author: JUSTICE TRIEWEILER

text:
    JERRY SINGLETON, d/b/a SINGLETON TRUCKING, Plaintiff and Appellant, v. L.P. ANDERSON SUPPLY CO., INC., Defendant, CUMMINS POWER, INC., Defendant and Respondent, and L.P. ANDERSON SUPPLY CO., INC., Third-Party Plaintiff, v. J.D. SINGLETON, Third-Party Defendant.
    No. 96-530.
    Submitted on Briefs May 22, 1997.
    Decided July 17, 1997.
    54 St.Rep. 738. 943 P.2d 968.
    284 Mont. 40.

      For Appellant: John Houtz, Attorney at Law, Forsyth.
    For Respondents: Geoffrey R. Keller; Matovich, Addy & Keller; Billings (for Respondent Cummins Power, Inc.) Calvin J. Stacey; Stacey & Walen; Billings (for Defendant L.P. Anderson Supply Co., Inc.).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The appellant, Jerry Singleton, filed a claim for damages in the District Court for the Sixteenth Judicial District in Custer County in which he alleged that he was damaged by the negligence of the defendants, L.P. Anderson Supply Co., Inc., and Cummins Power, Inc. Cummins filed a motion for summary judgment, which was granted by the District Court. Singleton appeals the order granting summary judgment. We affirm the judgment of the District Court.

The issue on appeal is whether the District Court erred when it granted summary judgment in favor of Cummins Power, Inc.

FACTUAL BACKGROUND

In 1994, Jerry Singleton, a self-employed trucker and mechanic, decided to overhaul the engine in his Peterbilt truck. He contacted L.P. Anderson Supply Co. and asked Mike Harasymczuk, an Anderson parts salesman, to order a Cummins Power engine overhaul kit. Although Singleton provided Harasymczuk with the Control Parts List (CPL) number, he was unable to provide him with the liner part number because the engine had not yet been dismantled.

Harasymczuk subsequently contacted Jim Bromenshenk, a Cummins parts salesman, and ordered the overhaul kit. After Harasymczuk provided the CPL number, Bromenshenk advised him that the engine could have either standard or oversized liners. Bromenshenk, therefore, asked Harasymczuk to provide the liner part number. Harasymczuk advised him that the liner part number was not available because the engine had not yet been dismantled. After a discussion, Harasymczuk directed Bromenshenk to deliver the overhaul kit with standard liners.

On January 15,1996, Cummins sent the overhaul kit with standard liners to Anderson. Singleton picked up the kit and installed the parts himself, including the liners. He then started the engine and ran it for approximately ten minutes. The engine in his truck, however, was machined for oversized liners. He heard a squeal and shut off the engine. When he removed the oil pan, he observed water and coolant running out of the bottom of the number four cylinder and into the pan.

Singleton filed a complaint in the District Court in which he alleged that Anderson and Cummins negligently furnished him with incorrect parts and that, as a result, he suffered substantial economic damages. Anderson and Cummins each filed a motion for summary judgment. After a hearing, the District Court granted summary judgment in favor of Cummins.

STANDARD OF REVIEW

Rule 56(c), M.R.Civ.R, which authorizes summary judgment, provides, in relevant part, as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Rule 56(c), M.R.Civ.P.

The purpose of summary judgment is to facilitate judicial economy through the elimination of unnecessary trials. However, summary judgment is not a substitute for trial if a genuine factual controversy exists. Reaves v. Reinbold (1980), 189 Mont. 284, 288, 615 P.2d 896, 898.

This Court reviews an order which grants summary judgment de novo and applies the same criteria as the district court. Fenger v. Flathead County (1996), 277 Mont. 507, 509-10, 922 P.2d 1183, 1184. The party moving for summary judgment has the initial burden of showing the absence of any genuine issue of material fact in light of the substantive principles that entitle that party to judgment as a matter of law. Cecil v. Cardinal Drilling Co. (1990), 244 Mont. 405, 409, 797 P.2d 232, 234.

After the moving party has met its burden, the burden then shifts to the party opposing the motion to establish the existence of a genuine issue of material fact. Sprunk v. First Bank System (1992), 252 Mont. 463, 466, 830 P.2d 103, 104. The party opposing the motion must present facts of a substantial nature showing that genuine issues of material fact remain for trial. Wangen v. Kecskes (1993), 256 Mont. 165, 172, 845 P.2d 721, 726.

Ordinarily, negligence actions involve factual issues which make summary judgment inappropriate. Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. However, if a plaintiff fails to offer proof of any one of the elements of negligence (duty, breach, causation, and damages), then summary judgment in favor of the defendant is proper. Wiley v. City of Glendive (1995), 272 Mont. 213, 216, 900 P.2d 310, 312; Pappas v. Midwest Motor Express, Inc. (1994), 268 Mont. 347, 350, 886 P.2d 918, 920; White v. Murdock (1994), 265 Mont. 386, 389-90, 877 P.2d 474, 476.

Additionally, if a district court reaches the correct result, then we will uphold the court’s judgment regardless of the reason(s) for its decision. Robinson v. First Wyoming Bank (1995), 274 Mont. 307, 319, 909 P.2d 689, 696.

DISCUSSION

Did the District Court err when it granted summary judgment in favor of Cummins Power, Inc.?

In this case, Anderson and Cummins each filed a motion for summary judgment. After a hearing, the District Court made the following conclusions:

The existence of a duty ... is a question of law to be determined by the Court. Yager v. Deane, 258 Mt 453, 853 P.2d. 1214 (1993). Based on the undisputed facts ... the Court finds that a duty was owed from Cummins only to [Anderson], which was met when Cummins informed [Anderson] of the two possible liner sizes and provided [Anderson] with the specific kit ordered by [Anderson], However, there existed no duty from Cummins to [Singleton], since [Singleton] had no direct contact with Cummins when ordering or installing the kit. In fact, Cummins had no knowledge that [Singleton] was [Anderson’s] customer, or that it was [Singleton’s] engine being overhauled.

On that basis, the District Court granted summary judgment in favor of Cummins.

On appeal, Singleton contends that Cummins owed him a duty of care and that there are genuine issues of material fact which preclude summary judgment. On that basis, he claims that the District Court erred when it granted summary judgment in favor of Cummins.

In Montana, “[t]he existence of a duty of care depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against the imposition of liability.” Maguire v. Department of Institutions (1992), 254 Mont. 178, 189, 835 P.2d 755, 762. Moreover, the relevant policy considerations include the following: (1) the moral blame attached to a defendant’s conduct; (2) the prevention of future harm; (3) the extent of the burden placed on the defendant; (4) the consequences to the public of imposing such a duty; and (5) the availability and cost of insurance for the risk involved. Phillips v. City of Billings (1988), 233 Mont. 249, 253, 758 P.2d 772, 775.

In this case, Singleton alleges that Cummins and Anderson negligently furnished him with incorrect parts and that, as a result, he suffered substantial economic damages. While we conclude that Cummins did, in fact, owe Singleton a duty of care, Singleton must also offer sufficient proof that that duty was breached.

The record establishes that Mike Harasymczuk, an Anderson parts salesman, ordered an overhaul kit with standard liners and that that is exactly what Cummins sent to Anderson. Moreover, despite Cummins’ request, Harasymczuk did not provide Cummins with the liner part number. He provided Cummins with only the engine’s CPL number. Additionally, Cummins did not deal directly with Singleton, was unaware that Singleton was the ultimate customer, and had no specific knowledge of the engine being overhauled. We, therefore, conclude that, based on the facts in this case, Cummins neither knew nor should have known that oversized liners were required, and that Cummins satisfied its duty when it delivered to Anderson the exact engine overhaul kit which was specifically requested.

On that basis, we conclude that Cummins did not breach its duty of care and, therefore, that Singleton failed to prove a necessary element of his negligence claim. Accordingly, we hold that the District Court did not err when it granted summary judgment in favor of Cummins Power, Inc. The judgment of the District Court is affirmed.

JUSTICES REGNIER, NELSON, HUNT and LEAPHART concur.


source: Caselaw Access Project

author: JUSTICE REGNIER

license: Public Domain

text:
    CITY OF HAMILTON, STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH MAVROS, Defendant and Appellant.
    No. 96-623.
    Submitted on Briefs May 29, 1997.
    Decided July 17, 1997.
    54 St.Rep. 741. 943 P.2d 963.
    284 Mont. 46.

      For Appellant: Judith A. Loring, Attorney at Law, Stevensville.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General; Helena; T. Geoffrey Mahar, Hamilton City Attorney, Hamilton.
   JUSTICE REGNIER

delivered the Opinion of the Court.

Joseph Mavros was charged by amended complaint in the Hamilton City Court with five misdemeanor counts; including assault, domestic abuse, reckless driving, and improper license plates, on March 20,1996. He was convicted of reckless driving and two counts of assault. Mavros appealed this determination to the Twenty-First Judicial District Court, Ravalli County. The District Court heard the case de novo pursuant to § 25-33-301, MCA. Following a jury trial, Mavros was again found guilty of reckless driving and two counts of assault. Mavros appeals from the sentence and judgment of the District Court. We reverse.

The issues on appeal are:

1. Did the District Court abuse its discretion when it allowed a Hamilton County Municipal Court Judge to testify from her recollection as to the testimony of a material witness?

2. Was sufficient evidence presented at trial to convict Mavros of assault against Janet Ohl?

3. Is Montana’s assault statute unconstitutionally overbroad or vague, as applied to this case?

FACTUAL BACKGROUND

On the afternoon of August 7, 1995, Janet Ohl was driving in Hamilton. Wendy Clary was in the front passenger seat. Stephanie Hughes, Clary’s eleven-year-old niece, and Ohl’s toddler son were in the back seat. As Ohl waited at an intersection to make a turn, Joe Mavros, her then-estranged common-law husband, pulled his car to a halt in front of Ohl’s car and slammed on the brakes. At this point, Mavros either hit the front of Ohl’s car and knocked it backward or Ohl became startled when she saw Mavros, popped her clutch, and hit Mavros’s car.

Mavros got out of his car and attempted to open the driver’s door of Ohl’s vehicle. He was angry and exchanged swear words with Ohl. As he argued with Ohl, he stood against the back door and prevented Hughes from exiting the car. As Hughes was crying, Mavros laughed and mocked her. Mavros demanded that Ohl return his key. Ohl threw a key out of the car and Mavros left to retrieve it. At this time, the police arrived and Mavros was arrested.

On March 20, 1996, Mavros was charged by a second amended complaint of the crimes of domestic abuse in violation of § 45-5-206, MCA, a misdemeanor, and, in the alternative, with the crime of assault in violation of § 45-5-201, MCA, a misdemeanor, as against Janet Ohl; and two additional counts of assault in violation of § 45-5-201, MCA, as against Wendy Clary and Stephanie Hughes; improper license plates in violation of § 61-3-301, MCA, and reckless driving in violation of § 61-8-301, MCA.

Mavros pled not guilty. He was tried before a jury in the Hamilton City Court with Judge Martha Bethel presiding. He was found not guilty of domestic abuse, assault against Hughes, and the improper license plate charge. He was convicted of reckless driving and the two counts of assault against Ohl and Clary. He appealed to the District Court the jury’s finding of guilty on these charges and his sentence.

The Twenty-First Judicial District Court, Ravalli County, heard the trial de novo pursuant to § 25-33-301, MCA, before a jury. At this trial, Wendy Clary was unavailable to testify in court. The District Court, over Mavros’s objection, allowed Judge Bethel to testify from her recollection and notes taken in City Court as to Clary’s testimony regarding the incident and the alleged assault.

Mavros was found guilty of assault as against Janet Ohl, assault as against Wendy Clary, and the reckless driving charge. Mavros appeals from the judgment and sentence for the two assault convictions.

ISSUE 1

Did the District Court abuse its discretion when it allowed a Hamilton County Municipal Court Judge to testify from her recollection as to the testimony of a material witness?

The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380 (citing State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054). The district court has broad discretion to determine if evidence is admissible. Accordingly, absent an abuse of discretion, we will not overturn the district court’s determination. Passama, 261 Mont. at 341, 863 P.2d at 380.

Mavros argues that Judge Bethel’s testimony was hearsay and should have been excluded at trial. The State counters that the testimony of Judge Bethel was allowable as an exception to the hearsay rule set forth in Rule 804(b)(1)(B), M.R.Evid. The State contends, and Mavros does not dispute, that Wendy Clary was unavailable for purposes of Rule 804, M.R.Evid., in the District Court proceeding.

The District Court allowed Judge Bethel to testify as to what Clary said during the City Court trial pursuant to Rule 804, M.R.Evid., which states, in relevant part:

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding ... and (B) in criminal actions and proceedings, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, and redirect examination.

Rule 804(b)(1)(B), M.R.Evid. Judge Bethel’s testimony at trial as to Wendy Clary’s feelings during the incident with Mavros was based on statements Clary made while testifying before Judge Bethel in the City Court proceedings. Judge Bethel had no personal knowledge of the alleged incident which occurred approximately eight months before the City Court trial.

This Court determines that the testimony of Judge Bethel constituted inadmissible hearsay. Since Clary’s previous testimony was in the City Court proceedings, there was no transcript available which would have provided a verbatim record of her direct and cross-examination. The State offered Clary’s testimony, over the objection of the defendant, through Judge Bethel’s testimony in the District Court. This was essentially Judge Bethel’s recollection of Clary’s testimony in the City Court. The error in this procedure is clearly evident when reviewing the record in this case. On numerous occasions, and in regard to material facts, Judge Bethel either could not recall or had no notes to refresh her recollection as to how Clary testified to certain questions regarding the incident in the City Court proceeding. Although Mavros had an opportunity to cross-examine Clary in the City Court, he did not have that opportunity in the District Court. Obviously Mavros could only cross-examine Judge Bethel on her recollection of Clary’s testimony.

Former testimony is a recognized exception to the hearsay rule and is codified in our Rules of Evidence at Rule 804(b)(1). The rationale behind the exception is that there is a guarantee of trustworthiness at the time the testimony is given, namely, the witness is under oath and subject to cross-examination. State v. Bouldin (1969), 153 Mont. 276, 282, 456 P.2d 830, 833. This guarantee of trustworthiness is lost when prior testimony is represented to the jury, as was done here, without the benefit of a transcript or other recording and through only the memory of a person who was present in the former proceeding. The District Court in this instance did not admit the prior testimony, but admitted Judge Bethel’s recollection of the prior testimony.

Here, the testimony was admitted, not through a transcript which accurately repeated the direct and cross-examination before the District Court jury, but through another person’s memory. This was error. The prior testimony of a witness is only an exception to hearsay under Rule 804(b)(1), M.R.Evid., when that testimony is offered through the use of a transcript or some other recording device which accurately presents a verbatim record of the testimony from the earlier proceeding.

We hold that the testimony of Judge Bethel as to Wendy Clary’s testimony in the City Court proceedings about the incident with Mavros was inadmissible hearsay and the District Court abused its discretion in admitting this testimony. Without any testimony from the complaining witness, or any other evidence from the trial, the assault conviction as against Clary fails.

ISSUE 2

Was sufficient evidence presented at trial to convict Mavros of assault against Janet Ohl?

In criminal appeals, this Court reviews the sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Richards (1995), 274 Mont. 180, 184, 906 P.2d 222, 224.

Mavros argues that sufficient evidence in the record does not exist to support the convictions for assault. Under § 45-5-201, MCA, a person commits assault if he:

(a) purposely or knowingly causes bodily injury to another;
(b) negligently causes bodily injury to another with a weapon;
(c) purposely or knowingly makes physical contact of an insulting or provoking nature with any individual; or
(d) purposely or knowingly causes reasonable apprehension of bodily harm in another.

First, the State relies on State v. Walsh (1997), [281 Mont. 70], 931 P.2d 42, for the proposition that because Mavros did not move the District Court, either at the close of the prosecution’s case or at the close of all the evidence, for a judgment of acquittal because the evidence was insufficient to go to the jury on the charges of assault against Ohl, this Court should decline to consider this claim on appeal. In Walsh, this Court declined to consider Walsh’s challenge to charges of accountability “because Walsh failed to argue at any time prior to filing his brief on appeal that the evidence was insufficient to support the verdict on accountability charges.” Walsh, 931 P.2d at 45. In the alternative, if Mavros has not waived the claim, the State contends that there was sufficient evidence presented at trial for a jury to find that Mavros was guilty of assault.

This Court recently overruled Walsh insofar as it bars a claim on appeal of insufficiency of the evidence to support a verdict for failure to raise the issue in the district court. State v. Granby (1997), [283 Mont. 193], 939 P.2d 1006. In Granby, we determined that the Legislature intended that a reviewing court have the power to provide a comprehensive review of the district court proceedings for sufficiency of the evidence without the necessity of a motion challenging the sufficiency of the evidence in the district court. Granby, [283 Mont. 193], 939 P.2d at 1009. Accordingly, Mavros is not barred from raising a claim of insufficiency of the evidence to support his conviction on the assault charge against Ohl on appeal.

The only way that Mavros’s conviction can be upheld is if there is sufficient evidence that Ohl had a “reasonable apprehension of bodily injury.” Section 45-5-201(d), MCA.

Mavros contends that the evidence at trial was not sufficient to sustain his conviction of assault against Ohl because there was no physical contact between him and Ohl, and Ohl had no reasonable apprehension of injury. He maintains that this incident involved a verbal yelling match between two people who had an intimate relationship and which was created by Ohl by her actions several days before in trashing and burglarizing Mavros’s home and retaining his keys.

The evidence at trial showed that Mavros drove his car in a reckless manner into the wrong lane of traffic and slammed on his brakes to stop his car in front of Ohl’s vehicle, which was stopped at an intersection. Two witnesses testified that after the collision, Mavros got out of his car, jumped over other cars in an attempt to get at Ohl, and yelled profanities at Ohl. However, the testimony at trial was clear that Mavros did not physically strike or touch Ohl. The act of yelling obscenities at someone does not constitute an assault unless it creates reasonable apprehension of bodily injury in that person. Section 45-5-201(d), MCA.

At trial, Ohl testified that she was only startled when Mavros drove his vehicle up in front of her vehicle stopped at the intersection. She stated that she anticipated that some sort of confrontation would take place between her and Mavros because she had trashed and burglarized his home two days before the incident in order to provoke him to seek her out and confront her. Although she was aware of the upcoming confrontation before it happened, that awareness does not preclude Ohl from being afraid of bodily injury; however, she also testified that she was not scared or afraid of Mavros during the entire incident. She stated that she was not afraid of bodily injury at all during the time of the incident. Ohl testified to this based on previous incidents between her and Mavros during their relationship.

This Court is aware that Ohl was a reluctant witness against Mavros. After the incident, Mavros and Ohl reconciled. Ohl testified that she and Mavros considered themselves common-law husband and wife. At the time of trial, Ohl and Mavros were living together and raising their child. However, no evidence was offered at trial to show that Mavros had caused a reasonable apprehension of injury in Ohl to support a claim of assault against her.

After viewing the evidence in the light most favorable to the prosecution, we hold that the evidence presented is not sufficient to support the conviction for assault against Ohl, and Mavros’s conviction on this charge is reversed.

ISSUE 3

Is Montana’s assault statute unconstitutionally overbroad or vague as applied to this case?

Because this Court has reversed both convictions for assault against Mavros, we decline to address his argument that Montana’s assault statute is unconstitutional, both on its face and as applied to him, because it violates his right to free speech.

In conclusion, we hold that the District Court abused its discretion in admitting Judge Bethel’s testimony regarding Clary’s testimony in the City Court proceeding. We also hold that there was not sufficient evidence to convict Mavros of assault against Ohl. Therefore, Mavros’s convictions for assault against Ohl and Clary are reversed. His conviction for reckless driving was not appealed and still stands. This case is remanded to the District Court for proceedings consistent with this opinion.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BRYON ROBERTS, Defendant and Appellant.
    No. 96-629.
    Submitted on Briefs May 22, 1997.
    Decided July 17, 1997.
    54 St.Rep. 745. 943 P.2d 1249.
    284 Mont. 54.

      For Appellant: Mark A. English; Deputy Public Defender; Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General; Helena; Dennis Paxinos, Yellowstone County Attorney; Dale Mrkich, Deputy County Attorney; Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The appellant, Bryon Roberts, was charged by information, filed in the District Court for the Thirteenth Judicial District in Yellowstone County, with the offense of criminal possession of dangerous drugs, in violation of § 45-9-102, MCA. He filed a motion to suppress evidence, which the District Court denied. He then pled guilty to the charge against him. He appeals the District Court’s order denying his motion to suppress. We affirm the judgment of the District Court.

The sole issue on appeal is whether the District Court erred when it denied Bryon Roberts’ motion to suppress.

FACTUAL BACKGROUND

On July 2, 1995, Officers David Punt and Mike Zidack stopped a vehicle at the intersection of Third Avenue North and South 32nd Street in Billings. Dining that traffic stop, the police officers arrested Bryon Roberts, a passenger in the vehicle.

On July 10, 1995, Roberts was charged by information with the offense of criminal possession of dangerous drugs. The information states, in relevant part, as follows:

Officer Punt spoke to the driver of the car. Officer Zidack spoke to the passenger, later identified as defendant Bryon Roberts. A routine records check revealed an active arrest warrant for [Roberts] out of Billings City Court. [Roberts] was arrested on the warrant, and he was transported to the Yellowstone County Detention Facility.
During the booking procedure at the detention facility, detention officers recovered a gold metal container which contained approximately nineteen (19) paper bindles.

The State Crime Lab determined that those nineteen bindles contained Methamphetamine, a Schedule II drug, with a combined weight of 1.60 grams.

On June 3, 1996, Roberts filed a motion to suppress the contents of the gold metal container which was found on his person. The District Court, however, declined to hold an evidentiary hearing and denied that motion.

Roberts subsequently pled guilty to the charge against him. Pursuant to an agreement with the State, however, he preserved his right to appeal the District Court’s order which denied his motion to suppress.

DISCUSSION

Did the District Court err when it denied Bryon Roberts’ motion to suppress?

The standard for review of a district court’s denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law. State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021; State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94.

Although the District Court declined to hold an evidentiary hearing, both Roberts and the State submitted briefs in support of their respective positions. In its written order which denied the motion to suppress, the court determined that:

The initial stop of the driver of the motor vehicle in which [Roberts] was a passenger is not challenged and was a legal stop based on the officer’s belief that an arrest warrant existed for the driver. Standard procedure was implemented for officer safety at that stop and [Roberts] was not allowed to exit the motor vehicle.
Subsequently, [Roberts] was arrested pursuant to a valid outstanding arrest warrant.... Once arrested, [Roberts] was searched. Again, this is standard procedure for officer safety and is reasonable and legal. Mont. Code Ann. § 46-5-102.

On appeal, Roberts contends that the District Court erred when it denied his motion to suppress. Specifically, he contends that the police did not have a reasonable and articulable suspicion that he was engaged in any criminal activity and, therefore, that he was unlawfully detained, arrested, and searched. Moreover, he asserts that because the District Court did not conduct an evidentiary hearing, its “findings of fact are not supported by any evidence and [it] did not apply the correct law to the facts.”

Pursuant to § 46-13-302, MCA, a criminal defendant may move a district court to suppress any evidence which was obtained during an unlawful search and seizure. Furthermore, the statute provides, in relevant part, as follows: “If the motion [to suppress] states facts that, if true, would show that the evidence should be suppressed, the court shall hear the merits of the motion at the omnibus hearing or at a later date if the court orders.” Section 46-13-302(2), MCA.

In this case, Roberts’ motion to suppress contains the following recitation of facts:

On July 2, 1995 ... [Officer] Punt stopped a vehicle driven by John Lucero in which [Roberts] was a passenger. Punt stopped the vehicle because he believed an arrest warrant existed for Lucero. Once Punt stopped the vehicle, Roberts started to exit the vehicle and Punt told Roberts to remain in the vehicle. [Officer] Zidack arrived on the scene. Zidack asked Roberts to identify himself. Roberts identified himself. Zidack ran a warrant check on Roberts and found a valid arrest warrant. Zidack arrested Roberts on the warrant. While patting Roberts down for weapons, Zidack found a small compact on Roberts. Zidack seized the compact and looked inside. Zidack found what appeared to be illegal drugs and drug paraphernalia. Eventually, the [State] charged Roberts with felony criminal possession of dangerous drugs.

As the District Court recognized, Roberts does not challenge the initial stop of Lucero’s vehicle. Rather, he claims that, as a passenger, he was unlawfully detained when Officer Punt directed him to remain in the vehicle.

In United States v. Vaughan (9th Cir. 1983), 718 F.2d 332, the Ninth Circuit Court of Appeals held that it is not a violation of the Fourth Amendment to detain a passenger when a vehicle has been stopped because a warrant is outstanding for the driver. Although the federal agents in Vaughan had no reason to believe that the passenger had engaged in any criminal activity, they were permitted to detain him while they conducted a search of his companions. Vaughan, 718 F.2d at 334.

In support of its holding, the Ninth Circuit relied on Michigan v. Summers (1981), 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340. In Summers, the U.S. Supreme Court concluded that a detention analogous to the one in Vaughan did not violate the Fourth Amendment. The Court based its conclusion on the following reasoning:

Most obvious is the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found. Less obvious, but sometimes of greater importance, is the interest in minimizing the risk of harm to the officers .... Finally, the orderly completion of the search may be facilitated if the occupants of the premises are present.

Summers, 452 U.S. at 702-03, 101 S.Ct. at 2594.

While declining to address the precise issue presented by this appeal, the U.S. Supreme Court has recently held that an officer making a traffic stop may interfere with a passenger’s freedom of movement by requiring the passenger to get out of a car pending completion of the stop. The Supreme Court held that the interference with the passenger’s liberty, under those circumstances, was minimal, and the justification, in terms of assuring the investigating officer’s safety, was significant. Maryland v. Wilson (1997),_U.S. _, 117 S. Ct. 882, 137 L. Ed. 2d 41.

We find Vaughan persuasive, as applied to the facts in this case. Accordingly, we conclude that Roberts was not unlawfully detained when Officer Punt directed him to remain in the vehicle. Moreover, we conclude that Roberts’ motion to suppress establishes the following relevant facts: (1) he voluntarily identified himself; (2) Officer Zidack conducted a warrants check and established probable cause to arrest him; and (3) he was searched pursuant to a lawful arrest.

We conclude, therefore, that based on Roberts’ own version of the events, the detention, arrest, and search of his person were justified and lawful. In other words, even if the facts recited in the motion to suppress are true, that motion should be denied. The District Court, therefore, was not required to conduct an evidentiary hearing. See § 46-13-302(2), MCA. Accordingly, we affirm the judgment of the District Court and hold that it did not err when it denied Bryon Roberts’ motion to suppress.

JUSTICES GRAY, REGNIER, HUNT and LEAPHART concur.


text:
    STATE OF MONTANA, DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Plaintiff and Appellant, v. MONTANA POWER COMPANY, a Montana corporation, Defendant and Respondent.
    No. 97-136.
    Submitted on Briefs July 2, 1997.
    Decided July 17, 1997.
    54 St.Rep. 747. 943 P.2d 1251.
    284 Mont. 59.

      For Appellant: Richard E. Bach and Tommy H. Butler, Special Assistant Attorneys General; Montana Department of Natural Resources and Conservation; Helena.
    For Respondent: Patrick T. Fleming and Michael V. Harrington; The Montana Power Company; Butte.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The State of Montana, Department of Natural Resources and Conservation, filed a complaint in the District Court for the First Judicial District in Lewis and Clark County in which it alleged that the defendant, Montana Power Company, negligently maintained one of its electrical power lines and that the State was damaged as a result. After a nonjury trial, the District Court found that Montana Power Company’s negligence had not been proven. The DNRC appeals. We affirm the judgment of the District Court.

The sole issue presented on appeal is:

Did the District Court err when it found that Montana Power Company’s negligence had not been proven by a preponderance of the evidence?

FACTUAL BACKGROUND

On August 19, 1992, a windstorm with gusts of up to fifty-eight miles per hour caused a branch from a live cottonwood tree in the Spokane Creek area east of Helena to break and fall onto a power line owned by Montana Power Company. A wildfire resulted when the ungrounded wire fell onto the brush beneath the line. A number of fire departments responded to the call under the direction of the Department of State Lands, which had state responsibility for fire suppression. (The Department of State Lands was eliminated in 1995 and its duties were transferred to the DNRC). The fire was suppressed by early the next morning, but at substantial expense to the State.

The DNRC filed a complaint in the First Judicial District Court and alleged that MPC’s negligence caused the fire. It maintained that MPC was liable for the costs of the fire, based on theories of common law negligence and negligence per se, for violating the National Electrical Safety Code (NESC). Following a nonjury trial, the District Court found that the DNRC had failed to prove by a preponderance of the evidence that MPC breached any common law or statutory duty.

DISCUSSION

Did the District Court err when it found that Montana Power Company’s negligence had not been proven by a preponderance of the evidence?

Initially, we note that the DNRC’s characterization of the issues on appeal is different than set forth above. The DNRC has stated the issues on appeal as follows:

A. Under the facts presented, was it error for the trial court to conclude that, absent expert testimony, it could not rule the defendant breached its common law duty for failing to trim or remove a tree which subsequently fell across its line and started a wildfire?
B. Under the facts presented, was it error for the trial court to conclude that, absent expert testimony, it could not rule the defendant breached its statutory duty for failing to trim or remove a tree which subsequently fell across its line and started a wildfire? However, the District Court did not hold that expert testimony was

necessary in order to prove the DNRC’s claims. It indicated that such testimony would have been helpful, but that insufficient evidence of any kind had been offered to prove either common law negligence or negligence per se for violation of the NESC. The court’s actual language in that regard is as follows:

There is no evidence in the record that would indicate to the Court whether or not this particular tree should have been trimmed. The Court is left with the task of leaping to the conclusion that this particular cottonwood tree should have been trimmed pursuant to the provisions of the aforementioned provision of the National Electrical Safety Code. This Court concludes that it cannot make that jump without some expert testimony or other evidence indicating that this particular tree should have been trimmed.
... While this Court certainly concludes that the power company has a heightened duty to maintain its lines and to trim dangerous trees, the Court is left, again, without any guidance as to the power company’s duty in relation to this particular tree. An expert witness in this regard would have been most helpful. Without such testimony, the Court does not feel that it can rule that Defendant is liable either under a common law or per se definition of negligence in failing to trim this particular tree.
The Court concludes that although Plaintiff’s attorneys have done a yeoman-like job of mustering their case, they have not proven by a preponderance of evidence that Defendant breached any common law or statutory duty that it may have owed to plaintiff.

(Emphasis added.) The DNRC does not argue on appeal that the District Court misstated the standard of care applicable to MPC pursuant to either the common law or the NESC. The District Court concluded that paragraph 218 of the NESC required that MPC trim and remove trees which may interfere with ungrounded supply conductors, and that failure to follow the requirements of the Code is negligent per se. The court also concluded that MPC had a heightened common law duty commensurate with the risks involved to maintain its lines. The DNRC agrees with both of these standards.

Therefore, we conclude that the essence of the DNRC’s argument on appeal is whether the District Court’s finding that it has failed to prove MPC’s negligence is clearly erroneous.

The standard of review of a district court’s findings of fact is whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906 (citing Columbia Grain Int’l v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678).

To decide whether findings are clearly erroneous, we consider (1) whether they are supported by substantial evidence; (2) whether the trial court misapprehended the effect of the evidence; and (3) whether based on our review of the record we are left with a firm conviction that a mistake has been committed. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

The DNRC contends that the District Court erred when it found that it had not proven MPC’s negligence based on testimony from Bill Heal, MPC’s Helena Division Foreman, and Beatrice Gray, one of the occupants of the land on which the power line was located. Heal testified that cottonwood trees are treacherous because of their brittle nature and that he would like to see them trimmed as far back as two hundred feet from power lines. The tree in question was only fifteen feet from the power line on which it fell. Beatrice Gray testified that her mother may have asked that this tree be trimmed sometime prior to the fire to avoid the hazard that it ultimately presented.

Finally, the DNRC cites evidence that winds of fifty-eight miles per hour or greater were not uncommon in the area where the fire occurred, and that MPC’s inspection of the area was not as frequent as was required by its own informal guidelines.

However, when we review the record of a trial court to determine whether its findings are supported by substantial evidence, we review to determine whether there is evidence to support the decision of the court, not whether evidence was presented which might have supported contrary findings. Buckentin v. State Fund (1994), 265 Mont. 518, 520, 878 P.2d 262, 263.

After reviewing the record in this case, we conclude that the following evidence supported the District Court’s findings and conclusions that MPC’s negligence had not been proven by a preponderance of the evidence.

Nathan Gray, another occupant of the land on which the power line was located, testified that the tree from which the branch fell onto MPC’s power line was a living tree with no indication of decay, that the tree was in good condition, and that the branch was located three to four feet from MPC’s line and appeared to be solid. He indicated that prior to the day of the fire he had no reason to believe that the tree or its branches posed a threat to the power line. He also stated that, in his opinion, the cause of the break was an unusual swirling wind with a downward thrust. Beatrice Gray also testified that she had no reason to believe ahead of time that the branch on the cottonwood tree near MPC’s line would break.

Bill Heal, as noted, was MPC’s electric foreman in the Helena Division. He had served in that capacity for the previous fourteen years and had thirty-seven years of combined experience in the industry. He testified that during 1990,1991, and 1992 he performed between nine to twelve inspections of the area in question for the purpose of determining whether trees at that location presented a hazard to MPC’s lines. However, it was his opinion, based on his inspection prior to the fire, that the tree in question did not pose a hazard.

There was no contrary evidence presented regarding the condition of the tree in question prior to the break which downed MPC’s power line.

Although we agree with the contention of the DNRC that expert opinion testimony was not required to prove its allegations, we also conclude that there was substantial evidence to support the District Court’s findings and conclusions that MPC’s negligence (based on either its common law duty or its statutory obligation) has not been proven, and that the District Court’s findings are not otherwise clearly erroneous.

For these reasons, the judgment of the District Court is affirmed.

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


author: JUSTICE HUNT JUSTICE GRAY,

text:
    GROUSE MOUNTAIN ASSOCIATES, LTD, d/b/a GROUSE MOUNTAIN LODGE, Plaintiff/Petitioner and Respondent, v. MONTANA DEPARTMENT OF PUBLIC SERVICE REGULATION, MONTANA PUBLIC SERVICE COMMISSION, Defendant/Respondent and Appellant, ROCKY MOUNTAIN TRANSPORTATION, INC., Intervenor and Appellant.
    No. 96-383.
    Heard April 28, 1997.
    Submitted May 1, 1997.
    Rehearing Denied August 15, 1997.
    Decided July 18, 1997.
    54 St.Rep. 750. 943 P.2d 971.
    284 Mont. 65.

      For Defendant-Appellant: Martin Jacobson, Special Assistant Attorney General, Montana Public Service Commission, Helena.
    For Intervenor-Appellant: Bradley J. Luck, Lucy T. France, Garlington, Lohn & Robinson, Missoula.
    For Respondent: Debra D. Parker, Murphy, Robinson, Heckathorn & Phillips, Mikel L. Moore, Christensen, Moore & Cockrell, Kalispell.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Montana Public Service Commission (PSC) and Intervenor/Appellant Rocky Mountain Transportation, Inc., (Rocky Mountain) appeal from the decision issued by the Eleventh Judicial District Court, Flathead County, reversing upon judicial review PSC’s declaratory ruling that Grouse Mountain Lodge (Grouse Mountain) is a “motor carrier” subject to PSC regulation.

We affirm the District Court.

There are two issues for our review:

1. Did the District Court properly employ the applicable standard of review of the PSC’s declaratory ruling and final order on reconsideration?

2. Did the District Court err when it determined that Grouse Mountain is not subject to PSC motor carrier regulation?

BACKGROUND

Grouse Mountain is located in the picturesque mountains surrounding Whitefish, Montana. The year-round recreational activities around Grouse Mountain attract guests to the lodge from all over the country. Grouse Mountain owns four passenger vans with which it transports its guests between the lodge and The Big Mountain ski resort (Big Mountain), downtown Whitefish, Glacier International Airport, and the Amtrak railway station. Grouse Mountain does not advertise or offer transportation services to the general public. Transportation between the lodge and the airport, railway station, and Big Mountain is free for lodge guests. Guests must pay a nominal fee for transportation between the lodge and downtown Whitefish.

In February, 1993, a rival Whitefish-area business person filed a complaint in the Eleventh Judicial District Court, Flathead County, alleging that Grouse Mountain’s guest transportation was subject to PSC motor carrier regulation and requesting that Grouse Mountain be enjoined from further guest transportation until it had obtained an appropriate certificate of authority from PSC. In response to this complaint, Grouse Mountain filed with the PSC a petition for a declaratory ruling that it was not subject to regulation. The District Court stayed the complaint pending a resolution of Grouse Mountain’s petition.

In a 3-2 decision, the PSC determined that Grouse Mountain’s transportation was in part subject to motor carrier regulation and ruled that: Grouse Mountain has a principal non-transportation hotel business; Grouse Mountain may transport its registered guests to and from the lodge and points of connection with common carriers, and this transportation is incidental to the principal non-transporta-tion business; Grouse Mountain cannot lawfully transport registered guests to and from the lodge and any other places without obtaining a certificate of convenience and necessity from the PSC because such transportation is not incidental to the principal non-transportation business. Grouse Mountain moved the PSC to reconsider its ruling, but also submitted an application for a class “C” certificate of public convenience and necessity, requesting authority to transport lodge guests to all points and places in Flathead County.

In another 3-2 decision, the PSC issued its order on reconsideration, affirming its prior ruling. PSC then scheduled a hearing on Grouse Mountain’s class “C” application, which was contested. After the hearing, PSC issued a certificate of public convenience and necessity which authorized Grouse Mountain to transport guests to points of connection with common carriers and the City of Whitefish.

Grouse Mountain appealed PSC’s initial declaratory ruling and subsequent order on reconsideration to the Eleventh Judicial District Court, Flathead County. The District Court reversed the PSC, holding that: Grouse Mountain is not a “motor carrier;” Grouse Mountain’s transportation activities do not exhibit the characteristics of a “motor carrier;” Grouse Mountain provides “accommodative transportation,” which is expressly exempt from regulation; and, finally, that even if Grouse Mountain's transportation activities were arguably within the scope of regulated motor carriage, it would be exempt from regulation according to the “primary business” test. PSC, and Rocky Mountain, as Intervenor, appeal from the District Court’s order.

STANDARD OF REVIEW

The PSC’s conclusion that Grouse Mountain is subject to motor carrier regulation is a conclusion of law subject to review in the first instance by the District Court. Section 2-4-501, MCA; § 2-4-702, MCA. The standard of review applicable to the PSC’s conclusion is whether the PSC correctly interpreted the law in reaching that conclusion. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

ISSUE ONE

Did the District Court properly employ the applicable standard of review of the PSC’s declaratory ruling and final order on reconsideration?

The parties do not dispute the standard applicable to the District Court’s review of the PSC’s decision. In Steer, Inc., this Court held that a district court should review an agency’s decision to determine whether the agency’s interpretation of the law is correct. Steer, Inc., 803 P.2d at 603. The PSC contends, however, that the District Court improperly employed this standard. Specifically, PSC argues that the court did not sufficiently defer to the PSC’s interpretation of its own regulations. In addition, PSC argues that its ruling had the force of law through the “reenactment doctrine.” Finally, PSC argues that the exemptions from motor carrier law claimed by Grouse Mountain should have been narrowly construed by the court.

As to PSC’s first argument, we note that neither we nor the District Court must defer to an incorrect agency decision. As discussed more fully below, the court properly determined that the PSC’s decision was incorrect. PSC’s second argument regarding the “reenactment doctrine” misses the point. PSC essentially contends that the latest legislative enactments with respect to the law regarding motor carrier regulation were enacted in light of the PSC’s declaratory ruling, are not inconsistent with that ruling or with prior, similar rulings, and are therefore an implicit adoption of PSC’s interpretation of the relevant statutes. However, there is nothing in the legislative enactments that would indicate an adoption of any of the specific aspects of the PSC’s ruling that are under review, particularly the PSC’s application of the “primary business” test to the facts here. Finally, with respect to PSC’s third argument, that exemptions from regulations are to be given narrow interpretation, we note that the PSC has not articulated what a narrow interpretation of the relevant rules and regulations would reveal, except to say that the District Court’s ultimate conclusions were incorrect. This argument is not persuasive.

We hold that the District Court utilized the proper standard of review, reviewing the PSC’s conclusions to determine whether they were the result of a correct interpretation of the law. We also hold that the court properly applied this standard.

ISSUE TWO

Did the District Court err when it determined that Grouse Mountain is not subject to PSC motor carrier regulation?

The PSC’s authority to regulate motor carriers comes from title 69, chapter 12 of the Montana Code. See § 69-12-201, MCA. Within that title and chapter, too, are statutory definitions of motor carriers subject to PSC regulation. Section 69-12-101, MCA, provides in relevant part:

Definitions. Unless the context requires otherwise, in this chapter the following definitions apply:
(8) “Motor carrier” means a person or corporation, or its lessees, trustees, or receivers appointed by any court, operating motor vehicles upon any public highway in this state for the transportation of passengers, household goods, or garbage for hire on a commercial basis, either as a common carrier or under private contract, agreement, charter, or undertaking.

The characteristics of a “motor carrier” are described in § 69-12-106, MCA:

Acts indicative of status as motor carrier. Any person or corporation maintaining a public motor vehicle stand or by sign, symbol, or device or vehicle or clothing or by advertisement holding forth transportation for compensation or soliciting the transportation of persons or property for compensation among the public or soliciting for trips for compensation or providing transportation service to the public under the guise of leasing or buy-sell arrangements shall be deemed, prima facie, a “motor carrier” subject to this chapter. The burden of proof shall be on such person or corporation to disprove such status.

Section 69-12-105, MCA, creates an exception to PSC regulation:

Nature of accommodative transportation. An accommodative transportation movement by a person not in the transportation business is not a service for hire even though the persons owning the property transported or persons transported share in the cost or pay for the movement.

In addition, this Court created an exception to PSC regulation in Board of Railroad Commissioners v. Gamble-Robinson Co. (1941), 111 Mont. 441, 111 P.2d 306. In that case, this Court held that the PSC did not have regulatory authority over businesses that used motor vehicles as an incident to their principal business. This Court stated:

Thus, the question is whether in enacting the statute the legislature meant merely to supervise and regulate those engaged in the business of transporting persons and property for hire, or also to supervise and regulate all those engaged in other businesses and using motor vehicles purely for the incidental purpose of delivering their own goods in the course of such business. The former would seem to be the clear intent, since the title of the Act expressed an intention to supervise, regulate and control “motor carriers engaged in the transportation by motor vehicles of persons and property for hire” etc. “To engage” is “to embark in a business.” (Webster’s New International Dictionary, Merriam-Webster, 2d ed.) The defendants are engaged in wholesaling just as ranchers are engaged in ranching. They are not ordinarily understood to be “engaged in” every occupation or activity purely incidental to their business. One engaged in either of those businesses and using motor vehicles for purposes incidental thereto cannot properly be said to be engaged in the transportation of goods ....

Gamble-Robinson, 111 P.2d at 309-10. This “incidental to” rule, or “primary business” test, has been codified in the PSC’s administrative rules. See Rule 38.3.1001(3), ARM. The PSC’s rules state that a person is not a motor carrier subject to regulation if his transportation activities are incidental to his principal business. Rule 38.3.1001(1), ARM. Transportation activities are incidental when they are in furtherance of, in the scope of, and subordinate to the principal business. Rule 38.3.1001(2), ARM.

Therefore, an entity is not subject to PSC motor carrier regulation if it does not meet the definition of “motor carrier,” if the transportation it provides is accommodative only, or, if the transportation it provides is merely incidental to its principal business. We affirm the District Court’s determination that Grouse Mountain is not subject to PSC motor carrier regulation based on the District Court’s, and our, conclusion that Grouse Mountain’s transportation activities are incidental to its principal business.

The key terms which constitute the codified “primary business test” are defined as follows:

(a) “Principal Business” means a business which, in relation to the transportation which is purported to be incidental, is clearly the predominate undertaking or enterprise. It must have a clear economic purpose or objective, identifiable with certainty, in terms of supplying goods or services.
(b) “In the furtherance of’ means directly benefiting the principal business by transporting materials, goods, or other property, personnel, customers, clients or other passengers, when such transportation assists in the principal business in achieving its economic purpose or objective. It does not include a benefit to the principal business through transportation merely generating additional profit or like thing.
(c) “In the scope of’ means directly within the bounds of the economic purpose or objective of the business. It does not include a transportation activity that is merely a tangent or appendage.
(d) “Subordinate to” means lesser than, minor in comparison to, dependent on, existing because of, and controlled by. It can include transportation important to, even essential to, the principal business. It does not include transportation which is a significant enterprise itself.

Rule 38.3.1002(1), ARM. There is no dispute that Grouse Mountain’s principal business is as a hotel or resort. Nor is there dispute that Grouse Mountain’s transportation is subordinate to the principal resort business. Moreover, the PSC has already determined that Grouse Mountain’s transportation to common carriers is not subject to regulation. Grouse Mountain’s guest transportation to the airport and to the railway station is therefore not at issue here. However, the PSC contends that Grouse Mountain’s transportation of guests between the lodge and Big Mountain and downtown Whitefish is neither in furtherance of nor in the scope of the principal resort business because such business is essentially providing lodging, food, and beverages to paying guests. We disagree.

The PSC strictly describes Grouse Mountain’s business. Indeed, Grouse Mountain itself, in its petition for declaratory ruling, stated that it provides lodging, food, and beverages for paying guests. Later, however, in its motion for reconsideration, Grouse Mountain explained that its earlier description of itself was incomplete, and that the scope of its business as a guest resort and conference center is much broader than that of a provider of food and lodging. In its brief in support of its motion for reconsideration, Grouse Mountain quoted excerpts from its brochures and other promotional materials which illustrate that Grouse Mountain offers more than just lodging, food, and beverages to its guests:

Grouse Mountain is a four-season resort with activities as spectacular as the surrounding scenery.
Our concierge will be pleased to suggest and make arrangements for almost anything you’d like to do: hike, bike, fish, ski, boat, visit Glacier National Park, ski the Big Mountain’s 4000 powdered acres or sail Flathead lake ....
Grouse Mountain Lodge is in the Flathead Valley ... golf, skiing, sight-seeing, wildlife, sailing, fishing, restaurants, shopping, Glacier Park, Whitefish Lake, The Big Mountain, Flathead Lake and more. It’s all either right outside our door, or just minutes away.

Grouse Mountain also explained that it offers ski packages in which “transportation to and from [Big] Mountain ... [is included].” Finally, Grouse Mountain stated:

If the record before this commission did not adequately describe or underscore the recreational component to Grouse Mountain’s business, Grouse Mountain has done itself, its guests and this commission a disservice. An accurate description of its business must include not only its food, lodging and beverage service, but also its vital service as a facilitator which assists its guests in experiencing the special recreational activities available to them in the Flathead Valley.

In its order on reconsideration, the PSC acknowledged that “Grouse Mountain promotes and packages recreational ventures for its guests,” and that “a large part of Grouse Mountain’s business turns on the existence of recreational opportunities.” Nevertheless, the PSC maintained its position that Grouse Mountain’s transportation to Big Mountain and downtown Whitefish is not exempt from regulation under the primary business test.

On the one hand, the PSC’s characterization of Grouse Mountain’s business is simply unrealistic and too restrictive. Grouse Mountain is not a chain motel astride an anonymous stretch of interstate, where perhaps a description limited to “provider of lodging, meals, and beverages” would be appropriate. Grouse Mountain’s proximity to Big Mountain, Glacier Park, and downtown Whitefish is what sets it apart and, indeed, is what attracts guests and conventioneers alike. As integral to Grouse Mountain’s business as is its provision of food and lodging, so too, perhaps more so, is its ability to provide its guests with the variety of recreational experiences available in the popular Flathead region, particularly Big Mountain and the City of Whitefish. As a resort in the Flathead Valley of the Northern Rockies, Grouse Mountain’s principal business can appropriately be described as providing food and lodging, as well as recreational experiences, for its guests.

Under this description, it is clear that Grouse Mountain’s transportation of its guests to and from Big Mountain and downtown Whitefish is incidental to its primary business. Transportation to Big Mountain and downtown Whitefish is “in the furtherance of’ its principal business in that it directly promotes or advances the business of providing local recreational experiences. Moreover, transportation of guests to Big Mountain and downtown Whitefish, minutes away from Grouse Mountain, is geographically “in the scope of’ its principal business. Finally, transporting guests to these sites, rich in recreational opportunities, is “in the scope” of providing guests with local recreational experiences.

On the other hand, even if we were to accept the PSC’s limited description of Grouse Mountain’s business, we would reach the same result, for many of the reasons already stated. In our view, providing guests of a mountain lodge with access to local recreational experienees is “in the furtherance of’ the business of providing food and lodging. The recreational experiences are what bring guests to Grouse Mountain, where they eat, sleep, and drink. In this way, transporting guests to Big Mountain and downtown Whitefish promotes and advances Grouse Mountain’s business. Moreover, transporting guests to these two areas would be, geographically speaking, as much “in the scope of’ Grouse Mountain’s business as would transporting guests to and from Glacier International Airport, which the PSC determined was exempt from regulation under the primary business test. In addition, the transportation would otherwise be “in the scope of’ Grouse Mountain’s business because of the close relationship between attracting guests to the lodge and providing guests with food and lodging.

Whether, technically speaking, Grouse Mountain’s business is merely providing food and lodging to its guests, or whether its business includes providing recreational experiences to its guests, the result is the same: Grouse Mountain’s transportation of its paying guests to Big Mountain and downtown Whitefish is exempt from PSC regulation, pursuant to the “primary business test.” In reversing the PSC’s decision to the contrary, the District Court properly determined that the PSC’s interpretation of the law was incorrect.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER, LEAPHART and DISTRICT JUDGE SWANDAL, sitting for Justice Terry N. Trieweiler, concur.

JUSTICE GRAY,

concurring in part and dissenting in part.

I concur in the Court’s opinion on issue one. I respectfully dissent from that opinion, however, on issue two. It is my view that the District Court erred in reversing the PSC’s determination that Grouse Mountain’s transport of its guests to the Big Mountain and downtown Whitefish was motor carriage subject to PSC regulation. I would reverse the District Court on that issue and reinstate the PSC’s decision.

It is important to recognize that the PSC’s original determination — and its order on reconsideration — were based on the facts as Grouse Mountain set them forth in its petition for declaratory ruling. Central among those facts were that, in Grouse Mountain’s own words, Grouse Mountain “operates a hotel in Whitefish, Montana” and that its “primary business is providing lodging, food and beverages to paying guests.” Thus, the PSC proceeding did not center on Grouse Mountain as a provider of recreational activities in the greater Flathead area. That notion was first raised after the PSC issued its declaratory ruling when, in its motion for reconsideration, Grouse Mountain posited that it was, in actuality, a provider of recreational activities; in other words, Grouse Mountain sought to change the entire basis of the proceeding after the fact by changing its description of its primary business. The PSC recognized that the existence of recreational activities in the area was important to Grouse Mountain’s business, but declined to change the nature of Grouse Mountain’s primary business. It noted that, as a business, Grouse Mountain owns and operates facilities to provide lodging, meal and beverage service; conversely, Grouse Mountain does not, as a business, own or operate facilities which provide recreational activities in the greater Flathead area.

In ruling on Grouse Mountain’s petition for judicial review, the District Court accepted Grouse Mountain’s expansive new characterization of its business, thus permitting Grouse Mountain to “change the rules after the game.” This Court follows suit, and in doing so permits Grouse Mountain to effectively amend its petition for declaratory ruling after the PSC had rendered its decision. I would join the PSC in rejecting this ploy by Grouse Mountain and confine our review to whether the transport of guests to the Big Mountain and downtown Whitefish by Grouse Mountain, whose primary business is that of hotel, meal and beverage service, subjects Grouse Mountain to regulation as a motor carrier under applicable regulations, statutes and case law.

Applying the PSC’s recently adopted regulations regarding the “principal business” test to Grouse Mountain as a hotel business, I would conclude — as did the PSC — that Grouse Mountain did not bring itself within those regulations so as to avoid falling within the statutory definition of a “motor carrier” contained in § 69-12-101, MCA. In determining whether Grouse Mountain’s transporting of guests to the Big Mountain and downtown Whitefish is incidental to its principal hotel business under § 38.3.1001, ARM, the pivotal questions are whether that transportation is “in furtherance of, in the scope of, and subordinate to” the principal business. (Emphasis added.) The use of the conjunctive “and” indicates that all three of the specified criteria must be met.

Here, it is undisputed that the transportation at issue is “in the furtherance of’ the principal business, as defined in § 38.3.1002(l)(b), ARM; it directly benefits Grouse Mountain’s hotel business by transporting customers and clients in order to “assist the principal business in achieving its economic purpose or objective.” It is my view, however, that Grouse Mountain’s transportation services to the Big Mountain and downtown Whitefish are not “in the scope of’ its principal business. “ ‘In the scope of’ means directly within the bounds of the economic purpose or objective of the business. It does not include a transportation activity that is merely a tangent or appendage.” Section 38.3.1002(l)(c), ARM. The economic purpose or objective of Grouse Mountain’s business is to provide rooms, meals and beverages at a profit. Ferrying guests to locations some distance away from the hotel facility simply does not come directly within that economic purpose or objective; indeed, given the proclivity of people on vacation to purchase meals and beverages at whatever location they find themselves, the transportation Grouse Mountain provides easily could be said to be directly adverse to its economic objective. In any event, it is — at best — “a tangent or appendage” to the principal business. Thus, Grouse Mountain does not satisfy the “in the scope of’ criterion and, as a result, it is not excluded from regulation by the PSC under § 38.3.1001, ARM.

It is also my view that Grouse Mountain’s transportation activities do not meet our Gamble-Robinson test or any statutory exclusion or exemption from the definition of “motor carrier” contained in § 69-12-101, MCA. Since the Court mentions these other authorities, but does not apply them, I will refrain from belaboring the point by setting forth the analysis under each which would properly result in a conclusion that Grouse Mountain’s transportation activities relating to the Big Mountain and downtown Whitefish are subject to regulation by the PSC.

I recognize that the kinds of transportation services Grouse Mountain provides are probably being provided by many other hotel businesses. I also recognize that some might question the propriety of laws and regulations governing such transportation activities in today’s society. However, the wisdom of those laws and regulations is not the issue before us in this case; the issue is whether Grouse Mountain’s transportation of guests to the Big Mountain and downtown Whitefish renders it a “motor carrier” pursuant to applicable statutes and regulations. I conclude that it does and, therefore, I would reverse the District Court on this issue.


text:
    GREGORY LLOYD INGRAHAM, Petitioner. v.”STATE OF MONTANA, Respondent,
    No. 97-241.
    Decided June 25, 1997.
    54 St.Rep. 614. 945 P.2d 16.
    284 Mont. 77.
   OPINION AND ORDER

Gregory Lloyd Ingraham was convicted of negligent homicide, criminal endangerment, and criminal trespass in the District Court for the Twentieth Judicial District in Lake County on July 19, 1996. Judgment, including a sentence of imprisonment, was entered on November 18, 1996. On that same date, Ingraham appealed his conviction to this Court.

Prior to his trial, bond was established for Ingraham’s release from jail in the amount of $10,000 and was accepted on several conditions, including that he not consume alcoholic beverages or enter a place where the primary item of sale is an alcoholic beverage.

Following his conviction, Ingraham moved the District Court to continue his bond pending appeal to this Court. However, that motion was denied. After a hearing, the District Court found that while Ingraham was not likely to flee if afforded the opportunity, there was insufficient evidence that he would not pose a danger to the safety of other persons in the community. Therefore, the District Court concluded that Ingraham had not met the conditions for bond pending appeal set forth in § 46-9-107, MCA. On that basis, bond pending appeal was denied by order of the District Court on January 22,1997.

On February 21, 1997, Ingraham moved this Court pursuant to Rule 22, M.R.App.P, to continue bond pending appeal, or in the alternative, to entertain an appeal from the District Court’s order denying bond pending appeal pursuant to Rule 1, M.R.App.P, and § 46-20-104(1), MCA. That statute provides in relevant part as follows: “An appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant.”

Ingraham contended that in the event this Court entertained an appeal from the District Court’s order denying bond, the standard of review should be whether the District Court abused its discretion. He relied on our decision in Moore v. McCormick (1993), 260 Mont. 305, 306, 858 P.2d 1254, 1255, for that standard of review.

In response to Ingraham’s motion, the State of Montana, through the Office of the Attorney General, appeared on March 11, 1997, and moved to dismiss Ingraham’s motion or appeal. The State contended that there is no statutory provision for appealing a district court’s order denying bond pending appeal, and that the proper procedure for bringing the issue before this Court is an original habeas corpus proceeding. The State also cited Moore as authority and, in addition, cited State ex rel. Bretz v. Sheriff of Lewis and Clark County (1975), 167 Mont. 363, 539 P.2d 1191.

In response to the State’s motion, Ingraham argued that assuming the State is correct, his previous motion should be deemed a petition for habeas corpus and the Court should proceed with its review of the manner in which the District Court exercised its discretion. This Court disagreed, however, and on March 27,1997, granted the State’s motion to dismiss Ingraham’s motion or appeal from the District Court’s order. The Court concluded that there is no statutory authority for appealing a district court’s denial of bond, but that § 46-22-103, MCA, expressly authorizes an application for a writ of habeas corpus in order to bring the issue of bond pending appeal before the Court. This Court then concluded that § 46-22-103, MCA, was the appropriate method by which Ingraham should raise the issue of his entitlement to bond pending appeal.

In response to this Court’s invitation, Ingraham filed a petition for writ of habeas corpus on May 6, 1997. Pursuant to § 3-2-212, MCA, that petition was filed with Justice Terry N. Trieweiler. That statute provides, in part:

(1) Each of the justices of the supreme court shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of any person held in actual custody and may make such writs returnable before himself, the supreme court, or justice thereof or before any district court of the state or any judge thereof. Such writs may be heard and determined by the justice, court, or judge before whom they are made returnable.

The procedure for considering petitions for a writ of habeas corpus is set forth by statute in Montana and is found at Title 46, Chapter 22, of the Montana Code Annotated. It provides that when a person is imprisoned or detained in custody on a criminal charge and denied bail, he or she is entitled to a writ ofhabeas corpus. Section 46-22-103, MCA. This Court previously held that that provision applied in this case. Section 46-22-203, MCA, provides that writs are to be issued without delay when properly submitted; and § 46-22-205, MCA, explains that the writ must be directed to the person having custody of the person on whose behalf the application is made and must command that the applicant be brought before the judge before whom the writ is returnable. Finally, § 46-22-304, MCA, provides that the court before whom the writ is returnable shall hear and examine the return. Section 46-22-305, MCA, provides that at that hearing evidence may be produced.

The chapter which sets forth the procedural requirements for habeas corpus does not make reference to review of a previous court’s decision for abuse of discretion. That is the standard of review which applies to appeals. Nevertheless, the State, in its motion to dismiss, specifically argued that an appeal from the District Court’s decision denying bond pending appeal was not permitted. Instead, the State contended that a petition for habeas corpus should be filed.

On May 22, 1997, pursuant to those procedures set forth in Title 46, Chapter 22, the author of this opinion ordered that Ingraham’s petition for habeas corpus was granted to the extent that he was to be presented to the Honorable John Christensen for further determination regarding his entitlement to bond pending appeal. It was anticipated by this Justice that because the statutes pertaining to habeas corpus specifically provide for a hearing before the court to which the writ is returned and the production of evidence at that hearing, a district court would be preferable to this Court for purposes of conducting the hearing.

On May 29, 1997, the State applied to the other members of this Court for a writ of supervisory control to prohibit Judge Christensen from conducting a hearing pursuant to the habeas corpus statutes. In its brief in support of that application, the State contended, contrary to its previous argument, that § 46-22-103, MCA, which provides for habeas corpus, does not really apply to those who have been convicted in a criminal case, and that the correct procedure for Ingraham to pursue is an original proceeding “in the nature of habeas corpus,” but one which is submitted to the full Court and in which the scope of review is limited to the record previously established in the District Court, with the inquiry being whether the District Court in Lake County abused its discretion when bond pending appeal was denied. In other words, after successfully objecting to Ingraham’s appeal in which he sought review on the same basis, and after successfully postponing this Court’s consideration of Ingraham’s entitlement to bond for nearly three and one-half months, the State conceded that it was really more concerned with form than substance and that we should actually review Ingraham’s appeal on the same basis that he originally requested. To characterize the State’s inconsistent arguments throughout this protracted and unnecessary procedural affair as disingenuous is an understatement. A more cynical observer might conclude that the State’s original argument was made solely for the purpose of delay.

At any rate, on May 29, 1997, the State’s application for a writ of supervisory control was denied and deemed by the majority to be a late filed response to Ingraham’s application for a writ of habeas corpus, and referred to this Justice for further consideration.

In reply to the State’s late filed response, Ingraham has pointed out that he does not desire an evidentiary hearing and wishes to have his denial of bond pending appeal reviewed based upon the abuse of discretion standard and the record which was before the Lake County District Court. He suggests that, for that reason, the full Supreme Court may be the preferable forum in which to conduct such a review.

DISCUSSION

The statutory framework for a writ of habeas corpus does not provide for review of a district court’s denial of bond pending appeal based on the record submitted to that court and based on a determination that the district court did or did not abuse its discretion when bond was denied. The statutory framework for a writ of habeas corpus clearly provides that the petitioner or applicant be brought before a Justice of the Supreme Court, the entire Supreme Court, or a district judge for an evidentiary hearing and an independent determination of whether bond should be granted.

The State cites State ex rel. Bretz v. Sheriff of Lewis and Clark County (1975), 167 Mont. 363, 539 P.2d 1191, and Moore v. McCormick (1993), 260 Mont. 305, 858 P.2d 1254, as support for its contention that there is no appeal from a district court’s denial of bond pending appeal, and that the proper procedure for challenging such a denial is an original proceeding “in the nature of habeas corpus.” However, in neither of those cases was there an issue presented regarding the appropriate procedure for challenging a district court’s denial of bond pending appeal. In both cases, an original proceeding for a writ of habeas corpus was presented to the Supreme Court, and the Supreme Court simply reviewed the district court’s decision for an abuse of discretion. In neither case was there any question presented regarding the proper procedure to be followed, and in neither case was there any question about the standard of review, should the issue be presented in the context of an application for writ of habeas corpus. Therefore, neither case is authority for the argument originally made by the State.

On the other hand, it is not my function, as one member of a seven-person court, to finally determine the singular method by which a district court’s denial of bond can or should be reviewed by this or some other court. I do, however, conclude, for the limited purpose of moving this issue from the procedural treadmill on which it has languished and finally considering the substantive issue raised, that Ingraham is entitled, pursuant to § 46-20-104, MCA, to appeal any order after final judgment which affects his substantial rights; and that pursuant to § 46-9-107, MCA, defendants appealing a conviction are entitled to be released pending appeal unless the district court finds they are likely to flee or pose a danger to the safety of any person or the community. Therefore, while Ingraham has no constitutional right to bond pending appeal, he does have a right to the proper exercise of the District Court’s discretion in its application of § 46-9-107, MCA, and I conclude that that right is a substantial right for purposes of coming within § 46-20-104, MCA.

For these reasons, my previous order dated May 22, 1997, which granted Ingraham’s application for a writ of habeas corpus and ordered that he be presented to the Honorable John Christensen at the Cascade County Courthouse for further proceedings, is vacated, and this matter is, instead, referred to the Montana Supreme Court for further review of the Lake County District Court’s decision denying bond pending appeal based on the record presented to that District Court and for a determination of whether that court abused its discretion. Whether the majority of this Court chooses to characterize its review as an original proceeding “in the nature of habeas corpus,” or as consideration of a direct appeal pursuant to § 46-20-104(1), MCA, is up to the majority of the Court. However, I see no reason for conducting an evidentiary hearing which is sought by neither party.

In conclusion, I would note that it is now June 25,1997. Ingraham originally sought review of the District Court’s decision four months ago on February 21,1997. In the intervening four months, nothing of substance has been accomplished. This delay can be attributed solely to the State’s circular procedural arguments and the fact that it failed to even respond to Ingraham’s application for a writ of habeas corpus until its petition for a writ of supervisory control was characterized as a response by the other members of the Supreme Court. Had the Attorney General’s Office placed more importance on substance than on form, and had that office been as prompt in its response to this Court as it has been in its communications to various media outlets regarding these procedural issues, this matter might have been decided by now and both parties’ interests better served.

The issue of Gregory Lloyd Ingraham’s right to bond pending appeal of his conviction in the District Court for the Twentieth Judicial District in Lake County is referred to the full membership of the Montana Supreme Court for further review.

The Clerk of Court is directed to mail a true and correct copy of this order to the Attorney General for the State of Montana, the County Attorney for Lake County, counsel for petitioner, and to the Honorable John Christensen.

DATED this 25th day of June, 1997.