text:
    MADISON COUNTY, et al., Plaintiffs and Respondents, v. STATE OF MONTANA, acting by and through its office of PUBLIC INSTRUCTION, and NANCY KEENAN, in her official capacity as the State Superintendent of Public Instruction, Defendants and Appellants.
    No. 97-464.
    Submitted on Briefs March 12, 1998.
    Decided November, 24, 1998.
    1998 MT 285.
    55 St.Rep. 1160.
    291 Mont. 446.
    968 P.2d 732.

      For Appellant: Geralyn Driscoll, Office of Public Instruction, Helena; Lawrence G. Allen, Department of Revenue, Helena (Amici Curiae).
    For Respondent: Robert R. Zenker, Madison County Attorney, Virginia City (Madison County); R. J. “Jim” Sewell, Jr., Smith Law Firm, Helena (Ennis School District No. 52); Lance Melton, Montana School Boards Association, Helena (Amici Curiae).
   JUSTICE NELSON

delivered the Opinion of the Court.

¶ 1 The Fifth Judicial District Court, Madison County, entered summary judgment for the Plaintiffs in this declaratory judgment action. We reverse and remand.

¶2 The issue is whether the District Court erred in holding that Madison County is not required to distribute tax revenues collected by means of a tax settlement agreement to the State of Montana and other taxing authorities in accordance with statutory levies.

¶3 In August 1992, Cyprus Mines Corporation paid $4,432,584 to the Madison County Treasurer pursuant to a settlement agreement resolving a dispute concerning deficiency tax assessments by the Montana Department of Revenue (DOR). Cyprus had two tax liabilities for the calender/production years 1980 through 1987. The larger liability concerned the mines net proceeds tax, pursuant to §§ 15-23-501 through -523, MCA. Cyprus’s second tax liability concerned the Resource Indemnity Trust Tax (RITT), imposed pursuant to §§ 15-38-101 through-203, MCA. Under the settlement agreement, Cyprus also paid $67,416 to the Treasurer of the State of Montana.

¶4 Madison County, wishing to place the settlement proceeds it received into a capital improvement fund, invested all of that money and has reinvested the interest income. The plaintiffs, Madison County taxing districts, political subdivisions, and individual taxpayers (collectively, “Madison County”), brought this declaratory judgment action seeking a ruling that all of the settlement proceeds Madison County received from Cyprus may be distributed to certain Madison County taxing districts under a separate agreement they had reached. The complaint alleged that the State of Montana, through the Office of Public Instruction (OPI), has taken the position that the funds must instead be allocated according to the mill levies in place on the date when the funds were received. That would require, among other things, that funds representing 101 mills must be allocated to state university levies pursuant to § 20-25-423, MCA, and to county and state school equalization aid payments pursuant to OPI’s calculations under the statutory requirements of §§ 20-9-331, -333, and -360, MCA. The answer filed by OPI indicated that this was, indeed, OPI’s position.

¶5 Madison County moved for summary judgment, and the District Court granted that motion based on the briefs submitted by the parties. Noting that the settlement amount was less than one-third of the actual assessment amount in dispute, the court ruled that under the terms of the settlement agreement the money paid to Madison County was not subject to any claim by the State. OPI appeals.

DISCUSSION

¶6 Did the District Court err in holding that Madison County is not required to distribute tax revenues collected by means of a tax settlement agreement to the State of Montana and other taxing authorities in accordance with statutory levies?

¶7 This Court’s standard of review of a summary judgment ruling is de novo. Treichel v. State Farm Mut. Auto. Ins. Co. (1997), 280 Mont. 443, 446, 930 P.2d 661, 663. The party moving for summary judgment must first demonstrate that no genuine issues of material fact exist; if none exist, then the Court must determine whether the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R ¶8 In this case, the parties agree that there is no issue of material fact and that the question is whether, as a matter of law, the proceeds of the settlement agreement must be distributed pursuant to statutory provisions regarding tax payments. The District Court ruled that because the agreement provided for separate payments to the county and the state, it was intended to be a final determination of all debts and obligations between the parties. Similarly, on appeal, Madison County argues that the settlement contract is the full, final, and conclusive agreement between the parties and that its terms may not be avoided or altered.

¶9 The District Court noted that the settlement agreement is governed by § 15-1-211(8), MCA, which authorizes the DOR to enter into settlement agreements concerning a taxpayer’s liability. In its analysis, the court assumed that the DOR and Madison County had a dispute to settle which was somehow resolved under the settlement agreement. There are no facts in the record establishing this. Furthermore, § 15-1-211(8), MCA, does not address a county’s obligations vis a vis distribution of tax revenues. That subject is addressed in an entirely different part of the Montana Code. Section 15-1-211(8), MCA, is limited in its scope to allowing DOR to enter agreements concerning taxpayer liability for taxes which DOR administers.

¶10 In reaching its conclusion, the District Court ignored not only the limited statutory scope of the agreement, but also the agreement’s plain language. The sole purpose of the agreement was to settle Cyprus Mine Corporation’s tax liabilities for the years 1980 through 1987. By its express terms, the agreement did not settle the obligations of Madison County, a third party, with respect to the county’s statutory obligation to distribute the tax revenue to other taxing authorities. Under a section of the agreement appropriately entitled “Limitations of Agreement”, the following language appears:

This agreement and the mutual releases contained herein apply only to the liability of Cyprus for RITT and net proceeds taxes and interest thereon for calendar/production years 1980 through 1987, inclusive. This Agreement and the releases contained herein do not apply to the RITT or net proceeds taxes for any other calendar/production year or to any other tax or taxes or to the release of any party from any other obligation due another party. [Emphasis added.]

Quite simply, the agreement settled Cyprus’s tax liability, not Madison County’s statutory obligations to the State of Montana or other entities regarding property tax distribution.

¶11 In opposing Madison County’s motion for summary judgment, OPI filed with the District Court an affidavit in which the DOR’s Director denied that DOR had entered into an agreement with Madison County which would negate the taxing powers of the State of Montana or any other taxing jurisdiction. OPI states that the DOR could not compromise and settle a property tax dispute with Cyprus by agreeing that Cyprus’s property tax liability was zero if it paid $4.4 million to Madison County, which, in effect, is Madison County’s argument.

¶12 On its face, the settlement agreement does not specify why the lump sum settlement was paid by two checks, one to Madison County and the other to the State Treasurer. Madison County’s position is that this represents the intended ultimate distribution of the settlement monies. However, immediately following the recitation in the settlement agreement that Cyprus shall deliver the two checks, the agreement provides:

The payments above described shall be in consideration for the full release, acquittal and discharge of all deficiency assessments and claims of any kind including interest by the Department against Cyprus for RITT, and net proceeds taxes for calendar/production years 1980 through 1987 inclusive, subject to the provisions of § 15-1-211(8), MCA.

OPI’s position is that the two checks represent payment for the RITT, which is payable to the State pursuant to § 15-38-106, MCA, and for the mines net proceeds tax, which is payable to the county treasurer. See § 15-23-507, MCA. Madison County has shown no reason why this explanation of the two checks as divided by type of tax is any less viable than is its explanation that the two checks were divided according to which governmental entity was ultimately entitled to the money.

¶13 The District Court noted as support for its conclusion the absence of any evidence of distribution of the check made out to the Montana State Treasurer. If that check represents RITT funds, however, § 15-38-106(2), MCA, requires that the State deposit that money into the Resource Indemnity Trust Fund. Therefore, the fact that these funds were not distributed to various taxing authorities does not support the District Court’s conclusion. Mines net proceeds taxes, on the other hand, are collected by the county treasurer, see § 15-23-507, MCA, who must later remit all money belonging to the state to the State Treasurer. Section 15-1-504, MCA.

¶14 The question of how to distribute a property tax settlement which states a dollar amount without allocation based on value or years has been addressed, as OPI argued below, in 41 Att’y Gen. Op. No. 67. In that opinion, the Montana Attorney General addressed a question concerning distribution of a settlement for disputed taxes on mining property in Butte-Silver Bow County. The taxes involved were RITT and mines net proceeds taxes as well as other natural resources taxes. The Butte-Silver Bow County Attorney asked the Attorney General how the county should divide and distribute the settlement revenues among the various taxing jurisdictions in the county. The Attorney General answered that the settlement revenues should be distributed in proportion to the mills levied for the fiscal year in which the proceeds are payable under the agreement.

Montana statutes are silent with respect to the proper allocation within the county budget of income like the present settlement proceeds. Nonetheless, because Butte-Silver Bow County’s portion of the settlement derives from alleged liability under the mines net and gross proceeds taxes, such amounts should logically be allocated among the various county taxing jurisdictions proportionately on the basis of mill levies for the fiscal year during which they are payable under the agreement or any subsequent amendment thereto. This result comports with the Countys presumed intent in resolving the disputed tax claims, which was to benefit each taxing jurisdiction through an expeditious and certain settlement. [Emphasis supplied.]

41 Att’y Gen. Op. No. 67, at page 281.

¶15 In the present case, the District Court concluded that § 15-1-211, MCA, supersedes the above Attorney General Opinion. But because § 15-1-211, MCA, concerns only the first step of the tax process, the determination of a taxpayer’s liability, the District Court’s conclusion is incorrect. The issue presented in this case, and the Attorney General’s opinion, concern one of the next steps in the tax process: how settlement revenues are to be distributed by the county following receipt of the revenues from the taxpayer. Nothing in § 15-1-211, MCA, governs how taxes are to be distributed once they are collected.

¶16 Since 1978, a statewide levy of up to six property tax mills has been appropriated to the state general fund for the Montana university system. Section 20-25-423, MCA. Furthermore, under the statutory scheme of equalization aid enacted to render the system of public school funding in this state constitutional pursuant to this Court’s opinion in Helena Elementary School Dist. v. State (1989), 236 Mont. 44, 769 P.2d 684 amended 236 Mont. 44, 784 P.2d 412, counties are also required to levy and distribute property tax mills county wide and to remit certain mills levied to the State for public elementary and high school funding.

¶17 Madison County asserts that application of school funding equalization taxes to Cyprus’s settlement for taxes for the years 1980 through 1987 represents improper retroactive taxation. As Madison County points out, not all of the equalization laws were in effect in 1980 through 1987.

¶18 The State did not, however, attempt to levy 1992 mills retroactively against Cyprus. The property tax for years 1980 through 1987 was paid, without allocation by mill or by year, in 1992. No retroactivity issue is present. The issue in dispute is how to distribute the $4.4 million that Cyprus paid in August 1992.

¶19 There is no dispute that Cyprus has taxable property in Madison County and that it now has paid taxes on that property to the Madison County Treasurer. However, Madison County has refused to levy and remit the statutory tax for education. Nothing in the record, the settlement, case law or statute supports a finding or conclusion that the $4.4 million paid to Madison County lost its nature as property tax revenue and became Madison County’s funds. This would completely ignore Madison County’s obligation to levy the basic education taxes on taxable property in the county and to remit the tax revenues to the State of Montana as set forth in the statutes.

¶20 We hold that the settlement paid by Cyprus to Madison County was property tax revenue which must be distributed according to the mills levied in the year the settlement was paid. We therefore reverse the decision of the District Court. This case is remanded so that the court may dismiss the action and enter a judgment directing the Madison County Treasurer to distribute the $4,432,584 it received from Cyprus, and the accrued interest on that amount, according to the 1992 mills in effect when Madison County received the payment from Cyprus.

JUSTICES HUNT, LEAPHART and REGNIER concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

¶21 I concur with the majority’s conclusion that the District Court erred when it awarded summary judgment to Madison County and the other plaintiffs. I dissent from the majority’s conclusion that the defendant State of Montana is entitled to judgment as a matter of law. ¶22 Pursuant to § 15-1-211(8), MCA, the director of the Department of Revenue is designated by law as the agent of the State of Montana authorized to settle claims against any taxpayer for taxes due pursuant to state law. That section provides in part that:

(a) The director of revenue or the director’s designee is authorized to enter into an agreement with any taxpayer relating to the taxpayer’s liability with respect to a tax administered by the department for any taxable period.
(b) An agreement under the provisions of subsection (8)(a) is final and conclusive, and, except upon a showing of fraud, malfeasance, or misrepresentation of a material fact:
(i) the agreement may not be reopened as to matters agreed upon or be modified by any officer, employee, or agent of this state

¶23 Implicit from § 15-1-211(8), MCA, is the director’s authority to settle tax claims on any terms he or she deems appropriate.

¶24 Pursuant to that statutory authority, the Director for the Department of Revenue executed a three-party settlement agreement to which Cyprus Mines Corporation, the taxpayer, and Madison County, the primary beneficiary of the claimed taxes, were parties. That agreement provided in relevant part that:

Within ten (10) working days from the date Cyprus receives a fully executed copy of this Agreement, Cyprus shall deliver two checks, one to Madison County, Montana, in the amount of $4,432,584.00, and one to the State Treasurer of the State of Montana in the amount of $67,416.00.
The payments above described shall be in consideration for the full release, acquittal and discharge of all deficiency assessments and claims of any kind including interest by the Department against Cyprus for RITT, and net proceeds taxes for calendar/production years 1980 through 1987 inclusive, subject to the provisions of § 15-1-211(8), MCA.

¶25 Why Madison County was a party to the settlement agreement is not clear from the face of the agreement. Furthermore, the agreement does not, on its face, as noted by the majority, explain why the settlement proceeds were divided and to be delivered as indicated. I conclude, therefore, that Madison County’s involvement with the agreement, together with the terms of the agreement which provide for the distribution of the settlement proceeds, create an intrinsic ambiguity and that the intent of the parties could only have been determined by evidence in addition to the contract itself. The need for extrinsic evidence to explain the intent of the parties in circumstances such as these is plainly anticipated by § 28-2-905(2), MCA, which makes an exception to the rule prohibiting parol evidence when such is necessary to explain an intrinsic ambiguity.

¶26 I would therefore remand this case to the District Court for evidentiary proceedings at which the intent of the parties can be determined.

¶27 I also disagree in two significant respects with the majority’s rationale for its conclusion.

¶28 First, I disagree with the majority’s conclusion that the state has any right to collect equalization aid payments pursuant to § 20-9-360, MCA. The majority correctly notes that the settlement among the parties pertained to Cyprus Mine Corporation’s tax liabilities for the years 1980 through 1987. Section 20-9-360, MCA, which pertains to state equalization aid to the public schools of Montana, was not enacted until 1989 and made no provision for retroactive application. Section 1-2-109, MCA, provides that “[n]o law contained in any of the statutes of Montana is retroactive unless expressly so declared.”

¶29 The State has argued, and the maj ority has agreed, that the settlement proceeds are tax revenue because paid in satisfaction of a claim by the State for taxes due. On that basis, the majority has concluded that the revenue must be disbursed as all other tax revenue. However, the State’s and the majority’s willingness to trace the source and nature of the settlement proceeds inconsistently ends there. The proceeds could only be revenue for the years during which the State claimed it was entitled to payment from Cyprus. That was the years 1980 through 1987, and during those years the State was not entitled to payment for state school equalization aid payments pursuant to § 20-9-360, MCA.

¶30 I furthermore disagree that there is any significance to the fact that “[t]he question of how to distribute a property tax settlement which states a dollar amount without allocation based on value or years had been addressed, as OPI argued below, in 41 Att’y Gen. Op. No. 67.”

¶31 Legal issues are not answered for courts by the opinions of attorneys general. Those opinions are completely irrelevant in courts of law. As we noted in O’Shaughnessy v. Wolfe, (1984), 212 Mont. 12, 16-17, 685 P.2d 361, 363, an attorney general’s opinion may bind other government attorneys pursuant to § 2-15-501(7), MCA, however, it has no binding effect on the courts. We gave the following explanation:

Courts never look to administrative interpretation when the language [of a statute] is clear beyond cavil. To hold otherwise would be to say that administrators and executive officials, interpreting the effect of statutes, could undermine the enactments by official action and nullify otherwise validly adopted laws. Thus, the legislative, and even the judicial power would pass to the executive, at least in the negative or vetoing sense.

O’Shaughnessy, 212 Mont. at 17, 685 P.2d at 364.

¶32 In summary, I conclude that whatever the county treasurer’s normal obligations for collection and disbursement of property tax revenue, those obligations can be altered by an agreement entered into among the obligated taxpayer, the county, and the director for the department of revenue. Whether those obligations were altered based on the settlement agreement which is the subject of this litigation is not clear. Therefore, I would vacate the District Court’s order of summary judgment in favor of the plaintiffs and remand to the District Court for an evidentiary hearing at which extrinsic evidence could be presented, following which the District Court could resolve the issue regarding the parties’ intent.

¶33 I dissent from the majority’s conclusion that the State of Montana is entitled to judgment as a matter of law.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    LINDA K. SANDMAN, Plaintiff and Appellant, vs. FARMERS INSURANCE EXCHANGE and KEITH BOOTH, Defendants and Respondents.
    No. 98-289.
    Submitted on Briefs September 17, 1998.
    Rehearing Denied December 17, 1998.
    Decided November 24, 1998.
    1998 MT 286.
    55 St.Rep. 1165.
    291 Mont. 456.
    969 P.2d 277.

      For Appellant: Daniel W. Hileman, Kaufman, Vidal & Hileman, Kalispell.
    For Respondent: Shelton C. Williams, Williams & Ranney, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 Linda K. Sandman (Sandman) appeals from the February 12, 1998 Order and Rationale of the Eleventh Judicial District Court, Flathead County, denying her various alternative post-trial motions. We affirm.

Background

¶2 Sandman sued her insurer, Farmers Insurance Exchange (Farmers), claiming breach of contract, unfair claims settlement practices, fraud, and negligent infliction of emotional distress in connection with the settlement of her uninsured motorist claims. Following the commencement of litigation, Farmers paid $100,000 policy limits to Sandman who was injured in the underlying automobile accident and, separately, $100,000 policy limits on behalf of her infant son who died as a result of the accident. With Sandman’s breach of contract claims settled as a result of Farmers payments to her, she amended her complaint to name Farmers’ adjuster, Keith Booth (Booth), as an additional defendant.

¶3 The case was tried on Sandman’s remaining claims and was submitted to the jury with a special verdict form. Question 5 on this verdict form asked: “Do you find by clear and convincing evidence that Defendants acted either fraudulently and or with malice?” This question was taken nearly verbatim from the special verdict form proposed by Sandman who posed Question 5 as follows: “Do you find by clear and convincing evidence that Defendants engaged in either fraud and/or malice.” In retyping Sandman’s Question 5, the 7” between the words “and” and “or” was deleted in the form of the question submitted by the court to the jury. Post-trial, Sandman characterized this as a typographical error and argued that it created confusion in the minds of the jurors. The record, however, contains no objection by her to the form of Question 5 — i.e., without the “/” — at or prior to the time that the verdict form was submitted to the jury by the trial court.

¶4 During deliberations, the jury foreman submitted a question to the court concerning Question 5. The jury’s inquiry stated: “Do we have to differencateate [sic] Between [sic] fraud and malice in # 5.” Again, the record is void of any discussion between the court and counsel at the time this question was submitted as to if or how this question should be answered. While Sandman argued post-trial that there was discussion that this question should have been answered differently, this discussion is not of record. Rather, what is clear from the record is that, not only did the court respond “No” to the jury question, but also that neither Sandman nor the Defendants registered any contemporaneous objection to this answer.

¶5 The jury returned the special verdict form finding that Booth or Farmers engaged in unfair claims settlement practices; that Booth or Farmers engaged in fraudulent conduct; and that Booth or Farmers did not negligently cause Sandman to suffer emotional distress. The jury awarded total damages of $15,000 as a result of the Defendants’ conduct. Finally, to Question 5 — “Do you find by clear and convincing evidence that Defendants acted either fraudulently and or with malice?” — the jury answered “No.” When polled by the bailiff, each juror, without comment, equivocation or explanation, stated that he or she had voted “No” on Question 5. The jury was thereafter discharged without objection.

¶6 Subsequently, Sandman filed alternative post-trial motions requesting the court to order that the answer to Question 5 is “Yes”; to set aside the jury verdict on Question 5; and either to enter judgment against Farmers and Booth on the issue of punitive damages as a matter of law or to grant her a new trial on the issue of punitive damages. Sandman based her motion on the affidavits of eight jurors. Each of these identical affidavits stated that, based upon the court’s “No” answer to the jury question concerning Question 5, the juror determined that in order to answer ‘Yes” to Question 5, he or she had to find at least one of the Defendants acted both fraudulently and with malice. Each juror then concluded that because he or she did not find at least one of the Defendants acted both fraudulently and with malice, that the answer to Question 5 was “No.”

¶7 In opposing Sandman’s motion, Farmers and Booth submitted their own juror affidavits. Defendants obtained affidavits from five of the eight jurors from whom Sandman obtained affidavits. These affidavits, together with four more, stated, among other things, that the juror would not have awarded punitive damages in this case.

¶8 Following oral argument and briefing, the court denied Sandman’s post-trial motions, ruling that the affidavits were not proper as the jury had not been subject to external influences, nor did it resort to chance. Moreover, the court rejected Sandman’s substantive arguments on their merits; determined that there was conflicting evidence on the matters that would have supported a discretionary award of punitive damages; and noted that both parties had participated in the formulation of the verdict form and that neither party objected to the court’s answer to the jury’s question. Sandman timely appealed and the Defendants cross-appealed.

Issues

¶9 Sandman raises the following issues on appeal:

¶10 1. Whether the District Court erred in refusing to correct the jury’s verdict under Rules 60(a) or (b), M.R.Civ.R

¶11 2. Whether the District Court erred in refusing to correct the jury’s verdict under Rule 50(b), M.R.Civ.P.

¶12 3. Whether the District Court erred in refusing to vacate the jury’s verdict and order a new trial on either the issue of liability for or the amount of punitive damages pursuant to § 25-11-102, MCA, and Rule 59, M.R.Civ.P.

¶13 By way of cross-appeal, the Defendants raise two issues:

¶14 1. Whether the District Court erred in allowing Sandman to allege new claims on the eve of trial after the close of discovery.

¶ 15 2. Whether the District Court erred in failing to provide for separate findings against the Defendants on the verdict form.

¶16 We affirm issues 1 and 2 on the basis of the threshold issues of waiver and the propriety of the juror affidavits. Accordingly, we decline to address the merits of those issues. Furthermore, we do not find reversible error as to Sandman’s issue 3 and, therefore, affirm as to that issue. Finally, having affirmed the decision of the trial court, we conclude that Defendants’ cross-appeal issues are moot, and thus, we do not address those issues.

Discussion

I.

¶17 Whether the District Court erred in refusing to correct the jury’s verdict under Rules 60(a), 60(b), or 50(b), M.R.Civ.P.

¶18 Sandman advances a number of arguments which she contends require the trial court to correct, mold, amend or reform the jury verdict based upon what she perceives to be the jury’s mistake in not awarding punitive damages arising out of its alleged confusion over the form of Question 5, the court’s “No” answer to the jury’s question, and a lack of evidence supporting the jury’s refusal to award punitive damages. She cites to the case law of other jurisdictions in arguing that the trial court has plenary authority to correct, mold, amend and reform a jury verdict to reflect the jury’s true intent or true decision — which, in this case, she gleans from the eight juror affidavits. Sandman grounds her arguments in the provisions of Rules 60(a), 60(b)(6), and 50(b), M.R.Civ.R Rule 60(a) allows the court to correct “clerical mistakes”; Rule 60(b)(6) allows the court to relieve a party from final judgment “for any other reason justifying relief from the operation of the judgment”; and Rule 50(b) allows the court to reopen a judgment and enter judgment as a matter of law or grant a new trial. We decline to address the merits of these arguments, however, as two threshold issues — waiver and propriety of the juror affidavits — preclude our further analysis.

Waiver

¶19 As previously noted, Sandman did not contemporaneously object to the special verdict form as submitted to the jury nor is there any record that she contemporaneously objected to the trial court’s answer to the jury’s question posed during its deliberations. Under these circumstances it would be entirely appropriate that we simply decline further analysis of Sandman’s issues 1 and 2 on the basis that she waived her claims of error underlying the issues she now raises on appeal. See, for example, Wisher v. Higgs (1993), 257 Mont. 132, 143, 849 P.2d 152, 158, overruled on other grounds by Blackburn v. Blue Mountain Women’s Clinic (1997), 286 Mont. 60, 951 P.2d 1 (citation omitted) (holding that where no objection is raised to the special verdict form before its submission to the jury, this Court will not review the sufficiency of the form for the first time on appeal). Accord Greytak v. RegO Co. (1993), 257 Mont 147, 152, 848 P.2d 483, 486. See also State v. White Clay, 1998 MT 244, ¶24, [291 Mont. 147], 967 P.2d 370, ¶ 24 (holding that defendant’s claim of error was waived even though raised in a post-trial motion where there was no objection to the court’s actions in responding to the statement of the jury foreperson on behalf of another juror and where counsel affirmatively agreed to the court’s recommendations regarding how to respond and actively acquiesced in the procedure); Seder v. Peter Kiewit Sons’ Co. (1971), 156 Mont. 322, 327-28, 332-33, 479 P.2d 448, 450-51, 453 (where, during deliberations and in violation of applicable statutes the court orally answered the jury’s written question and orally instructed the jury, the claimed error was waived and, therefore, did not constitute grounds for new trial or appeal because counsel was present, failed to object, and actively participated in the proceedings).

Propriety of juror affidavits

¶20 Notwithstanding that Sandman waived her claims of error based upon the special verdict form and upon the court’s answer to the jury question, the trial court’s decision and the parties’ briefs on appeal devote little discussion or analysis to the matter of waiver. Rather, the parties focus primarily on the evidence and on the matter of the juror affidavits and the court’s consideration of those. Furthermore, a discussion of and decision on the propriety of the juror affidavits is necessary to our resolution of Sandman’s issue 3. Accordingly, we will address this additional threshold issue along with the matter of the court’s failure to include the 7” between the words “and” and “or” on the verdict form. We discuss this latter matter first as it is intertwined with the issue of the court’s answer to the jury question and the juror affidavits.

A.

¶21 As previously stated, Sandman’s proposed Question 5 included a 7” between the words “and” and “or,” whereas the court’s form of Question 5 did not include the “/”. Aside from observing that the use of this much-maligned and overused conjunctive-disjunctive reflects poor draftsmanship and generally should be avoided, we are, nonetheless, unpersuaded that the use of “and” and “or” with the slash is any more correct or any less confusing than without the slash. According to the legal commentators, when used together with “and,” the word “or” usually includes “and” and the “and/or” phrase means “either or both of.” Inclusion of the 7” would not have corrected any error, ambiguity or confusion already inherent in the use of the “and” “or” conjunctive-disjunctive.

¶22 The more important point for purposes of our discussion here, however, is that, regardless of it being used correctly or incorrectly in the context of Question 5 and the law applicable to this case, this conjunctive-disjunctive was not only proposed by Sandman herself in her special verdict form but also was not objected to by her in the verdict form used by the court and submitted to the jury.

¶23 The “invited error” rule is well established. “A district court will not be put in error for a ruling or procedure in which the appellant acquiesced or participated, or to which the appellant made no objection.” State ex rel. Ins. Fund v. Berg (1996), 279 Mont. 161, 174, 927 P.2d 975, 983 (citation omitted). Accordingly, on the procedural posture of this case and the record before us, we decline to find reversible error in the fact that the special verdict form did not contain a 7” between the words “and” and “or” in Question 5. That said, however, our decision on this point should not be read as indicating, implicitly or otherwise, that we approve of the use of the conjunctive-disjunctive “and/or” or “and or” in verdict forms or in jury instructions absent there being some statutory language or other good reason necessitating such use.

B.

¶24 We now turn to the matter of the juror affidavits. For the most part, Sandman’s appeal is premised upon consideration of the juror affidavits which she obtained from eight jurors and which she submitted in support of her alternative post-trial motions. As pointed out above, in response to Question 5 — “Do you find by clear and convincing evidence that Defendants acted either fraudulently and or with malice?” — the jury unanimously answered “No.” A finding of actual fraud or actual malice is a prerequisite to an award of punitive damages by the fact finder. Section 27-1-221(1), MCA. Accordingly, since the jury answered Question 5 in the negative, Sandman was not entitled to punitive damages.

¶25 It is for this reason that Sandman argues that the jury was confused by the court’s “No” answer to the jury’s question — “Do we have to differencateate [sic] Between [sic] fraud and malice in # 5” — and urges that, had this question been answered “Yes,” the jury, in turn, would have answered ‘Yes” to Question 5 and would have awarded punitive damages. As noted, she premises this argument on the juror affidavits which she obtained.

¶26 However, the trial court determined that consideration of the affidavits was not proper as the jury had not been subject to external influences, nor did it resort to chance. Accordingly, if, as the District Court concluded, there was no legal basis on which to consider these affidavits, then the jury’s negative response to Question 5 must stand and with that response the consequence that Sandman is not entitled to punitive damages under § 27-1-221, MCA.

¶27 In Montana, Rule 606(b), M.R.Evid., bars testimony and affidavits of jurors for the purpose of impeaching their verdict. Specifically, jurors may not testify or present affidavits

as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.

¶28 This rule, however, recognizes three exceptions. Jurors may testify and offer affidavits concerning only the following questions, whether occurring during the course of the jury’s deliberations or not:

(1) whether extraneous prejudicial information was improperly brought to the jury’s attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.

¶29 The rationale underlying this rule is clear. As we stated in Boyd v. State Medical Oxygen & Supply, Inc. (1990), 246 Mont. 247, 252, 805 P.2d 1282, 1285-86:

The rule is founded on public policy, and is for the purpose of preventing litigants or the public from invading the privacy of the jury room, either during the deliberations of the jury or afterward. It is to prevent overzealous litigants and a curious public from prying into deliberations which are intended to be, and should be, private, frank, and free discussions of the questions under consideration. Further, if after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would open the door for tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of an oath. ...
Testimony of the jurors to impeach their own verdict is excluded not because it is irrelevant to the matter in issue, but because experience has shown that it is more likely to prevent than to promote the discovery of the truth. Hence, the affidavit of a juror cannot be admitted to show anything relating to what passed in the jury room during the investigation of the cause, or the effect of a colloquy between the court and a juror, or the arguments made to a juror by a fellow juryman.

Indeed, with this rationale in mind, we have long held that the exceptions stated in Rule 606(b) “are exclusive, and are narrowly construed.” White Clay, ¶ 21 (citation omitted).

¶30 In the case at bar, exceptions (1), extraneous prejudicial information, and (3), resort to chance, are not at issue. Sandman, nevertheless, maintains that the District Court’s answer to the jury’s question — an answer she now claims was incorrect — constituted an external or outside influence on the jury’s deliberations causing confusion and mistake. The trial court ruled otherwise. We agree with the court.

¶31 Whether a jury has been subject to internal or external influences is a question of law and we review a district court’s conclusions of law to determine whether they are correct. Berg, 279 Mont. at 168, 927 P.2d at 979 (citations omitted). We have stated that where external influence is exerted on the jury or where prejudicial information is brought to the jury’s attention, juror affidavits can be the basis for overturning the judgment if either party was deprived of a fair trial. On the other hand, juror affidavits may not be used to impeach the verdict based upon internal influences on the jury, such as a mistake of evidence or misapprehension of the law. McGillen v. Plum Creek Timber Co., 1998 MT 193, ¶ 21, [290 Mont.264], 964 P.2d 18, ¶ 21 (quoting Harry v. Elderkin (1981), 196 Mont. 1, 7-8, 637 P.2d 809, 813).

¶32 Examples of “external influences” on the jury include a juror’s telephone call obtaining information with regard to previous litigation by the plaintiff, visiting the scene of an accident, or bringing newspaper articles about the trial into the jury room for the jurors to see. State v. Brogan (1995), 272 Mont. 156, 161, 900 P.2d 284, 287 (citation omitted). On the other hand, we have held that the use of juror affidavits submitted to demonstrate jury confusion arising from questions on the verdict form does not fit within the three exceptions enumerated in Rule 606(b), M.R.Evid. Moreover, in the context of § 25-11-102(1), MCA, the statute specifying the grounds for new trial, we have held that the sort of “irregularity in the proceedings” contemplated by this statute “must exist independent of juror affidavits.” Boyd, 246 Mont, at 253, 805 P.2d at 1286 (citing Harry, 196 Mont. at 6, 637 P.2d at 812). Similarly, we have held that juror affidavits do not fall within the external influence exception to the Rule where the jurors state that, because they misunderstood the jury instructions, the verdict had an “unintended effect.” Greytak, 257 Mont at 153, 848 P.2d at 487.

¶33 Notwithstanding, Sandman argues that the District Court’s answer to the jury’s question was an external influence that caused the jury to answer Question 5 “No.” We decline to adopt this argument for two reasons. First, Sandman cites no competent authority for the proposition that the trial judge’s answer to a jury question may constitute an improper external influence on the jury within the meaning of exception (2) to Rule 606(b), M.R.Evid. As to this point, we have made it clear on numerous occasions that we will not address an argument for which no supporting authority is cited. See, for example, Rieman v. Anderson (1997), 282 Mont. 139, 147, 935 P.2d 1122, 1126-27; Rule 23(a)(4), M.R.App.P. Second, we recently rejected a similar argument in White Clay, wherein we observed that “[n]o language in the Rule provides for — or would support — a ‘judge as external influence’ exception to the general prohibition contained in Rule 606(b), M.R.Evid.” White Clay, ¶ 21.

¶34 Accordingly, since Sandman’s affidavits do not show that an external or, in the words of the Rule, an “outside” influence was brought to bear upon the jurors, we hold that the jurors’ affidavits could not be used to impeach their verdict in the case at bar. The jury’s answer to Question 5 must stand. The trial court properly refused Sandman’s motion to order that the answer to Question 5 is “Yes” or to otherwise “correct,” “mold,” or set aside the verdict on the basis of her perception that the jury actually intended to award punitive damages, but did not do so because it was confused and mistaken.

II.

¶35 Whether the District Court erred in refusing to vacate the jury’s verdict and order a new trial on either the issue of liability for or the amount of punitive damages pursuant to § 25-11-102, MCA, and Rule 59, M.R.Civ.R

¶36 Sandman also maintains that, pursuant to § 25-11-102, MCA, and Rule 59, M.R.Civ.R, she was entitled to a new trial solely on the amount of punitive damages or, alternatively, on the liability for and amount of punitive damages. She cites the statutory grounds for new trial at § 25-11-102(1), MCA, irregularity in the proceedings, and at § 25-11-102(6), MCA, insufficiency of evidence, for this proposition.

¶37 With regard to subsection (1), Sandman argues that the above-discussed exclusion of the 7” in Question 5 combined with the court’s answer to the jury question caused a prejudicial irregularity in the proceedings. We disagree and, having already thoroughly addressed both of these claimed errors, we decline to discuss this argument further. For the reasons aforestated, we find no reversible error in the trial court’s refusal to vacate the jury’s verdict and order a new trial on the basis of § 25-11-102(1), MCA, irregularity in the proceedings.

¶38 As to subsection (6) of the statute — sufficiency of the evidence supporting the jury’s negative answer to Question 5 — we conclude that Sandman’s argument must fail. At the outset, we note that all elements of a claim for punitive damages must be proved by clear and convincing evidence — i.e., evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence and of which there is more than a preponderance but less than a reasonable doubt. Section 27-1-221(5), MCA. See also Cartwright v. Equitable Life Assur. (1996), 276 Mont. 1, 27-28, 914 P.2d 976, 992-93. In this case, according to Question 5 on the special verdict form, the jury did not “find by clear and convincing evidence that Defendants acted either fraudulently and or with malice.” As stated above, there is no procedural reason on the record of this case that this finding should be vacated or disregarded. Accordingly, without more, the jury having failed to make the prerequisite finding of actual fraud or actual malice required by § 27-1-221(1), MCA, Sandman’s claim for punitive damages must fail.

¶39 Sandman contends, however, that there is no substantial evidence supporting this finding. In this regard, and notwithstanding that a plaintiff’s burden of proof for punitive damages is “clear and convincing,” we review a jury’s verdict to award punitive damages to determine whether there was substantial evidence supporting the verdict. Cartwright, 276 Mont. at 28, 914 P.2d at 993. It follows, therefore, that we will review a jury’s verdict not to award punitive damages under the same substantial evidence standard.

¶40 We described in greater detail our standard of review of jury verdicts in Kneeland v. Luzenac America, Inc., 1998 MT 136, ¶ 45, [289 Mont. 201], 961 P.2d 725, ¶ 45 (citations omitted). There we stated:

Our scope of review of jury verdicts is necessarily very limited. This Court will not reverse a jury verdict which is supported by substantial credible evidence. This Court has defined substantial credible evidence as evidence which a reasonable mind might accept as adequate to support a conclusion. The evidence may be inherently weak and conflicting, yet it may still be considered substantial. It is well established that if the evidence is conflicting, it is within the province of the jury to determine the weight and credibility to be afforded the evidence. Finally, upon reviewing a jury verdict to determine if substantial credible evidence exists to support the verdict, this Court must view the evidence in the light most favorable to the prevailing party.

¶41 Moreover, in our review of jury verdicts in civil cases, we have stated that the prevailing party is entitled to any reasonable inference that can be drawn from the facts which are proven, Cartwright, 276 Mont at 33, 914 P.2d at 996 (citations omitted); that we do not decide whether the verdict was correct or whether the jury made the right decision, Wise v. Ford Motor Co. (1997), 284 Mont. 336, 343, 943 P.2d 1310, 1314; that we will not lightly overturn the verdict of a finder of fact, especially a jury, Palmer by Diacon v. Farmers Ins. Exchange (1988), 233 Mont. 515, 519-20, 761 P.2d 401, 404; that we will not disturb the jury’s findings unless they are inherently impossible to believe, Wise, 284 Mont. at 339, 943 P.2d at 1312; that the test of substantial credible evidence allows for reversal only if there is an absence of probative facts to support the verdict, Kleinsasser v. Superior Derrick Service, Inc. (1985), 218 Mont. 371, 374, 708 P.2d 568, 570; that substantial evidence “consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance,” Barrett v. Asarco Inc. (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080; and, that in order to rise to the level of substantial evidence, the evidence must be greater than trifling or frivolous, C. Haydon Ltd. v. MT Min. Properties, Inc. (1997), 286 Mont. 138, 151, 951 P.2d 46, 54.

¶42 With these legal principles and standards of review in mind, our examination of the record leads us to the same conclusion as that of the District Court. We determine that there was ample conflicting evidence as to whether the Defendants made false representations, concealed material facts, intended to injure Sandman, or acted with actual fraud or actual malice as those terms are defined by § 27-1-221(2) and (3), MCA.

¶43 Sandman testified that in her February 16,1996 conversation with Booth, he told her that he had been authorized to offer her the policy limits of $100,000 on her claim, but that he did not have policy limits authority on her son’s claim. She further testified that Booth told her he could pay up to $50,000 on her son’s claim, but that he could arrange for a structured settlement whereby she would be paid $100,000 over time. Sandman contended that this was evidence of misrepresentation and fraud on Booth’s part because he did in fact have policy limits authority on both claims at the time of that conversation.

¶44 Booth’s testimony at trial directly contradicted Sandman’s testimony. He denied telling Sandman that he did not have policy limits authority on her son’s claim or that Farmers would only offer $50,000 on that claim. Booth testified that he did tell Sandman that he had the authority to settle her claim for $100,000 and that he had the authority to settle her son’s claim, however, he testified that he did not mention a specific dollar amount on the son’s claim.

Q. [by Defendants’ counsel] And what did you tell her and what did she ask regarding the values of the claims?
A. [Booth] She asked me very— She asked me what authority I had to settle the claims and I— I was very careful because I wanted to make sure that she understood that I had the authority to settle the claims and that is why it was important for me to meet with her directly.
Q. She wanted to know what your dollar amount was?
A. That’s correct.
Q. And what did you tell her when she asked you that question?
A. Well, I told her that I had the authority— I never disclose my authority to settle claims. It is my job to negotiate a settlement, and I just don’t disclose it if it is going to be negotiated. At that time she asked me several times what my authority was, and I told her I had the authority to settle her claims.
Q. Did you ever at any time in that conversation or any other conversation tell her that you did not have policy limits authority on Ross Sandman’s claim?
A. Absolutely not. Absolutely not.
Q. Are you sure?
A. I am very, very sure.

¶45 It is uniquely the jury’s task to weigh and resolve conflicts in the evidence, to judge the credibility of the witnesses, and to find the facts. Durden v. Hydro Flame Corp., 1998 MT 47, ¶ 36, [288 Mont. 1], 955 P.2d 160, ¶ 36. The jury performed this task in the case subjudice and its decision must be upheld. We hold that the jury’s verdict to not award punitive damages is supported by substantial evidence.

¶46 Finally, we address Sandman’s argument that the uncontradicted evidence entitled her either to an award of punitive damages as a matter of law or, at least, a new trial on this issue. We disagree for three reasons. First, as we have pointed out above, the evidence that would have supported an award of punitive damages was contradicted and the jury’s decision to not award punitive damages is supported by substantial evidence.

[T]he trial court properly grants a motion for judgment as a matter of law only where there is a complete absence of any credible evidence in support of the verdict. If there is any evidence in support of the verdict and if the party opposing the motion can recover on any view of the evidence and legitimate inferences, then the court must exercise self-restraint, credit the constitutionally mandated process of jury decision, and deny the motion.

Durden, ¶ 23.

¶47 [15] Second, it is undisputed that the jury found, necessarily by a preponderance of the evidence, that “Booth or Farmers ... engage[d] in unfair claims settlement practices” (special verdict form Question 1) and that “Booth or Farmers ... engage[d] in fraudulent conduct” (special verdict form Question 2). On these findings the jury awarded compensatory damages for Sandman’s unfair claims settlement practices and fraud claims. It is equally clear, however, that the jury, to a person, declined to find “by clear and convincing evidence that Defendants acted either fraudulently and or with malice” (special verdict form Question 5) — the prerequisite finding for an award of punitive damages. Sandman’s contention that a finding of fraud automatically supports an award of punitive damages as a matter of law ignores the fact that two different burdens of proof are involved. A preponderance of the evidence is necessary to establish the nine elements of fraud, Pare v. Morrison (1990), 241 Mont. 218, 221, 786 P.2d 655, 657, while clear and convincing evidence is required to prove all elements for a claim of punitive damages, § 27-1-221(5), MCA, and Cartwright, 276 Mont. at 28, 914 P.2d at 993. It is within the province of the jury to find, as it did here, that there is sufficient evidence of proof of fraud, but yet not the quantum of evidence necessary to support an award of punitive damages.

¶48 Third, we have made it clear that the district court’s role with regard to punitive damages in a case tried to a jury is limited. We stated in DeBruycker v. Guaranty Nat. Ins. Co. (1994), 266 Mont. 294, 300, 880 P.2d 819, 822:

[T]he District Court [is] bound by the jury’s determination of facts on all issues which had been presented to the jury. Section 27-l-221(7)(c), MCA, only empowers the court to evaluate the amount of the award of punitive damages in light of the factors enumerated under subsection (7)(b), and to make findings of fact and conclusions of law as to its reasons for increasing, decreasing, or letting stand the amount of the punitive damages award. It does not open the door for reversal of jury findings on underlying issues of liability. [Emphasis added.]

In this regard, § 27-1-221(6), MCA, squarely commits the decision to award or not to award punitive damages to the fact finder. Indeed, in Moulding v. Hardman (1993), 257 Mont. 18, 26-27, 847 P.2d 292, 298 (citing Davis v. Sheriff (1988), 234 Mont. 126, 133, 762 P.2d 221, 226), we stated that “[n]o plaintiff is ever entitled to exemplary damages as a matter of right, regardless of the situation or the sufficiency of the facts.” See also Cartwright, 276 Mont. at 44, 914 P.2d at 1002 (“it is the jury which must first determine whether punitive damages are recoverable ... To hold that the district court has complete and unbridled discretion to ignore the jury’s award would mean that the function assigned to the jury in this process is meaningless”).

¶49 Thus, in the face of the record here and above-cited statutory and case authority, Sandman’s conclusion that the District Court could and should have granted her motion to vacate the jury’s finding of no liability for punitive damages and that the court could and should have ordered a judgment for punitive damages as a matter of law, is without merit.

¶50 Finally, the general rule is that a decision to grant a new trial is committed to the sound discretion of the trial judge and will not be disturbed absent a showing of manifest abuse of that discretion. Jim’s Excavating Service v. HKM Assoc. (1994), 265 Mont. 494, 512, 878 P.2d 248, 259. For the reasons already discussed, we find no manifest abuse of the court’s discretion in its refusal to order a new trial as to punitive damages.

¶51 Affirmed.

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

      . Other changes in the court’s special verdict form from that proposed by Sandman are not at issue. It should be noted, however, that the questions asked and their arrangement on the court’s verdict form were virtually the same as those on the verdict form proposed by Sandman.

        .See Bryan A. Garner, The Elements of Legal Style 31,102-03 (1991); Bryan A. Gamer, A Dictionary of Modern Legal Usage 56-57 (2d ed. 1995).

      . Id.; Black’s Law Dictionary 86 (6th ed. 1990).

      . Farmers and Booth obtained countervailing affidavits which demonstrated that the jurors would not have awarded punitive damages. We do not base our decision on this issue on the Defendants’juror affidavits, however. For the reasons set forth in our opinion, it is no more permissible that the trial court or this Court allow rehabilitation of the jury verdict on the basis of affidavits violating Rule 606(b), M.R.Evid., than it is to allow the verdict to be impeached by use of such affidavits in the first place.


author: JUSTICE LEAPHART JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN KUNEFF and ERNEST VAN GAWRYLUK, Defendants and Appellants.
    Nos. 97-325 and 97-433.
    Submitted on Briefs August 13, 1998.
    Decided November 24, 1998.
    1998 MT 287.
    55 St.Rep. 1173.
    291 Mont. 474.
    970 P.2d 556.

      For Appellants: William F. Hooks, Chad Wright, Appellate Defender Office, Helena.

      For Respondent: Hon. Joseph P. Mazurek, Attorney General; Pamela P. Collins, Ass’t Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney; Melanie Logan, Deputy County Attorney, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Defendants John Kuneff (Kuneff) and Ernest Van Gawryluk (Van Gawryluk) appeal from the decision of the Thirteenth Judicial District, Yellowstone County, denying their motion to suppress.

¶2 We affirm.

¶3 In determining whether the District Court erred, we consider the following issues:

¶4 1. The standard of review for a search warrant based in part on illegally obtained evidence.

¶5 2. Whether, in the absence of the illegally obtained evidence, there was sufficient probable cause to support the issuance of the search warrant.

Standard of Review

¶6 The standard of 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. Siegal (1997), 281 Mont. 250, 257, 934 P.2d 176, 180; State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021 (citing State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94).

Factual and Procedural Background

¶7 On September 23, 1996 Billings police officers Anderson and Iffland went to the trailer home of defendants Kuneff and Van Gawryluk. The officers had an anonymous tip that marijuana was being grown in the defendants’ home. Van Gawryluk allowed them to enter the trailer after they introduced themselves as police officers. However, Van Gawryluk denied them permission to search the trailer. The officers asked Van Gawryluk if the volume of the stereo that was playing could be lowered, and Van Gawryluk agreed. As Officer Anderson (Anderson) turned down the stereo, he noticed a pipe that he recognized as a marijuana pipe. The officers then handcuffed Van Gawryluk and Kuneff and took them into custody. In response to the officers’ questions, Van Gawryluk and Kuneff indicated that another person was present in the trailer. Anderson then found a third person, Darvin Hall, in the front bedroom of the trailer and handcuffed him. Iffland then went down a hallway to the other bedroom in the trailer and discovered marijuana plants.

¶8 Billings police officers then applied for a search warrant. A Justice of the Peace issued the warrant, and police searched defendants’ trailer. The police seized additional evidence of drugs.

¶9 By stipulation of the parties, the District Court consolidated Kuneff and Van Gawryluk’s cases for pretrial motions and trial. A hearing was held on their motion to suppress. Kuneff and Van Gawryluk moved to suppress all evidence of drugs and drug paraphernalia, except for the marijuana pipe, which they conceded was in plain view of the officers. They also moved to suppress Van Gawryluk’s subsequent confession to the police. Kuneff and Van Gawryluk argued that the officers conducted an illegal warrantless search of the bedroom in the trailer. They argued that the exclusionary rule barred the admission of the illegally seized evidence at trial. They further contended that the evidence seized pursuant to the search warrant should be suppressed because it was tainted as a result of the illegal search.

¶10 The State responded that the warrantless seizure of the marijuana plants occurred in the course of a legitimate protective sweep of the trailer.

¶11 The District Court concluded that the warrantless search of the bedroom was illegal because the police did not have reasonable grounds to believe that the trailer held additional persons who posed a danger and the State had failed to show that any other exceptions to the requirement for a search warrant were met. The District Court granted defendants’ motion to suppress the plants that were seized from the trailer without a warrant.

¶12 The District Court found, however, that there was sufficient probable cause for the issuance of the search warrant even without the plants seized in the course of the illegal search. The District Court concluded that the exclusionary rule did not apply to the evidence seized with a search warrant.

¶13 Kuneff and Van Gawryluk each pled guilty under the terms of an Alford plea to Count I, Criminal Production or Manufacture of Dangerous Drugs (Felony); Count II, Criminal Possession of Dangerous Drugs with Intent to Sell (Felony); and CountV, Criminal Possession of Drug Paraphernalia (Misdemeanor). Kuneff and Van Gawryluk reserved their rights to appeal. The District Court sentenced them each to ten years prison on Count I, suspending the sentences and placing them on probation. On Count II, the District Court also sentenced them each to ten years prison, suspending the sentences and placing them on probation, concurrent with Count I. On Count V, the District Court sentenced Kuneff and Van Gawryluk each to six months in Yellowstone County’s detention facility concurrent with Count I, but suspended the sentences.

Discussion

¶14 1. The standard of review for a search warrant based in part on illegally obtained information.

¶15 Kuneff and Van Gawryluk argue that the exclusionary rule bars not only the marijuana seized as a result of the officers’ illegal search but also the evidence that the police seized with a search warrant. They argue that the independent source and inevitable discovery exceptions to the exclusionary rule do not apply in the present case. Kuneff and Van Gawryluk assert that there was no basis for issuance of a search warrant without the discovery of the marijuana plants. They further assert that in reviewing whether there was an independent source for the evidence seized with a search warrant, the standard of review is de novo.

¶16 In reviewing the application for search warrant, the District Court excised the police officers’ discovery of marijuana plants during their warrantless search. Relying on Segura v. United States and United States v. Wanless, the District Court concluded that evidence obtained after an illegal search need not be excluded unless the illegality is the “but for” cause of the discovery of evidence. Segura v. United States (1984), 468 U.S. 796, 815, 104 S.Ct. 3380, 3391, 82 L.Ed.2d 599, 615 (concluding evidence will not be excluded following illegal search or seizure “unless the illegality is at least the ‘but for’ cause of the discovery of the evidence”); United States v. Wanless (9th Cir. 1989), 882 F.2d 1459, 1465 (holding evidence seized as direct result of illegal search cannot establish probable cause for later search warrant). The District Court concluded that there was probable cause for the search warrant based on the discovery of the marijuana pipe and that the evidence seized pursuant to the search warrant was free of taint and therefore not barred by the exclusionary rule.

¶17 In considering the effect of the officers’ illegal search on the search warrant, we follow this Court’s decision in State v. Siegal. State v. Siegal (1997), 281 Mont. 250, 934 P.2d 176. In Siegal, police scanned buildings on defendant’s property with a thermal imaging scanner. The police did not have a warrant. The police found that an unusual amount of heat was discharged from a shed and that the heat discharged was consistent with the use of grow lamps to cultivate marijuana. A scan of the other buildings revealed that their heat emissions were normal. Based in part on the results of the thermal imaging scan, the police obtained a search warrant and searched defendant’s property. The police seized marijuana. The Court in Siegal held that the thermal imaging scan of defendant’s property was a warrantless search that implicated Montana’s constitutional right to privacy under Article II, Section 10. The Court then “excise[d] the results of the thermal imaging scan from the search warrant application and review[ed] the remaining information to determine if sufficient probable cause existed for the issuance of the warrant.” Siegal, 281 Mont. at 279, 934 P.2d at 193. Thus, in determining whether there was probable cause to support the issuance of the search warrant, we consider the application for search warrant without the marijuana plants that the officers seized without a warrant.

¶ 18 In previous decisions, this Court has held that magistrates’ determinations of probable cause should receive great deference, and that such determinations should be upheld if there is a substantial basis for them. In State v. Oleson, we held that “the duty of a reviewing court is simply to ensure that a magistrate had a substantial basis for concluding that probable cause to issue a warrant existed.” State v. Oleson, 1998 MT 130, ¶ 7, [289 Mont. 139], 959 P.2d 503, ¶ 7 (citation omitted). See also Siegal, 281 Mont. at 279, 934 P.2d at 193 (affirming this Court’s holding, in State v. Rydberg (1989), 239 Mont. 70, 73, 778 P.2d 902, 904, that magistrates’ determinations of probable cause should receive great deference).

¶19 As a matter of logic and common sense, a reviewing court cannot defer to a magistrate’s consideration of an application for search warrant that the magistrate in effect did not review. In the present case, the District Court reviewed an application for search warrant that differed materially from that which the magistrate reviewed, because the District Court excised the information regarding the results of the warrantless search. Under these facts, it would therefore be inappropriate to deferentially review the magistrate’s determination that the application for search warrant established probable cause. Although we articulated and applied the “great deference” standard in Siegal in declining to conduct a de novo review of the search warrant application following excision of the results of the thermal imaging search, the issue of the standard of review in such excision cases was not raised and it did not determine our decision in that case. With the benefit of briefing directed to this particular issue, we now hold that when the issuance of a search warrant is based in part on illegal information, the reviewing court shall excise the illegally obtained information from the application for search warrant and review the remaining information de novo to determine whether probable cause supported the issuance of a search warrant. To the extent that Siegal and our previous decisions suggest that great deference be paid to a magistrate’s determination of probable cause even after information has been excised from an application for search warrant, we overrule the use of that standard of review in such circumstances.

¶20 2. Whether there was sufficient probable cause to support the issuance of the search warrant in the absence of the illegally obtained information.

¶21 An application for a search warrant must state facts sufficient to show probable cause for the issuance of the warrant. See § 46-5-221, MCA; State v. Rinehart (1993), 262 Mont. 204, 209, 864 P.2d 1219, 1222. Probable cause must be determined exclusively from the “four corners” of the search warrant application. Rinehart, 262 Mont. at 211, 864 P.2d at 1223 (citation omitted).

¶22 Probable cause exists when the facts and circumstances presented “would warrant an honest belief in the mind of a reasonable and prudent man that the offense has been, or is being, committed and ‘that the property sought exists at the place designated.’ ” State v. Isom (1982), 196 Mont. 330, 343, 641 P.2d 417, 424 (citation omitted). This Court has adopted the “totality of the circumstances” test set forth in Illinois v. Gates. See State v. Crowder (1991), 248 Mont. 169, 173, 810 P.2d 299, 302. The Court in Illinois v. Gates held that:

The task of the issuing magistrate is simply to make a practical, common-sense determination whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548. Probable cause requires a determination that there is a probability of criminal activity. Rinehart, 262 Mont. at 210, 864 P.2d at 1222 (citation omitted).

¶23 With the information from the illegal search excised, the search warrant application presented the following facts in support of a determination of probable cause:

On September 23th [sic], 1996, Billings Police Officers RICK ANDERSON (Anderson) and KEVIN IFFLAND (Iffland) received a report from LT. TOM TAGGART (Taggart) .... The report, dated July 11, 1996 indicated that Taggart had spoken to a source who advised Taggart of a trailer house at the end of Florine Lane, in which the occupants were keeping several mature marijuana plants in the bedroom closets. The information indicated the occupants names as being “JOHN KOUNEFF” and an “ERNIE” with an unknown last name. The information included the fact that the source had observed the plants on July 1, 1996. The information further indicated that the vehicle that the occupants used was a newer blue Chevrolet. On July 11,1996, Taggart, with the CCSIU, drove by the location and observed a 1994 Chevrolet green pickup, Montana license, 3T-146F, which is registered to a ERNIE and MARILYN GAWRYLUK. Police records indicate that ERNIE GAWRYLUK is listed as living at the address of 138 Prickett Lane, trailer #8.
On September 23rd, 1996, Anderson and Iffland, using the information on the report, went to the trailer located at the end of Florine Lane, and having the numbers on the side of the trailer “132 8,” and having a green pickup truck parked in the drive way with the license plate number, Montana 3T-146F, did go to the front north east door of the residence and knock on the door. Anderson had activated a tape recording device to record the conversation and advised the subject at the door that he had received information and a complaint and would like to talk with him. The occupant, later identified as JOHN KUNEFF, asked the Officers to come inside. The Officers advised KUNEFF that they had received information indicating, that marijuana was being grown in the residence and that they were there to either confirm the information, or show that there was no marijuana being grown. Due to a loud stereo being played, which was distracting to the conversation, Anderson asked Kuneff if he could turn down the stereo. The response was that it was alright to, “turn it down a little.” Anderson walked into the living room and went to the stereo and turned it down. A second subject then came out of an unknown back bedroom and was identified as ERNEST GAWRYLUK. Anderson then began to speak with Gawryluk, and in doing so, observed a small marijuana pipe lying on a shelf in the living room.
Anderson then advised Iffland what he had observed and advised him to place both subjects under arrest.

We conclude that the marijuana pipe and the tip established probable cause for the issuance of the search warrant.

¶24 Kuneff and Van Gawryluk argue that the tip was not reliable; that it was not sufficiently corroborated by the officers. However, Lieutenant Taggart spoke to the informant and partly corroborated the tip, finding a trailer at the end of Florine Lane with a parked vehicle registered to Ernie and Marilyn Gawryluk. Police records revealed that Ernie Gawryluk was listed as a resident at 138 Prickett Lane, trailer #8. The informant’s tip was based on the informant’s own observation, thus strengthening its reliability. See Oleson, ¶ 13. Moreover, information provided to police that is “motivated by good citizenship” is a reliable basis for determining probable cause. Oleson, ¶ 14 (citation omitted). We conclude that the tip had sufficient reliability.

¶25 Kuneff and Van Gawryluk also argue that the tip was not sufficiently detailed to establish probable cause. As communicated to Lieutenant Taggart, however, the tip provided information of a criminal activity that was personally observed by the informant. Thus, we find no merit in this argument.

¶26 Kuneff and Van Gawryluk further argue that the information in the tip was stale and that it should not have been relied upon in determining whether there was probable cause for the issuance of a search warrant. We need not consider this contention because the defendants did not raise it before the District Court. Appellants may not change their theories on appeal from those that they presented in district court. See State v. Woods (1997), 283 Mont. 359, 372, 942 P.2d 88, 96; §§ 46-20-104(2) and 46-20-701(2), MCA. Without ruling on this issue, however, we would note that the tip, though based on information nearly three months old, concerned information of a continuing criminal enterprise: the marijuana plants were reportedly being grown.

¶27 Finally, Kuneff and Van Gawryluk argue that the results of the executed search warrant should be suppressed because the marijuana pipe did not establish probable cause. Defendants have misstated the appropriate inquiry. The test is not to determine whether each individual fact presented in the application for search warrant establishes probable cause, but to determine from the totality of the circumstances whether there is probable cause. Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548. The pipe and the tip together established probable cause for the issuance of the search warrant.

¶28 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and NELSON concur.

JUSTICE HUNT

concurring in part, dissenting in part.

¶29 I concur with that portion of the majority opinion which sets forth the standard of review for a search warrant based in part on illegally obtained information. I dissent from the second part of the majority opinion. I would hold that there was no probable cause to issue the search warrant.

¶30 First, I disagree with the majority’s opinion that the tip had sufficient reliability. This Court has repeatedly stated that the “veracity, reliability and basis of knowledge of informants remain highly relevant factors in determining probable cause....” State v. Siegal (1997), 281 Mont. 250, 281, 934 P.2d 176, 194 (citing State v. Rinehart (1993), 262 Mont. 204, 210, 864 P.2d 1219, 1222). We have thus upheld search warrants where the application contained a statement that the informants were known to law enforcement officers and that the informant had been reliable in the past. Siegal, 281 Mont. at 281, 934 P.2d at 194; Rinehart, 262 Mont. at 212, 864 P.2d at 1223-24. In contrast, we have held that anonymous Crimestoppers’ tips are not adequate to support probable cause without investigation to verify or corroborate the information in the tip. Rinehart, 262 Mont. at 211, 864 P.2d at 1223.

¶31 In this case, the tip was an anonymous Crimestoppers’ tip. The application for the search warrant did not contain any statement that the officer knew the informant or that the informant had provided reliable information in the past. Hence, further investigation to verify or corroborate the information contained in the tip was necessary.

¶32 However, it is my opinion that the investigation failed to sufficiently corroborate the tip. First, neither officer Anderson nor Iffland performed a background check on the people identified in the tip, and the application did not contain any information that either defendant had a criminal history. More importantly, some of the information contained within the tip was inaccurate. The informant stated that the defendants used a “newer blue Chevrolet.” However, during the investigation, Lieutenant Taggart located a green Chevrolet pickup truck at the trailer. The tip thus contained incorrect information about the type and color of the vehicle.

¶33 In support of its holding that the tip was sufficiently corroborated, the majority points in part to the fact that Lieutenant Taggart found a trailer at the end of Florine Lane with a parked vehicle registered to Ernie and Marilyn Gawryluk. However, in the past, we have stated that “facts of a description and location of property, while easily confirmable by a driveby, can hardly be regarded as probative of the probability of the presence of contraband therein.” Siegal, 281 Mont, at 282,934 P.2d at 195 (citation omitted). The fact that the officers were able to corroborate facts regarding location of the trailer and that a vehicle was registered to an “Ernie” is not probative of the probability of the presence of marijuana plants therein.

¶34 The majority buttresses its opinion by adding that the anonymous Crimestoppers’ tip was reliable because it was based upon the informant’s own observation and that it was “motivated by good citizenship.” Again, I disagree with the majority’s opinion. While the majority is accurate in noting that this Court has stated that a tip’s reliability is strengthened if it was based upon the personal observation of the informant, this is true only in cases where the police officers know the informant and the informant has provided reliable information in the past. In Rinehart, the Court stated:

[w]e have previously held that information of a criminal activity known from observation by a previously reliable informant ... is sufficient to establish the probability of criminal activity....

Rinehart, 262 Mont. at 213, 864 P.2d at 1224 (citation omitted). In that case, we held that the combination of the fact that the informant was proven reliable in the past and that the informant’s information was based on personal observation was sufficient to establish probable cause to issue a search warrant. Rinehart, 262 Mont. at 213, 864 P.2d at 1224. In this case, while the anonymous Crimestoppers’ tip was allegedly based upon the informant’s personal knowledge, we still have no basis for determining whether or not the informant was reliable.

¶35 The majority is also correct in noting that an informant motivated by good citizenship is presumed reliable. But as we pointed out in Siegal, before such a presumption can be made, the Court must determine the circumstances under which the informant learned the information. In that case we stated:

[A] citizen informant is presumed reliable. However, this is not a per se rule. The reliability of a citizen informant is generally shown by the very nature of the circumstances under which the incriminating information became known.

Siegal, 281 Mont. at 281, 934 P.2d at 194 (citation omitted). In this case, we know only that the anonymous informant allegedly observed marijuana plants on July 1,1996. We know virtually nothing else about the “nature of the circumstances” under which he or she learned of the incriminating information. Thus, the Court cannot presume the informant to be rehable or to be motivated by good citizenship.

¶36 The majority cites State v. Oleson, 1998 MT 130, [289 Mont. 139], 959 P.2d 503, in support of its opinion that the tip was rehable because it was allegedly based upon the informant’s personal knowledge and was motivated by good citizenship. However, that case is distinguishable. In Oleson, the law enforcement officer contacted the informant and established his identification. Oleson, ¶¶ 10, 13. Moreover, unlike this case, the informant who saw the defendant engage in unlawful game spotlighting and poaching gave a detailed description explaining what he observed and the nature of the circumstances under which he learned the information. Oleson, ¶ 10. Finally, in Oleson, the law enforcement officer corroborated the informant’s information. Oleson, ¶ 14.

¶37 In summary, the application for the search warrant in this case established neither the anonymous informant’s reliability nor the basis of the informant’s knowledge. Moreover, the tip was not sufficiently corroborated. The tip did not establish probable cause for the issuance of the search warrant.

¶38 I disagree with the majority’s conclusion that the tip when considered together with the pipe established probable cause for the issuance of the warrant. While the pipe may establish probable cause to arrest the defendants for a misdemeanor possession of drug paraphernalia, it does not establish probable cause to search the home for evidence that the defendants engaged in the felony crime of producing or manufacturing dangerous drugs. Even when considered together with the tip, it is insufficient to establish probable cause. The pipe neither corroborates nor adds any other evidence indicating that the defendants actually engaged in a marijuana-growing operation.

¶39 Because I would reverse on the basis that the tip and the pipe do not establish probable cause for the issuance of the search warrant, I would not address the defendants’ alternative argument that all the evidence should be suppressed by virtue of the exclusionary rule.