author: MR. JUSTICE HUNT

text:
    In re the MARRIAGE OF MARY KRISTIN SMYKA, Petitioner and Respondent, and JAMES FREDERICK DAYTON, Respondent and Appellant.
    No. 86-600.
    Submitted on Briefs April 23, 1987.
    Decided July 13, 1987.
    739 P.2d 489.
    Thomas W. Trigg, Missoula, for respondent and appellant.
    Dennis E. Lind, Missoula, for petitioner and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

James Dayton, respondent-appellant appeals an award of joint custody and visitation schedule granted in a dissolution action by the Fourth Judicial District Court, Missoula County. Affirmed.

The issues on appeal are:

1. Did the trial court err in its application of the standard set forth in Section 40-4-212, MCA, in making the custody determination?

2. Was there substantial credible evidence to support the joint custody award and visitation schedule between the parties?

The parties, Mary Kristin Smyka and James Frederick Dayton are the parents of one daughter, Kelsey Graysmith Dayton. Kelsey was born on January 27, 1983.

The mother was the primary wage earner throughout the marriage and provided the bulk of the financial support for the family. She is a tenured teacher employed with the gifted children program for the Missoula primary grades. The father has been intermittently employed. For a period of months after their child was born the father remained in the home as caretaker for the child while the mother returned to work. Both parties participated in child care tasks and responsibilities but it appears that during most of the child’s first year the father cared for the child during the day while the mother taught school.

The parents separated in July, 1984, and the marriage was dissolved in October, 1984. There have been several hearings regarding custody and visitation but since the separation, Kelsey’s primary residence has been with her mother subject to visitation with her father.

The mother is now remarried and testimony indicates Kelsey has established a good relationship with her step-father and his children from a previous marriage.

The parents have experienced considerable conflict in arranging and implementing custodial exchanges and there is some indication that Kelsey has had emotional and behavioral problems adjusting to the exchanges.

Trial on the custody and visitation matters was held in May, 1985. The trial court held that joint custody was in the best interests of Kelsey with the primary residence of the child with the mother subject to a specific custodial visitation schedule to the father.

Upon a motion to amend the judgment, the trial court entered an amended judgment dated September 10, 1985 clarifying certain findings and granting expanded visitation time to the father. The trial court confirmed that the primary residence of the minor child was with the mother. The father did not appeal this amended judgment.

Next, based upon the mother’s concern for the emotional and psychological effects evidenced by Kelsey, the court, upon motion of the mother, ordered psychiatric evaluations of the parties and the child. In July, 1986, a hearing on the motion was held and in September, 1986, the trial court again found joint custody was appropriate with the primary residence being with the mother. A very specific and detailed visitation schedule was set forth. The schedule coordinates Kelsey’s visitation schedule with the visitation schedule of the other step-children in the home of the mother. Numerous changes had been made from the original schedule. This final schedule reduced the father’s time with the child by 8 days annually over the prior schedule adopted by the trial court. The visitation schedule now provides for 140 days with the father and 225 days with the mother. The father appeals this final visitation schedule.

Appellant contends the trial court erred by granting him custody of less than a full half of the child’s time while finding that joint custody was appropriate. He argues that because Montana favors an equal allotment of custodial time between parents under Section 40-4-224(2), MCA, the court should not have granted him visitation of less than half of the child’s time and that this was a misapplication of the best interest of the child standard set forth in Section 40-4-212, MCA.

He bases his argument on Section 40-4-224(2), MCA, the joint custody statute which evidences a legislative preference for equality of parenting. In 1985, the legislature deleted language that contact with both parents might be “not necessarily equal.” It added the emphasized portion as follows:

“. . . the physical custody and residency of the child shall be allotted between the parents in such a way as to assure the child frequent and continuing contact with both parents. The allotment of time between parties shall be as equal as possible; however, each case shall be determined according to its own practicalities with the best interests of the child as the primary consideration.”

Section 40-4-224(2), MCA.

The father argues that the trial court erred because equal parenting time was not shown to be contrary to the best interests of the child.

This Court has addressed this issue in several recent cases. The appellant in In re the Marriage of Cole (Mont.1986), [222 Mont. 370,] 729 P.2d 1276, 43 St.Rep. 2136 argued that since physical custody time allotment between parents in a joint custody arrangement is mandated to be as equal as possible, he was entitled to physical custody for at least six months each year. This Court disagreed and said that:

“. . . depending upon the circumstances of the case, equal physical custody will not be awarded if such is not in the best interests of the children.”

Cole at 1279.

There, one child had a disability. The respondent was involved in the child’s treatment and this Court found it would be in his best interest not to interrupt his physical custody during the school year and not to separate the two siblings.

We have also construed the language of Section 40-4-224(2), MCA, in In Re the Marriage of Ward (Mont. 1986), [223 Mont. 401,] 725 P.2d 1211, 43 St.Rep. 1825. In that case the father asserted that the decision of the trial court to award him approximately 75 days of visitation per year out of a potential 170 available non-school visitation days was an abuse of discretion and contrary to the recently adopted language in Section 40-4-224(2), MCA. After we reviewed the circumstances of the case and the applicable statute, we held:

“The District Court has no duty to make the findings which the father is demanding .... To impose the father’s interpretation of this statute would be an unreasonable burden that would further hamper the already beleaguered judges of the district courts in custody and visitation cases. Further, it must be noted that the statute requires that the equal time recommendation be balanced by the practicalities of providing for the best interests of the child.”

Ward at 1212.

We find no error in the trial court’s application of the joint custody statute to the visitation practicalities of this case when determining this child’s best interests.

The father also contends there is no substantial credible evidence to support the custodial visitation award which does not allow him the same role in raising the child as respondent enjoys.

On numerous occasions this Court has stated that the standard of review in custody and visitation cases is whether there is substantial credible evidence to support the findings and conclusions. Findings will not be overturned unless there is a clear preponderance of evidence against them. Ward, supra, at 1213; Jensen v. Jensen (Mont. 1981), 629 P.2d 765, 38 St.Rep. 927.

In the case before us, the trial court heard testimony during numerous hearings over the course of several years including testimony from psychologists, day care workers, parents and relatives. It considered, among other factors, the psychological and emotional concerns of the child, concerns for when the child attends school, and the difficulty of the frequency and duration of the visitation and exchanges.

The trial court found that joint custody was appropriate but that a specific detailed custodial visitation schedule was necessary due to the parents’ animosity toward one another. The schedule grants the appellant approximately 140 calendar days of physical custody including Wednesdays through Sundays twice a month, all of February and July, half of October and alternate holidays.

The court below also found it is in the child’s best interests to coordinate her schedule with the visitation of the step-children. The current schedule does this.

We do not require a court’s findings to be in any particular form so long as there is substantial, credible evidence to support the court’s judgment on the merits. In Re the Marriage of Cole (Mont. 1986), [224 Mont. 207,] 729 P.2d 1276, 43 St.Rep. 2136. Findings will 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. Jensen v. Jensen (Mont. 1981), 629 P.2d 765, 768, 38 St.Rep. 927, 930.

A review of the record shows there is substantial credible evidence to support the specific custody and visitation award. No error exists on this issue.

The judgment of the District Court is affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    In re the MARRIAGE OF SANDY J. MALQUIST, Petitioner and Respondent, and DALE H. MALQUIST, Respondent and Appellant.
    No. 86-602.
    Submitted on Briefs May 7, 1987.
    Decided July 13, 1987.
    739 P.2d 482.

      Dale H. Malquist, pro se.
    Dennis G. Loveless, Helena, for petitioner and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Dale H. Malquist appeals the findings of fact and conclusions of law entered in dissolution of marriage proceedings by the District Court, First Judicial District, Lewis and Clark County. We affirm in part and remand in part for further findings.

Dale and Sandy Malquist were married on April 19, 1969 in Milwaukee, Wisconsin. Two children, Darcy Lee, age 15 and Sara Lynn, age 11, were born to the parties. Dale has been employed as a master electrician, certified welder and certified locksmith. Sandy owned a beauty salon in Wisconsin and has worked at various jobs since then. In 1985, Dale was convicted of willful failure to file income tax returns and sent to a federal prison camp in California.

Sandy filed a petition for dissolution of marriage on August 25, 1986, while Dale was still in prison. Dale filed a response and amended response September 15, 1986. In the response, Dale requested the District Court not to require him to pay child support until he was released from parole; stated the family home plus 20 acres had been placed in a trust for the two minor children, of which trust Sandy was the “executrix” [settlor]; requested one-half interest in the 1959 Chevrolet panel truck; and requested the District Court to enumerate all other obligations incurred by the parties. As to all the other information listed in the petition, including the proposed property division and child support, Dale agreed and waived, in writing, his right to appear before the District Court in the dissolution proceedings.

On November 3, 1986, the District Court issued findings of fact, conclusions of law, and a decree of dissolution, from which Dale now appeals. He specifies the following issues for our review:

1. Whether the District Court abused its discretion by awarding property to the wife which had been placed in a trust fund for the minor children of the marriage?

2. Whether the District Court can properly apportion property not listed in the petition for dissolution and of which the husband had not received notice?

3. Whether the District Court abused its discretion by accepting the wife’s proposed findings of fact verbatim and by not first determining the net worth of the parties?

4. Whether the District Court abused its discretion by failing to equitably divide the assets of the parties?

5. Whether the District Court committed error by not considering the husband’s pleadings or submitted findings of fact?

The issue raised by Sandy is whether Dale’s appeal is without merit under Rule 32, M.R.App.Civ.P., and if so, she requests this Court to assess costs and attorney fees against Dale.

We note at the outset that both Sandy Malquist’s attorney and Dale Malquist, representing himself, have appended to their briefs exhibits which were not introduced at trial. This Court will not consider evidence extraneous to the record. Downs v. Smyk (1980), 185 Mont. 16, 25, 604 P.2d 207, 312; Jerome v. Jerome (1978), 175 Mont. 429, 431, 574 P.2d 997, 998. While the exhibits may be helpful in unraveling the parties’ disputes over the contents of the trust agreement, such evidence is properly within the fact-finding realm of the trial court and should be introduced at that level.

The first issue raised by Dale is whether the District Court erred in awarding trust fund property to Sandy. He argues that the family home and 20 surrounding acres were part of the trust corpus and should not have been given to Sandy. Sandy testified at trial that the home and 20 acres were not part of the trust. The District Court found that a 1977 Blazer and a checking account were the only items in the trust fund. Dale argues that the District Court cannot award trust property to one party or the other when neither party has an interest in that property.

Under Section 40-4-202, MCA, the District Court has jurisdiction to equitably apportion marital property regardless of whether title to the property is in the name of either husband or wife. In re Marriage of Schultz (1982), 199 Mont. 332, 339, 649 P.2d 1268, 1272. The question in this case is whether the trust fund established for the minor children is marital property? The answer to this question lies in the trust agreement itself — whether it is a revocable or irrevocable trust, whether the trust is for the present or future benefit of the beneficiaries, whether the intention to create the trust is clearly ascertainable. Savings account trusts may be considered marital property where the trust is a tentative trust only, and the beneficiaries had no beneficial interest in the savings accounts at the time of dissolution of the marriage. Salvio v. Salvio (1982), 186 Conn. 311, 441 A.2d 190, 194-198. However, where the record reveals little, if any, information from which this Court can establish the elements of a trust, the case must be remanded for findings to support the trial court’s disposition of the trust. Zering v. Zering (1985), 5 Conn.App. 249, 497 A.2d 1023, 1025. Since the trust agreement was not submitted into evidence at trial, and the transcript reveals only that a trust was established for the minor children of the parties, but not the terms of the trust, we remand this case for findings to support the distribution of the trust fund and its assets.

The second issue raised is whether the District Court can apportion property not listed in the petition for dissolution. The “property” in question is a debt to Sandy’s mother for monies loaned to the family in the course of the marriage. These loans were not listed in the petition, and the entire testimony from the hearing concerning the loans is as follows:

“Q. (By Mr. Loveless, attorney for Sandy Malquist): And also $18,000, which represents part of the money borrowed from your mother? A. (Sandy malquist): Yes.
“Q. And not all that is — not all of that $42,000 went towards the family home; did it? A. No, it didn’t. He bought a — he bought a fifth-wheel travel trailer that was used from job to job; and then he sold that and consequently bought that panel truck but she gave us the money to buy that; and he did buy some snowmobiles. She gave us the money for the snowmobiles, so it wasn’t all just for building the home.
“Q. And you would like these payments to be made from Dale to you in a timely manner; and you think that he would be able to pay that oif in the five-year period or else obtain refinancing to pay it off? A. It would be nice but I have no hope for it.
“Q. You are requesting the Court to include that in the order though.”

There is no other evidence in the record, such as a loan agreement, promissory note, canceled checks, or any form of receipt to substantiate the amount, existence or terms of the loans from Sandy’s mother. Proposed findings of fact and conclusions of law must be sufficiently comprehensive to provide a basis for the trial court’s decision, and must be supported by the evidence presented. In re Marriage of Benner (Mont. 1985), [219 Mont. 188,] 711 P.2d 802, 805, 42 St.Rep. 1943, 1947. This issue is therefore remanded for further findings in support of the District Court’s apportionment of the loan.

The third and fourth issues raised by Dale concern the District Court’s distribution of the marital property. With the exception of the loan from Sandy’s mother, and the debt incurred by Sandy for paying oif the money owed by Dale on his welder and tools while he was in prison, the District Court distributed the marital property precisely as was set forth in the petition for dissolution. Dale had notice of this distribution, and, with the exception of the family home and 20 acres and the panel truck, he agreed with the distribution in his response to the petition. Having agreed to the distribution of property and waiving his appearance at the hearing, this Court will not hear arguments now that the distribution of the marital assets was inequitable. With the exception of the status of the trust fund property and the loans to Sandy’s mother, we uphold the District Court’s division of the marital assets and debts. We find no abuse of discretion in the District Court’s division of property to which Dale had assented.

Dale has also argued the District Court did not consider the pleadings or findings of fact which he submitted. The only pleadings submitted by Dale are the petition to proceed in forma pauperis and affidavit of financial status, the response and amended response, a motion and notice of motion for a temporary restraining order, and his appellate motions. No proposed findings of fact were submitted by Dale. The District Court considered what little evidence Dale did submit. On remand, both parties will have the opportunity to submit further evidence in support of the distribution of trust fund assets and marital debts.

The final issue raised by Sandy is whether costs and attorney fees incurred by her should be assessed against Dale for filing an appeal without merit. Since we have found merit in two of Dale’s five issues, the parties are responsible for their own costs and attorney fees.

The case is remanded to the District Court for further findings on the status of the trust fund property and the debts to Sandy Malquist’s mother. No costs to either party.

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


text:
    STATE OF MONTANA, City of Bozeman, Plaintiff and Respondent, v. ROBERT PETERSON, Defendant and Appellant.
    No. 87-21.
    Submitted on Briefs March 26, 1987.
    Decided July 20, 1987.
    739 P.2d 958.

      Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, and Bruce Becker, Bozeman City Atty., Bozeman, for plaintiff and respondent.
    Larry Jent, Bozeman, for defendant and appellant.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Defendant was convicted of driving under the influence of alcohol by the District Court, Eighteenth Judicial District, Gallatin County. We reverse and dismiss the judgment of the District Court.

At approximately 2:00 a.m., on March 23, 1985, Robert D. Peterson was arrested in Bozeman, Montana, for driving under the influence of alcohol. He made a motion to dismiss in Bozeman City Court on the grounds that the arresting officer refused to allow him to take a blood test. The City Court denied the motion and Peterson pled guilty on June 25, 1985. The same day, Peterson filed a notice of appeal to the District Court for a trial de novo. On September 6, 1985, Peterson again made a motion to dismiss on the grounds he had been denied due process of law by the officer’s refusal to allow him to take a blood test.

The motion was scheduled for hearing September 27, but the parties stipulated for a continuance until October 18, 1985. The hearing on the motion was held October 25 and taken under advisement by the District Court. No further action was taken until March 28, 1986, when the State of Montana filed a motion to set a trial date.

On April 11, 1986, the District Court denied Peterson’s motion to dismiss and set a trial date of May 30, 1986. On May 21, 1986, Peterson filed a second motion to dismiss on the grounds that he had been denied his constitutional right to a speedy trial. The District Court denied this motion and trial was held May 30. The court again took the matter under advisement until September 30, 1986, when the court found Peterson guilty of driving under the influence of alcohol. Peterson was sentenced to pay a fine of $300, to spend 24 hours in the Gallatin County Detention Center, to attend court school, and to have his driver’s license suspended for six months. Peterson now appeals this conviction, raising the following issues:

1. Whether a person suspected of driving under the influence of alcohol who refuses a breath test is entitled to an independent blood test at his or her own expense?

2. Whether the District Court’s delay in considering the defendant’s motions denied him his constitutional right to a speedy trial?

The first issue has been decided by this Court in State v. Swanson (Mont. 1986), [222 Mont. 357,] 722 P.2d 1155, 1157, 43 St.Rep. 1329, 1332, where we held “one accused of a crime involving intoxication has a right to obtain an independent blood test to establish his sobriety regardless of whether he submits to a police designated test.” The question we decide here today is whether the Swanson rule is to be applied retroactively.

Generally, judicial decisions will apply retroactively. Solem v. Stumes (1984), 465 U.S. 638, 642, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579, 586. The United States Supreme Court has stated that “at a minimum, ‘all “new” rules of constitutional law must... be applied to all those cases which are still subject to direct review ... at the time the “new” decision is handed down.’ ” Shea v. Louisiana (1985), 470 U.S. 51, 57, 105 S.Ct. 1065, 1069, 84 L.Ed.2d 38, 45 (quoting United States v. Johnson (1982), 457 U.S. 537, 548, 102 S.Ct. 2579, 2586, 73 L.Ed.2d 202, 212). Complete retroactive application of a new constitutional rule is most appropriate where the rule is designed to enhance the accuracy of criminal trials. Solem v. Stumes, 465 U.S. at 643, 104 S.Ct. at 1342, 79 L.Ed.2d at 587. The basic principles of retroactivity in criminal cases have been enunciated in Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 and Tehan v. United States ex rel. Shott (1966), 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453. The factors to be considered in applying a new rule retroactively or prospectively have been set forth by this Court in LaRoque v. State (1978), 178 Mont. 315, 319, 583 P.2d 1059, 1061:

“1. Does the decision in question either establish a new principle of law by overruling established precedent on which the litigants relied or decide an issue of first impression whose resolution was not clearly foreshadowed?
“2. What are the merits of each case?
“A. What is the history, purpose and effect of the new principle of law?
“B. Whether retroactive application will further or retard the new principle’s operation?
“3. Whether substantial inequity will result from retroactive application?”

The first factor we consider is whether the Swanson rule overruled established precedent or decided an issue of first impression whose resolution was not clearly foreshadowed. In Swanson, this Court interpreted Section 61-8-405(2), MCA, as granting to the defendant the right to obtain an independent blood test to establish his or her sobriety regardless of whether the defendant submitted to a police designated test. Swanson, 722 P.2d at 1157, 43 St.Rep. at 1331-32. In that case, the defendant was allowed to obtain a blood test at his own expense after refusing the breath test requested by the police. However, the blood sample was not properly preserved and therefore could not be analyzed. In this case, defendant Peterson refused to take the breath test requested by the arresting officer and demanded to make a telephone call to his attorney and to obtain a blood test. The police told him if he did not take the breath test, he could neither make a telephone call nor obtain a blood test. The defendant was then placed in a holding cell until the afternoon of the same day.

In denying defendant’s motion to dismiss for lack of due process, the District Court may have relied on State v. Logan (1985), [217 Mont. 446,] 705 P.2d 123, 42 St.Rep. 1317. In Logan, the issue before this Court was whether the requirement funder Section 61-8-402(3), MCA, that all persons arrested for suspicion of driving under the influence of alcohol must take a breath test before being allowed a blood test was a denial of due process. This Court held there was no denial of due process, absent any evidence of prejudice in the record of the defendant’s ability to defend himself. While Logan construed Section 61-8-402(3), MCA, and Swanson construed Section 61-8-405(2), MCA, it is clear that the Swanson holding overruled the Logan holding which denied a defendant the right to obtain a blood test even after refusing the chemical test initially designated by the police officer.

The second factor we look to is the history, purpose and effect of the Swanson rule and whether retroactive application will further or retard its operation. In deciding Swanson, this Court relied on the Arizona Court of Appeals’ interpretation of a statute identical to Section 61-8-405(2), MCA, in Smith v. Cada (Ct.App. 1977), 114 Ariz. 510, 562 P.2d 390. Both this Court and the Arizona Court found that refusal by the police to allow a defendant a blood test at his or her own expense was an unconstitutional restraint on the right of a criminal accused to attempt to obtain independent evidence of his or her innocence. Thus, the purpose of the rule is to assure a defendant’s due process right to obtain exculpatory evidence. The effect of the rule is to insure an accused is not wrongfully convicted by suppressing evidence which may be favorable to him or her.

We next consider whether retroactive application will further or retard operation of the Swanson rule. Retroactive effect should be given to new constitutional rules “whose major purpose is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials.” United States v. Johnson, 457 U.S. at 544, 102 S.Ct. at 2584, 73 L.Ed.2d at 210 (quoting Williams v. United States (1971), 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388, 395). Since a blood test relates directly to fact-finding and may provide evidence of a defendant’s sobriety, retroactive application of the Swanson rule will further its operation. In this case, although the police informed Peterson he could call an attorney and obtain “another” test, he was not allowed to do so until some ten hours after his arrest. This interference with the defendant’s right to obtain exculpatory evidence is the type of denial of due process against which the Swanson rule was designed to protect.

Finally, we examine whether substantial inequity will result from retroactively applying the Swanson rule. The State argues it would be inequitable to apply the rule retroactively since the law under Logan was relied upon by law enforcement officers and district court judges. However, no empirical evidence is given in support of this contention. The police in this case informed Peterson he had the right to consult an attorney and to have another blood test at his own expense, but they then prevented him from doing so by placing him in a holding cell for over ten hours. The District Court relied on State v. Christopherson (Mont. 1985), [217 Mont. 449,] 705 P.2d 121, 42 St.Rep. 1320, for the rule that a police officer has the right to choose the initial test. A police officer’s choice of the initial test to be administered does not obviate the defendant’s right to refuse that test and request another. Further, the decision in Swanson which “established” the right to obtain an independent blood test was based on a factual situation where the police had allowed the defendant to obtain an independent blood test, but then failed to preserve the sample. So it cannot be said that the uniform interpretation of Section 61-8-405(2) in this state was to deny a defendant an independent blood test.

For the purpose of clarification of our rule in Swanson that one accused of a crime involving intoxication is entitled to obtain a blood test, it should be explained that the rule applies only when (1) the defendant has timely claimed the right to a blood test, and (2) the officer or officers do not unreasonably impede the defendant’s right to obtain a blood test. If a blood test of the defendant is unavailable through no unreasonable acts of an officer or officers, the Swanson rule does not apply.

We therefore reverse the order of the District Court and order that the defendant’s motion to dismiss on the grounds of lack of due process be granted. For the foregoing reasons, we do not reach the second issue of speedy trial.

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

      . The District Court in its order denying the motion cited State v. Christopherson (Mont. 1985), [217 Mont. 449,] 705 P.2d 121, 42 St.Rep. 1320. However, that case involved whether the refusal of a breath test and a request for an independent blood test constituted a refusal under Section 61-8-402, MCA.


author: MR. JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID L. PEASE, Defendant and Appellant.
    No. 86-529.
    Submitted on Briefs May 14, 1987.
    Decided July 21, 1987.
    740 P.2d 659.

      David L. Pease, pro se.
    Mike Greely, Atty. Gen., Helena, Kimberly Kradolfer, Asst. Atty. Gen., Helena, John Robinson, Co. Atty., Margaret Tonon, Deputy Co. Atty., Hamilton, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant David Pease was convicted of six counts of sexual intercourse without consent by jury trial in the District Court of the Fourth Judicial District, Ravalli County. Defendant appealed. We affirm.

The defendant raises ten issues on appeal:

1. Was Mr. Pease denied equal protection of the laws by way of selective prosecution?

2. Was Mr. Pease denied a speedy trial?

3. Was Mr. Pease denied effective assistance of counsel by reason of conflict of interest?

4. Was Mr. Pease denied bail by reason of excessive bail?

5. Was Mr. Pease denied constitutional and statutory rights during his incarceration as a pre-trial detainee?

6. Was Mr. Pease denied a fair trial by not being allowed to present his defenses of violation of equal protection, jury nullification, and victim conduct?

7. Was Mr. Pease denied his constitutional rights under the 5th and 14th amendments to the Constitution of the United States by being indicted by an information rather than by a grand jury?

8. Was Mr. Pease denied a fair trial by being denied a change of venue?

9. Was Mr. Pease denied his constitutional rights by not being able to have new evidence presented on his motion for a new trial?

10. Was Mr. Pease punished unconstitutionally when sentenced to pay costs of his prosecution and jury costs?

David Pease was the principal and a-teacher at the Liberty Christian School in Ravalli County from 1982 through 1984. In early 1985, one of the students at the school informed her counselor that she and Mr. Pease had had sexual intercourse on six different occasions during 1984. At the time of the first five sexual encounters, the female student was 13 years of age, and at the time of the last sexual encounter she was 14 years of age.

The matter was reported to the Welfare Department and the Ravalli County Sheriff’s office. Mr. Pease was charged by information on June 12, 1985, with six counts of sexual intercourse without consent. Trial concluded on July 8, 1986, and the defendant was found guilty by the jury of all six counts of sexual intercourse without consent. During the trial, Mr. Pease admitted to having sexual relations with the victim.

Mr. Pease was sentenced to 15 years at the Montana State Prison on each of the six counts, to be served concurrently. The District Court suspended all but six months of the sentence, to be served in the county jail, in addition to the pretrial incarceration which had already been served. The court also directed the defendant to undergo sex offender treatment, pay the costs of the mental health counseling required by the victim and her family, restrict his associations with persons under the age of 18, obtain steady employment or do 40 hours of community service each month, and pay costs of the jury trial and the costs of the prosecution.

Mr. Pease appealed pro se. He has been released pending the appeal.

Before we begin addressing the issues, we must rule on a motion made by the State to strike all extraneous materials which Mr. Pease appendixed to his brief. Those materials, which were not made part of the record below, include two letters from the victim to Mr. Pease, a copy of a retainer agreement, two newspaper articles, and billing statements from Mr. Pease’s original attorney. In accordance with Section 46-20-701, MCA, and State v. Dess (1983 [4]), [207 Mont. 396,] 674 P.2d 501, 502, 41 St.Rep. 31, 33, we grant the motion to strike. We have not considered the material.

I

Was Mr. Pease denied equal protection of the laws by way of selective prosecution?

Mr. Pease argues that the State knew of at least six men who had had sexual relations with the victim, but that he was selected out from the group for prosecution, thereby denying him equal protection guarantees. In State v. Muldonado (1978), 176 Mont. 322, 328-29, 578 P.2d 296, 300, this Court cited the United States Supreme Court and pointed out that some selectivity is not a constitutional violation absent a showing that the selection was based on an unjustifiable standard such as race, religion, sex, or other arbitrary classification such as the exercise of the First Amendment right to free speech.

Mr. Pease’s selectivity argument fails for two reasons. First, three of the other alleged offenders have been charged and the decision to charge a fourth was still pending at the time of Mr. Pease’s trial. Therefore, Mr. Pease has not shown he was selectively prosecuted. Second, Mr. Pease has not shown that any unjustifiable standard was used to determine who would be prosecuted. Accordingly, we conclude Mr. Pease was not denied equal protection of the laws.

II

Was Mr. Pease denied a speedy trial?

Mr. Pease argues that the 398 days from the day of his arrest on June 4, 1985, to the beginning of trial on July 7, 1986, denied him his right to a speedy trial. State v. Grant (Mont. 1987), [227 Mont. 181,] 738 P.2d 106, 108, 44 St. Rep. 994, 996, set out the four-factor test which this Court has applied in determining speedy trial issues. Those factors are: (1) the length of delay; (2) the reason for the delay; (3) whether the defendant asserted the right; and (4) whether the defendant was prejudiced. All four of these factors must be considered.

The length of the delay in this case raises the presumption that the delay was prejudicial and triggers our consideration of the other factors. Fitzpatrick v. Crist (1974), 165 Mont. 382, 528 P.2d 1322. After careful review of the record, we conclude that Mr. Pease is responsible for approximately 310 days of the delay. During the course of this case, Mr. Pease deluged the court with approximately 41 motions. Several different trial dates were set and then vacated because of these various motions. A writ of supervisory control was filed by Mr. Pease and approximately 5 continuances were granted by the court so Mr. Pease’s motions could be heard and ruled on before the trial started. While it is perfectly acceptable to make numerous motions, it is a simple fact that consideration of motions takes time and may delay a trial.

Because 310 out of the 398 days are chargeable to the defendant, we conclude that the State was diligent in its efforts to bring the defendant to trial. The defendant did assert his rights regarding the speedy trial issue, but because his own conduct prevented the State from bringing him to trial in a timely manner, he cannot now claim he was prejudiced by the delay. We conclude Mr. Pease was not denied a speedy trial.

Ill

Was Mr. Pease denied effective assistance of counsel by reason of conflict of interest?

Mr. Pease argues that his attorney was actually representing his father and thus a conflict of interest ensued. In support of his argument, Mr. Pease points out that his father hired and paid for his attorney. Mr. Pease further asserts that the attorney did not make an effort to reduce his bail, did not properly prepare for trial or question all witnesses, did not consult with him as much as he should have, and did not answer all his questions.

This Court has cited a two-pronged test previously enunciated by the United States Supreme Court regarding ineffective assistance of counsel:

“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (Cite omitted.)”

State v. Boyer (Mont. 1985), [215 Mont. 143,] 695 P.2d 829, 831, 42 St.Rep. 247, 250.

Mr. Pease has failed to show that his attorney’s performance was deficient. Mr. Pease was represented by counsel from June 8, 1985, until November 13, 1985, at which time he dismissed his attorney. A review of the record indicates that during that approximately five month period, Mr. Pease’s counsel did all that could reasonably be required of him. Mr. Pease’s attorney had conferences with the defendant, the defendant’s parents, the prosecutor, and numerous other people connected with the case. Mr. Pease’s attorney also researched the law, made several motions regarding the case, took witness statements, and made several appearances in court on Mr. Pease’s behalf. The fact that Mr. Pease’s father actually paid for the defendant’s attorney and consulted with the attorney does not establish a conflict of interest and Mr. Pease has not established that a conflict of interest existed in any way. We conclude Mr. Pease was not denied effective assistance of counsel.

IV

Was Mr. Pease denied bail by reason of excessive bail?

Mr. Pease contends that the $100,000 bail originally set in his case effectively denied him bail. Bail was later set at $40,000. After consideration, we conclude that Mr. Pease’s bail was not excessive and was in fact reasonable after considering the 10 factors found in Section 46-9-301, MCA. Section 46-9-301, MCA, provides:

“In all cases that bail is determined to be necessary, bail must be reasonable in amount and the amount shall be:

“(1) sufficient to ensure the presence of the defendant in a pending criminal proceeding;
“(2) sufficient to assure compliance with the conditions set forth in the bail;
“(3) sufficient to protect any person from bodily injury;
“(4) not oppressive;
“(5) commensurate with the nature of the offense charged;
“(6) considerate of the financial ability of the accused;
“(7) considerate of the defendant’s prior record;
“(8) considerate of the length of time the defendant has resided in the community and of his ties to the community;
“(9) considerate of the defendant’s family relationships and ties; and
“(10) considerate of the defendant’s employment status.”

Mr. Pease was charged with offenses which had a potential sentence of 120 years in prison and $300,000 in fines. Mr. Pease testified that he had previously considered leaving the Hamilton area with the victim prior to his arrest. Mr. Pease’s bail was reasonable because it insured his presence in future criminal proceedings. We conclude Mr. Pease’s bail was not excessive.

V

Was Mr. Pease denied constitutional and statutory rights during his incarceration as a pre-trial detainee?

Mr. Pease asserts that the Ravalli County jail conditions do not meet basic health and safety standards and thus denied him his right to a clean and healthful environment and inflicted cruel and unusual punishment upon him. We do not pass judgment on these arguments.

If the defendant believes the conditions of his confinement do not meet the required standards, he may file a civil action. Therefore, we do not make a ruling on this issue other than to conclude his argument does not justify a reversal or dismissal of this case.

VI

Was Mr. Pease denied a fair trial by not being allowed to present his defenses of violation of equal protection, jury nullification, and victim conduct?

Mr. Pease argues that he was denied a fair trial because he was not permitted to bring up three theories during his trial and because his jury instructions on the three theories were denied. Mr. Pease’s first defense was the equal protection/selective prosecution argument addressed in Issue I. As stated in the discussion of Issue I, Mr. Pease has not presented any evidence which would indicate he was selectively prosecuted. In addition, Mr. Pease has not stated or shown any unjustifiable standard under which he may have been selectively prosecuted. We conclude the court properly excluded any reference or jury instruction based on Mr. Pease’s equal protection argument.

Likewise, the court properly excluded Mr. Pease’s arguments regarding the victim’s conduct and jury nullification. Section 45-5-501(2)(c), MCA, provides that a victim is incapable of consent if she is less than 16 years old. The victim’s alleged consent or conduct is irrelevant to this case because she was less than 16 years old and thus evidence on that subject was properly excluded. The court was also correct not to instruct the jury that it may ignore the law and find the defendant not guilty even if he had violated the statute in question. We conclude that Mr. Pease was not denied a fair trial because he was unable to present the equal protection, jury nullification, and victim conduct arguments.

VII

Was Mr. Pease denied his constitutional rights under the 5th and 14th amendments to the Constitution of the United States by being indicted by an information rather than by a grand jury?

Mr. Pease argues that his indictment by information rather than by a grand jury was unconstitutional. Mr. Pease’s argument is contrary to past holdings of this Court as well as the United States Supreme Court. See State v. Corliss (1967), 150 Mont. 40, 43-44, 430 P.2d 632, 634, and Hurtado v. People of California (1884), 110 U.S. 516, 538, 4 S.Ct. 111, 122, 28 L.Ed.2d 232, 239. In addition, Section 46-11-101, MCA, provides that an indictment by information is acceptable. We hold that Mr. Pease was properly charged by information.

VIII

Was Mr. Pease denied a fair trial by being denied a change of venue?

Mr. Pease contends that he was denied a fair trial because the court denied his motion for a change of venue in spite of the local publicity generated by his trial. Mr. Pease relies partially on the news articles which were appended to his brief. Those articles were not part of the record and will not be considered. However, we will consider those articles which are a part of the record.

Mr. Pease filed an objection to his denial for a change of venue after his trial had started and attached 19 articles that had appeared in The Missoulian and The Ravalli Republic. These articles ranged from the reporting of the initial charging to the posting of bond to the filing of Mr. Pease’s various motions.

This Court, citing earlier Montana cases, has stated:

“[T]he rule is that an accused is entitled to a change of venue when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial. (Cite omitted.)
“In State v. Paisley (Mont.1983), [204 Mont. 191] 663 P.2d 322, 324, 40 St.Rep. 763, 765, we stated:
“ ‘Absent abuse of discretion the District Court’s ruling on a motion for change of venue will be affirmed.
“ ‘When prejudicial pretrial publicity is alleged, the publicity must be inflammatory and create a reasonable apprehension that a fair trial is not possible before the motion will be granted. (Cite omitted.)’ ”

State v. Holmes (Mont. 1983), [207 Mont. 176,] 674 P.2d 1070,1073, 40 St.Rep. 1973, 1976. The newspaper articles in question were not editorials. They were news articles. Although the mere reporting of the rape charges may possibly lead to prejudicial pretrial publicity, we conclude that the publicity was not inflammatory and did not create a reasonable apprehension that a fair trial was not possible.

In addition, the District Court judge did all that he could to guarantee a fair trial. He allowed extensive voir dire of the jury, taking a full two days. He granted four of the nine challenges Mr. Pease made for cause. And he excused a juror for cause because of an attorney-client relationship with the prosecutor. Mr. Pease has not shown an abuse of discretion by the District Court, he has not shown that there was a reasonable apprehension that he could not receive a fair and impartial trial, and thus the court’s ruling on the motion for the change of venue is affirmed.

IX

Was Mr. Pease denied his constitutional rights by not being able to have new evidence presented on his motion for a new trial?

Mr. Pease argues that new evidence in the form of testimony from the victim and testimony from the mother-in-law of another man also charged with sexual intercourse without consent with the victim should have been allowed for his motion for a new trial. Section 46-16-702, MCA, provides that a court may grant a new trial “if required in the interest of justice.” Applications for new trials based on new evidence are not favored because the defendant has already had ample opportunity to present his case. State v. Higley (Mont. 1980), [190 Mont. 412, 621 P.2d 1043, 1055, 37 St.Rep. 1942, 1955.

In certain instances, however, new evidence may require a new trial:

“(1) . . . the evidence must have come to the knowledge of the applicant since the trial;
“(2) that it was not through want of diligence that it was not discovered earlier;
“(3) that it is so material that it would probably produce a different result upon another trial;”

Higley, 621 P.2d at 1055, citing State v. Greeno (1959), 135 Mont. 580, 586, 342 P.2d 1052, 1055. After consideration of the three-factor test, we conclude the court did not abuse its discretion in denying the motion for a new trial. The testimonial evidence could have been discovered with due diligence. A simple interview with the two people would have brought out their testimony. The victim’s testimony regarding her relationship with Mr. Pease was inadmissible in any case.

X

Was Mr. Pease punished unconstitutionally when sentenced to pay costs of his prosecution and jury costs?

Mr. Pease contends that Sections 46-18-232 and 233, MCA, are unconstitutional because they leave to the discretion of the judge whether to impose costs of prosecution, thus permitting discrimination in violation of equal protection of the laws. Section 46-18-232, MCA, provides in pertinent part:

“A court may require a convicted defendant in a felony or misdemeanor case to pay costs, as defined in 25-10-201, plus costs of jury service as a part of his sentence.”

Section 46-18-233, MCA, allows costs to he assessed as a condition on a suspended or deferred sentence.

Section 45-5-503, MCA, sets the maximum punishment for felony sexual intercourse without consent at not more than 20 years in prison and a fine of not more than $50,000. The costs imposed in this case are well within the $50,000 limit. The decision to impose costs as part of a sentence rests with the discretion of the trial court. Mr. Pease has not shown anything unconstitutional or violative of equal, protection guarantees by allowing a judge the discretion to impose prosecution, jury, or counseling costs. We affirm the court’s imposition of costs in this case.

The District Court is affirmed in full.

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


text:
    DAVID MOGAN, Plaintiff and Appellant, v. CITY OF HARLEM, Defendant and Respondent.
    No. 86-572.
    Submitted on Briefs May 14, 1987.
    Decided July 21, 1987.
    739 P.2d 491.
    Patrick F. Flaherty, Great Falls, for plaintiff and appellant.
    Jardine, Stephenson, Blewett & Weaver, Sue Ann Love, Great Falls, for defendant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Plaintiff/appellant David Mogan is appealing an order issued by the District Court of the Seventeenth Judicial District, Blaine County, granting defendant/respondent City of Harlem’s motion to dismiss.

We affirm in part and reverse in part.

According to the facts stated in the complaint, David Mogan had, in August 1984, applied for and received financing and building permits required for the construction of a two-story, eight unit apartment building. At that time, the City had in effect an ordinance requiring a $75 connection fee to the City water supply and a $50 connection fee to the City sewer. The ordinance had an effective enactment date of July 4, 1979.

David Mogan applied for the water and sewer permits on August 24, 1984, tendering the appropriate amounts. His application was denied. On August 25, the ordinance, Number 57, was amended, having the effect of requiring that Mogan apply for separate permits for each apartment, raising the cost for the permits eight-fold. The amendment also required that separate water meters be installed in each of the eight units.

Mogan sued alleging constitutional violations, breach of contract, and violation of statute, requesting declaratory judgment and a writ of mandamus. The City moved for dismissal. Briefs were submitted, and the District Court, after oral arguments by telephone conference, granted the City’s motion.

The District Court’s order of dismissal addressed the issue of municipal immunity for acts of the municipality’s legislative body, under Section 2-9-111(2), MCA, but did not cite that statute as the basis for its decision. Instead the District Court accepted the City’s argument that there was no legal basis for Mogan’s claim under contract, that insufficient facts were alleged to state a claim for declaratory judgment, and that no constitutionally protected rights were violated. The District Court did suggest that mandamus offered Mogan his best hope for a remedy, but did not issue a writ because Mogan did not follow the required statutory procedure for mandamus.

Mogan raises three issues on appeal, two of which allege violation of Montana’s constitutional due process and equal protection provisions. We need not address these constitutional issues as resolution of the third issue negates that necessity. The sole issue on appeal then is whether the District Court erred in granting the City’s motion to dismiss Mogan’s complaint for failure to state a claim.

Montana’s well established rule is that a complaint should not be dismissed for insufficiency unless it appears certain that the plaintiff is entitled to no relief under any set of facts which could be proved in support of the claim. This test was established in Conley v. Gibson (1957), 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 and has been repeatedly endorsed by this Court. Busch v. Kammerer (1982), 200 Mont. 130, 649 P.2d 1339; Tobacco River Lumber Co., Inc. v. Yoppe (1978), 176 Mont. 267, 577 P.2d 855. A second guiding principle is that a motion to dismiss under Rule 12(b)(6) M.R.Civ.P. has the effect of admitting all the well-plead allegations of the complaint. Busch v. Kammerer, supra; Willson v. Taylor (Mont. 1981), 189 Mont. 191, 634 P.2d 1180, 38 St.Rep. 1606; Duffy v. Butte Teachers’ Union No. 332, AFL-CIO (1975), 168 Mont. 246, 541 P.2d 1199.

Further, when the District Court considers a motion to dismiss, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact therein are taken as true. Willson v. Taylor, supra, Commonwealth Edison, Co. v. State (1980), 189 Mont. 191, 615 P.2d 847, Aff’d. 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884 (1981).

Mogan’s complaint states:

“The ordinance under which the city of Harlem has extracted additional fees and costs from David Mogan, (Ordinance No. 57 as amended on August 25, 1984), is an illegal, unlawful, ultra vires and void ordinance and of no proper effect. The plaintiff is asking that this Court declare that this ordinance is void and of no legal consequence because it was enacted on improper notice, is ambiguous and violative of the due process and equal protection clauses of the Constitution of the State of Montana.”

Clearly by this claim the City was put on notice that Mogan was challenging the legitimacy of the process the City used in amending ordinance No. 57. Of course there was room in the claim for relief for more precision, however, this Court is required to construe the complaint in the light most favorable to the plaintiff, and in such light the allegations were sufficient to state a claim.

In his brief on appeal Mogan alleges violation of Sections 7-5-103(3) and 7-5-105, MCA. These statutes were also alluded to in the complaint. Section 7-5-103(3) states:

“(3) An ordinance must be read and adopted by a majority vote of members present at two meetings of the governing body not less than 12 days apart. After the first adoption and reading, it must be posted and copies made available to the public.”

Section 7-5-105 states:

“No ordinance other than an emergency ordinance shall be effective until 30 days after second and final adoption.”

On the basis of these statutes alone, Mogan’s allegations sufficiently give rise to an actionable claim for relief.

In response to recitation of those statutes, the City claims municipal immunity for the actions of its legislative body under Section 2-9-111(2), which states: “A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer or agent thereof.”

The District Court order addressed the issue of municipal immunity, but chose to avoid the issue as a reason for dismissing the case. However, the above-cited statutes Sections 7-5-103(3), 7-5-105, 2-9-111(2), MCA, are the crux of the legal action brought before the District Court. As an applicant for permits, Mogan had a right to the provisions of the ordinance in effect at the time of his application.

This Court does not favor dismissals on pleading unless a complaint does not state a cause of action under any set of facts. Willson v. Taylor, supra. We believe the facts set forth in Mogan’s complaint were sufficient to state a claim. Therefore, we reverse the District Court’s order of dismissal, and remand to the District Court for further proceedings consistent with this opinion.

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


text:
    HUGH W. FRAME and American Asphalt, Inc., a Montana Corporation, Plaintiffs and Respondents, v. DAVID E. FRAME and Mullan Properties, a Montana general partnership, Defendants and Appellants.
    No. 86-578.
    Submitted on Briefs April 23, 1987.
    Decided July 21, 1987.
    Rehearing Denied Sept. 1, 1987.
    740 P.2d 655.

      Garlington, Lohn & Robinson, Gary Chumrau & Clay D. Creps, Missoula, for defendants and appellants.
    Snavely & Phillips, Robert J. Phillips, Missoula, for plaintiffs and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellants David Frame and Mullan properties appeal an order of the Fourth Judicial District Court, Missoula County, granting an injunction to respondents Hugh Frame and American Asphalt, Inc. pending suit on their action for partition of real property owned by Mullan Properties.

The single issue raised on appeal is whether the District Court erred in granting an injunction prohibiting termination of respondent’s lease pending partition of Mullan Properties’ real property.

Plaintiffs/respondents Hugh W. Frame (Hugh) and American Asphalt, Inc. are involved in a sand and gravel and asphalt paving business in western Montana. Defendant/appellant David Frame (David) is a resident of Washington state. Defendant/appellant Mullan Properties is a Montana general partnership between Hugh and David. David has a two-thirds controlling interest in the partnership.

A brief history of this partnership is necessary. In September, 1981, there were three equal partners in Mullan Properties: David, Hugh and Arnold Mohl. These three men were also the principal shareholders of American Companies, Inc., the parent corporation of American Asphalt, Inc., American Line Builders and American Excavating. When American Asphalt needed a new gravel source in the Missoula area, the three men were advised to form a partnership which could purchase the real estate and lease it to American Asphalt. The resulting partnership was Mullan Properties which had, as its purpose, the acquisition of real estate that would constitute a long term gravel source for American Asphalt. As was intended, the partnership acquired, by contract for deed, approximately 100 acres west of Missoula for a source of gravel. The property was purchased September 18, 1981. On September 30, 1981, the property was leased to American Asphalt.

The written lease agreement provided for a term of one year from the date of execution and granted American Asphalt the option to extend the term of the lease for four periods of one year each. American Asphalt exercised its option in each of the four succeeding years. The lease, by its terms, was to terminate on September 30, 1986.

In January, 1986, the three principals of American Companies decided to split up their operations. As a result of this split, David took as his own business American Line Builders, Inc., Arnold Mohl took American Excavating and Hugh took American Asphalt. There was no action to dissolve the Mullan Properties partnership. However, at that time and unbeknownst to Hugh, Arnold Mohl agreed to convey Mohl’s partnership interest to David, giving David a two-thirds interest in Mullan Properties. Hugh received no notice of this transaction, though it involved amendment of the original partnership agreement. Hugh learned of the transaction in June 1986 when David’s attorney wrote Hugh’s attorney that there had been a transfer of interest from Arnold to David and that David, as owner of a two-thirds interest in Mullan Properties, did not intend to renew American Asphalt’s gravel lease.

Because American Asphalt depended on the Mullan Properties gravel pit, had no other source for gravel and had entered roadwork contracts assuming the source would continue, American Asphalt and Hugh Frame sued for partition of the gravel property and for an injunction preventing termination of the lease until partition could be had. The District Court issued a preliminary injunction, with subsequent modifications, restraining David and Mullan Properties from removing Hugh and his business from the portion of the gravel property used by Hugh under the terms of the lease. The District Court explained that the partition action would be ineffective if an injunction was not imposed to protect the property for an equitable division. It also ruled that Hugh had no adequate remedy at law, explaining that the potential for damage to his company was incalculable and arguably compensable while David would suffer little harm since a condition of the injunction was continuation of the lease payments.

One of the more significant conclusions drawn by the District Court was that it need not make a determination of ownership of title, as there was no dispute regarding ownership. The court explained that the parties conceded Hugh owned a one-third interest while David owned a two-thirds interest in Mullan Properties. This concession is central to the conclusion we draw in this case.

David argues that an injunction is not available as a remedy when litigation involves title to, or possession or use of real property. Davis v. Burton (1952), 126 Mont. 137, 246 P.2d 236. David asserts that the original action brought by Hugh was for an injunction and that the District Court tacitly and wrongfully litigated the right to possession of the real property under the guise of granting an injunction. David argues the law stated in Jeppeson v. State Department of State Lands (1983), [205 Mont. 282,] 667 P.2d 428, 431, 40 St.Rep. 1272, 1275 applies here:

“Even though an injunction in this case would not automatically vest title to the leasehold interest in the appellant, it would have the practical effect of doing so. And, where the practical effect of an injunction is to oust one party from possession of a real property interest and vest it in another, the remedy is still not available. (Citations omitted.)”

David explains that, but for the injunction, the lease term would have expired and Hugh would be off the property. Therefore, the injunction effectively litigated the right of possession of the partnership’s property, in violation of “an old rule in Montana that title to, or possession of, a real estate interest may not be litigated in a suit for injunction.” Id. at 430, citing Davis v. Burton, 126 Mont. at 139, 246 P.2d at 237.

We accept David’s argument insofar as it applies to title for real property. However, title to the real property owned by the partnership is not at issue here. As the District Court explained, there is no dispute between the parties as to ownership. The parties agree that Hugh maintains a one-third ownership in the real property and that David maintains a two-thirds interest. This concession renders inapplicable the rule established in Jeppeson and Davis, supra, because those cases involve ousting leaseholders from possessory interests where they have no right or title. The leaseholder in our case is a partner with right to title in the property.

David’s argument focuses all attention on the language in the complaint requesting an injunction, though he tacitly concedes that the complaint also requested partition. The complaint read:

“This is a complaint for partition of real property under Chapter 29 of Title 70 of the Montana Codes Annotated as well as an action for an injunction, both permanent and pending litigation.”

Partition is an equitable action in which the court has great flexibility in fashioning appropriate relief for the parties. Cummings v. Anderson (1979), 22 Wash.App. 634, 590 P.2d 1297; Chesmore v. Chesmore (Okla. 1971), 484 P.2d 516; DeMik v. Cargill (Okla. 1971), 485 P.2d 229; 68 C.J.S. Section 62(b) (1950). The fundamental objective in a partition action is to divide the property so as to be fair and equitable and confer no unfair advantage on any of the cotenants. Blonquist v. Frandsen (Utah 1984), 694 P.2d 595.

An injunction is an equitable remedy. Section 27-19-101, MCA. Preliminary injunctive relief is proper when it appears that “the commission or continuance of some act during litigation” will produce irreparable injury to the applicant. Section 27-19-201(2), MCA. A court of equity may, in a partition proceeding, grant an injunction to preserve the property pending the proceeding. Rainey v. H.C. Frick Coke Co. (W.D.Penn. 896), 73 F. 389.

“. . . if mining were allowed the court would be confronted by a shifting state of facts and values, which, in its confused and confusing nature, could afford no stable ground on which to base an intelligent, equitable and just decree. * *
“The prompt use of its plenary powers to prevent these mischiefs at the outset of the case, rather than to cure them at the close, is a course which better commends itself to the sound discretion of a court of chancery. By preserving the status in quo — one of the most beneficial branches of equity jurisdiction — we avoid confusion and all danger of injustice, and insure a speedy, plain, and practical method of arriving at a proper decree.”

Id. at 392.

In addition to the reasons given by the District Court to sustain the injunction, it is plain that Hugh as a partner has an equal right with David to possess the partnership property for partnership purposes. Section 35-10-502, MCA. One of the partnership purposes in executing the lease to American Asphalt, Inc., was to provide monies sufficient to enable the partnership to make payments to the seller of the gravel property under the contract for deed. By the injunction, the District Court preserved the real property for the partnership by ensuring that the underlying contract for deed should not be terminated for default in payments.

The District Court found that Hugh and American Asphalt had no adequate remedies at law pending outcome of the action for partition. In the court’s opinion, an injunction was necessary to preserve and protect the status quo. It found that money damages would not be sufficient to replenish what could be lost if injunctive relief were not granted. The District Court also found no evidence of harm to David or Mullan Properties in allowing Hugh and American Asphalt to maintain continued possession under the terms of the then-expiring lease.

The granting of a preliminary injunction is in the discretion of the trial court, and we will not interfere with the exercise of this discretion unless manifest abuse is shown. Smith v. Ravalli County Board of Health (Mont. 1984), [209 Mont. 292,] 679 P.2d 1249, 41 St.Rep. 716. We find no manifest abuse of discretion in the District Court’s ruling.

Affirmed.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    ROBIN A. SPADARO, Plaintiff and Appellant, v. MIDLAND CLAIMS SERVICE, INC.; North Star Casualty Service, Inc.; First Horizon Insurance Company, Defendants and Respondents.
    No. 87-11.
    Submitted on Briefs April 17, 1987.
    Decided July 21, 1987.
    Rehearing Denied Aug. 18, 1987.
    740 P.2d 1105.

      Lewis E. Brueggemann, Billings, for plaintiff and appellant.
    Crowley, Haughey, Hanson, Toole & Dietrich, Jack Ramirez, Keefer, Roybal, Hanson, Stacey & Jarussi, Earl J. Hanson, Billings, for defendants and respondents.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff Robin Spadaro appeals an order entered by the Thirteenth Judicial District Court, Yellowstone County, granting summary judgment to defendants. We affirm.

One issue is presented for our review:

Did the District Court err when it granted summary judgment in favor of defendants?

In August 1983, Robin Spadaro was an employee at the Carbon County Health Care Center in Red Lodge, Montana. The Carbon County Health Care Center is managed by Kare-More, Inc. (KareMore). On June 15, 1983, Spadaro became employed on a part-time basis in the Health Care Center’s laundry department. On August 1, 1983, appellant injured her lower back while lifting a basket of wet laundry.

Spadaro reported her injury in a timely manner. She completed a claim for workers’ compensation and was treated by a physician. She was advised by her doctor, Robert Kerr, to take a week off work for bed rest. However, on August 9, 1983, T.K. Strong, also a KareMore employee, submitted a written report that she had witnessed Spadaro dancing while at a local bar on August 8, 1983. In spite of Strong’s report, Spadaro complained of continuing back pain. She was subsequently examined on August 19, 1983, by another physician, Dr. Richard Lewallen, and hospitalized in Billings.

At the time of Spadaro’s injury, Kare-More was insured by First Horizon Insurance Company under Workers’ Compensation Plan #2. North Star Casualty Service, Inc., was First Horizon’s insurance adjuster. First Horizon and North Star are located in Minneapolis, Minnesota. Consequently, Midland Claims Service, Inc., located in Billings, was contacted by North Star to investigate Spadaro’s workers’ compensation claim.

North Star, on August 22, 1983, accepted Spadaro’s claim and mailed payment of $234.33 (Check #1). At approximately the same time, First Horizon ordered an investigation of Spadaro’s claim. On September 2, 1983, payment of $156.22 was issued to Spadaro (Check #2). Both checks were sent to Spadaro’s post office box in Red Lodge.

Check #1 arrived in Red Lodge while Spadaro was hospitalized in Billings. Spadaro’s brother, Tim Flammini, took possession of the check. Flammini forged Spadaro’s signature and with her consent cashed Check #1. The record reveals that Spadaro owed Flammini for babysitting and consented to Flammini’s request to retain the proceeds of Check #1.

Spadaro then contacted an attorney, Robert Skaggs, and told Skaggs she was not receiving her workers’ compensation benefits. Skaggs, relying on Spadaro’s false statements, requested North Star to stop payment on all checks issued to Spadaro. Skaggs also requested North Star to reissue a single check for the full amount of benefits owed.

When North Star stopped payment on Checks #1 and #2, North Star learned that Check #1 had been cashed. North Star suspended payment of benefits to Spadaro pending an investigation.

Spadaro was aware that North Star, in accord with her attorney’s request, had stopped payment of both checks. However, Spadaro cashed Check #2 and used it for a rental deposit. Spadaro then sought the advice of a second attorney, Lewis Brueggemann. On September 20, 1983, Robert Skaggs withdrew as Spadaro’s attorney.

On October 4, 1983, Brueggemann submitted an incorrect notice of attorney form to the Workers’ Compensation Division. As a result, the Division refused to recognize Brueggemann as a counsel of record. Brueggemann subsequently completed the proper attorney authorization form and was recognized as counsel of record on October 12, 1983.

In early September 1983, Tom Mrachek, Midland’s adjuster, began his investigation of Spadaro’s claim. Mrachek found Spadaro had been treated at the Red Lodge clinic and released for work by Dr. Robert Kerr. Mrachek also found that Spadaro, apparently without a referral, had seen another physician. Spadaro’s second physician, Dr. Lewallen hospitalized Spadaro and placed her in traction.

On September 8, 1983, Midland requested additional medical information from Spadaro’s attorney, Skaggs. However, when Skaggs withdrew as Spadaro’s attorney, Midland’s request was not honored. On September 16, 1983, Midland was notified by Darlene Monroe, claims adjuster for North Star, that Robin Spadaro had left Montana for Colorado. Midland then waited until October 4, 1983, for Spadaro to contact its office.

Midland again, on October 14, 1983, requested Spadaro’s medical records from Spadaro’s new attorney, Lewis Brueggmann. Midland’s adjuster, Tom Mrachek, explained to Brueggemann that “none of those medical reports indicate the current problem is directly associated with [Spadaro’s] industrial accident of 8/1/83.” On October 28, 1983, Midland received a letter from Dr. Lewallen which stated that “. . . Spadaro twisted her back while working at the Health Care Center.” Upon receipt of the letter, Midland immediately advised North Star to accept Spadaro’s claim and pay all temporary total disability benefits. North Star did not immediately accept Midland’s advice. North Star continued its investigation based on additional information in Dr. Lewallen’s report that Spadaro may have injured her back some eight months earlier in a domestic disturbance involving her ex-husband.

On November 7, 1983, Spadaro filed her claim for breach of the implied duty of good faith and fair dealing. On November 30, 1983, North Star issued payments of $1,900.80 to Spadaro for all temporary total disability benefits dating back to August 1, 1983. North Star’s payment included $234.33 previously paid to Spadaro. First Horizon and North Star have continued to pay Spadaro full benefits to date.

Based upon the foregoing facts as shown through undisputed deposition testimony, the District Court, on December 17, 1985, granted respondent’s motion for summary judgment.

Issue

The sole issue presented for our review is whether the District Court erred when it granted summary judgment in favor of respondents?

The standard by which this Court reviews an appeal from a motion granting summary judgment is whether the record, when taken as a whole, shows no genuine issue of material fact. Kronen v. Richter (Mont.1984), [211 Mont. 208,] 683 P.2d 1315, 1317, 41 St.Rep. 1312. Where critical testimony is taken by deposition, this Court will closely examine the District Court’s findings. When reviewing deposition testimony the reviewing court is in a like position to the District Court and is freely able to review such' evidence. Kaiser v. Town of Whitehall (Mont. 1986), [221 Mont. 322,] 718 P.2d 1341, 1342, 43 St.Rep. 176.

A party opposing a motion for summary judgment may not rest upon the allegations or denials of his pleadings. The party’s response must set forth specific facts showing there is a genuine issue for trial. National Gypsum Co. v. Johnson (1979), 182 Mont. 209, 595 P.2d 1188, 1189. Conclusory or speculative statements are insufficient to raise a genuine issue of material fact. Kronen, 683 P.2d at 1318.

In Vigue v. Evans Products (1980), 187 Mont. 1, 608 P.2d 488, 491, we held that an injured employee could bring a claim against a Plan I (self) insurer for commission of intentional torts or bad faith in the processing and handling of a workers’ compensation claim. We held in Hayes v. Aetna Fire Underwriters (1980), 187 Mont. 148, 609 P.2d 257, 262, that an injured employee could bring a separate claim against a Plan II insurer (private insurance carrier) for intentional torts and bad faith in adjusting and processing a workers’ compensation claim.

“No one should be allowed intentionally and tortiously to cut off a claimant unilaterally for whatever purpose they choose and then hide behind workers’ compensation exclusivity in assurance that the only retribution will come in the favor of a compensation penalty paid for by society.”

Hayes, 609 P.2d at 262.

In Birkenbuel v. Mont. State Compensation Ins. Fund (Mont. 1984), [212 Mont. 139,] 687 P.2d 700, 704, 41 St.Rep. 1647, we held that an injured employee seeking punitive damages for intentional torts or bad faith against a Plan III insurer (the State Fund) was barred by public policy. In Birkenbuel, we recognized punitive damages are designed to punish an intentional tortfeasor. However, we held it would be improper to allow “punishment” of the State Fund, since innocent Montana taxpayers would be forced to reimburse the State Fund. Birkenbuel, 687 P.2d at 704.

In Carlson v. Anaconda Company (1974), 165 Mont. 413, 529 P.2d 356, we held an injured employee was limited in a negligence claim against his employer to remedies with the Workers’ Compensation Division. However, Carlson, 165 Mont. at 417, 529 P.2d at 358, citing Reed v. Hartford Acc. & Indemnity Co. (D.Pa.1973), 367 F.Supp. 134, 135, permits an injured employee’s claim for bad faith, where an insurer acts intentionally with malice when settling a workers’ compensation claim.

Unfair Claims Settlement Practices

Plaintiff and appellant Spadaro alleges that respondents acted in bad faith when they suspended or denied Spadaro’s workers’ compensation benefits. Spadaro claims respondents violated Section 33-18-201, MCA, which prohibits unfair claim settlement practices by an insurer. Appellant cites no facts to support her allegation that Section 33-18-201, MCA, was violated.

The moving party has the initial burden of establishing the absence of any genuine issue of material fact. Mustang Beverage Company, Inc. v. Jos. Schlitz Brewing Company (1973), 162 Mont. 243, 246, 511 P.2d 1, 3. However, once the moving parties’ burden has been met, as found by the District Court, the burden of establishing a genuine issue of material fact shifts to appellant Spadaro. In order to prevent summary judgment, Spadaro must produce evidence sufficient to raise a genuine issue of fact. Kaiser v. Town of Whitehall (Mont. 1986), [221 Mont. 322,] 718 P.2d 1341, 1342, 43 St.Rep. 176.

On appeal, Spadaro has failed to cite any disputed facts. Instead, Spadaro has relied on general allegations of disputed facts. A party opposing summary judgment “[m]ust set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e), M.R.Civ.P.. National Gypsum v. Johnson, (1979), 182 Mont. 209, 212, 595 P.2d 1188, 1189.

Additionally, Spadaro’s allegations that various sections of 33-18-201, MCA, were violated by respondents is not supported by the record. Respondents began paying benefits to Spadaro when they issued Check #1 on August 22, 1983. Respondents accepted Spadaro’s claim even though they had evidence that her claim might not be genuine. On September 2, 1983, respondents issued Check #2. After receiving the checks, Spadaro fraudulently told her first attorney, Robert Skaggs, that she had not received the checks. North Star, following Skaggs’s request, stopped payment on the checks. North Star became suspicious upon learning that the checks had already been cashed. In response to the confusing situation created by Spadaro, North Star began its investigation.

Respondents were aware that Spadaro was initially advised by Dr. Robert Kerr on August 2, 1983, to take a week off for bed rest. Respondents were also aware that Kerr then advised her to return to work. However, Spadaro was examined by Dr. Lewallen apparently without a referral from Dr. Kerr. On August 19, 1983, Dr. Lewallen placed Spadaro in traction in a Billings hospital. Given this information, respondents sought Spadaro’s complete medical records.

On September 8, 1983, respondents requested Robert Skaggs, Spadaro’s first attorney, to forward appellant’s medical records. Respondent’s request was not honored following Skaggs’ withdrawal on September 20, 1983. Subsequent to Skaggs’s withdrawal, Spadaro did not contact respondents until October 4, 1983. Her new attorney, Lewis Brueggemann, failed to complete a client authorization until October 11, 1983. On October 14, 1983, respondents requested Brueggemann to provide them with Spadaro’s medical records. On October 28, 1983, Brueggemann sent Dr. Richard Lewallen’s report, which specifically stated that claimant Spadaro had injured her back in a work-related accident on August 1, 1983.

The record reveals that Spadaro was the primary cause for the delay in receiving her compensation benefits. Spadaro’s (1) fraudulent conduct, (2) change of attorneys and (3) failure to provide respondents with her medical records delayed receipt of her benefits until October 28, 1983. Spadaro complains that she did not receive benefits for four months. However, the record clearly reveals that she is responsible for a delay of approximately three months.

The record also reveals that Spadaro and her new attorney Lewis Brueggemann were aware that Section 39-71-610, MCA, enabled Spadaro by petitioning the division, to receive benefits for forty-nine days pending a hearing on the matter. Brueggemann and Spadaro elected not to utilize Section 39-71-610, MCA. Spadaro is not required to utilize the benefits of this section. However, her failure to do so is a proper consideration.

Violations of Sections 39-71-606 through -609, MCA

Appellant Spadaro contends respondents violated Section 39-71-606, MCA, which requires an insurer to accept or deny a claim within thirty days. On August 22, 1983, respondents accepted liability within thirty days of appellant’s claim for benefits. The record reflects respondents accepted liability within thirty days of Spadaro’s submission of a claim for compensation benefits. Therefore, we need not address this issue.

Spadaro next contends Section 39-71-607, MCA, requiring an insurer to suspend payments pending receipt of medical records for no more than thirty days was also violated. Appellant Spadaro has completely failed to produce evidence that respondents suspended payment for more than thirty days. Therefore, we will not review this issue.

Spadaro also contends Section 39-71-608, MCA, which allows an insurer to make compensation payments without accepting liability, was violated. Spadaro claims in a general manner, that respondents violated this statute by failing to provide her with compensation advice forms until July 30, 1984. However, Spadaro has failed to show any intentional misconduct or any resulting prejudice. Fur-, ther, respondents on September 8, 1983, provided Spadaro with a letter, similar to a compensation advice form. Respondents’ failure to adhere to Section 39-71-608, MCA, was technical in nature and not made in bad faith. Respondents’ violation of Section 39-71-608, MCA, under these facts, does not constitute bad faith.

Finally, Spadaro claims respondents violated Section 39-71-609, MCA, which requires an insurer to provide a claimant with written notice, fourteen days before termination of compensation benefits. In the case at hand, respondents suspended Spadaro’s benefits after Spadaro fraudulently claimed that she had not received Checks 1 or 2. Respondents then investigated Spadaro’s alleged injury and subsequent fraudulent conduct. The record reveals that respondents failed to provide Spadaro with written notice that her compensation benefits were being suspended. In doing so, respondents violated Section 39-71-609, MCA.

In Catteyson v. Great Falls Mobile Home Center (1979), 183 Mont. 284, 286, 599 P.2d 341, 343, we held when an insurer violates Section 39-71-609, MCA, the insurer remains liable for compensation benefits until proper notice is served. Claimant Spadaro has received all compensation benefits previously owed by respondent. Further, Spadaro has continued to receive benefits to date. Spadaro has provided no evidence indicating respondents acted intentionally or with malice when they suspended benefits. Hayes v. Aetna Fire Underwriters (1980), 187 Mont. 148, 153, 609 P.2d 257, 260. A technical violation of Section 39-71-609, MCA, was committed by respondents. However, respondents’ conduct does not rise to the level of bad faith.

Appellant Spadaro contends “[o]bviously, the record is replete with genuine issues of material fact.” However, appellant failed to cite a single disputed material fact. After reviewing the trial court’s examination of the record, we hold that the trial court properly found that appellant Spadaro failed to show any disputed material fact. Summary judgment is proper when the record shows no genuine issue of material fact. Kronen v. Richter (Mont. 1984), [221 Mont. 322,] 683 P.2d 1315, 1317, 41 St.Rep. 1312.

The record also supports the trial court’s finding that much of the complained of delay was the result of Spadaro’s own calculated and fraudulent conduct. We have long held one cannot take advantage of his own wrong. Section 1-3-208, MCA.

We hold the District Court did not err in granting summary judgment.

Accordingly, the District Court is affirmed.

MR. JUSTICES HARRISON, WEBER, GULBRANDSON, HUNT, SHEEHY and McDONOUGH concur.


text:
    ARTHUR D. BOLLINGER and Dallas Bollinger, husband and wife, Plaintiffs and Respondents, v. RAYMOND HOLLINGSWORTH and Ginger Lynn Hollingsworth, husband and wife; et al., Defendants and Appellants.
    No. 87-34.
    Submitted on Briefs May 22, 1987.
    Decided July 21, 1987.
    739 P.2d 962.

      Sverdrup & Spencer, Scott B. Spencer, Libby, for defendants and appellants.
    Warden, Christiansen, Johnson & Berg, Gary R. Christiansen, Kalispell, for plaintiffs and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The Hollingsworths appeal a judgment entered by the District Court, Nineteenth Judicial District, Lincoln County, quieting title to a strip of land and establishing the boundary line between their property and that of the Bollingers. We affirm the judgment of the District Court.

This action involves a dispute over the location of a boundary line in Section 10, Township 26 North, Range 29 West, Lincoln County. The boundary lies on the north-south quarter section line. When the section was originally surveyed by the Government Land Office (GLO) in 1903, a quarter-corner monument was placed at the midsection point on the north boundary line of Section 10. Unfortunately, this monument was buried by the reconstruction of Highway 2 during the 1930’s. Since this monument is lost, proper location of the quarter section boundary must be determined by reference to the other corners.

The parties’ specific point of disagreement is the proper location of the northeast corner of Section 10. The Bollingers’ position, upheld by the District Court, is that the northeast corner is marked by the original sandstone monument, which was found by the surveyor commissioned by the Bollingers to resurvey the property. The Hollingsworths’ position is that a brass cap, set by the Bureau of Land Management (BLM) in a 1964 resurvey of the area, is the proper location of the northeast corner. On appeal, the Hollingsworths argue the District Court’s acceptance of the Bollinger survey was clearly erroneous and unsupported by the evidence. They also appeal the court’s award of compensatory and punitive damages against them.

Section 10 was originally surveyed by the GLO in 1903. Around 1912, Mr. Fosseum, the original homesteader of the Hollingsworths’ property, built a rail fence on the north-south quarter section line which divided the upper portion of Section 10. This fence separated the Fosseum property from the Manicke property. The Manickes were predecessors-in-interest to the Bollingers, and were the parents of Mrs. Bollinger. The rail fence remained in this location until 1982, when the Bollingers replaced it with a new barbed wire fence.

The Hollingsworths purchased the Fosseum property in 1982 from the Shelleys, Mr. Fosseum’s successors-in-interest. In 1984, Mr. Hollingsworth told Mr. Bollinger he was going to build a fence and a road 50 feet west of the old rail fence line (and 50 feet in toward the Bollingers’ property). The Bollingers contacted an attorney who wrote the Hollingsworths a letter asking them to contact him and discuss the matter. The Hollingsworths did not respond to this letter.

In the spring of 1985, the Hollingsworths removed the Bollingers’ fence and installed a new fence approximately 50 feet to the west. The Bollingers’ attorney sent a second letter to the Hollingsworths demanding an explanation of their actions and requesting they or their attorney contact him. The Hollingsworths again did not respond. The Bollingers then hired a surveyor to survey their property. By using the original GLO survey notes and locating the original northeast corner monument, the surveyor set the lost north quarter corner (now buried under Highway 2) by single proportion measurement and established the quarter section boundary eight feet to the west of the old rail fence line. The Bollingers built a second fence on this re-established boundary line. In the fall of 1985, the Bollingers discovered their new fence had again been cut. They filed their complaint in this action January 2, 1986.

The first issue raised by the Hollingsworths is whether the District Court’s judgment which located the quarter section boundary was clear error of law and unsupported by the evidence. The standard of review in considering a judgment rendered in a civil action before the District Court without a jury is whether the findings of fact are clearly erroneous. Rule 52(a) M.R.Civ.P.; Roberts v. Mission Valley Concrete Industries, Inc. (Mont. 1986), [222 Mont. 268,] 721 P.2d 355, 357, 43 St.Rep. 1254, 1257.

This Court has had the opportunity to examine the law of boundaries on several occasions. As we first stated in Vaught v. McClymond (1945), 116 Mont. 542, 549-50, 155 P.2d 612, 616, “[t]he location of corners and lines established by the government survey, when identified, is conclusive . . .” Whether that original location is right or wrong as shown by later surveys is immaterial; the true corner of a section or quarter section is where the GLO surveyors in fact established it. Stephens v. Hurly (1977), 172 Mont. 269, 278, 563 P.2d 546, 551. “The best evidence is the corners actually fixed upon the ground by the government surveyor, in default of which the filed notes and plats come next . . . .” Vaught v. McClymond, 116 Mont. at 557, 155 P.2d at 620 (emphasis in original).

The original 1903 GLO survey notes for Section 10 state that a 16”xl0”x6” sandstone, carved with two notches on one side and five notches on the other side, was used as a monument for the northeast corner of Section 10. This stone was not located when the BLM resurveyed the section in 1964 and relocated the section corners. However, a piece of sandstone meeting this exact description was located by Mr. Bollinger’s surveyor, and its existence was corroborated by the testimony and exhibits of Mr. Hollingsworth’s surveyor. The District Court also conducted an on-the-ground inspection of the boundary location and observed the sandstone monument. As we stated in Buckley v. Laird (1972), 158 Mont. 483, 491, 493 P.2d 1070, 1074:

“The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. On a resurvey to establish lost boundaries, if the original corners can be found, the places where they were originally established are conclusive without regard to whether they were in fact correctly located . . . .”

The testimony of the Bollingers’ surveyor, his field notes and the 1903 GLO field notes introduced at trial all indicate that the resurvey “followed in the footsteps” of the original survey and was based upon location of the original corner monuments for Section 10. The Hollingsworths have argued that courses and distances based upon the BLM resurvey are more consistent with the original GLO notes than those of the Bollingers’ surveyor. However, the general rule is that courses and distances must yield to natural or artificial monuments. Buckley v. Laird, 158 Mont. at 492, 493 P.2d at 1075. We therefore hold that the District Court correctly determined the boundary line between the parties’ properties based upon the Bollinger resurvey which located the original corner monuments.

The second issue raised by the Hollingsworths is whether the District Court erred in awarding compensatory and punitive damages against them. The District Court found the Bollingers had sustained the following losses:

1. Lost pasturage for July, August and September, 1985 at a value of $192.00;

2. Replacement of the fence destroyed by Hollingsworths at a value of $1,057.00;

3. Cost of the survey to establish the property boundary at $3,020.20

The court awarded the Bollingers $4,371.10 for actual damages and $4,000.00 for punitive damages based upon Mr. Hollingsworth’s malicious and oppressive actions in destroying two of the Bollingers’ fences. The difference in the amount awarded for actual damages and the losses set forth in the court’s findings is $101.90. This discrepancy is accounted for by the following calculations:

1. The Bollingers testified that they incurred a $100.00 expense in purchasing hay. The District Court included this expense without listing it as a loss in the findings of fact.

2. The Bollingers’ cost to rebuild the fence was $1,057.90. The court awarded $1,057.00

3. The Bollingers’ cost of the survey was $3,021.20. The court awarded $3,020.20.

The $101.90 error is clerical in nature and we amend the District Court’s findings nunc pro tunc in order to conform to the judgment for actual damages of $4,371.10

Punitive damages may be recovered for tortious acts of malice and oppression. Section 27-1-222, MCA. The testimony at trial indicated the Hollingsworths ignored the Bollingers’ request to negotiate the boundary dispute, and that Mr. Hollingsworth destroyed two of the Bollingers’ fences. This evidence was substantial and credible so as to support the District Court’s award of punitive damages.

The judgment of the District Court is affirmed.

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