text:
    LINDA HOGAN, as Personal Representative of the Estate of Ralph Hogan, Jonathan Hogan and David Hogan, Plaintiffs and Appellants, v. FLATHEAD HEALTH CENTER, INC., a Montana corporation, d/b/a Kalispell Regional Hospital, Defendant and Respondent.
    No. 92-141.
    Submitted on Briefs October 8, 1992.
    Decided November 24, 1992.
    49 St.Rep. 997.
    255 Mont. 388.
    842 P.2d 335.

      For Appellant: Gene R. Jarussi, Jarussi & Bishop, Billings.
    For Respondent: Stephen C, Berg, Warden, Christiansen, Johnson & Berg, Kalispell.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

A jury sitting in the District Court for the Eleventh Judicial District, Flathead County, found for defendant and respondent on this claim for damages arising from the death of Ralph Hogan. We affirm.

The issue is whether the jury’s verdict is supported by substantial credible evidence.

During the evening of June 9, 1987, Ralph Hogan, a thirty-nine-year-old father of four, was playing an informal game of basketball with other men and boys in a gymnasium at the Church of Jesus Christ of Latter-Day Saints in Kalispell, Montana. During the game, Hogan suddenly fell to the floor. Suspecting a heart attack, two men began performing CPR on him. One of the other basketball players telephoned Kalispell Regional Hospital and asked that an ambulance be dispatched to the gym.

Hogan was treated by the ambulance crew at the gym and then transported to Kalispell Regional Hospital, where, unfortunately, he was pronounced dead shortly thereafter. His widow and two of his sons claim the hospital was negligent in failing to timely dispatch an ambulance. Their theory is that a hospital employee delayed between receiving the call from the gym and relaying the message to the Kalispell Fire Department, where the ambulance was located.

The case was tried to a jury in a four-day trial. Men and boys who were at the gym testified about the events of the evening and gave estimates that the ambulance arrived about 20 minutes after Hogan collapsed. The basketball players acknowledged that they believed the ambulance would be sent from the hospital, which was located across a field from the gym. They did not realize the hospital did not operate its own ambulances and an ambulance had to be sent from the fire department in downtown Kalispell. All of the ballplayers agreed that during times of stress, events can seem to take much longer than they actually do.

Sally Berosick, the hospital employee who received the phone call from the gym, testified that she immediately relayed the request for the ambulance to the fire department after receiving the call from the gym. Other hospital employees and ambulance personnel testified about their actions in response to the situation. Additionally, both parties presented medical testimony concerning Hogan’s physical condition at the time of his death, including ventricular fibrillation, or irregular heartbeat, which was the cause of his collapse.

The jury answered “no” to a special interrogatory asking whether Kalispell Regional Hospital was negligent in failing to transmit the ambulance request in a timely manner. From that finding, the Hogans appeal.

Our standard of review of a jury’s findings of fact is whether the record contains substantial evidence to support those findings. Silvis through Silvis v. Hobbs (1992), 251 Mont. 407, 411, 824 P.2d 1013, 1015. When determining whether substantial evidence exists to support a jury verdict, this Court reviews the evidence in a light most favorable to the prevailing party, and if conflicting evidence was presented, the credibility and weight given to the evidence is within the province of the jury. Silvis, 824 P.2d at 1015-16.

The Hogans argue that under the circumstances of this case Berosick’s testimony that she immediately relayed the request for the ambulance to the Kalispell Fire Department does not constitute substantial evidence upon which a jury could render a verdict in favor of the hospital. They assert that Berosick’s testimony is highly improbable and conflicts with undisputed physical facts.

The claimed improbability and conflicts deal with the timing of events immediately following Hogan’s collapse. Three ballplayers at the gym, including one of Hogan’s sons, ran to the hospital while the ambulance was being dispatched. A hospital employee testified that after the ballplayers arrived at the hospital he heard on the hospital scanner radio that the ambulance was en route to the gym. The Hogans assert that unless Berosick delayed in calling the ambulance, the ballplayers would not have had time to get to the hospital before the ambulance began its journey.

The ballplayers testified that the run to the hospital took about one minute. The Hogans contend that this is an undisputed physical fact, and that because Berosick’s testimony conflicts with it, her testimony cannot be considered substantial.

The Hogans cite Nelson v. Flathead Valley Transit (1992), 251 Mont. 269, 824 P.2d 263. In Nelson, the plaintiff claimed that the physical tracks of a snowplow following the shoulder of a road controlled over testimony of the driver of defendant’s vehicle that the snowplow was in the middle of the road. This Court held that, because the only evidence concerning the tracks of the snowplow was the testimony of the snowplow driver, the physical facts were unclear and did not control over the testimony of the driver of the other vehicle. Nelson, 824 P.2d at 266. Similarly, in this case, the only evidence concerning the amount of time necessary to run from the gym to the hospital is the estimate given by the ballplayers. Their testimony would not control over conflicting testimony. More importantly, the amount of time it took to run from the gym to the hospital does not resolve the essential issues of this case.

The hospital provides in its brief, as it did at trial, a chronology of events constructed from the testimony of the various witnesses. The ballplayer who called the hospital testified that he went down the hall from the gym to the phone, dialed directory assistance, let it ring several times, found a phone book, looked up the number for the hospital, and then redialed. When he got through to Berosick, he gave her a brief description of the situation and the location, which she then had him reconfirm. The hospital posits that the phone call from the gym to the hospital was completed a minute and a half after Hogan’s collapse, Berosick’s call to the fire department took about thirty seconds, and approximately a minute thereafter the ambulance was on its way. The amount of time the ambulance was on the road, four minutes, was memorialized on a time clock. This chronology totals seven minutes. It is supported by the record made by an ambulance worker, who, after talking with those present at the gym, estimated the time of Hogan’s collapse at 10:31 p.m., or seven minutes before the ambulance arrived at the gym.

The chronology provided by the hospital would allow the jury to give credence to both Berosick’s testimony about her actions and the testimony of the ballplayers about their actions. One ballplayer who ran to the hospital testified that he left while the caller was looking through the phone book. If there was a delay of three minutes between Hogan’s collapse and the ambulance’s departure from the fire station, the ballplayers could easily have reached the hospital on foot before the announcement on the scanner that the ambulance was on its way.

One of the ballplayers testified that he made two round trips between the gym and the hospital before the ambulance arrived at the gym. If, as the hospital theorizes, it took about seven minutes after Hogan’s collapse for the ambulance to reach the gym, both the testimony of the ballplayer and the testimony of Berosick could be accepted.

The Hogans point out a conflict between Berosick’s testimony that all three ballplayers arrived at the hospital at the same time and the ballplayers’ testimony that they arrived separately. However, the evidence established that Berosick had her back to the emergency room lobby while she was taking care of the switchboard. The jury was instructed that “[y]ou alone are to determine whether to believe any witnesses and the extent to which any witness should be believed.” Even if they believed Berosick was inaccurate in stating that all three ballplayers arrived at the hospital at the same time, the jurors could have found other parts of her testimony credible.

Berosick testified that, as the ballplayers entered the hospital, she heard on the scanner that the ambulance had arrived at the gym. The Hogans claim this is impossible, given the testimony of the other hospital employee that he heard on the scanner that the ambulance was on its way to the gym when the ballplayers were at the hospital. Again, even if the jury disbelieved the portion of Berosick’s testimony that the message on the scanner was that the ambulance “had arrived,” rather than “was on its way to” the gym, it could still find credible her testimony that she relayed the call to the ambulance as soon as she received it.

No motive has been suggested for Berosick to delay in calling the ambulance. The hospital has provided, as it did at trial, a chronological framework supporting a finding that there was no negligence in transmitting the ambulance request in a timely manner. We conclude that Berosick’s testimony, along with the other evidence submitted, provides substantial credible evidence upon which the jury could base a verdict for the hospital.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, McDONOUGH and HUNT concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    NONA BUECHLER GIBSON, Claimant and Respondent, v. STATE COMPENSATION MUTUAL INSURANCE FUND, Respondent and Appellant.
    No. 92-259.
    Submitted on Briefs August 1, 1992.
    Decided November 24, 1992.
    49 St.Rep. 1000.
    255 Mont. 393.
    842 P.2d 338.

      For Appellant: Elizabeth A. Horsman-Wiitala, State Compensation Mutual Insurance Fund, Helena.
    For Respondent: Paul E. Toennis, Toennis Law Office, Billings, and Melanie Symons, Legal Services Division, Department of Labor, Helena.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant, State Compensation Mutual Insurance Fund (State Fund), appeals from an adverse decision rendered by the Workers’ Compensation Court. We affirm.

The only issue before this Court is whether the Workers’ Compensation Court erred in determining that Section 39-71-1033, MCA (1989), provides an independent right to pursue a contested case hearing before the Department of Labor and Industry (Department), when a claimant has failed to timely request a hearing pursuant to Section 39-71-1018, MCA (1989).

Claimant Nona Buechler Gibson was injured while working as a nurses’ aide on October 10, 1989. Claimant’s employer was insured for workers’ compensation coverage by the State Fund. The State Fund accepted liability and paid benefits from October 25,1989, until July 2, 1991.

In April 1991, the State Fund requested a rehabilitation panel be convened pursuant to Section 39-71-1016, MCA(1989). The panel met on May 15,1991. The panel report dated May 24,1991, recommended several positions, as previously identified by the designated rehabilitation provider, as appropriate for claimant under Section 39-71-1012(c), MCA (1989), which provides for a disabled worker to “return to a related occupation suited to the claimant’s education and marketable skills.” Pursuant to Section 39-71-1018, MCA(1989), the Department adopted the panel recommendations, and on June 5, 1991, issued an initial order of determination. Claimant did not submit a written exception to the initial order within ten days as provided by Section 39-71-1018, MCA (1989), and therefore, the Department’s initial order of determination became the final order of determination. Claimant did not bring an appeal from the final order of determination to the Workers’ Compensation Court within the ten days provided under Section 39-71-1018, MCA (1989).

The State Fund notified claimant on June 18,1991, that based on the Department’s order of June 5, 1991, her benefits would be terminated in 14 days. On September 4, 1991, claimant filed with the Department a document entitled “Appeal of Final Order of Determination.” The State Fund filed a motion to dismiss claimant’s request, alleging a lack of jurisdiction because claimant had failed to comply with the time requirements of Section 39-71-1018, MCA (1989), within which a party may request a hearing. Claimant resisted this motion, arguing that although the time limit for requesting a hearing had run under Section 39-71-1018, MCA (1989), jurisdiction existed pursuant to Section 39-71-1033, MCA (1989). On November 22, 1991, the hearing examiner dismissed claimant’s request. The hearing examiner determined that claimant’s request was not timely under Section 39-71-1018, MCA(1989), and concluded that Section 39-71-1033, MCA (1989), did not provide claimant with the right to request a contested case hearing independent of the appeals process set out in Section 39-71-1018, MCA (1989).

Claimant appealed this decision to the Workers’ Compensation Court. On March 24, 1992, the Workers’ Compensation Court reversed the decision of the hearing examiner. The Workers’ Compensation Court concluded that the two statutes in question are not in conflict and that the language of Section 39-71-1033, MCA (1989), provides an independent right to pursue a contested case hearing. The Workers’ Compensation Court remanded the matter to the Department to conduct a contested case hearing as provided for in Section 39-71-1033, MCA (1989). The State Fund appeals from that decision.

The only issue to be decided by this Court is whether the Workers’ ■ Compensation Court erred in determining that Section 39-71-1033, MCA(1989), provides an independent right to pursue a contested case hearing before the Department when a claimant has failed to timely request a hearing pursuant to Section 39-71-1018, MCA (1989).

Appellant requests that this Court review a conclusion of law made by the Workers’ Compensation Court. Concerning our standard of review of conclusions of law we recently stated:

“In such a case, the appropriate standard of review is simply whether the lower comb’s interpretation of the law is correct. We are not bound by the lower court’s conclusion and remain free to reach our own.”

Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523 (quoting Wassberg v. Anaconda Copper Co. (1985), 215 Mont. 309, 314, 697 P.2d 909, 912). This Court has explained this standard of review stating that:

The reasoning for simply determining if the court’s conclusions are correct is that no discretion is involved when a tribunal arrives at a conclusion of law — the tribunal either correctly or incorrectly applies the law. For that reason, this Court concludes that our standard of review relating to conclusions of law, whether the conclusions are made by an agency, workers’ compensation court, or trial court, is whether the tribunal's interpretation of the law is correct.

Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. The instant case deals with a conclusion of law, and therefore, upon review we will simply determine whether the conclusion was or was not correct. Additionally, it is well-settled that the law existing at the time of injury governs. Watson v. Seekins (1988), 234 Mont. 309, 312, 763 P.2d 328, 331. Claimant was injured in 1989.

The resolution of this case depends upon an interpretation of several Montana statutes. In interpreting statutes, this Court is guided by several well-established principles. First, when a general statute and a specific statute are inconsistent, the specific statute governs, so that a specific legislative directive will control over an inconsistent general provision. State v. Montana Dept. of Public Service Regulation (1979), 181 Mont. 225, 593 P.2d 34; Section 1-2-102, MCA. However, when called upon to interpret several different provisions this Court will, if possible, construe the statutes so as to give effect to all of them. Section 1-2-101, MCA. A specific statute will only govern over a more general statute if the two statutes are in conflict and cannot be resolved. In this case, the Workers’ Compensation Court concluded that the statutes could be interpreted so as to give meaning to both statutes. While the statutes in question are not models of clarity, we agree with the Workers’ Compensation Court that the statutes are not in direct conflict with each other.

The State Fund argues that as the statute specifically addressing the filing of exceptions and requests for hearings on the findings of the panel, Section 39-71-1018, MCA (1989), should govern in this situation. Section 39-71-1018, MCA (1989), provides that:

(1) The department shall issue an initial order of determination within 10 working days of receipt of a report from a rehabilitation panel. If the initial order of determination differs from the findings and recommendations of the panel, the order must state the reasons for the difference.
(2) Within 10 working days from the date the initial order of determination is mailed, a party may submit a written exception to the order. On its own motion or at the request of any party, the department shall conduct a hearing. The department shall issue a final order of determination within 20 working days of the hearing.
(3) If no party submits an exception within 10 working days, the initial order of determination becomes the final order of determination and must be issued by the department.
(4) Within 10 working days after the date of mailing of the department’s final order of determination, an appeal may be taken to the workers’ compensation court.

Claimant concedes that she did not submit any written exceptions to the initial order of determination, nor did she appeal the final order of determination to the Workers’ Compensation Court, within the time provided in Section 39-71-1018, MCA (1989). However, claimant argues that Section 39-71-1033, MCA (1989), provides a separate right to request a contested case hearing before the Department. Section 39-71-1033, MCA (1989), provides that:

In addition to pursuing the hearing opportunities provided in 39-71-1018 and 39-71-1032, a party may bring a dispute arising under the provisions of this part, except for a dispute over which the department of social and rehabilitation services has jurisdiction under 39-71-1019, before the department under the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, and any rules promulgated by the department. Within 10 days after mailing of the department’s final order, an interested party may appeal to the workers’ compensation court. [Emphasis added.]

As the hearing examiner correctly noted, claimant’s request for a contested case hearing -under Section 39-71-1033, MCA (1989), would be considered timely pursuant to Rule 24.29.215(2), ARM. This rule provides a claimant with 90 days to appeal from the notice of any adverse action. Therefore, the only question before this Court is whether Section 39-71-1033, MCA (1989), provides a separate right of appeal.

The Workers’ Compensation Court, in discussing the effect of Section 39-71-1018, MCA (1989), stated that:

On its face, Section 39-71-1018, MCA, allows an appeal to the Workers’ Compensation Court without the need for a contested case hearing or a hearing of any kind before the Department. Any such appeal, of necessity, would have to be based on a “paper record.” Indeed even the filing of exceptions, as provided in subsection (2) does not mean that a hearing would necessarily follow.

The Workers’ Compensation Court noted that the clear language of Section 39-71-1033, MCA (1989), provides for a contested case hearing in addition to the hearing opportunities provided for in Section 39-71-1018, MCA (1989). The Workers’ Compensation Court noted in discussing the two statutes that:

By construing section 39-71-1033 to provide a party an independent right to pursue a contested case under the Montana Administrative Procedure Act, the Court can preserve both statutes and give meaning to the phrase “In addition to ....”
The Court notes that if the legislature had intended these sections to be mutually exclusive it could easily have done so. The fact that such exclusion is not apparent requires the Court to give meaning to all of the provisions of part 10.

The State Fund argues that the Workers’ Compensation Court’s interpretation of these two statutes will only confuse “administrative procedure for the implementing agency and the parties who must be able to rely on the statutes in consideration of applicable hearing and appeal periods.” The Workers’ Compensation Court merely interpreted the statutes as written, giving effect to both provisions. Any resulting confusion is entirely attributable to the legislative enactments which created a separate right of appeal in Section 39-71-1033, MCA (1989). Under the facts as presented in this case, the Workers’ Compensation Court was correct in concluding that Section 39-71-1033, MCA (1989), provides a contested case hearing opportunity in addition to the process provided for in Section 39-71-1018, MCA (1989).

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES BLAZE COLT, Defendant and Appellant.
    No. 92-265.
    Submitted on Briefs September 24, 1992.
    Decided November 30, 1992.
    49 St.Rep. 1003.
    255 Mont. 399.
    843 P.2d 747.

      For Appellant: William F. Hooks, Helena.

      For Respondent: Marc Racicot, Attorney General, Barbara C. Harris, Assistant, Helena; and Thomas J. Esch, Flathead County Attorney, Kalispell.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

James Blaze Colt (Colt), appeals his conviction for issuing a bad check (common scheme), and two counts of deceptive practices. The conviction and subsequent sentence and order were entered in the District Court for the Eleventh Judicial District, Flathead County. We affirm the conviction.

In this appeal, we address the following issues raised by Colt:

1. Was the extent of the District Court’s inquiry sufficient to allow Colt to make a knowing, intelligent, and voluntary waiver of his right to assistance of counsel?
2. Did the District Court violate Colt’s constitutional right to pro se representation by requiring standby counsel to assist in a portion of Colt’s defense during the State’s case-in-chief?

On September 19,1991, Colt was formally charged with one count of issuing a bad check, a felony common scheme; and two counts of deceptive practices, also felonies. The information filed against Colt in Count I alleged he issued or delivered checks for the payment of money to various individuals and businesses in Flathead County knowing the checks would not be honored by the drawee bank.

Count II alleged Colt purposely or knowingly obtained control over a 1984 pickup truck by deception; specifically, that Colt caused the owners of the truck to execute title by leading them to believe sufficient funds would be available to cover two checks written for the purchase of the truck. Count III alleged deceptive practices in that Colt purposely or knowingly made a false or deceptive statement in order to procure credit.

Prior to trial, Colt filed pleadings asking that he be allowed to proceed with his defense pro se. An October 31, 1991 order gave Patrick D. Sherlock (Sherlock), Colt’s court-appointed counsel, permission to withdraw and allowed Colt to proceed pro se. Additionally, the District Court appointed Chris Christensen as standby counsel. Subsequent to the District Court’s order allowing Colt to proceed pro se, District Judge Leif B. Erickson, before whom the cáse had been pending, accepted a federal appointment. District Judge Robert S. Keller assumed jurisdiction and replaced Judge Erickson.

After a two-day trial, the jury returned a verdict of guilty as to all three counts. The District Court sentenced Colt to ten years in prison as to Count I; ten years in prison on Count II, all of which was suspended; and ten years as to Count III, all of which was suspended and was concurrent to the sentence imposed for Count II. The sentences imposed for Counts II and III were consecutive to the sentence for Count I. Finally, Colt was ordered to make restitution in the amount of $2,391.34. Colt now appeals his conviction to this Court.

I.

Was the extent of the District Court’s inquiry sufficient to allow Colt to make a knowing, intelligent, and voluntary waiver of his right to assistance of counsel?

In his first assignment of error, Colt claims the District Court did not fully discuss with him the consequences of self-representation and thereby he did not make a knowing and intelligent waiver of his right to assistance of counsel. The right to the assistance of counsel or the right to proceed pro se in all criminal prosecutions is fundamental under the Montana Constitution:

In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel...

Art. II, § 24, Mont.Const.

“Article II, Section 24 of the 1972 Montana Constitution, and the right to a fair trial inherent in the due process clause of Art. II, Section 17, guarantee a defendant charged with a crime the right to assistance of counsel.” State v. Enright (1988), 233 Mont. 225, 228, 758 P.2d 779, 781. The right to assistance of counsel applies with equal force to all persons regardless of their ability to pay. Enright, 758 P.2d at 781. In addition, “the Sixth Amendment right to counsel includes the right of an accused to personally make his own defense.” State v. Brown (1987), 228 Mont. 209, 213, 741 P.2d 428, 431.

However, because an accused relinquishes many of the benefits associated with the right to counsel when he undertakes his own defense, the trial court must ensure certain criteria are met before allowing the defendant to proceed pro se. Faretta v. California (1974), 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581. In essence, the trial court must ensure the defendant is competent to abandon his right to assistance of counsel and proceed pro se. Brown, 741 P.2d at 431. Competence on the part of a defendant to abandon his right to counsel and proceed pro se does not necessarily mean he have the skill and experience of a lawyer. Faretta, 422 U.S. at 835. It does mean, however, that the defendant’s relinquishment of his right to counsel must not only be voluntary, but also must be made knowingly and intelligently. State v. Plouffe (1982), 198 Mont. 379, 385, 646 P.2d 533, 536 (citing Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct 1880, 68 L.Ed.2d 378).

The record indicates that two separate motions were presented to the District Court requesting that Colt be allowed to proceed pro se. The first motion was filed on behalf of Colt by Sherlock. The second motion was filed by Colt himself. Additionally, Colt asked the District Court to remove Sherlock as his counsel of record and appoint Chris Christensen as standby counsel. Colt stated that he believed Sherlock was doing an inadequate job of representing him and he did not have confidence in Sherlock.

Nothing in the record indicates that Sherlock was failing to render effective assistance of counsel. Nor does Colt argue ineffective assistance of counsel in this appeal. As to the confidence Colt had in Sherlock, effective assistance of counsel does not require that the defendant have confidence in appointed counsel. State v. Forsness (1972), 159 Mont. 105, 110, 495 P.2d 176, 178. In addition, the District Court was under no obligation to appoint a different public defender to act as standby counsel for Colt. The right to the assistance of counsel does not vest in a defendant the right to counsel of his choice. Enright, 758 P.2d at 781. Notwithstanding this fact, by order dated October 31,1991, the District Court allowed Sherlock to withdraw as Colt’s defense counsel and allowed Colt to proceed pro se with public defender Chris Christensen appointed to act as standby counsel.

As previously mentioned, Colt complains the District Court did not ensure his waiver of his right to counsel was made knowingly and intelligently. We disagree. Colt’s statements to the District Court Judge, and the pleadings he filed with the District Court as well as those filed by appointed counsel, amount to an assertion of his right to self-representation. State v. Strandberg (1986), 223 Mont. 132, 135, 724 P.2d 710, 712. At the hearing to determine Colt’s competence to execute a valid waiver of his right to counsel, Judge Erickson engaged Colt in the following colloquy:

The Court: Mr. Colt, I certainly under — you know, I certainly recognize that if you wish to proceed pro se ordinarily you’re allowed to do so. Do you have any legal training or background which would enable you to do this?
Colt: Yes I do.
The Court: And what is that, sir?
Colt: Scholastically, I’ve had civil law and litigation courtroom procedure. Familiarity with criminal law.
The Court: I have looked at some of the motions you’ve filed. Quite frankly, some have some merit; some, I’m not sure you understand the procedure, quite frankly. That’s why I asked the question.
Quite frankly, factual questions are resolved in trial, not by the Court. I can’t resolve factual questions. I don’t have the authority. Several procedural matters are the things that I can handle.
But that’s why I’m concerned about you proceeding pro se, that you don’t understand the distinction of what is proper for me to handle and what is not. I certainly don’t want to deny you the opportunity to proceed pro se; I’m concerned you have adequate help. I want to make it perfectly clear you have a right to counsel.
Colt: Yes.
The Court: And Mr. Sherlock was appointed to be your counsel.
Colt: Montana has a uniqueness about its judiciary in the post federal or other states.
The Court: I don’t know what states you’re familiar with, but we’re based primarily, to a large extent, on, one point, California law and, more recently, Illinois law. Much more law comes from Illinois.
But as I say, you understand you do have the right to counsel, and you wish to waive that right; is that correct?
Colt: Yes, I do.
The Court: And you do so understand that I would hold you to the same standards as though you were counsel, and I can’t cut you any slack just because you choose to proceed pro sel The rules of law apply whether a person’s appearing pro se or with the assistance of counsel.
Colt: I would like to consult with an attorney, but not representation, on procedure as far as trial goes. [Emphasis added.]

In addition, at the start of Colt’s trial, Judge Keller admonished Colt about pro se representation:

The Court:... I haven’t anyidea what Judge Erickson talked to you about when you made your determination to appear Pro Se. Normally, you should have been advised, and I am satisfied you probably were, that you can represent yourself, but you represent yourself as if you are an attorney, and you are governed by the same rules that attorneys are. And I am not in the posture that I can help. I can’t sit and arbitrate this thing between the two sides and help one side. So you are on your own, to that extent....

Applying the criteria necessary for a valid waiver of the right to the assistance of counsel to the case at bar, the record establishes that Colt was “fully aware of the dangers and disadvantages of self-representation,” knew what he was doing, and made his choice to waive assistance of counsel and proceed pro se with his eyes open. Faretta, 422 U.S. at 835. Drawing from the record and the testimony as to his appearance, the District Court properly found that Colt made a voluntary, knowing, and intelligent waiver.

Colt argues that this Court should adopt the three-part test utilized in the United States Court of Appeals for the Ninth Circuit to determine whether or not a defendant in a criminal proceeding validly waived his right to counsel. The first prong requires that a request by a defendant to forego the assistance of counsel be unequivocal. Second, the waiver must be voluntary. The final prong requires the waiver to be made knowingly and intelligently. United States v. Robinson (9th Cir. 1990), 913 F.2d 712, 714-15. In addition, before a waiver of counsel can be knowing and intelligent, the Ninth Circuit requires the trial court to specifically discuss “the nature of the charges, the possible penalties, and the dangers and disadvantages of self representation....” United States v. Balough (9th Cir. 1987), 820 F.2d 1485, 1487.

In urging this Court to adopt this test, Colt admits his choice to proceed pro se was both voluntary and unequivocal. Moreover, he admits he was informed of the nature of the charges against him, and the possible penalties if convicted of those charges. It is the alleged failure of the District Court to specifically discuss the dangers and disadvantages of self-representation upon which Colt hangs his hat.

This Court does not require district courts to adhere to a rigid set of requirements in ascertaining whether a defendant in a criminal proceeding has made a knowing and intelligent waiver of his right to counsel. District judges are in the best position to determine whether the defendant has made a knowing and intelligent waiver of his right to counsel. As noted in a concurring opinion in Balough, “they can consider the level of understanding demonstrated by the defendant, his background and prior experience with the legal system, the deliberation with which he has made the decision to proceed without counsel and his seriousness of purpose.” Balough, 820 F.2d at 1490 (Kozinski, J., concurring). Requiring the district courts to specifically discuss the dangers and disadvantages of pro se representation is far beyond the scope of what Faretta or our case law requires. Faretta requires the accused “be made aware of the dangers and disadvantages of self representation ....’’Faretta, 422 U.S. at 835 (emphasis added).

Additionally, establishment of generic criteria by which the District Court would by rote discuss certain specific dangers and disadvantages of self-representation will do little to protect the rights of the accused. It is the district court judges who consider, assimilate, and absorb the nuances of each individual case. They are not constrained, as we are, to garnering all of their information from a cold record. Therefore, it is the district judges who are in the best position to determine the extent, context, and degree of inquiry necessary to determine whether the individual before them has made a voluntary, knowing, and intelligent waiver of the right to counsel. So long as substantial credible exists to support the decision of the District Cotut that the defendant made a voluntary, knowing and intelligent waiver, it will not be disturbed on appeal. Plouffe, 646 P.2d at 536. Accordingly, we hold the District Court’s inquiry was sufficient in its context to allow Colt to make a knowing and intelligent waiver of his right to assistance of counsel.

II.

Did the District Court violate Colt’s constitutional right to pro se representation by requiring standby counsel to assist in a portion of Colt’s defense during the State’s case-in-chief?

In his second assignment of error, Colt contends his constitutional right to proceed pro se was denied when Judge Keller required standby counsel to assume cross-examination of two of the State’s witnesses. At this juncture we note that neither our research, nor that of counsel, reveals any Montana case law which is remotely on point. Specifically, we address whether the District Court’s requirement that standby counsel assist a pro se defendant due to the defendant’s repeated failure to follow courtroom procedure constitutes a violation of the defendant’s right to conduct his own defense.

We are tolerant of “the layman’s lack of familiarity with procedure or with legal principles” when a layman chooses to represent himself in a judicial proceeding. State v. Graham (1983), 206 Mont. 49, 54, 669 P.2d 691, 693. However, when an accused chooses to forego the benefits of assistance of counsel and proceed on his own behalf, he is not entitled to have the “rules of procedures and law ... applied less strictly against him.” State v. Poncelet (1980), 187 Mont. 528, 548, 610 P.2d 698, 709. Moreover, the right of self-representation does not vest in a pro se defendant “a license to abuse the dignity of the courtroom” or allow him “not to comply with relevant rules of procedural and substantive law.” Faretta, 422 U.S. at 835, n. 46.

Colt argues that infringement of a pro se defendant’s Sixth Amendment right must be based upon serious and obstructionist misconduct deliberately engaged in by the defendant. Faretta, 422 U.S. at 834-35, n. 46. We do not agree. The accused has a Sixth Amendment right to continue conducting his own defense only so long as “he is able and willing to abide by rules of procedure and courtroom protocol.” McKaskle v. Wiggins (1983), 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed.2d 122, 130. “[T]he primary focus must be on whether the defendant had a fair chance to present his case in his own way.” McKaskle, 465 U.S. at 177, 104 S.Ct. at 950.

While the record does not establish that Colt deliberately engaged in misconduct, it is apparent that Colt abused his Sixth Amendment right to self-representation. Colt repeatedly commented upon the evidence. He failed to pose proper questions. He continually attempted to testify on his own behalf while cross-examining the State’s witnesses. And, he engaged in irrelevant cross-examination. We note that the District Court and the County Attorney were very tolerant of Colt’s failure to play by the rules.

It was only after Colt had been admonished by the District Court on at least four occasions, and other instances of abuse had passed with no admonishment, that standby counsel was required to finish the cross-examination of one witness and control the direct, cross, and redirect examination of the State’s final witness of the day. After these two witnesses testified, the court recessed for the day. When trial resinned the next morning, Colt was allowed to resume his self-representation and did so without further abuses.

Colt contends that in requiring standby counsel to assist in part of his defense, the District Court exceeded the limits imposed on participation by standby counsel. The McKaskle Court held:

[T]he Faretta right must impose some limits on the extent of standby counsel’s unsolicited participation.
[T]he right to proceed pro se may be undermined by unsolicited and excessively intrusive participation by standby counsel.

McKaskle, 465 U.S. at 177, 104 S.Ct. at 950. (Emphasis added).

The instant case is factually different than the claimed facts argued in McKaskle. In Colt’s case, standby counsel only participated after the District Court ordered him to do so. Standby counsel did not engage in unsolicited participation of his own volition, as was the case in McKaskle. From the record before us, such participation was neither intrusive or excessive and did not deny Colt a fair chance to present his case in his own way. Aside from the minimal interlude at the end of the first day of trial, Colt controlled all aspects of his defense. This included: voir dire; opening argument; cross-examination of all but two of the State’s witnesses; control of all aspects of his case-in-chief and closing argument. Additionally, Colt filed several motions, presented his own jury instructions, and interjected objections during witness examination.

We hold that an accused is permitted to conduct his own defense so long as he is able and willing to abide by the rules of courtroom procedure and substantive and procedural law. Where substantial credible evidence exists to support the District Court’s decision requiring standby counsel to assist in the defense where a pro se defendant fails, or is unable, to adhere to proper courtroom procedure and protocol, it will not be disturbed on appeal.

As we have held there to be no denial of the Faretta right of self-representation, there is no per se prejudicial error, and we do not address Colt’s final issue that he is entitled to reversal of his conviction. Conviction affirmed.

JUSTICES HARRISON, GRAY, McDONOUGH, TRIEWEILER, WEBER and HUNT concur.


text:
    JAMES ALLISON, Plaintiff and Respondent, v. JUMPING HORSE RANCH, INC. Defendant and Appellant.
    No. 92-083.
    Submitted on Briefs August 6, 1992.
    Decided December 8, 1992.
    49 St.Rep. 1039.
    255 Mont. 410.
    843 P.2d 753.
    For Appellant: Richard C. Nellen, James A. McLean, Drysdale, McLean, Nellen & Nellen, and Michael P. Sand, Sand Law Offices, Bozeman.
    For Respondent: Edmund P. Sedivy, Jr. and David L. Weaver, Morrow, Sedivy & Bennett, Bozeman.
   JUSTICE HUNT

delivered the opinion of the Court.

Respondent James Allison brought his claim for wrongful discharge in the Montana Fifth Judicial District Court, Madison County. Appellant Jumping Horse Ranch filed a motion for summary judgment claiming the statute of limitations had passed. The motion was denied by the District Court. After respondent had presented his case in chief, appellant moved for a directed verdict on the same basis as the motion for summary judgment, which was also denied. The jury returned a verdict in favor of respondent. Appellant appeals from both denials.

We affirm.

We rephrase appellant’s issue as follows:

At what point, under Section 39-2-911(1), MCA, of the Wrongful Discharge From Employment Act, does the statute of limitations begin to run?

In 1971, respondent was hired as a ranch manager by Robert M. Beck, owner of the Jumping Horse Ranch, Inc. (hereinafter “ranch”). Respondent worked for appellant for approximately 17 years. Apparently during the 1980s the ranch began losing money. On July 12, 1988, Beck notified respondent that he was to be terminated as an employee because Beck believed he was burned out on ranching and would “jump ship” and start his own outfitting business. However, on the same day, Beck requested that respondent stay on until October 1, 1988, to assist and train the new manager, which respondent agreed to do. Respondent continued to receive his $3000 monthly salary and benefits. On November 3, 1988, Beck, as president of the ranch, signed a census report regarding the ranch’s employee pension program which listed respondent’s date of termination as October 1, 1988. On September 29, 1989, respondent filed a complaint for wrongful discharge against appellant. Respondent complained that he was wrongfully terminated because of Mrs. Helen Beck’s “grumblings.”

On May 29, 1990, appellant filed a motion for summary judgment on the basis that the statute of limitations had passed, pursuant to Section 39-2-911(1), MCA. The motion was denied. After respondent presented his case in chief, appellant moved for a directed verdict on the same basis. This motion was also denied. On January 24, 1992, the jury returned a unanimous verdict in favor of respondent. Appellant appeals the denial of both motions.

At what point, under Section 39-2-911(1), MCA, of the Wrongful Discharge From Employment Act, does the statute of limitations begin to run?

Appellant argues that the time begins to run from the notice of discharge.

The legislature has expressly intended that the Wrongful Discharge From Employment Act be the exclusive remedy for wrongful discharge. Section 39-2-902, MCA. The Act preempts common law remedies and alters the statute of limitations that could be obtained under common law theory for breach of the implied covenant of good faith and fair dealing. Sections 39-2-913 and -911, MCA.

The statute of limitations for bringing a wrongful discharge claim is governed by Section 39-2-911(1), MCA, which states that “an action under this part must be filed within 1 year after the date of discharge.” Section 39-2-903(2), MCA, defines “discharge” as including:

[CJonstructive discharge as defined in subsection (1) and any other termination of employment, including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason. [Emphasis added.]

The statute fails to define “termination of employment” and is silent as to when the “termination of employment” would become effective. Therefore, we must determine what was the intention of the legislature when the Wrongful Discharge From Employment Act was passed.

In order to make that determination we must first look to the plain meaning of the words used in the statute. Missoula County v. American Asphalt, Inc. (1985), 216 Mont. 423, 701 P.2d 990. To interpret a phrase within the plain meaning rule, ” ‘the language used must be reasonably and logically interpreted, giving words their usual and ordinary meaning.’ ” American Asphalt, 701 P.2d at 992 (quoting In re Matter of McCabe (1975), 168 Mont. 334, 339, 544 P.2d 825, 828).

“Termination of employment” is a term of art and refers to the existence of the relationship of employer and employee. It has been defined to mean “a complete severance of the relationship of employer and employee by positive act on the part of either or both.” Edwards v. Equitable Life Assur. Soc. (Ky. 1944), 177 S.W.2d 574, 577. See also Black’s Law Dictionary 1641 (Rev. 4th ed. 1968). We have previously defined “terminate” as meaning “ ‘[t]o put an end to; to make to cease; to end.’ ” Towne v. Towne (1945), 117 Mont. 453, 465, 159 P.2d 352, 357, (quoting Webster’s International Dictionary (2d Ed.)).

Appellant contends that respondent failed to file his claim for wrongful discharge within the applicable statute of limitations under Section 39-2-911, MCA, and relies on our holding in Martin v. Special Resource Management, Inc. (1990), 246 Mont. 181, 803 P.2d 1086. In Martin, we stated that the statute of limitations begins to run on a terminated employee’s action for breach of the implied covenant of good faith and fair dealing on the date of notice given to the employee. Appellant argues that although Martin did not address the Wrongful Discharge From Employment Act, the reasoning behind the decision is still valid in that if a person is standing on the edge of a cliff and is pushed off, he need not wait to hit the ground before knowing his cause of action accrued. We disagree.

We specifically limited the holding in Martin to the facts of the case. In that case, the appellant was given notice on June 16, 1987, that her position would be terminated on July 17,1987, slightly more than two weeks after the Wrongful Discharge From Employment Act became effective. The issue phrased in Martin was “[a]t what point did an actionable cause for termination arise in this case — upon notice of the termination or when termination became effective?” [Emphasis added.] Martin, 803 P.2d at 1087. This Court held that it was upon notice of termination because all of the elements of her cause of action accrued at the time of notice, and therefore, the Wrongful Discharge From Employment Act was not applicable to her cause of action.

In Kitchen Krafters, Inc. v. Eastside Bank (1990), 242 Mont. 155, 789 P.2d 567, which is also a case based on the theory of breach of the implied covenant of good faith and fair dealing, we analyzed when an action commenced under Section 27-2-102, MCA, by stating:

(1) For purposes of statues relating to the time within which an action must be commenced:
(a) a claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete and a court or other agency is authorized to accept jurisdiction of the action.
(2) Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues. Lack of knowledge of the claim of cause of [sic] action, or its accrual, by the party to whom it has accrued does not postpone the beginning of the period of limitation.
As the language of this statute makes clear, the statute of limitations does not begin to run until all elements of a cause of action are in existence. For example, in a negligence action the plaintiff must prove four elements:
1) Existence of a duty
2) Breach of the duty
3) Causation
4) Damages.
... If these elements are not in existence, the plaintiff could not successfully bring a cause of action based upon negligence. Therefore, although one may be able to establish the existence and breach of a duty, he cannot successfully assert his cause of action until he has sustained an injury .... [Citations omitted.]

Kitchen Krafters, 789 P.2d at 571.

Under the Wrongful Discharge From Employment Act, damages do not occur until the employee is no longer earning compensation from the employer, which under the Act is lost wages and fringe benefits, and this can only occur upon a complete severance of the employer-employee relationship.

In this instance, there was not a complete severance of the employer-employee relationship. Respondent continued to work for appellant for another two months, training another individual as a ranch manager. He continued to earn his usual pay and benefits. In addition, appellant signed a pension plan census report stating that respondent’s date of termination was October 1, 1988. Respondent’s cause of action would not accrue until he stopped earning his salary and benefits. The Wrongful Discharge From Employment Act grants that an employee may be “awarded lost wages and fringe benefits for a period not to exceed 4 years from the date of discharge ....” Section 39-2-905(1), MCA. Respondent lost his wages and fringe benefits on October 1,1988. We hold that the District Court did not err in denying appellant’s motion for summary judgment and directed verdict.

We affirm.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, McDONOUGH and HARRISON concur.


text:
    DAVID HOFFMAN, Plaintiff and Appellant, v. TOWN PUMP, INC., a Montana corporation, Defendant and Respondent.
    No. 91-249.
    Submitted on Briefs August 13, 1992.
    Rehearing Denied January 7, 1993.
    Decided December 10, 1992.
    49 St.Rep. 1044.
    255 Mont. 415.
    843 P.2d 756.

      For Appellant: John Houtz, Forsyth.
    For Respondent: Brent R. Cromley, Moulton, Bellingham, Longo & Mather, Billings.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant David Hoffman appeals from an amended order of the Sixteenth Judicial District, Rosebud County, granting respondent Town Pump, Inc.’s, motion for a directed verdict because appellant failed to exhaust available internal procedures for wrongful discharge prior to filing an action against respondent, as required by Section 39-2-911(2), MCA.

We affirm in part and reverse in part.

Two issues are presented to this Court for review:

1. Did the District Court err in granting respondent’s motion for a directed verdict?

2. Did the District Court err in awarding respondent $25,000 in attorney fees?

In July 1985, appellant David Hoffman was hired by Town Pump, Inc., as a manager-trainee. Within a short period of time, he was made manager of a Town Pump located in East Helena. He worked there for approximately three years, and was then transferred to a Town Pump located in Helena. Appellant earned a monthly salary of approximately $1500 as manager of the store. In addition to a monthly salary, Town Pump store managers had the opportunity to earn bonuses based upon a variety of factors. In June 1989, a dispute arose between appellant and his field representative, Bob Enke, when Enke hired his stepdaughter to work in the same store as appellant. This dispute led appellant to file a grievance with Town Pump. A meeting was held between appellant and Town Pump management. Appellant was offered and accepted a position as a manager of Town Pump in Hardin. Soon thereafter, a manager resigned from the Colstrip store. Appellant was then offered the Colstrip position, which he accepted.

On July 11, 1989, appellant was transferred to Colstrip. During this period, Colstrip was experiencing a severe housing shortage. In order to offset higher housing costs, appellant requested and received a $150 per month wage increase. Apparently Town Pump indicated that it would pay for appellant’s motel costs for seven to ten days. Appellant had insufficient funds to relocate to a rental and stayed in the motel for approximately 24 days. Town Pump notified appellant that they would not pay for the entire motel bill which at this point amounted to $840. Appellant moved out of the motel and lived in his car with his son for approximately two weeks. Appellant alleges that Town Pump knew of his situation but failed to assist even after repeated requests by appellant. Appellant contends that the situation became so intolerable that he was forced to resign. On August 19, 1989, appellant sent a letter of resignation indicating that he was resigning effective August 24,1989.

On August 24, 1989, appellant filed a complaint in District Court alleging that he had been constructively discharged by Town Pump in violation of Montana’s Wrongful Discharge From Employment Act. A jury trial commenced on June 26, 1990. At the close of appellant’s case in chief, respondent moved for a directed verdict. The District Court granted the motion but denied respondent’s request for attorney fees. Respondent filed a motion to clarify the District Court order, and on March 28, 1991, the court amended its order, awarding respondent $25,000 in attorney fees.

I.

Did the District Court err in granting respondent’s motion for a directed verdict?

Appellant argues that the District Court erred in granting a directed verdict because Section 39-2-911(3), MCA, requires that an employer must provide any discharged employee notice of any wrongful termination grievance procedures and supply the discharged employee with a copy of those procedures within seven days. Because respondent failed to notify him of the existence of the internal grievance procedures, appellant was not required to comply with Section 39-2-911(2), MCA.

Respondent maintains that appellant was intimately aware of the grievance procedure. On July 29, 1987, appellant had received and read a copy of the handbook for Town Pump employees which contained a section on employee grievance procedure, and had utilized the procedure during his dispute with Mr. Enke. Respondent concludes that appellant had constructive notice of the procedures and was required to comply with Section 39-2-911(2), MCA. These arguments are moot because the District Corut ruled on different grounds.

Our standard of review for directed verdicts is whether the District Court’s interpretation of the law is correct. Foster v. Albertsons, Inc. (Mont. 1992), 835 P.2d 720, 49 St. Rep. 638. Section 39-2-911(2) and (3), MCA, requires the employer and employee to do the following:

(2) If an employer maintains written internal procedures, other than those specified in 39-2-912, under which an employee may appeal a discharge within the organizational structure of the employer, the employee shall first exhaust those procedures prior to filing an action under this part. The employee’s failure to initiate or exhaust available internal procedures is a defense to an action brought under this part. If the employer’s internal procedures are not completed within 90 days from the date the employee initiates the internal procedures, the employee may file an action under this part and for purposes of this subsection the employer’s internal procedures are considered exhausted. The limitation period in subsection (1) is tolled until the procedures are exhausted. In no case may the provisions of the employer’s internal procedures extend the limitation period in subsection (1) more than 120 days.
(3) If the employer maintains written internal procedures under which an employee may appeal a discharge within the organizational structure of the employer, the employer shall within 7 days of the date of the discharge notify the discharged employee of the existence of such procedures and shall supply the discharged employee with a copy of them. If the employer fails to comply with this subsection, the discharged employee need not comply with subsection (2).

The court determined that it was undisputed that appellant had a copy of the written internal procedures, had knowledge of those procedures, and did not avail himself of those procedures. Appellant terminated his employment on August 24, 1989, the same day that he filed his complaint in District Corut alleging wrongful discharge. By filing the complaint before exhausting respondent’s procedures, appellant effectively precluded respondent from complying with Section 39-2-911(2), MCA. It would have been impossible for respondent to notify appellant of the written procedures within seven days of the discharge prior to the commencement of the action. In this instance, the date of discharge would be the date that appellant’s resignation became effective because that was when, under these facts, there was a complete severance of the employer/employee relationship. See Allison v. Jumping Horse Ranch, Inc., [255 Mont. 410,] 843 P.2d 753. Appellant failed to exhaust respondent’s internal procedures before filing his complaint in District Court and is not excused from complying with Section 39-2-911(2), MCA, because of respondent’s inability to comply with the statute.

In its original order, the District Court granted appellant the right to refile his claim after exhausting respondent’s internal grievance procedure because the statute of limitations for wrongful discharge is tolled pending completion of the grievance procedure. In its amended order, the court did not make a determination on whether appellant could refile his claim in District Court once he completed the grievance procedure. The issue was not briefed by the parties on appeal, and therefore, appellant is allowed to refile his claim in District Court upon completion of respondent’s grievance procedure. We hold that the District Court did not err in granting respondent’s directed verdict.

II.

Did the district court err in awarding respondent $25,000 in attorney fees?

Section 39-2-914, MCA, provides that the parties may submit their dispute to arbitration if they agree in writing to arbitration. Section 39-2-914, MCA, states:

(1) Under a written agreement of the parties, a dispute that otherwise could be adjudicated under this part may be resolved by final and binding arbitration as provided in this section.
(2) An offer to arbitrate must be in writing and contain the following provisions:

(a) A neutral arbitrator must be selected by mutual agreement or, in the absence of agreement, as provided in 27-5-211.

(b) The arbitration must be governed by the Uniform Arbitration Act, Title 27, chapter 5. If there is a conflict between the Uniform Arbitration Act and this part, this part applies.

(c) The arbitrator is bound by this part.

(3) If a complaint is filed under this part, the offer to arbitrate must be made within 60 days after service of the complaint and must be accepted in writing within 30 days after the date the offer is made.
(4) A party who makes a valid offer to arbitrate that is not accepted by the other party and who prevails in an action under this part is entitled as an element of costs to reasonable attorney fees incurred subsequent to the date of the offer.
(5) A discharged employee who makes a valid offer to arbitrate that is accepted by the employer and who prevails in such arbitration is entitled to have the arbitrator’s fee and all costs of arbitration paid by the employer.
(6) If a valid offer to arbitrate is made and accepted, arbitration is the exclusive remedy for the wrongful discharge dispute and there is no right to bring or continue a lawsuit under this part. The arbitrator’s award is final and binding, subject to review of the arbitrator’s decision under the provisions of the Uniform Arbitration Act.

Respondent sent a written offer to appellant to have the matter settled by arbitration, which appellant rejected. No agreement to arbitrate existed between the parties as required by statute. The award of attorney fees was in error, and therefore, is reversed.

We affirm in part and reverse in part.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDONOUGH and GRAY concur.


text:
    IN RE THE MARRIAGE OF CINDY R. JOHNSTON, Petitioner, Counter-respondent, and Appellant, and FAUSTO G. TURRIN, Respondent, Counter-petitioner, and Respondent.
    No. 91-376.
    Submitted on Briefs June 11, 1992.
    Rehearing Denied January 7, 1993.
    Decided December 10, 1992.
    49 St.Rep. 1047.
    255 Mont. 421.
    843 P.2d 760.

      For Appellant: Barbara E. Bell, Bell & Marra, Great Falls.
    For Respondent: Kenneth R. Olson and Fausto G. Turrin, Great Falls.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Cindy R. Johnston appeals from the Findings of Fact, Conclusions of Law and Order, and Decree of Dissolution of the Ninth Judicial District Court, Pondera County.

We affirm in part and remand.

Appellant raises five issues for this Court to consider:

1. Did the District Corut err in its enforcement of the premarital agreement when dividing the marital estate?

2. Did the District Court err in the calculation of child support?

3. Did the District Court err in failing to implement its order for a psychological exam of respondent?

4. Did the District Court err in failing to appoint an attorney to represent the children?

5. Did the District Court err in awarding joint physical custody?

6. Did the District Court err in failing to award appellant attorney fees?

Respondent Fausto Turrin, a licensed attorney of this state, has provided this Court with 29 issues to consider. We conclude that with the exception of the constitutional issues raised by Fausto, the various issues raised in his brief are essentially the same as those raised by Cindy. Accordingly, we shall only address those issues raised in Cindy’s brief and make references to Fausto’s brief when appropriate. At the outset, we hold that Fausto has either failed to properly raise the constitutional issues stated in his brief, the issues are now moot, or are without merit, and therefore, we will not discuss these issues.

The parties were married on May 5,1985, in Great Falls. Two days before the wedding the parties entered into a premarital agreement. Two minor children were born into the marriage, Fausto John Turrin, III, age five, and Melissa Kay Turrin, age three. Cindy works as a computer programmer/supervisor for a CPA firm in Great Falls, and Fausto is a practicing attorney.

On August 8, 1989, Cindy filed a petition for dissolution. Fausto was represented by an attorney and acted as co-counsel, drafting many of his own documents and appearing alone in most of the hearings. On September 18, 1989, the court awarded Cindy temporary custody of the minor children with visitation to be worked out by the parties. On March 6, 1990, the parties stipulated to visitation of the children by Fausto but the agreement failed to work in practice. The court ordered mediation in an effort to avoid litigation, but that effort also met with failure. Following a bench trial, the court entered its findings of fact, conclusions of law, and decree on May 16, 1991. On May 30, 1991, Cindy filed a motion to amend the court’s decree. On July 8, 1991, a hearing was held on the motion, which the court orally denied, with the exception of redetermining monthly child support and back child support payments. On July 26, 1991, Cindy filed her notice of appeal. On August 12, 1991, Fausto filed his notice of cross-appeal.

Unfortunately, like so many other domestic relations cases that come before this Court, this is rife with bitterness between the parties. The District Court file contains approximately 360 documents mainly comprised of motions and countermotions. Since the appeal, the parties have filed 18 motions with this Court. It is under these conditions that we render this opinion.

I.

Did the District Court err in its enforcement of the premarital agreement when dividing the marital estate?

The parties executed a premarital agreement on May 3,1985, two days prior to their wedding. In its order, the District Court found that the premarital agreement was valid and enforceable. The court then proceeded to divide the marital estate according to the agreement. On appeal, Cindy does not challenge the validity of the agreement. Instead, she alleges that the District Court erred in failing to acknowledge that the terms of the agreement were not implemented because Fausto did not contribute to the parties’joint checking account which would be used to pay the bills, and therefore, a more equitable distribution of the marital estate is warranted.

The parties executed the premarital agreement prior to the 1987 Legislature’s enactment of the Uniform Premarital Agreement Act. As a result, Section 40-4-202(1), MCA (1985), requires the District Court to consider the validity of the premarital agreement, but it is not required to enforce it. The premarital agreement is but a factor, not the exclusive consideration, among many listed in Section 40-4-202(1), MCA (1985), for the court to consider when distributing the property of the marital estate. In re the Marriage of Keepers (1984), 213 Mont. 291, 691 P.2d 810.

Our standard of review relating to the division of marital property was recently clarified as whether the district court’s findings of fact are clearly erroneous. In re the Marriage of Danelson (Mont. 1992), [253 MOnt. 310,] 833 P.2d 215, 49 St. Rep. 597. In its findings of fact, and conclusions of law, the District Court found that the premarital agreement was valid and chose to enforce it. Cindy’s share of the marital property amounted to $25,450 while Fausto’s share amounted to $66,120 because he was given the home and the equity in the home.

The parties’ home had a purchase price of $111,000. With the various repairs made, the current fair market value of the house was $119,000, which is supported by the record. Fausto contributed $32,000 toward the down payment from his separate funds. In addition, he paid off a second mortgage valued at $14,000 with his own funds, thereby creating an original equity in the home of $46,000. In addition, Fausto made mortgage payments totalling $12,537.

Cindy contends that she paid $23,681 in total monthly payments. Fausto states that she actually paid approximately $2000 more. In addition, she sold a boat for $5000, and her own home which had $7000 in equity. She also contended that she paid the day-to-day living expenses. However, the record reflects that she could not recall what she had done with her $12,000, or how much of the day-to-day living expenses she paid. The court concluded that it was logical that a substantial amount of Cindy’s money went toward house payments and family living expenses. Even so, it is unclear from the record who made the monthly payments and the source of the funds for the payments. The court found that the parties’ home had an equity of $63,000. Considering that Fausto contributed $46,000 of his own money toward the home, the court awarded Fausto the equity in the home.

Cindy requests that she be reimbursed for the bookkeeping she performed for Fausto’s law practice, as the terms of the premarital agreement stated that any money earned by either party should be kept separate. However, Fausto performed legal services for Cindy’s rentals. The District Court refused to reimburse Cindy, concluding that the legal services provided by Fausto equalled Cindy’s bookkeeping services. We hold that there was substantial evidence in the record to support the District Court’s determination.

Cindy also objects to the court’s valuation of the 1979 Datsun 280-ZX and the 1976 Ford pickup. She testified that the fair market value of the Datsun was only $1900, and the value of the Ford pickup was $1500. Fausto offered into evidence an independent fair market valuation by Taylor’s Used Cars stating that the Datsun’s fair market value was $2650, and the Ford’s was $2850. This was the valuation the court used in dividing the property. We hold there was substantial evidence to support the District Court’s valuation of the two vehicles.

Finally, Cindy requests that this Court modify the District Court’s decree and order Fausto to return “baby books” to her and reimburse her for half of the living expenses paid for support of the family. We decline to do so. We hold that there is substantial evidence to support the District Court distribution of the marital property.

II.

Did the District Court err in the calculation of child support?

In reviewing child support, this Court has stated that a presumption exists in favor of the district court’s determination, and this Court will reverse the district court only if it has abused its discretion. In re the Marriage of Sacry (Mont. 1992), [253 Mont. 378,] 49 St. Rep. 452, 833 P.2d 1035.

Ahearing was held on August 28,1989, pertaining to temporary child custody. The court awarded Cindy temporary custody until a final determination was made. The court held a hearing on a motion to amend the final judgment on July 8,1991. In the motion to amend, Cindy requested that the District Court grant back child support payments on the basis of sole custody and not split custody as provided in the decree. During that hearing, the court orally agreed to award back child support on the basis of sole custody. However, there is no written order issued by the District Court to reflect that decision. Cindy filed her notice of appeal on July 25, 1991. We conclude that the District Court properly should have entered a written order awarding back child support covering the period of sole custody by Cindy.

Another issue raised by Cindy is at what point in the dissolution process do the modified SRS Child Support Guidelines come into effect. Apparently, from the time the parties submitted their proposed child support calculations to the issuance of the decree, the Guidelines were amended and the decree does not reflect these changes. Cindy offers no authority, but argues that the Guidelines came into effect on the date of the order. Therefore, the District Court should use the most recent Guidelines before issuing its order.

A district court is granted considerable discretion in calculating child support, and it may deviate from the Guidelines if it finds by clear and convincing evidence that the application of the standards and Guidelines is unjust to the child or any of the parties, or is inappropriate to a particular case. Section 40-4-204(3)(a), MCA. If a court decides to apply an older version of the Guidelines, then it must state its reasons for finding that the amended SRS guidelines are not applicable. Section 40-4-204(3)(b), MCA.

At the hearing on the motion to amend the final judgment on July 8, 1991, the court requested that Fausto supply the new proposed Guidelines so that it could amend child support. On July 12, 1991, Fausto then filed a motion for consideration of all of the Guidelines, alleging that Cindy was living with another man who contributed substantially to the support of the children. Cindy denied this in her brief in opposition. The issue was never decided because Cindy filed an appeal on July 25,1991, based on the court’s May 16,1991, decree. We remand for a redetermination of child support by the District Court in accordance with Section 40-4-204(3), MCA, as most recently amended. Cindy has raised several other specific errors relating to the calculation of child support. Because of our holding above, she may bring these errors to the attention of the District Court.

III.

Did the District Court err in failing to implement its order for a psychological exam of Fausto?

On January 30, 1991, Cindy moved for the District Court to order a psychological evaluation of Fausto, due to the deterioration of the visitation between him and the children. The court considered the matter at a March 18, 1991, hearing. Dr. George Hossack, a licensed psychologist and Cindy’s counselor, recommended a psychological evaluation at the hearing. The court orally agreed with Dr. Hossack’s recommendation but did not require psychological evaluations in its final order. On July 29,1991, four days after the notice of appeal was filed by Cindy, the court issued an order requiring the parents and the children to obtain psychological evaluations. There was a motion to quash this order filed by Fausto’s attorney, but the record ends at this point. Because we do not have a record before us to decide whether further psychological evaluations are required, we remand this issue to the District Court for further consideration.

IV.

Did the District Court err in awarding joint custody?

Our standard of review in child custody matters is whether the district court abused its discretion. In re the Marriage of Reininghaus (1991), 250 Mont. 86, 817 P.2d 1159. When determining child custody, the district court must take into consideration the best interests of the children. Section 40-4-212, MCA. The court shall consider, but is not limited to, the factors set out in Section 40-4-212(a)-(g), MCA. Here, the court awarded Cindy and Fausto joint physical custody. Fausto had physical custody of the children during the first six months of the year and Cindy had custody the last six months of the year. The court stated in its findings that both parties were in sufficient physical and emotional health to care for the children. In the transcripts, the court explained that it was awarding joint physical custody primarily because Cindy would be required to work long hours during the tax season. The court was very cognizant of the bitterness between the parties and reserved the right to have the children examined by a proper expert to see if the children were harmed by the custody provisions which, from viewing the record on appeal, the court is now attempting to do. Therefore, we hold that the District Court did not err in awarding joint physical custody.

V.

Did the District Court err in failing to appoint an attorney to represent the children?

Section 40-4-205, MCA, allows the court to appoint an attorney to represent the interests of the children with respect to support, custody, and visitation. In a recent case, we held that Section 40-4-205, MCA, was a permissive, not a mandatory statute. In re the Marriage of Merriman (1991), 247 Mont. 491, 807 P.2d 1351. The decision to appoint an attorney to represent children in custody matters is discretionary with the court. In re the Marriage of Hammill (1987), 225 Mont. 263, 732 P.2d 403. We hold that the District Court did not abuse its discretion in refusing to appoint an attorney to represent the children.

VI.

Did the District Court err in failing to award appellant attorney fees?

Both Fausto and Cindy claim that they are entitled to attorney fees. The premarital agreement granted attorney fees to the party successfully defending the agreement. Section 40-4-110, MCA, grants the District Court the discretion to award reasonable attorney fees. Absent an abuse of discretion, this Court will not overturn the District Court’s decision denying attorney fees. In re the Marriage of Manus (1987), 225 Mont. 457, 733 P.2d 1275. The court found that the litigation of this matter was prolonged by both parties, however, more so by Fausto than by Cindy. The court concluded that the unnecessary attorney fees caused by each party offset each other and denied attorney fees to both parties. From our examination of the record, we concur with the court’s conclusion.

In our order dated September 24, 1991, we denied Cindy’s request to divide the cost of the transcript on appeal between the parties. We stated that responsibility for the costs of the transcript would be determined by this Court under Rule 33, M.R.Civ.P. Because Fausto has filed numerous requests to have additional transcripts filed with this Court, as well as numerous requests for extensions of time in filing his responsive brief, thereby creating significant delay in our ability to render a decision, we hereby order that costs of the transcript on appeal be equally divided between the parties.

Affirmed in part and remanded for further determination in accordance with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, McDONOUGH and WEBER concur.