 23, 1984 will. They were appointed co-personal representatives. On June 11, 1993, Gary filed a petition for the adjudication of the other will asserting that Margaret was either incompetent to make a will in April 1984 or was subject to undue influence and duress at the time she made the 1984 will. On November 19, 1993, Joyce filed a separate response to the petitions for adjudication of the wills. Robert and James filed an amended objection and answer on March 15, 1994, which included counterclaims against Joyce for the return of assets belonging to the estate.

After extensive written discovery and numerous depositions, Robert, James, Gary, and Marlene entered into a settlement agreement on April 8, 1994. Joyce did not participate in the settlement agreement and the dispute between Joyce, Robert and James proceeded to trial with Joyce as plaintiff and Robert and James as defendants. A few days prior to trial, Robert and James filed a motion to prevent admission of the settlement agreement. The District Court ordered that the agreement would only be admissible to attack the credibility of a witness by showing motive for bias or prejudice.

Trial commenced before a twelve-person jury on September 26, 1994. After several days of testimony, the jury determined that Margaret was competent at the time she executed her April 23,1984 will and that she was not under the influence of Robert and James at the time she executed the will. The jury also determined that Joyce had exerted undue influence over Margaret in the transactions surrounding several of Margaret’s CDs.

After the jury returned its verdict, the District Court held a hearing on the proper form of judgment to be entered as a result of the jury’s answers on the verdict form. The issue of attorney fees was also addressed at this hearing. After taking the matter under advisement, the District Court filed its judgment on December 12, 1994, wherein the court upheld the jury’s verdict and ordered that Joyce pay the face value of each of the CDs at issue along with interest. The court also awarded Robert and James attorney fees in the amount of $55,653.57.

Following the Notice of Entry of Judgment, Joyce entered a motion for a temporary stay which was subsequently granted by the District Court. On December 20,1994, Joyce filed a Motion for a New Trial or to Alter or Amend Judgment on the grounds that there was insufficient evidence presented at trial to support a finding that she exerted undue influence over Margaret in connection with the CDs and that the monies the court ordered Joyce to repay had in actuality been disbursed and received by others. Joyce also objected to the award of attorney fees.

On February 2,1995, the District Court entered its Memorandum and Order denying Joyce any relief in connection with the issue of undue influence concerning the CDs. The court also concluded that the jury’s finding of competency as to the April 23, 1984 will and the issue of undue influence as to that will could not be relitigated. Nevertheless, the court granted Joyce’s motion for a new trial with respect to the validity of the Instrument of Revocation and reserved her objection to attorney fees pending resolution of the new trial.

Joyce appeals from the jury verdict and judgment, as well as the District Court’s rulings on her post-trial motions. James and Robert cross-appeal from the District Court’s granting a new trial to determine the validity of the Instrument of Revocation.

Issue 1

Whether the District Court erred in not amending the judgment and setting aside the jury’s finding that certain transactions regarding Margaret’s CDs were the result of undue influence by Joyce.

Joyce contends that the District Court erred in not amending the judgment and setting aside the jury verdict on the grounds that there was insufficient evidence presented at trial to support a finding that Joyce exerted undue influence over Margaret in connection with the CDs and that the monies from the CDs that the District Court ordered Joyce to repay had, in actuality, been disbursed and received by others. There are four instances where the jury determined that Joyce exerted undue influence over Margaret.

First, Margaret purchased a CD at First National Bank of Hysham on February 5, 1982, for $50,000. The names on that CD were Margaret, Robert, Marlene, James and Joyce. On February 10,1983, Joyce accompanied Margaret to FirstNational Bank where Margaret cashed this CD. Joyce then drove Margaret to Security Bank in Billings where Margaret purchased a new CD for $52,895.55 in the names of Margaret or Marlene or Joyce. On September 5,1989, while Margaret was incompetent, Joyce transferred that CD into her own name and that of Marlene. On September 16,1993, Joyce cashed this CD, distributing half to Marlene and half to herself.

Second, on May 18, 1984, Joyce accompanied Margaret to First State Bank of Forsyth where Margaret purchased a Time Savings Certificate in the names of Margaret or Joyce or Marlene. The funds for that purchase came from two checks for the sale of livestock and a savings account held in the names of Margaret or Robert. The value of the certificate at the time of purchase was $19,650.05.

Third, Margaret purchased five $4000 CDs in 1974 and placed her name and one of her children’s names as joint owner on each of the CDs. She held these until 1983 when she redeemed them and purchased four $10,000 CDs from First National Bank in Hysham, placing her name along with one of her children’s names, with the exception of Gary, on each of the CDs. On July 2, 1984, Margaret, accompanied by Joyce, visited First National Bank and cashed the 1983 CDs. Margaret purchased four new CDs in the amount of $10,451.26 each. She placed her own name on each CD and named Joyce, Robert and Marlene as a joint owner on three of them, but did not name James as joint owner on the fourth CD.

Finally, on May 12, 1986, Joyce accompanied her mother to First National Bank in Hysham where Margaret cashed a CD for $10,000 held in the names of Margaret and Robert. After hearing all the evidence, the jury determined that Joyce had exerted undue influence over Margaret at the times that Margaret completed each of these transactions.

The standard of review of a jury’s verdict is whether there is substantial credible evidence in the record to support it. Barthule v. Karman (1994), 268 Mont. 477, 485, 886 P.2d 971, 976 (citing Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 322-23, 820 P.2d 1285, 1287).

Undue influence is defined at § 28-2-407, MCA, as follows:

(1) the use by one in whom a confidence is reposed by another or who holds a real or apparent authority over him of such confidence or authority for the purpose of obtaining an unfair advantage over him;
(2) taking an unfair advantage of another’s weakness of mind; or
(3) taking a grossly oppressive and unfair advantage of another’s necessities or distress.

In construing this statute, Montana courts consider the same criteria in determining whether a donor making a gift or a testator executing a will was subject to undue influence at the time the gift was made or the will was executed. Taylor v. Koslosky (1991), 249 Mont. 215, 218, 814 P.2d 985, 987 (citing Cameron v. Cameron (1978), 179 Mont. 219, 229, 587 P.2d 939, 945).

The criteria used to determine if undue influence has been exerted upon a donor or a testator are: (1) confidential relationship of the person attempting to influence the donor or testator; (2) the physical condition of the donor or testator as it affects their ability to withstand influence; (3) the mental condition of the donor or testator as it affects their ability to withstand influence; (4) the unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible to undue influence; and (5) the demands and importunities as they may affect a particular donor or testator taking into consideration the time, the place, and all the surrounding circumstances. Matter of Estate of Lien (1995), 270 Mont. 295, 303-4, 892 P.2d 530, 535 (citing In re Maricich’s Estate (1965), 145 Mont. 146, 161, 400 P.2d 873, 881). Each of these criteria must be satisfied to prove a claim of undue influence. Lien, 892 P.2d at 535 (citing Flikkema v. Kimm (1992), 255 Mont. 34, 40, 839 P.2d 1293, 1297).

Applying these criteria to the facts in the case before us, clearly the first criteria has been satisfied as there was a confidential relationship between Joyce and Margaret. Until the conservatorship was established in 1988, Joyce assisted Margaret by picking up her mail and taking Margaret to the bank, to the grocery store and to her doctor’s appointments. Additionally, after Margaret was confined to a nursing home, Joyce assisted Margaret in writing out checks to pay Margaret’s bills.

The second and third criteria, the physical and mental condition of the donor or testator as may affect their ability to withstand influence, have been satisfied as well. There was sufficient evidence presented at trial by various doctors to establish Margaret’s failing physical and mental condition as it affected Margaret’s ability to withstand influence. Nevertheless, Joyce does not dispute the sufficiency of the evidence on the first three criteria. Instead, she argues that the evidence on the fourth and fifth criteria was insufficient to support a finding that she exerted undue influence over Margaret.

As to the fourth criteria, unnaturalness of the disposition, Margaret had consistently purchased during her lifetime, CDs in her own name along with those of each of her children, with the exception of Gary. Although, the fact that a parent might leave the majority of his or her assets to only one child, while excluding others, is not in and of itself unnatural, Lien, 892 P.2d at 536, there was sufficient evidence presented at trial to show that the transactions in question were contrary to Margaret’s prior dispositions and were thus “unnatural.” It was not until Joyce began accompanying Margaret to the bank that Margaret removed James’ and Roberts’ names from the CDs and created new CDs without their names or cashed CDs held jointly with Robert and James rather than those held jointly with Joyce and Marlene.

The fifth criteria, demands and importunities as they may affect the donor or testator, was satisfied in that Joyce was with Margaret at the time Margaret conducted each of these transactions. It was reasonable for the jury to conclude from the evidence and by taking into consideration the time, the place and all the surrounding circumstances, that Joyce’s demands and importunities affected Margaret and allowed Joyce to unduly influence her.

Joyce contends that it is immaterial whether she exerted undue influence over Margaret in connection with the CDs, since under the Uniform Commercial Code, Joyce, as an alternative designee on the CDs, had the legal authority to negotiate and renew the CDs in whatever fashion she chose. We will not address this argument as it was not raised before the District Court and was raised for the first time on appeal. Marsh v. Overland (1995), 274 Mont. 21, 29, 905 P.2d 1088, 1093 (citing Lane v. Smith (1992), 255 Mont. 218, 221, 841 P.2d 1143, 1145).

Joyce also argues that the District Court should not have ordered that she repay the face value of each of the CDs along with interest as the majority of the funds from these CDs was disbursed and received by others. The evidence does indicate that Joyce did not receive all of the funds involved in these four transactions. In the first transaction, Joyce received $28,079.71, half of the Security Bank CD and Marlene received the other half. In the second transaction involving the Time Savings Certificate purchased on May 18, 1984, the certificate was transferred to the conservatorship on May 13, 1988. After Margaret’s death, it was transferred to her estate. In the third transaction, involving the July 2, 1984 CD for $10,451.26, this CD was transferred to the conservatorship where it was eventually cashed and the money used for Margaret’s benefit. In the fourth transaction involving the CD held in the names of Margaret and Robert that was cashed on May 12,1986, a portion of the money from that CD was used to pay the property taxes on the DeCock ranch, including that part of the ranch leased by Robert and James. The balance was placed in an interest-bearing savings account in Margaret’s name. That savings account was eventually transferred to the conservatorship and used for Margaret’s benefit.

With the exception of the funds from the Security Bank CD, the funds from these transactions were used for Margaret’s benefit. Joyce will not be held responsible for repaying any funds from which she did not derive a benefit.

Accordingly, we hold that there was substantial evidence for a jury to find that Joyce exerted undue influence over Margaret in the transactions surrounding Margaret’s CDs and we affirm the District Court on this issue. However, we reverse the District Court’s order concerning the amount Joyce must repay on these CDs and we remand to the District Court for a redetermination on this issue.

Issue 2 and Cross-Appeal

Whether the District Court erred in granting a new trial only as to the validity of Margaret’s attempted revocation of her 1984 will.

Whether the District Court erred in granting a new trial with respect to the validity of the Instrument of Revocation.

In its Memorandum and Order filed February 2,1995, the District Court concluded that it had erred in refusing to instruct the jury with respect to the validity of the Instrument of Revocation. Hence, the court granted Joyce’s motion for a new trial on the issue of the validity of the Instrument of Revocation and on the subissues of whether Margaret was competent at the time the document was executed and whether the document was executed under undue influence.

On appeal, Joyce contends that the District Court should also have granted a new trial as to the validity of the 1984 will. In their cross-appeal, Robert and James contend that the court erred in granting a new trial at all.

The standard of review of a district court’s ruling on a motion for a new trial is whether the court abused its discretion. Hando v. PPG Industries, Inc. (1995), 272 Mont. 146, 149, 900 P.2d 281, 283. See also Estate of Spicher v. Miller (1993), 260 Mont. 504, 506, 861 P.2d 183, 184.

The District Court erred in failing to instruct the jury on the Instrument of Revocation, thus we find no abuse of discretion in the District Court’s grant of a new trial regarding this document and we affirm on this issue. Furthermore, we find merit in Joyce’s contention that the District Court should have granted a new trial on the validity of the 1984 will along with its grant of a new trial on the Instrument of Revocation. The will and the Instrument of Revocation were executed so close in time, within 25 days, that the validity of both documents is inextricably intertwined. Moreover, the medical testimony at trial dealt with Margaret’s competence at the time she executed both documents. Under the circumstances of this case, it is necessary that the same fact finder adjudicate the validity of both the will and the Instrument of Revocation, taking into consideration all of the evidence.

Accordingly, we hold that the District Court erred in failing to grant a new trial on the validity of the 1984 will and we reverse and remand on this issue.

In its judgment filed December 12, 1994, the District Court awarded Robert and James attorney fees in the amount of $55,653.57. In her Motion for New Trial or to Alter or Amend Judgment, Joyce objected to the award of attorney fees on the grounds that there were originally three parties as plaintiffs in this action, all of whom were asserting the same challenge to the 1984 will. In addition Joyce claimed that the personal representatives were not entitled to an award of attorney fees for their work in connection with the recovery of the CDs.

In its February 2, 1995 Memorandum and Order, the District Court reserved Joyce’s objection to the award of attorney fees pending resolution of the new trial on the validity of the Instrument of Revocation. In light of our decision to grant a new trial on the validity of the 1984 will as well as the Instrument of Revocation, we reverse the award of attorney fees to Robert and James and we remand to the District Court.

Issue 3

Whether the District Court erred in limiting cross-examination regarding the settlement agreement.

On April 8,1994, Robert, James, Gary and Marlene entered into a settlement agreement. Joyce was not a party to this agreement. Prior to trial, James and Robert filed a motion to prevent Joyce from admitting the settlement agreement into evidence at trial. The District Court granted the motion and ruled that the contents of the settlement agreement would not be admissible. However, the court ordered that any witness that was a party to the agreement could be questioned as to the existence of the agreement and as to the fact that the witness might receive a greater share of the estate if one party prevailed over the other in order to attack the credibility of the witness by showing a motive for bias or prejudice. On appeal, Joyce contends that the District Court erred in limiting cross-examination regarding the settlement agreement.

This Court will review the evidentiary decisions of a trial court to determine whether the trial court abused its discretion and will not overrule a trial court’s decisions as to admissibility of evidence unless there was manifest abuse. Jim’s Excavating Service v. HKM Assoc. (1994), 265 Mont. 494, 506, 878 P.2d 248, 255 (citing Mason v. Ditzel (1992), 255 Mont. 364, 370-71, 842 P.2d 707, 712).

Rule 408, M.R.Evid., forbids the introduction at trial of offers to compromise and settlement agreements. However, the Rule does permit the use of settlement agreements for limited purposes, such as proving bias or prejudice of a witness in accordance with Rule 607, M.R.Evid.

At trial, Joyce’s counsel questioned Gary, one of the settling parties, extensively regarding the settlement agreement and whether Gary would gain under the agreement if Robert and James prevailed at trial. Gary admitted that he would gain. From this cross-examination, Gary’s bias was adequately brought out and the jury had sufficient evidence of the nature and effect of the settlement agreement to judge the credibility of Gary’s testimony.

Accordingly, we hold that the District Court did not abuse its discretion in limiting the admission of the settlement agreement to show bias or prejudice of a witness.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

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


text:
    ROGER A. KESSINGER AND JOANNE M. KESSINGER, husband and wife, Plaintiffs and Appellants, -v-DONALD MATULEVICH AND JOAN MATULEVICH, husband and wife, Defendants, Respondents, and Cross-Appellants.
    No. 96-059.
    Submitted on Briefs May 16, 1996.
    Decided October 22, 1996.
    53 St.Rep. 1002.
    278 Mont. 450.
    925 P.2d 864.

      For Appellant: Thomas R. Bostock, Warden, Christiansen, Johnson & Berg, Kalispell.
    For Respondent: Kenneth E. O’Brien, Hash, O’Brien & Bartlett, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal and cross appeal from the Eleventh Judicial District Court, Flathead County. Following a nonjury trial and view of the disputed road, the District Court awarded private prescriptive easement rights to Plaintiffs Roger and Joanne Kessinger, Defendants Donald and Joan Matulevich, and two nonparty witnesses, John Winnie and Tom Beeson, over the disputed road. Plaintiffs appeal and Defendants cross appeal. We affirm in part and reverse in part.

We address the following issues on appeal:

1. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question in favor of the Defendants Donald and Joan Matulevich?

2. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question by two nonparties and their successors in interest?

We address the following issues on cross appeal.

3. Did the District Court err in finding that the general public had not used the road in question sufficiently to ripen into a public prescriptive easement?

4. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question in favor of the Plaintiffs Roger and Joanne Kessinger?

FACTUAL AND PROCEDURAL BACKGROUND

Rogers Lake is located approximately 30 miles west of Kalispell, Montana. Rogers Lake Road, a county road, provides access to the Rogers Lake area. At a point north of the properties of the Plaintiffs Roger and Joanne Kessinger (Kessingers) and Defendants Donald and Joan Matulevich (Matuleviches), Rogers Lake Road forks. The north fork provides public access to Rogers Lake while the south fork provides access to private property. Approximately one and one-half miles north of Kessingers’ property, the Rogers Lake Road ceases to be a county road and turns into a dirt and gravel road, commonly known as Rogers Lane. See Appendix A. Rogers Lane (the road) runs south and crosses the lakeshore properties of Matuleviches (Lots 12 and 13), Frank Bear (Lots 10 and 11) and Kessingers (Lots 1 through 9), respectively. After the road passes Kessingers’ property, the road becomes a trail and crosses U.S. Forest Service land, land owned by Plum Creek Timber Company and ultimately winds around Rogers Lake. This road provides the exclusive means of ingress and egress to and from Kessingers’ property.

In 1993, Kessingers unified ownership of Lots 1 through 9 which formerly had been owned in four separate tracts. Richard Siegfried (Siegfried) and Lawrence West (West) are two predecessors-in-interest to Kessingers’ property. Siegfried purchased Lots 4 through 9 in 1976 and West purchased Lot 3 in 1977. When purchased, both Siegfried and West’s lots were undeveloped. However, both fenced, gated and posted their respective properties within two years of purchase. Siegfried did so in 1977-1978 and West did so by 1979. Both used a three-strand barbed-wire gate to block access to the road. In addition to his gate, Siegfried erected an entry way to his property by placing a main cross beam atop two large timber poles on either side of the road. West, in addition to his gate, physically blocked the road with his pickup.

Siegfried built a home on his lots in 1979 and West built a home on his lot by 1980. Siegfried used his property mainly as a vacation residence, but did reside there permanently from 1989 to 1993. West lived on his property as a permanent resident from 1980 to 1985 and from 1987 to 1990. During their periods of occupancy, both Siegfried and West maintained their gates. Just as for the Kessingers now, the road was the only means for Siegfried and West to access their properties. Both Siegfried and West testified that they believed the road was private and that they erected and maintained the gates to keep the general public out. However, they both additionally testified that they did not object to their neighbors using the road to access the U.S. Forest Service and Plum Creek Timber Company land to the south of their properties.

Matuleviches first purchased a 10.35 acre parcel by Rogers Lake in 1973. Subsequently they purchased two lakeshore lots, one in 1974 and the other in 1983. During their vacations at Rogers Lake, Matuleviches used the road, as it crosses what is now Kessingers’ property, to access U.S. Forest Service land and Plum Creek Timber Company land for recreational purposes. Matuleviches used the road for a variety of recreational purposes such as to walk, sightsee, occasionally gather firewood and cross country ski. Additionally, prior to 1984, Matuleviches used the road to access a spring located on Plum Creek Timber Company property to gather drinking water in plastic jugs. However, in 1984, Matuleviches developed a deep well on their property and subsequently reduced their use of the spring for drinking water. Between 1973 and 1977, few other people lived in the same area as Matuleviches; consequently, no one objected to their use of the road. Matuleviches continued using the road after Siegfried and West purchased their lots and placed gates across the road, without objection from either owner.

Additional neighbors, John Winnie (Winnie) and Tom Beeson (Beeson), also used the road to access the U.S. Forest Service land and Plum Creek Timber Company land. Winnie purchased his property in 1973, while Beeson did not purchase his property until 1983. Like Matuleviches, Winnie and Beeson used the road for recreational purposes only. As seasonal residents, Winnie and Beeson used the road to do such things as walk, sightsee, cross country ski and collect water from the spring on Plum Creek Timber Company land. While they used the road despite Siegfried and West’s gates, they testified that they honored the gates by leaving them as they found them.

Kessingers initiated this suit in the District Court for the Eleventh Judicial District, Flathead County. In a effort to secure legal access to their property, Kessingers brought a quiet title action alleging a private prescriptive easement over a road crossing the property of Matuleviches and Bear. Kessingers further sought an injunction to prevent Matuleviches or Bear from interfering with Kessingers’ right to use the road. Matuleviches counterclaimed alleging that they, or alternatively the public, had a prescriptive easement over the road as it crosses Kessingers’ property. Bear similarly answered, but subsequently Bear and Kessingers resolved the issues between them by mutual settlement and the District Court dismissed the claims between them with prejudice.

Following a bench trial and view of the road in dispute, the District Court entered judgment awarding Kessingers a private prescriptive easement over the road as it crosses Matuleviches’property. Additionally, the District Court awarded Matuleviches and two nonparties, John Winnie and Tom Beeson, private prescriptive easements over the road as it crossed Kessingers’ property. From that judgment, Kessingers appeal and Matuleviches cross appeal. We affirm in part and reverse in part.

Our standard of review for a district court’s findings of fact is provided by Rule 52(a), M.R.Civ.R, which in part provides:

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 ....

We have adopted the following three-part test to interpret this rule:

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.”

Public Lands Access Ass’n, Inc. v. Boone and Crockett Club Found., Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (quoting Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287).

Our standard of review relating to a district court’s conclusions of law is whether the tribunal’s interpretation of the law is correct. Public Lands, 856 P.2d at 527.

A prescriptive easement is created by operation of law. Swandal Ranch Co. v. Hunt (1996), [276 Mont. 229], 915 P.2d 840, 843. When establishing either a public or private easement by prescription, the party claiming the prescriptive easement must show “open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period.” Swandal, 915 P.2d at 843. The statutory period is five years. Section 70-19-404, MCA. The burden is on the party seeking to establish the prescriptive easement to prove all elements of the prescription. Public Lands, 856 P.2d at 527. To establish a prescriptive right, the prescriptive claimant must show, by clear and convincing evidence, that the use was adverse and not by permission of the landowner. Kostbade v. Metier (1967), 150 Mont. 139, 143, 432 P.2d 382, 385.

DISCUSSION

1. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question in favor of the Defendants Donald and Joan Matulevich?

Kessingers argue that the District Court’s finding that Matuleviches had established a private prescriptive easement over the road in dispute as it crosses Kessingers’ land was not supported by substantial evidence. Kessingers contend that Matuleviches’ use of the road was not adverse, but rather based on permissive use. Further, Kessingers assert that the Matuleviches used the road only for access to recreational activities which could not give rise to a presumption of adverse use. Finally, Kessingers maintain that even if Matuleviches had established a private prescriptive easement prior to Siegfried and West purchasing their properties, Siegfried’s and West’s acts created reverse adverse possession and thereby destroyed any such easement. We agree.

The District Court stated in Finding of Fact No. 7 “[t]hat at no time during such use did [Matuleviches] ever seek permission for such use from either [Kessingers] or their predecessors in interest.” The District Court then went on to state in Finding of Fact No. 8 that Matuleviches’ use met all the requirements of a prescriptive easement, including that of adversity. We disagree. As a finding of fact, this is not supported by substantial evidence; as a conclusion of law, it is incorrect.

“To be adverse, the use of the alleged easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to, and acquiesced in by, the owner of the land.” Public Lands, 856 P. 2d at 527 (citation omitted). “If the owner shows permissive use, no easement can be acquired since the theory of prescriptive easement is based on adverse use.” Public Lands, 856 P. 2d at 527 (citation omitted).

“Neighborly accommodation is a form of permissive use which, by custom, does not require permission at every passing.” Lemont Land Corp. v. Rogers (1994), 269 Mont. 180, 186, 887 P.2d 724, 728 (citing Public Lands, 856 P.2d at 528). We have stated that:

A use of a neighbor’s land based upon mere neighborly accommodation or courtesy is not adverse and cannot ripen into a prescriptive easement. Thus where the use of a way by a neighbor was by express or implied permission of the owner, it was held that the continuous use of the way by the neighbor was not adverse and did not ripen into a prescriptive right.

Public Lands, 856 P.2d at 528 (quoting Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 24, 27).

A property owner erecting a gate across a road located on his property provides strong evidence that use of the road past the gate is permissive only. We have stated that:

The fact that the passage of a road has been for years barred by gates or other obstructions to be opened and closed by the parties passing over the land, has always been considered as strong evidence in support of a mere license to the public to pass over the designated way.

Public Lands, 856 P.2d at 528 (quoting Maynard v. Bara (1934), 96 Mont. 302, 307, 30 P.2d 93, 95).

Siegfried and West both testified that they gated, fenced and posted their properties during the years 1977 to 1979 and enforced their gates throughout their periods of ownership. They both testified that the purpose of the gates was to keep the general public out. Further, while they actively discouraged the general public from using the road, they did not object to their neighbors’ continued use of the road for access to recreational activities on U.S. Forest Service and Plum Creek Timber Company land to the south of their properties. Moreover, while Matuleviches testified that they continued to use the road after the gates were in place, they also testified that their use of the road was a “neighborly thing” and that any discussion concerning Siegfried’s or West’s explicit permission for them to use the road “just never came up.”

Siegfried and West, by actively prohibiting the general public from using the road, but not objecting to their neighbors’ use, gave Matuleviches implied permission to use the road as it crossed their properties. This implied permission, based on a general attitude of “neighborly accommodation” prevented Matuleviches’ use of the road from ripening into a prescriptive easement.

The District Court in its Finding of Fact No. 6 states that Matuleviches used the road "... regularly under claim of right by foot, vehicle, recreational vehicle and cross country skis.” Substantial evidence supports this finding of fact that Matuleviches’ use of the road was for recreational purposes only and therefore could not, as a matter of law, raise the presumption of adverse use. Public Lands, 856 P.2d at 528-29.

Matuleviches testified that they were seasonal residents and used the road for recreational purposes. Prior to 1993, Matuleviches primarily walked along the road for a variety of recreational uses such as to hike, sightsee, occasionally gather firewood and cross country ski. Additionally, prior to 1984, Matuleviches used the road to access a spring located on Plum Creek Timber Company property to gather drinking water in plastic jugs. However, in 1984, Matuleviches developed a deep well on their property and subsequently reduced their use of the spring for drinking water. Matuleviches’ seasonal use of the road was only recreational. Recreational use is insufficient to raise a presumption of adverse use. Public Lands, 856 P.2d at 528-29. Therefore, Matuleviches did not establish a private prescriptive easement based on their recreational use of the road.

Finally, Kessingers maintain that even if Matuleviches had established a private prescriptive easement prior to Siegfried and West purchasing their properties, Siegfried’s and West’s acts of putting up gates and allowing Matuleviches to use the road based on permissive use destroyed such an easement. We also addressed this issue in Public Lands:

Section 70-17-111(3), MCA, provides that a servitude is extinguished “...(3) by the performance of any act upon either tenement by the owner of the servitude or with his assent which is incompatible with its nature or exercise [.]” We have held, on the basis of that statute, that if a prescriptive easement exists, subsequent acts inconsistent with the claim by prescription, support the conclusion that the prescriptive easement has been extinguished.

Public Lands, 856 P.2d at 531-32 (citations omitted). We further explained that the right hostile to the easement holder must be brought to the easement holder’s attention and the hostile use must continue for the full statutory period. Public Lands, 856 P.2d at 531. Based on the foregoing, we held that the defendants’ predecessors-in-interest had established reverse adverse possession. They performed a hostile act by blocking off the disputed road, and the purported owner of the easement, the public, adhered to a walk-in policy over a 17-year period. Consequently, any prescriptive easement the public may have established was lost. Public Lands, 856 P.2d at 532.

Similarly, Siegfried and West demonstrated hostile acts which were inconsistent with Matuleviches’ purported prescriptive easement. During the years 1977 to 1979, Siegfried and West gated, posted and fenced their properties. They enforced their gates to keep the general public out, but allowed Matuleviches access to the road based on neighborly accommodation. Matuleviches testified that they recognized the use of the road as a “neighborly thing.” For a period of over ten years, Siegfried and West allowed Matuleviches to use the road. Just as in Public Lands, Siegfried’s and West’s acts created reverse adverse possession. Therefore, any prescriptive easement Matuleviches may have established was lost.

We conclude that Matuleviches failed to establish a private prescriptive easement over the road as it crosses Kessingers’ property. Therefore, we reverse that part of the District Court’s judgment and order that grants a private prescriptive easement to Matuleviches.

2. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question by two nonparties and their successors in interest?

The District Court awarded private prescriptive easements over the disputed road to two nonparty witnesses, John Winnie and Tom Beeson, and their successors-in-interest. Kessingers assert that the District Court erred in granting a private prescriptive easement to Winnie and Beeson because they were not parties to this lawsuit. Kessingers argue § 25-9-201, MCA, allows a court to adjudicate only those rights between plaintiffs and defendants. Matuleviches argue that Winnie and Beeson, as members of the public, testified to help prove that a public prescriptive easement existed over Rogers Lane. Further, Matuleviches argue that based on Winnie’s and Beeson’s testimony the District Court could have decided to grant a public prescriptive easement, but simply “chose to restrict the ‘public easement’ to certain specified members of the public.”

We recently decided this issue in Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 879 P.2d 715. Aperson who is not a party to the action, cannot be a party to the judgment. Warnack, 879 P.2d at 718. In Warnack, we explained:

. [I]t is a fundamental principle of our jurisprudence that it is only against a party to the action that a judgment can be taken and that the judgment is not binding against a stranger to the action.

Warnack, 879 P.2d at 718 (citation omitted). This rule also applies to judgments awarded in favor of a nonparty. Warnack, 879 P.2d at 718. Furthermore, this fundamental principle underlays the language set forth in § 25-9-201, MCA:

Whose rights determined in judgment. Subject to the provisions of Rule 54(b) M.R.Civ.R, judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants, and it may, when the justice of the case requires, determine the ultimate rights of the parties on each side as between themselves.

Although Winnie and Beeson lived in the area of the disputed road and did testify as to their use of the road, they were not parties to this lawsuit. Accordingly, we reverse that part of the District Court’s judgment and order that grants a private prescriptive easement to John Winnie and Tom Beeson.

3. Did the District Court err in finding that the general public had not used the road in question sufficiently to ripen into a public prescriptive easement?

On cross appeal, Matuleviches argue that the public has a prescriptive easement right to use the road. Matuleviches contend that they, like Winnie and Beeson, are members of the public. Therefore, as members of the public, they have collectively used the road for twenty years in the same manner and thereby have established a public prescriptive easement over the road. We disagree.

In Issue 1, we held that Matuleviches failed to establish a private prescriptive easement because they used the road for recreational purposes based only on neighborly accommodation. Prescriptive easements may be proved by public or private use. However, in either case, the claimant must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the full statutory period. Granite County v. Komberec (1990), 245 Mont. 252, 257, 800 P.2d 166, 169 (overruled on other grounds). Therefore, just as the evidence of Matuleviches’ use of the road was not sufficient to establish a private prescriptive easement, this same evidence is not sufficient to establish a public prescriptive easement. Matuleviches used the road for recreational purposes based on neighborly accommodation. This kind of use will not establish a prescriptive easement.

Moreover, Matuleviches’ actions support a conclusion that they did not view the road as public, but rather that they also viewed the road as private. Matuleviches placed a “Private Road” sign along the road and indicated through their conduct that they felt the road was private and not open to the public. For example, Matuleviches did not sign a petition circulated in 1985-86 submitted to the Flathead County Commissioners to open the road as a county road. Matuleviches’ use and conduct concerning the road does not support a conclusion that the road is public, but rather that it is private.

In Issue 2, we held that Winnie and Beeson could not be granted a private prescriptive easement because they were not parties to this action. However, because Winnie and Beeson testified under Matuleviches’ claim that a public prescriptive easement existed, we will consider whether their use of the road contributed to the establishment of a public prescriptive easement.

Our holding and discussion in Public Lands is again directly on point. In Public Lands, plaintiffs asserted a public prescriptive easement over Dupuyer Canyon Road. However, we found that plaintiffs’ use of the road was not adverse, but instead due to neighborly accommodation. Public Lands, 856 P.2d at 528. We based this decision on the fact that defendant had erected gates across the disputed road and plaintiffs and other members of the public honored them by leaving the gates as they had found them. Public Lands, 856 P.2d at 528. Similarly, Winnie and Beeson honored the gates erected by Siegfried and West. When Winnie and Beeson traveled past the gates, they left them as they found them. That is, if the gate was closed when they came upon it, they would close it after passing through.

Furthermore, in Public Lands, we found that plaintiffs used the road only to gain access to recreational activities and that type of use failed to raise a presumption of adverse use. Public Lands, 856 P.2d at 528-29. Likewise, Winnie and Beeson used the road solely for recreational purposes such as walking, sightseeing, cross country skiing and collecting water from the spring on Plum Creek Timber Company land. This recreational use of the road could never establish adverse use. Consequently, the testimony of Winnie and Beeson did not demonstrate the establishment of a public prescriptive easement.

Matuleviches, Winnie and Beeson all used the road for recreational purposes with the implied permission of both Siegfried and West. Therefore, their combined use of the road was not adverse and, consequently, they failed to establish a public prescriptive easement. Accordingly, we affirm that part of the District Court’s judgment and order declaring that the general public did not establish a public prescriptive easement over the disputed road.

4. Did the District Court err in declaring that a private prescriptive easement had been established over the road in question in favor of the Plaintiffs Roger and Joanne Kessinger?

On cross appeal, Matuleviches argue that if Matuleviches, Winnie and Beeson do not have a private prescriptive right to use the road, then Kessingers do not have a private prescriptive right either. Instead, Matuleviches assert that they had given Kessingers permission to use the road to access Kessingers’ property. We find this argument unpersuasive.

On appeal, Matuleviches bear the burden of establishing that the judgment of the District Court is erroneous. Walsh v. Ellingson Agency (1980), 188 Mont. 367, 373, 613 P.2d 1381, 1384. While Matuleviches assert that Kessingers’ use of the road was permissive, they fail to establish that the District Court’s findings in this regard are not supported by substantial evidence or are otherwise clearly erroneous; nor do they establish error by the District Court in interpreting the law. We will not presume error on the part of the District Court. Walsh, 613 P.2d at 1384. Accordingly, we affirm that part of the District Court’s judgment and order declaring that Kessingers are entitled to a private prescriptive easement over the road as it crosses Matuleviches’ property for the purposes of ingress and egress.

We affirm in part and reverse in part.

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