author: HONORABLE EDWARD P. McLEAN, District Judge, HONORABLE THOMAS McKITTRICK

text:
    TERRY N. TRIEWEILER, Plaintiff and Respondent, v. WILLIAM R. SPICHER and EMILY SPICHER, husband and wife, Defendants and Appellants.
    No. 91-309.
    Submitted on briefs Dec. 5, 1991.
    Decided Aug. 17, 1992.
    49 St.Rep. 711.
    838 P.2d 382.
    254 Mont. 321.

      For Defendants and Appellants: Steven E. Cummings; Murphy, Robinson, Heckathom, & Phillips, Kalispell.
    For Plaintiff and Respondent: Brian Bulger, Great Falls.
   HONORABLE EDWARD P. McLEAN, District Judge,

delivered the Opinion of the Court.

Defendants, William R. Spicher and Emily Spicher (Spichers), appeal from the judgment of the Eleventh Judicial District, Flathead County, granting summary judgment in favor of Plaintiff, Terry N. Trieweiler (Trieweiler). We affirm in part and reverse and remand in part.

We restate the dispositive issues as follows:

(1) Did the District Court err in finding as a matter of law that the Board of Directors appointed by the developer on July 17, 1990, was not validly appointed and had no authority to appoint members to a new Architectural Committee?

(2) Did the District Court err in finding that the Architectural Committee was reasonable in its determination not to approve Spichers’ choice in roofing tile and exterior color?

In May 1989, Spichers purchased Lot 64 in the Grouse Mountain Subdivision in Whitefish, Montana, subject to a number of covenants including provisions for review by the Architectural and Environmental Control Committee (Committee) of any plans for new construction. The Committee was made up of five persons appointed by the Board of Directors of the Grouse Mountain Home Owners Association (Homeowners Association). The Committee operated under a set of Minimum Guidelines for Architectural Review in Grouse Mountain, Phase I (Guidelines), adopted in 1988 by the Homeowners Association, which set minimum requirements for new construction.

The Spichers contracted with Scott Ping (Ping), a Whitefish contractor, to construct a home on Lot 64. In August 1989, Ping and the Spichers submitted a building plan to Trieweiler, who was a member of the Committee. The Committee (Committee I) approved the plan, with the following three exceptions: (1) the proposed siding material, (2) the proposed roofing tile, and (3) the proposed exterior color. After farther efforts by Ping to gain Committee I’s approval for these three items, Spichers retained an attorney who requested an appearance before Committee I. Trieweiler replied appearance before Committee I was not necessary and Committee I would not reconsider its determinations. At this point Spichers conceded to the wishes of Committee I on the siding material but continued to attempt to negotiate with Trieweiler for approval on the Spichers’ choice of roofing tile and exterior color. In September 1989, Ping gave Committee I, through Trieweiler, samples of roofing tiles promoted as superior in quality to the tiles called for in the Guidelines. Committee I agreed to one of the samples which resembled cedar shakes. Spichers subsequently discovered the manufacturer did not recommend that specific tile for cold climates. The manufacturer did recommend the style Spichers had originally chosen. At that point Trieweiler told Ping he did not have time to deal with the problem further and was washing his hands of the entire matter. In light of Trieweiler’s statement Spichers instructed Ping to roof the house with the tile recommended by the manufacturer and to stain the home with the exterior color of their choice.

On November 15,1989, Trieweiler filed, as a property owner in the subdivision, a complaint for injunctive relief alleging Spichers were applying roofing tile in violation of the minimum requirements in the Guidelines and were staining the home a gray color which had been specifically disapproved by Committee I.

On May 23, 1990, the Homeowners Association held its annual meeting and elected a new Board of Directors which appointed a new Committee (Committee II). Committee II granted Spichers an appearance before the Committee but chose not to take any action at that time. Because Committee II would not act, the original developer of the subdivision appointed a new Board of Directors on July 17, 1990. The new Board designated its own members as the new Committee (Committee III) and invited Spichers and Trieweiler to attend a meeting to resolve the controversy. Trieweiler declined to attend. Spichers did attend the meeting on July 30,1990, and Committee III approved the Spicher residence as built.

On December 21, 1990, the District Court concluded Committee III was invalidly appointed and did not have authority to approve the Spicher residence as built. As a result Spichers did not have valid Committee approval for the roofing tile and exterior color used on the home and the home was in violation of the Guidelines. In light of these findings the District Court granted summary judgment for Trieweiler, and ordered Spichers to remove and replace the roofing tile with a tile known as Spectile No. 122, to execute an agreement to replace the new roofing if it is damaged due to weather or incorrect application, and to repaint the exterior of the house. Spichers appeal.

I.

Subsequent to appeal Spichers filed with this Court a Motion to Permit Supplementation of Record on Appeal asking this Court to take into account circumstances occurring subsequent to the appeal on the issue of reasonableness of the Committee’s determinations. Rule 9(f), M.R.App.P., permits supplementation of the record on appeal when something is omitted from the record “... by error or accident or is misstated therein ...” Such is not the case here and Spichers’ motion is denied.

II.

Did the District Court err in finding as a matter of law that the Board of Directors appointed by the developer on July 17, 1990, was not validly appointed and had no authority to appoint members to a new Architectural Committee?

On May 23, 1990, the Homeowners Association held its annual meeting and elected a new Board of Directors which appointed a new Committee (Committee II). Committee II granted Spichers an appearance before the Committee but chose not to take any action at that time. Because Committee II would not act, the original developer of the subdivision appointed a new Board of Directors on July 17, 1990. The new Board designated its own members as the new Committee (Committee III) and invited the Spichers and Trieweiler to attend a meeting to resolve the controversy. Trieweiler declined to attend. The Spichers did attend the meeting on July 30, 1990, and Committee III approved the Spicher residence as built.

The District Court found as a matter of law that “the Board of Directors that was appointed by the developer on July 17,1990, was not validly appointed, or in excess of the number of directors provided for, and as such, the July Board of Directors had no authority to appoint anyone, much less themselves, as members of [Committee III], Section 35-2-402(2), (3), and (4), MCA [1989].” Spichers argue the developer had the right under the Articles of Incorporation to appoint a Board of Directors. Article VII of the Articles of Incorporation provides:

The affairs of the Corporation shall be managed by a Board composed of at least five (5) directors but not more than seven (7) directors who need not be members of the Corporation. The initial Board shall be composed of five (5) members. A change in the number of directors may be made by amendment to the Bylaws of the Corporation. Until such time as ninety percent (90%) of the lots or units of present and future phases of Grouse Mountain have been sold by the Developer, the directors shall be selected by the incorporator, or his successor or assign. All directors shall be elected annually for a term of one (1) year unless otherwise provided in the Bylaws. The names and addresses of the persons who are to act in the capacity of directors until the election of their successors are:...

Article V of the Articles provides that “every person or entity who is a record owner of a fee or an undivided interest in a lot or unit” is a member of the Corporation. Article VI of the Articles provides that “[i]n all elections for directors, every member entitled to vote shall have the right to cumulate his vote and to give one candidate a number of votes equal to bis vote multiplied by the number of directors to be elected or by distributing such votes on the same principal [sic] among any number of such candidates.”

The members of the Association had the authority under the Articles to elect the new Board of Directors at its annual meeting on May 23,1990. That Board had the authority under Article VIII of the Bylaws of Grouse Mountain Homeowners, Inc., to “appoint committees as deemed appropriate in carrying out its purpose.” The Architectural Review Committee was a committee that had been formed by a prior Board under the authority of that provision to review plans for new construction to enforce the Minimum Guidelines for Architectural Review in Grouse Mountain, Phase I, which had been adopted by the Association membership.

Article VII of the Articles of Incorporation provides for a one-year term for elected directors on the Board. Section 35-2- 403, MCA (1989), provides that “a director maybe removed from office pursuant to any procedure therefor provided for in the articles of incorporation.” There are no provisions in the Articles of Incorporation of Grouse Mountain Homeowners, Inc., giving the developer the authority to remove a duly-elected Board of Directors prior to the end of the one-year term of office provided for in the Articles. Since the developer did not have the authority to remove the Board to appoint a new Board, any actions taken by the new Board and Committee III which was created by the new Board are invalid and unenforceable. We hold that the District Court did not err in finding as a matter of law that the Board of Directors appointed by the developer on July 17, 1990, was not validly appointed and had no authority to appoint members to a new Architectural Committee.

III.

Did the District Court err in finding that the Architectural Committee was reasonable in its determination not to approve Spichers’ choice in roofing tile and exterior color?

Both parties cite Gosnay v. Big Sky Owners Ass’n. (1983), 205 Mont. 221, 666 P.2d 1247, in support of their legal arguments. Spichers also cite Higdem v. Whitham (1975), 167 Mont. 201, 536 P.2d 1185; Town & Country Estates Ass’n v. Slater (1987), 227 Mont. 489, 740 P.2d 668; and Hillcrest Homeowners Ass’n v. Wiley (1989), 239 Mont. 54, 778 P.2d 421. These four cases represent Montana case law on the issue of validity and enforceability of restrictive covenants. None of the Montana cases address the issue currently before the Court dealing with reasonableness of determinations of a committee empowered with the right to approve or reject building plans.

It is clear the well-established rule in most jurisdictions is that a committee’s power of approval must be governed by the applicable covenants and guidelines and must be reasonably exercised. This Court cited the rule in Gosnay v. Big Sky Owners Ass’n. (1983), 205 Mont. 221, 227, 666 P.2d 1247, 1250; however, the issue of reasonable exercise of power of approval was not before the Court at that time. The Court hereby adopts this rule and applies it to the case now before the Court.

The majority of cases in other jurisdictions deal with the issue of validity and enforceability of covenants. There are few cases addressing the issue of reasonableness of the exercise of power of approval. Most of the case’s that exist merely state the reasonableness rule, followed by a conclusive statement that the committee did (or did not) reasonably exercise its power of approval, with little or no discussion or analysis of how either the trial court or the appellate court reached its conclusion. We conclude that the better reasoned cases consider the determination of whether the exercise of power to approve construction plans was reasonable or arbitrary is a factual question to be determined in light of the circumstances. LaVielle v. Seay (Ky. 1966), 412 S.W.2d 587. Also see LaBlanc v. Webster (Kan. 1972), 483 S.W.2d 647; Donoghue v. Prynnwood Corp. (Mass. 1970), 255 N.E.2d 326; Rhue v. Cheyenne Homes, Inc. (Colo. 1969), 449 P.2d 361; Otwell v. West (Ga. 1964), 137 S.E.2d 291; Bramwell v. Kuhle (1960), 183 Cal.App.2d 767, 6 Cal.Rptr. 839; Shields v. Welshire Development Co. (Del. 1958) 144 A.2d 759; Alliegro v. Home Owners of Edgewood Hills, Inc. (Del. 1956), 122 A.2d 910 (examined the evidence to determine if the facts support finding power of approval was reasonably or arbitrarily exercised).

Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R When the facts contained in the record are considered against the background of the rule that power of approval must be reasonably exercised, we conclude there are material issues of fact. Therefore the District Court erred in finding that the Architectural Committee was reasonable in its determination not to approve Spichers’ choice in roofing tile and exterior color.

The Minimum Guidelines for Architectural Review in Grouse Mountain, Phase I, provide:

The following are minimum requirements that have been applied by the Architectural Review Committee to new construction in Grouse Mountain, Phase I.
5. Stain. If wood siding or shingles are used on the exterior surface of the residence, they must be stained in a color or shade approved by the Architectural Committee. Translucent stain is permitted on redwood or cedar exteriors. However, opaque stain is required on fir exteriors.
6. Roofing. Roofing materials must be cedar shake shingles or dimensional cut Class A fire-rated asphalt- fiberglass shingles. If the latter type of shingle is used, the color is subject to approval by the Architectural Committee.

... [Emphasis in original.]

The roofing material selected by Spichers was neither a cedar shake shingle nor a dimensional cut Class A fire-rated asphalt-fiberglass shingle. Committee I originally rejected Spichers’ choices but eventually did approve one of two samples of tile presented to the Committee. Spichers subsequently discovered the approved tile was not recommended for cold climates and told their contractor to use the roofing tile that was their first choice. Spichers argue they did not violate the Guidelines because the tile they used was superior in quality. The Guidelines set forth “minimum requirements,” one of which is the “[r]oofing materials must be cedar shake shingles or dimensional cut Class Afire-rated asphalt-fiberglass shingles.” There is a material question of fact whether this requirement limits the roofing material to only those two choices or whether the minimmn requirement only sets a minimum standard for quality. This factual question must be determined by the trier of fact in light of the intent of the Association in drafting the Guidelines and in light of the fact that Committee I eventually approved a tile that was not one of those two choices. There are also factual questions whether Committee I was reasonable in approving a tile not suitable for cold climates and whether Committee I had knowledge of the unsuitability of the tile at any time during its determination whether to approve the tile. These factual questions are in dispute and are material questions of fact precluding summary judgment in this case.

Committee I specifically disapproved the gray color Spichers chose to paint the exterior of their home stating that seven out of the last ten homes built in the neighborhood had been painted with some variation of gray, including the home immediately adjacent to the Spichers’ home. Committee I did approve two shades of brown. Spichers respond that more brown homes than gray homes exist in the subdivision and therefore Committee I acted arbitrarily in its rejection of gray. The power of refusal must be exercised objectively, honestly and reasonably. Donoghue v. Prynnwood Corp. (Mass. 1970), 255 N.E.2d 326, 329. A committee may not subjectively impose its whims or aesthetic tastes on lot owners. Therefore a material question of fact exists regarding the objectivity and reasonableness of the Committee’s refusal to approve the gray color preferred by Spichers.

In light of the foregoing, we find there are material questions of fact which must be determined by the jury in this case, and the District Court erred in concluding that the Architectural Committee acted reasonably in its determination not to approve Spichers’ choice in roofing tile and exterior color. We remand to the District Court for further proceedings consistent with this Opinion.

Affirmed in part; reversed and remanded in part.

HONORABLE RUSSELL K. FILLNER, District Judge, sitting in place of JUSTICE R.C. McDONOUGH, HONORABLE TED L. MIZNER, District Judge, sitting in place of JUSTICE JOHN C. HARRISON, and HONORABLE LARRY W. MORAN, District Judge, sitting in place of JUSTICE FRED J. WEBER concur.

HONORABLE THOMAS McKITTRICK

dissenting:

I dissent from the Majority opinion.

This case is about homeowners and their right to organize to establish reasonable standards for the aesthetic preservation and architectural consistency of their neighborhood and then rely on those standards when they are objected to by someone who is fully aware of their existence prior to purchasing his property.

This case is also about whether developers can establish a self-governing group of directors elected from among the homeowners who reside in the neighborhood developed and then, contrary to the Articles of Incorporation, Bylaws, and Restrictive Covenants, throw those people out of office when their decisions are inconvenient or contrary to the wishes of one of the developers.

In addition, this case is about whether a developer can impose restrictive covenants on other homeowners who purchase lots and build homes in his development, even though many of those homeowners incurred additional expense to comply with these requirements, and then arrogantly and deliberately ignore the requirements when he decides to build his own home in the same neighborhood.

Trieweiler is a homeowner who filed an Injunction to enforce an intentionally violated covenant at the Grouse Mountain Development (Development), a subdivision near Whitefish, Montana.

In 1979, the general partner of the Development, Brian T. Grattan, filed with the Clerk and Recorder’s Office of Flathead County, Montana, a Declaration of Conditions, Covenants and Restrictions. In relevant part paragraph 15 reads:

Architectural Control. ... that no building shall be commenced upon the property until the plans and specifications were submitted and approved by the committee.

Pursuant to paragraph 15, the acting Board of Directors appointed an Architectural Committee. At the 1989 Annual Homeowners Meeting, Committee I submitted to the homeowners, for their approval, xrdnimum Architectural Standards (Guidelines). The homeowners unanimously approved the guidelines at the meeting.

Prior to the guidelines approval, Committee I had mailed a copy of the guidelines to every owner of every lot in the development.

William R. Spicher (Spichers) was an original partner in the development, and in fact was one of its largest investors. As such, he was a partner of Grattans and was aware of the Articles of Incorporation, Bylaws and Restrictive Covenants. Spichers owned lot 64 in the development and had bought the land subject to the restrictive covenants. In late summer of 1989, Spicher contracted with Ping Construction (Ping) to build a home.

There is no dispute that all parties, including Spichers and Ping, knew of paragraph 15 (the covenant) and the guidelines. Yet, the Spichers, through Ping, chose to disregard the guidelines by submitting plans to build their home with an imitation-tile roofing — Material I — and stain their house a gray color. Committee I rejected:

(1) Material I because it was an imitation-tile concrete composition roofing material that did not meet the guidelines and had never been used in the development before; and

(2) the gray color stain because seven of the last ten homes built in the neighborhood were of some gray variation, including a home next to Spicher’s lot.

Committee I, in a letter to the Spichers, stated that “Committee I [was] willing to consider a broad spectrum of earth tone colors.” Committee I “want[ed] to avoid [a] predominance of one or two colors [in an area] and the construction of homes in a row [of] the same color.”

The Spichers through their contractor resubmitted three new colors and roofing material (Material II). Committee I again rejected a gray color but approved a mushroom and Aspen tan color and as a compromise approved Material II on the condition the Spichers sign a written agreement to replace the roof if damaged by the weather. The Spichers were insulted and tried to meet with Committee I members without Trieweiler present. Trieweiler not wanting to waste any more of his time trying to hammer out a compromise with the Spichers, never again acted as an intermediary between the Spichers and Committee I.

The Spichers then retained an attorney who wrote a letter to Committee I. Committee I wrote back saying the Spicher’s actions destroyed any chance for compromise and that a meeting with the Spichers would not benefit either party. Contrary to Committee I’s decision, the Spichers did what they “wanted to do in the first place ...” and built their home with the rejected imitation-tile Material I and stained the house a gray color.

In May of 1990 the homeowners held a meeting to elect a new Board of Directors. Mr. Spicher’s former partner and original developer (Grattan) approached the homeowners with a deal. Grattan proposed that he would not invoke his power to appoint a new Board of Directors under Article VII of the Articles of Incorporation, but would assign it to the homeowners at the meeting if the homeowners would allow him to vote his unassessed eleven lots. The deal was struck and the homeowners elected a new Board of Directors who in turn appointed a new Architectural Committee (Committee II). Spichers went before Committee II seeking approval. Committee II, largely a result of Grattan’s and Spicher’s votes at the May meeting, refused to approve Spicher’s home. For that reason, and that reason only, Grattan broke his promise to the homeowners and unilaterally terminated the Board of Directors. He appointed himself and four others to the new Board. Prior to Grattan’s appointment of the new Board, Mr. Spicher contacted each new director and asked them if they would serve on his “New Board of Directors”. The new Board appointed Committee III. Committee III approved Spicher’s home “as built”.

The Majority has trouble following Gosnay v. Big Sky Owners Assn., 205 Mont. 221, 666 P.2d 1247. The case is clearly on point but the Majority chooses to create a different result. In Gosnay, the Supreme Court reversed the District Court and enforced a similar restrictive covenant as a matter of law, against an owner with a “jackleg” fence. 205 Mont. at 227. The “construction of a fence require[d] prior approval by the Architectural Committee .... The Architectural Committee refused Gosnays permission to build their fence [since the] Gosna/s fence [was] contrary to Big Sky’s overall plan for openness.” Id. The Court went on to state that although some fences had been approved, a jackleg fence had never been approved.

Similarly, here, Committee I needed to approve all plans to build in the development. Committee I rejected the Spichers plans because the imitation-tile Material I failed to meet the guidelines or overall plan for uniform roofing and had never been used in the subdivision before. Rejection of the color gray was based on the overall plan to protect the property owners’ investments.

This Court, as a matter of law, should have followed its prior decision in Gosnay and enforced the restrictive covenant against the Spichers. But they did not.

Instead the Majority uses creative reasoning when it states that “whether the exercise of power to approve construction plans was reasonable or arbitrary is a factual question to be determined in light of the circumstances.” The Majority, however, seems to conveniently forget to consider the question of reasonableness in light of all the circumstances. Spichers built their home the way they “wanted to build it in the first place.” They used imitation- tile Material I for their roof and stained their home gray, thus violating:

(1) the restrictive covenant because they did not get prior approval from any legally appointed committee to use Material I or the color gray;

(2) the guidelines because the imitation-tile Material I violated the overall plan for uniform roofing as well as fire and weather safe roofs, and the gray color because the overall plan allowed the Committee to control the color of exterior materials used on homes. The Committee felt that the domination of one color would give the homes in the development the appearance of tract housing. The Committee rejected the color to protect the neighborhood’s property values. See Gosnay v. Big Sky Owners Ass’n., 205 Mont. 221, 666 P.2d 1247, 1250 (1983).

The Majority found a question of fact in the guidelines. They asked, does the roofing guideline mean only two choices or does it mean that superior material can be used? There is a question of fact here only if the guidelines are read alone. The facts, however, should come to this Court’s rescue and clear the muddied waters. Committee I has answered the Court’s and Spicher’s question. There are more than two choices, but Committee I, or at least a legally appointed committee, had to approve the choices that were not spelled out in the guidelines. Further, Committee I specifically rejected Material I and sent a message to the Spichers not to use Material I. Spichers ignored that message and so has the Majority of this Court. Spichers could have used a listed roofing material, but chose to use Material I after Committee I vehemently rejected Material I because it was imitation-tile never used in the subdivision. Committee I supplied the answer to the question — Material I did not meet the guidelines — no question of fact exists as to Material I — it did not meet the guidelines.

Next the Majority finds a question of fact in whether or not Committee I objectively and reasonably rejected the gray color. Again, the Majority seems to ignore the facts. The facts clear the path to show, as a matter of law, the Committee acted objectively and reasonably.

Seven of the last ten homes built in the neighborhood were of some gray variation, including a home adjacent to Spichers. The Committee felt another gray home in the area would give the appearance of tract housing which would devalue the neighborhood properties. In trying to protect property owners’ values, the Committee precluded Spichers use of the gray color. See Rhue v. Cheyenne Homes Inc., 449 P.2d 361, 363 (Colo. 1969). The Committee did not, as the Majority suggests, impose its whims or aesthetic tastes on the Spichers. See Donoghue v. Prynnwood Corp., 255 N.E.2d 326, 40 ALR 3d 858 (Mass. 1970). To the contrary, Committee I objectively and reasonably followed the overall plan and tried to protect the investment of home and lot owners. No question of fact existed. The Committee acted reasonably for the protection of all owners within the development.

Since there are no questions of fact, the Gosnay decision should control and the District Court’s Summary Judgment’ ruling should be upheld by this Court. Instead the Majority chooses to be creative and in their rush to achieve their desired result and keep this litigation alive have failed to consider the repercussions which will seriously impair the rights of property owners to establish and control architectural development and aesthetic preservation in their neighborhoods.


source: Caselaw Access Project

author: JUSTICE McDONOUGH JUSTICE HUNT

license: Public Domain

text:
    CAROL FARRIS, Plaintiff and Appellant, v. JOHN M. HUTCHINSON, individually and in the capacity of COMMISSIONER OF HIGHER EDUCATION, MONTANA, BOARD OF REGENTS OF HIGHER EDUCATION, Defendants and Respondents.
    No. 91-466.
    Submitted Apr. 15, 1992.
    Decided Aug. 17, 1992.
    49 St.Rep. 717.
    838 P.2d 374.
    254 Mont. 334.

      For Plaintiff and Appellant: Peter Michael Meloy argued, The Meloy Law Firm, Helena.
    For Defendants and Respondents: LeRoy H. Schramm argued, Montana University System, Helena.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order and entry of judgment of the First Judicial District Court, Lewis and Clark County, granting a motion to dismiss in favor of John M. Hutchinson and the Commissioner of Higher Education. We affirm.

We decide the following issues on appeal:

1. Did the District Court err in dismissing Farris’s cause of action for breach of the implied covenant of good faith and fair dealing;

2. Did the District Court err in dismissing the wrongful discharge claim and the claim under the Wrongful Discharge from Employment Act of 1987; and

3. Did the District Court err in finding appellant had no entitlement to property under a written contract for a specified term when the contract is not renewed at the expiration of the term?

On April 10, 1989, Carol Farris was hired as a gender equity coordinator by the Commissioner of Higher Education for a federally mandated affirmative action program for the vocational technical education system in Montana. Farris alleged in her complaint that she received objective manifestations of job security when she was hired. Specifically, she contends that she was told the position was permanent, even though it was governed by a yearly term contract. Farris quit her job in Great Falls, sold her home and moved to Helena for the position.

Throughout the course of her employment, Farris signed three “professional employment contracts” prepared by the Montana University System. The contracts were term contracts, lasting one year. The contracts provided for non-renewal with adequate notice. The last contract was effective between July 1, 1990 and June 30, 1991. Pursuant to the contract, on February 5, 1991, the Commissioner notified Farris that her contract would not be renewed. No reason was provided for the non-renewal, nor was one required under the terms of the contract. Farris filed a complaint against the Commissioner of Higher Education and the Board of Regents. The District Court granted defendants’ motion to dismiss. This appeal followed.

In considering a Rule 12(b)(6) motion to dismiss, the allegations must be viewed in a light most favorable to the plaintiff, admitting and accepting as true all facts well-pleaded. Devoe v. Missoula County (1987), 226 Mont. 372, 374, 735 P.2d 1115, 1116; United States Nat’l Bank of Red Lodge v. DOR (1977), 175 Mont. 205, 207, 573 P.2d 188, 190. Further, a court should not dismiss a complaint for failing to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. Proto v. Missoula County (1988), 230 Mont. 351, 353, 749 P.2d 1094, 1095, quoting Conley v. Gibson (1957), 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84; Marshall v. State (1992), [253 Mont. 28,] 830 P.2d 1250, 49 St.Rep. 336.

I

Did the District Court err in dismissing Farris’s cause of action for breach of the implied covenant of good faith and fair dealing?

It first should be noted Farris has not pled an action for fraud and does not comply with Rule 9(b) of the Montana Rules of Civil Procedure. The District Court relying on Nordlund v. School District No. 14 (1987), 227 Mont. 402, 738 P.2d 1299, found that because the Commissioner did not breach the employment contract, there could be no breach of the implied covenant. Nordlund at 406, 738 P.2d at 1302. This characterization is not exactly correct. Under Story v. City of Bozeman (1990), 242 Mont. 436, 791 P.2d 767, a breach of the underlying contract is not a prerequisite to a breach of the implied covenant of good faith and fair dealing.

Farris argues that if she can show objective manifestations of job security beyond the term contract, she may maintain a breach of the implied covenant of good faith and fair dealing. Farris relies on Dare v. Montana Petroleum Marketing (1984), 212 Mont. 274, 282, 687 P.2d 1015, 1020, for the proposition that an employer’s objective manifestations give the employee a reasonable belief that he or she has job security. Farris argues that Dare should apply to employment relationships not covered under the Wrongful Discharge From Employment Act (Act). Farris also argues that because the Commissioner viewed the contract as exempt from the Act, he was able to terminate her “at will,” and for this reason she is an at will employee.

Dare involved an at will employee with no written contract who was terminated from her job. The position she held was not covered by an employment handbook. We held that an employment handbook was not essential in a cause of action for breach of the implied covenant of good faith and fair dealing in an at will employment relationship. Dare at 283, 687 P.2d at 1020. Dare was decided in 1984 prior to the enactment of the Wrongful Discharge From Employment Act of 1987.

Farris essentially argues that Dare stands for the proposition that a violation of an employment handbook is not essential to maintaining an action for breach of the implied covenant in an at will situation. Therefore, even though the Commissioner did not breach his own employment regulations (which in Farris’s reasoning is likened to having no employment handbook) in effect at the time, this does not bar Farris’s claim. We do not disagree, but such analysis does not apply here.

On appeal, Farris argues that prior to being hired she was informed that the Commissioner viewed her position as a permanent position. Farris, upon accepting the position, sold her house in Great Falls and moved to Helena. Further, Farris contends she understood that the signing of the yearly “term” contracts was merely a formality.

Even admitting and accepting the facts well-pleaded in favor of Farris, she cannot overcome the Parol Evidence Rule. Section 28-2-904, MCA, provides:

The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.

Here, the consideration of oral negotiations between the Commissioner and Farris prior to the signing of the contracts is barred by the Parol Evidence Rule. The term contracts embody the legal agreement between Farris and the defendant. Farris signed three term contracts each for one year. She was aware that upon adequate notice the contracts could be non-renewed. We do not accept her argument that the Commissioner’s adoption of the regulations allowed him to circumvent the Wrongful Discharge From Employment Act, thus terminating her “at will,” therefore mandating a “just cause” requirement.

As to the alleged representations made after the agreements were entered into, relative to job performance and terms, consideration of these would violate § 28-2-1602, MCA. An agreement made in writing cannot be altered except in writing or by an executed oral agreement, and not otherwise. This is the public policy of the State of Montana. Therefore, in suits of good faith and fair dealing relative to termination at the expiration of the term, the alleged implied covenant cannot be in direct contradiction of the written term contract. See § 28-2-1602, MCA. Also see Carma Developers (Cal. 1992), 826 P.2d 70, where the Supreme Court of the State of California recently stated how a covenant of good faith should be read as follows:

We are aware of no reported case in which a court has held the covenant of good faith may be read to prohibit a party from doing that which is expressly permitted by an agreement. On the contrary, as a general matter, implied terms should never be read to vary express terms. (Tanner v. Title Ins. & Trust Co. (1942) 20 Cal.2d 814, 824, 129 P.2d 383; see, Wal-Noon Corp. v. Hill (1975) 45 Cal.App.3d 605, 613, 119 Cal.Rptr. 646.) “The general rule [regarding the covenant of good faith] is plainly subject to the exception that the parties may, by express provisions of the contract, grant the right to engage in the very acts and conduct which would otherwise have been forbidden by an implied covenant of good faith and fair dealing.... [‘UlThis is in accord with the general principle that, in interpreting a contract ‘an implication... should not be made when the contrary is indicated in clear and express words.’ 3 Corbin, Contracts, § 564, p. 298 (1960) .... fflAs to acts and conduct authorized by the express provisions of the contract, no covenant of good faith and fair dealing can be implied which forbids such acts and conduct. And if defendants were given the right to do what they did by the express provisions of the contract there can be no breach.” (VTR, Incorporated v. Goodyear Tire & Rubber Company (S.D.N.Y. 1969) 303 F.Supp. 773, 777-778.)

Carma 826 P.2d at 728.

We agree with the analysis in Carma. No obligation can be implied which would result in the obliteration of a right expressly given under a written contract. See Gerdlund v. Electric Dispensers International (1987), 190 Cal.App.3d 263, 235 Cal.Rptr. 279. The implied covenant applies to both employer and employee relative to a contract. See Barrett v. Asarco (1988), 234 Mont. 229, 763 P.2d 27. The right of workers to have a contract which is governed by Montana law and to have their express rights therein set forth and enforced, also cannot be obliterated by alleged contradictory objective manifestations supported by oral testimony.

Farris argues that Stark v. Circle K Corp. (1988), 230 Mont. 468, 751 P.2d 162, and Prout v. Sears, Roebuck and Co. (1989), 236 Mont. 152, 772 P.2d 288, apply here. In both cases the employee was an at-will employee and had signed written agreements that they could be terminated with or without cause. In Stark, the alleged reason for discharge was insubordination, and in Prout, for falsification of time sheets. Both discharges were stated to be for cause. In Stark we allowed the jury to decide whether the covenant of good faith and fair dealing was breached in view of all the evidence as to whether or not the employer had cause and had followed its own policies. In Prout we gave effect to the written agreements and said the employer could fire without cause under the agreements, but that if it asserted the termination was for cause, the employee must have an opportunity to prove that the cause stated was false; and among the issues there was a factual question of the falsity of the cause which precluded summary judgment.

The eventual determination of these factual issues in Stark and Prout did not and would not contradict the express wording of the respective agreements. The application of the implied covenant addressed the interpretation of the words "with cause” and the discretion of the employer thereunder.

For the reasons stated above, we affirm the District Court on this issue.

II

Did the District Court err in dismissing the wrongful discharge claim and the claim under the Wrongful Discharge From Employment Act?

The District Court found that the language of the contract at issue was clear and unambiguous. Further it found that non-renewal was permissible under the contract. Additionally, the District Court found that the Commissioner followed the defendants’ personnel policies in effect at the time. Relying on Nordlund v. School District No. 14 (1987), 227 Mont. 402, 738 P.2d 1299, the District Court concluded the act of the Commissioner was not a wrongful discharge.

Farris argues that the personnel policies and regulations allowed the Commissioner to deprive her of the remedies available under the Wrongful Discharge From Employment Act. This is because the regulations and notice requirements allow the Commissioner to circumvent the just cause requirement under the Act. Section 39-2-901, MCA, et seq., contains Montana’s Wrongful Discharge From Employment Act. The purpose of the Act was to set out certain rights and remedies with respect to wrongful discharge. § 39-2-902, MCA. The Act was meant to preempt common law remedies. § 39-2-913, MCA. Section 39-2-904, MCA, provides in part:

A discharge is wrongful only if:

(2) the discharge was not for good cause ...
(3) the employer violated the express provisions of its own written personnel policy.

Farris argues that the Act imposed a just cause requirement on all employment relationships in place of common law remedies. Further, she argues that the Commissioner, by unilaterally adopting the regulation authorizing him, with adequate notice, not to renew a professional contract, violates the public policy of just cause under the Act. Farris relies on Portable Embryonics v. J. P. Genetics (1991), 248 Mont. 242, 810 P.2d 1197, for the proposition that the

Commissioner’s adoption of these regulations has an illegal effect because it violates public policy and is therefore unenforceable.

In Portable the defendants were performing bovine embryo transfers. They were without veterinary licenses in violation of Montana law. We held that due to the illegality, the entire contract was void. Portable at 245, 810 P.2d at 1199.

Here the Act itself excludes from the provisions of the Act the discharge of an employee covered under certain written agreements. Section 39-2-912, MCA, of the Act provides in part:

This part does not apply to a discharge:...
(2) of an employee covered by a written collective bargaining agreement or a written contract of employment for a specific term. (Emphasis added.)

The District Court found that the contract in question was a written contract for a specific term as contemplated under the Act. Therefore, the Act was not applicable. We agree with the District Court.

Farris also essentially argues that the Commissioner, by adopting regulations allowing him to hire employees under specific term contracts, can escape the just cause requirements imposed under the Act. The effect of this is to terminate an employee by simply not entering into a new contract. Nothing in our law forbids the parties here from entering into such a contract where the contract is exempted from the Act. We have previously upheld the discretionary rights of employers to non-renew specific term contracts without a showing of good cause. Leland v. Heywood (1982), 197 Mont. 491, 497-498, 643 P.2d 578, 581-582. In addition no other violations of public policy have been asserted which would give rise to a wrongful discharge claim.

For the reasons set forth above, we affirm the District Court on this issue.

Ill

Did the District Court err in finding appellant had no entitlement to property under a written contract for a specified term when the contract is not renewed at the expiration of the term?

Farris based her rights as to a property interest on the breach of the implied covenant of good faith and fair dealing and wrongful discharge and inasmuch as she failed on these issues, the question is moot.

For the reasons set forth in the opinion, we affirm the judgment of the District Court.

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

JUSTICE HUNT

dissents with concurrence by JUSTICE TRIEWEILER.

I dissent. The majority decision of the Court today deals a devastating blow to Montana workers. Under the holding of this case, an employer may make significant oral representations to an employee concerning the terms of the employment, induce the employee to sign a written contract with provisions contrary to the oral representations on the basis that the written contract is only a formality, and then completely avoid all liability for the oral misrepresentations which induced the employee to sign the written contract in the first place. The majority opinion prohibits an employee from even presenting evidence of the wrongdoing, encourages employers to deal dishonestly with employees, and leaves a large segment of the working population (destined to grow larger as employers familiarize themselves with the majority opinion) without any legal recourse. The decision is not mandated by existing law and is an unacceptable shift in the balance between the rights and protections of employees and employers.

This Court must accept as true all facts well-pled by the appellant in her complaint. Appellant alleges that she was given objective manifestations of job security beyond the time specified in the written contract. Appellant argues on appeal that she relied upon these extrinsic objective manifestations in deciding to accept employment with respondents. Further, appellant contends she was told that the written contract of employment, which contained terms contrary to the extrinsic oral representations, was merely a formality. Under this factual situation, the matter should not have been dismissed on respondents’ Rule 12(b)(6) motion to dismiss. Appellant should have been allowed to present evidence of the extrinsic oral representations at trial for a determination of the merit of her claim for breach of the implied covenant of good faith and fair dealing.

Every contract entered into in Montana, regardless of type, contains an implied covenant of good faith and fair dealing. Story v. City of Bozeman (1990), 242 Mont. 436, 450, 791 P.2d 767, 775. The majority correctly points out that a breach of the underlying contract is not a prerequisite to a breach of the implied covenant of good faith and fair dealing. Story, 791 P.2d at 775. In this instance, appellant is not alleging a breach of an express contractual term, but is contending that respondents breached the covenant of good faith and fair dealing by terminating her employment in a manner inconsistent with the representations made to her concerning job security.

In light of the facts in this case and the applicable law, it is clear that appellant has a cause of action for breach of the covenant of good faith and fair dealing, but the majority concludes that all the evidence necessary for appellant to present her case is excluded by the parol evidence rule found at § 28-2-904, MCA. However, § 28-2-905(2), MCA, provides an exception to the parol evidence rule which is relevant in this case. Section 28-2-905(2), MCA, provides in part that:

This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates ... or other evidence to explain ... fraud.

Additionally, § 28-2-1611, MCA, provides that:

When, through fraud or a mutual mistake of the parties or a mistake of one party while the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons in good faith and for value.

The exception to the parol evidence rule for extrinsic evidence of fraud is well-established and long-standing, not just in Montana, but throughout the nation. It is clear that:

It was never intended that the parol evidence rule could be used as a shield to prevent the proof of fraud, or that a person could arrange to have an agreement which was obtained by him through fraud exercised upon the other contracting party reduced to writing and formally executed, and thereby deprive the courts of the power to prevent him from reaping the benefits of his deception and chicanery.

37 Am. Jur. 2d, Fraud and Deceit, § 451. Appellant did not bring a cause of action specifically alleging fraud. Instead, appellant brought an action for breach of the implied covenant of good faith and fair dealing resulting from misrepresentations made by respondents. In terms of the rationale underlying the fraud exception to the parol evidence rule, it should make no difference whether a plaintiff in a given case brings an action based on misrepresentations under a theory of fraud or breach of the covenant of good faith and fair dealing. The rationale for the exception to the parol evidence rule applies equally to both situations. In either case, there is an allegation that false representations have been made which can only be proven by evidence extrinsic to the contract. Sheer necessity dictates such evidence must be allowed. This is the very essence of the exception to the parol evidence rule.

On appeal, respondents contend that allowing appellant the opportunity to present evidence that oral representations were made which were contrary to the written contract would be nothing short of a “revolution” in Montana contract law. On the contrary, there is nothing revolutionary in allowing one party to a contract to present evidence that material oral misrepresentations induced the party to enter into the contract. The majority opinion concludes its discussion of this issue by stating that “in suits of good faith and fair dealing relative to termination at the expiration of the term, the alleged implied covenant cannot be in direct contradiction of the written term contract.” This statement is apparently based on the majority’s holding that the parol evidence rule excludes all evidence that would show that in fact representations were made in contradiction of the written term contract.

In Nordlund v. School District No. 14 (1987), 227 Mont. 402, 738 P.2d 1299, this Court was faced with a similar factual situation. In Nordlund, an employee brought suit for breach of the covenant of good faith and fair dealing following the nonrenewal of his specific term written contract of employment. We affirmed the District Court’s decision against Nordlund, partially on the basis that Nordlund could prove no set of facts from which a breach of the implied covenant could be proven. The parol evidence rule was not mentioned by the Court.

In Stark v. Circle K Corporation (1988), 230 Mont. 468, 751 P.2d 162, an employee brought suit for breach of the implied covenant of good faith and fair dealing in the termination of his employment. In Stark, there was a written contractual provision providing that he could be terminated with or without cause. Ajury returned a verdict in favor of Stark. In affirming the jury verdict, this Court stated that “[w]e find the evidence considerably more than sufficient for the jury to find that Stark had an objectively reasonable belief that he would be fired only for good cause.” Stark, 751 P.2d at 166. The employer in Stark argued that oral representations could not overcome the written contractual provision that the employment could be terminated with or without cause. This Court’s response to that argument is relevant to the present case. We stated:

It is alleged that the written contractual provision allowing termination without cause cannot be modified by oral representations which would give rise to a reasonable expectation of anything but “at will” employment. Circle K misunderstands the nature of good faith and fair dealing.
In Gates v. Life of Montana Insurance Co. (1982), 196 Mont. 178, 638 P.2d 1063 (Gates I), we recognized that the covenant of good faith and fair dealing is applicable to employment contracts. The covenant is implied as a matter of law based on the public policy of this State. It does not depend on contractual terms for its existence, nor is the covenant of good faith and fair dealing subject to contractual waiver, express or implied. See § 28-2-701(2), MCA. “The duty arises out of the employment relationship yet the duty exists apart from, and in addition to, any terms agreed to by the parties.” Gates v. Life of Montana Insurance Co. (1983), 205 Mont. 304, 668 P.2d 213, 214, 40 St.Rep. 1287, 1289 (Gates II). Despite the express contract, the question of whether the “covenant of good faith and fair dealing is implied in a particular case depends upon the objective manifestations by the employer giving rise to the employee’s reasonable belief that he or she has job security and will be treated fairly.” Dare v. Montana Petroleum Marketing Co. (Mont. 1984), 687 P.2d 1015, 1020, 41 St.Rep. 1735, 1739.
The record demonstrates Stark experienced objective manifestations reasonably giving rise to a belief of job security.

Stark, 751 P.2d at 166. The parol evidence rule was not mentioned in Stark. This same analysis was later applied in Prout v. Sears, Roebuck and Co. (1989), 236 Mont. 152, 772 P.2d 288. I believe this Court should follow the precedent set in these and other past Montana cases, as well as the statutory exception to the parol evidence rule and allow appellant the opportunity to present her case.

The application of the parol evidence rule in this case to exclude the extrinsic oral representations is unduly harsh, formalistic, and contrary to the very spirit and rationale upon which the rule is grounded.

Appellant should be able to present her evidence concerning the alleged breach of the implied covenant of good faith and fair dealing. If appellant prevails, she is entitled to recover her contract damages as provided in Story. Appellant also contends that according to Story the employer/employee relationship is a “special relationship,” for which the breach of the covenant may allow tort damages. While this Court, in Gates v. Life of Montana Insurance Co. (1983), 205 Mont. 304, 668 P.2d 213, stated that the employer/employee relationship is similar to the duty to act in good faith in discharging insurance contractual obligations, we have not explicitly held that it is a special relationship under the criteria set out in Story. In order to recover damages in tort, appellant must satisfy the five criteria set out in Story. The question of whether a special relationship exists should be presented at trial in accordance with the guidelines set out by this Court in Story wherein we stated that:

If the facts of the special relationship are undisputed as to whether there is a special relationship, it is a question of law for the court to decide. If substantial evidence is presented supporting each and all of the above essential elements and such evidence is controverted in whole or in part, there arises appropriate questions of material fact to be submitted to the jury. If substantial evidence is not presented in support of each and all of the essential elements, the court shall direct there is no special relationship.

Story, 791 P.2d at 776.

The decision to exclude all extrinsic oral representations in these situations on the grounds that allowing such evidence would undermine the sanctity and security of written contracts, is both draconian in nature and altogether unnecessary. A decision which protects both employers and the sanctity of written contracts, while still allowing employees some opportunity to seek redress, could have been fashioned in this case and should have been sought after by the majority. Employers who have acted honestly and in good faith with their employees will be protected by our jury system of trials. Rule 11 sanctions are a mechanism already in place to protect against suits which are frivolous and without merit. Contract provisions can assure adequate compensation for attorney fees and costs to employers prevailing in these actions. On the other hand, employers who do not conform their conduct to comply with the covenant of good faith and fair dealing do not deserve the protection of the law. However, for some unknown reason, the majority decision extends an absolute protection to employers who violate the covenant of good faith and fair dealing, insulating them from all liability for their wrongful conduct. This result is both unnecessary and unacceptable. I would reverse and remand for a trial of this matter.


author: JUSTICE HARRISON

text:
    BERNICE MATHES, GEORGE LaVOIE, PETE SKELSKY, RICHARD SCHWARZ, CORA LINN, NORRIS AMUNDSON, DORIENNE AMUNDSON, TOM TALARICO, SHERYL MANGINELLI, and HAROLD MANGINELLI, Plaintiffs and Appellants, v. BILL ADAMS and HAROLD MAGRUDER, Defendants and Respondents.
    No. 91-556.
    Submitted on briefs Apr. 15, 1992.
    Decided Aug. 18, 1992.
    49 St.Rep. 723.
    838 P.2d 390.
    254 Mont. 347.

      For Plaintiffs and Appellants: Klaus D. Sitte, Montana Legal Services Association, Missoula; Norris Amundson, Pro Se, Missoula.
    For Defendants and Respondents: Christopher B. Swartley, Datsopoulos, MacDonald & Lind, Missoula
   JUSTICE HARRISON

delivered the Opinion of the Comb.

This is an appeal from the Fourth Judicial District Court, in and for the County of Missoula, the Honorable Jack L. Green presiding. Appellants were all tenants of a Missoula trailer court at one time or another. They appeal the decision of the District Court which held that the landlords did not breach the warranty of habitability. We reverse.

This action began in 1983 when Bill Adams and Harold Magruder (landlords) purchased a Missoula trailer court known as the “River Road Trailer Court.” Mervin Brandvold (Brandvold) became the on-site manager and leased mobile home spaces to numerous individuals, some of whom are the appellants (tenants) in this action. Shortly after purchasing the trailer court the landlords made promises to reseed lawns and pave streets, neither of which was done. They also made various rules for the trailer court and its residents which went unenforced over the course of several years; the manager actually participated in breaking the rules.

The tenants experienced various maintenance problems the most serious to include garbage accumulation due to inadequate collection services, septic system overflows and backups, and a contaminated water system. The tenants complained regularly, resulting in little or no action from the landlords or Brandvold.

In 1985, the landlords decided to build a townhouse development on the trailer court site and submitted proposals to that end with the appropriate authorities. To accomplish the project, eviction of the trailer court tenants would be necessary. As consideration of the townhouse development progressed, the tenants continued to be plagued with severe problems with the water and sewer systems as well as garbage collection and general cleanliness of the common areas of the trailer court.

At one point a “boil order” was levied due to a contaminated water sample test obtained by the Missoula City-County Health Department (Health Department). It was not uncommon that raw sewage spilled out onto the ground and sewer risers on vacant trailer spaces had loose fitting caps or were left uncapped completely. Little or no effort was made to clean up the spills leaving a detestable odor throughout the trailer court, particularly in warm weather.

Eventually, landlords withdrew the proposed townhouse development and the property continued to be utilized as a trailer court. Complaining tenants were often met with threats of eviction though some persisted anyway. Several tenants testified that they did not complain in writing because they believed the eviction threats of Brandvold and they did not possess the financial resources to move their trailers on short notice.

Out of desperation the tenants eventually began to complain to the Health Department because of the inaction of the landlords and Brandvold. Out of concern for their health and safety, the tenants formed a tenants’ union in August of1985 and elected a spokesperson. On August 13, 1985 the spokesperson/tenant received an eviction notice. Also in August, the landlords attempted to have the tenants sign a written rental agreement; all refused primarily due to a clause in the agreement that stated the premises were in a safe and tenant-able condition.

After the Health Department became involved at various points, the landlords were instructed to hook into the Missoula County sewer system due to the severity of the septic system problems and water contamination. To accomplish this endeavor, landlords evicted the tenants all of whom were out of the trailer court by July 1986.

This matter came to trial in 1991 on the 9th, 10th and 24th of April and the District Court ruled in favor of the landlords, stating that they did not breach the warranty of habitability in maintaining the trailer court. Tenants appeal and we reverse.

We address only the following dispositive issue on appeal: whether the District Court erred in deciding that the landlords did not breach the warranty of habitability.

We utilize the “clearly erroneous” standard for reviewing findings of fact. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. To determine whether a finding is clearly erroneous we have adopted the following three-part test:

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

Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

Montana enacted “The Montana Residential Landlord and Tenant Act” (the Act) in 1977. Sections 70-24-101, MCAet seq. The purpose of the Act is to: “(a) simplify, clarify, modernize, and revise the law governing the rental of dwelling units and the rights and obligations of landlords and tenants; and (b) encourage landlords and tenants to maintain and improve the quality of housing.” Section 70-24-102, MCA. The term “dwelling unit” is defined by § 70-24-103(3), MCA, to include “a person who rents space in a mobile home park,” making the Act applicable in the case at bar. The Act utilizes “good faith” or “honesty in fact” as the standard in dealings and transactions between the parties. Section 70-24-103(4), MCA.

Also instructive in the case at bar are various Administrative Rules of Montana including: 16.10.706-Water Supply, 16.10.707-Sewage System, 16.10.710-Solid Waste — Storage and Disposal, 16.10.714-Operator Requirements.

It is with guidance from these sources that we address the issue of habitability; intimately intertwined with the habitability issue is the aspect of “notice” to the landlords of the problems the tenants experienced. Therefore, for clarity, we first address informationally the topic of “notice” in the case at bar before proceeding to the dispositive issue of habitability.

The landlords argue that they were never notified nor were they aware of the conditions so that they could repair or replace the problem. This argument is not supported by the record. Brandvold, as manager of the trailer court, lived in the trailer court and, if he did not observe the debris and odors in and about the trailer court, he most certainly should have. Since Brandvold is the agent of the landlords, they must be charged with having notice of the defects and conditions on the premises.

The landlords continue with this illogical argument in reliance on § 70-24-406, MCA, which provides that the tenant is to notify the landlord in writing of any problems. We believe that the legislature adopted the “in writing” portion of the statute to deter tenants from claiming that they gave notice to the landlord when they had not. The “in writing” requirement is to assure that the landlord was given notice and the opportunity to correct the problem. The case at bar is not one of these cases. As stated previously, Brandvold lived at the facility and witnessed the defects and problems first hand; he obviously had actual notice of all the aforementioned problems. The Health Department was also involved on various occasions relating to the unsanitary sewage and water conditions of the trailer court. The testimony of one of the owners, Harold Magruder (Magruder) is riddled with the words “I don’t recall” when asked for any specificity or detail on almost any issue. He was particularly elusive about the notice issue and even went so far as to state repeatedly that he was not aware of the complaints because they were not in writing due to Brandvold’s failure to relate the complaints to him.

Later, Magruder reluctantly conceded that he was aware of some of the problems and that eight of the tenants were complaining. Further, Magruder testified that he did get written notice from the Health Department about the condition of the trailer court:

Q. Clean and safe. Was it [the trailer court] clean according to the pictures of the refuse piled around all of the dumpsters?
A. Well, if that — those pictures coincided with the date of the rental agreement, no.
Q. Wasn’t the water unsafe in August of 1985? Wasn’t there a boil order in effect?
A. If that’s what it [the letters from the Missoula County Health Department] says, yes.
Q. And didn’t Mr. Kikkert [the County’s environmental health specialist], several times, say that there were serious sanitary problems going on at the trailer court?
A. Just that one mention in that one here.
Q. Well, I recall three letters by Mr. Kikkert indicating that there were sanitation problems there.
A. Caps.
Q. That’s not exactly what he said. Didn’t he talk about serious health hazards? Do you want to look at the exhibits again?

Magruder’s testimony is fraught with inconsistencies; after claiming that he had no knowledge of the problems he then testified that the sewer repair people were out at the trailer court trying to fix the problems on a daily basis. Magruder also attempts to create yet another escape route stating that he told Brandvold to tell the tenants that if they had a serious complaint they should bypass Brandvold and speak directly with the owners.

We find it particularly egregious that the landlords then, with knowledge of the many problems, would present for the tenants’ signatures the lease agreement containing a statement of condition which was untrue, let alone emphasize that the tenants refused to sign the new lease as some example of their uncooperativeness. The clause read as follows:

8. Condition: Lessee agrees and stipulates that Lessee has examined the premises, including the grounds, buildings, and improvements, and that they are, at the time of this rental agreement, in good order and repair, and in a safe, clean and tenantable condition.

Under these circumstances, we will not allow the landlords to escape their responsibility by claiming that they were never notified. There was actual notice under § 70-24-108, MCA.

In directly addressing the habitability issue, we note that a major but absent character in this lawsuit is Brandvold. He was the on-site manager of the trailer court and, in theory, the conduit through which all information traveled between landlords and tenants. The record indicates that Brandvold was not accountable to either the tenants or the landlords in almost every action that took place. Brandvold also violated his own rule of “no junk vehicles in the trailer court” by himself repairing, dismantling and parking vehicles in various stages of disrepair at the trailer court site. A careful review of the record also indicates that due to the recurring nature of the problems and the fact that Brandvold did little or nothing about the complaints, the tenants obviously felt a sense of futility, many of them indicating that making a complaint to him was in vain. Further, when tenants did complain many of them testified that they were met with threats of eviction from Brandvold.

While we sympathize with the landlords’ apparent misfortune in relying on a manager who only paid “lip service” to their instructions and directives, they still must be held accountable for his actions or inactions. In this light, we note that Magruder also testified that he hired Brandvold without knowing his employment history or taking an application for employment from him.

Q. Okay. And you hired Mr. Brandvold then as the trailer court manager.
A. Yes.
Q. What did you know about Mr. Brandvold?
A. Not a great deal.
Q. And is that — has something to do with the fact that you can’t find him? Did you ever get an employment history from him?
A. No.
Q. Take an application from him.
A. No. We just talked to him.

Citing the fact that the trailer court license was never revoked by the Health Department, the landlords characterize the conditions that the tenants complained of as “inconveniences.” However, raw sewage spilling onto the ground next to one’s dwelling, with its repugnant odors and health concerns, cannot appropriately be described as merely an “inconvenience” nor can unsafe drinking water be placed into that category. These issues go directly to the habitability of the trailer court and no amount of creative verbiage can subvert the conclusion that the trailer court was not in a habitable condition.

With regard to the contamination of the water at the trailer corut, the environmental health specialist Douglas Kikkert (Kikkert), said that he was not sure of the source of contamination. Further, trailer court tenant Mrs. Amundson, and other tenants, testified that they were never notified by landlords that the boil order was lifted and that they could resume normal consumption of the water. This fact was corroborated by Magruder when he yet again assigned responsibility to Brandvold for not informing the tenants that the boil order was lifted.

Numerous witnesses testified to the unhabitable condition of the trailer court. Ms. Cora Linn resided in the trailer court from May 1985 to June 1986 and her testimony is particularly illustrative.

Q. What was the condition of the trailer court at the time that you first moved into it?
A. It was a mess.
Q. Could you describe the — what you mean by the word “mess?”
A. Raw sewage. Toilet paper. Uncapped sewers. Open well hole full of water around a child’s trailer. Yes, it was a mess.
Q. What kind of problems did you have?
A. Right by my front door was a hole by a tree, and it was raw sewage and fumes that made me sick... the hole was about a half a foot wide when I moved in. When I left it was a foot wide, and it was nasty.
Q. ... Now this sewage backing up, could you tell where it was coming from?
A. From down in the ground past the tree trunks. It was just there.
Q. There was no pipe there that you could see.
A. I couldn’t see nothing but a hole.
Q. Did you mention that particular problem to Mr. Brandvold?
A. Yes.
Q. And what did he tell you?
A. Ha, ha, ha. [To] put dirt on it.
Q. And did you do that?
A. Yes.
Q. And what was the result?
A. The hole got bigger.
Q. How often would you have to fill that hole with dirt?
A. Once every month... it grew an inch, inch and a half, each time you filled it up.
Q. Okay. How deep was it?
A. Deep. I could put a stick in it and come up this deep with it. I don’t know how much that would be.
Q. You indicated about maybe more than a foot.
A. More.
Q. Okay. And to whom did you complain about that sewer problem?
A. To the manager [Brandvold],
Q. And his response was what?
A. Ha. Put dirt in it. It will dry up.
Q. Were there any other dangerous conditions at the trailer court?
A. Yes, that little dot right in the top up there was open.
Q. You’re referring to the main sewer riser.
A. That’s right. And there was a little baby hanging over the edge, and I got that baby, took him in his trailer. I went down to the manager and I said, “Cover this, or I’m goingto the police.” He said, “Bitch all the way down there.” He put a piece of board and a rock, and he said, “Don’t bother me no more. I don’t care who dies.”
Q. You had complaints, Ms. Linn, about the odor and the appearance of the sewage. The sewage disposal system, the drains, and toilets in your trailer worked for the entire 14 months that you lived there, did they not?
A. No.
Q. Were they stopped at some point?
A. They backed up a lot. I had —
Q. How many times?
A. I counted six times I had to use snakes to unplug my toilet so I could flush it. When I did it came out of the ground on the other side of the lot.

Also, tenant Richard Schwarz testified that “[o]ne day the sewage backed up to the point to where it came up through my bathtub lines, all the way underneath my trailer, and came up and knocked my bottom pipe down, and it was squirting out of the ground behind my trailer.” The extent of Brandvold’s attempt to correct the problem was that he threw lime underneath Schwarz’s trailer. A similar rendition was testified to by Dorienne Amundson as follows:

Q. Okay. Were you present in the trailer court when Richard Schwarz’s neighboring vacant lot bubbled up with sewage?
A. Yes, I was.
Q. And what steps did Brandvold take to alleviate that situation?
A. He threw lime on it.
Q. Did he do any cleanup of the place?
A. None.
Q. How about all those sewer risers in Exhibits 5, 6, and 7? Did he do anything to clean up the garbage that was around it?
A. No. He left it there.

Mr. Greg Filori also testified to the sewage and uncleanliness of the trailer court as follows:

Q. Did you have any problems with the sewage system where you lived in River Road Trailer Court?
A. Yes. There was open pipe by the trailer.
Q. There was an open pipe by the trailer, and what did that do?
A. It kind of seeped up through the ground by the tree. You can smell it.
Q. What seeped up?
A. The sewage.
Q. Okay. Were the common areas and the grounds around your particular residence where you lived, were they kept in a clean — clean and safe manner by management?
A. No.
Q. Did they keep the weeds and water puddles and what not removed?
A. There was quite a few weeds there.
Q.... were they [the weeds] ever trimmed or cut back?
A. No.
Q. Do you know if the common areas of the trailer court were ever watered or the grass mowed?
A. I didn’t see [the grass] mowed.

Garbage services were also problematic when, after constant complaints about the inadequate size of the dumpsters, larger ones were temporarily installed and Brandvold himself filled them with debris from his construction business, which was unrelated to the trailer court.

The landlords also tout that they were never in any violation of health codes as administered by the Health Department. However, we have reviewed the reports and testings made by the Health Department and have discovered the following warning in the reports when the results proved to be “noncontaminated.”

The laboratory examination of this sample showed no evidence of contamination. This indicates that, as far as can be determined by a laboratory examination, the water was safe for drinking at the time the sample was taken. However, these results cannot be relied upon as indicating the safety of the water at all times unless the source is properly located and maintained.
Any well construction which does not positively exclude all surface and subsurface contamination must be considered as dangerous to health. All dust, pump spillage, surface drainage, bird droppings, scrapings from one’s shoes, etc. must be prevented from entering the well.

The surface and subsurface contamination of concern and reported by the tenants is exactly the type of contamination named in the warning. Further, the Health Department’s employee Eikkert explained more clearly the meaning of water test results in his deposition as follows:

Q. And how about the other one [sample]?
A. And the next one, a sample taken by ... Brandvold shows contamination with no coliform bacteria.
Q. What would that mean?
A. That the particular multiple tube fermentation media was able to grow something, but not coliform bacteria. The laboratory problem there is that whatever’s growing may have crowded out what we wanted to test for and the coliform bacteria and not allowed it to grow, so it’s marked as no coliform bacteria, but the simple matter may be that another contaminate has crowded it out and not allowed it to show up on our test.

Due to the historical non-attentiveness of Brandvold, the tenants chose not to believe news circulated by word of mouth that the water was once again safe for consumption, particularly when the septic problems had not been alleviated. The tenants logically connected the contaminated water with the sewage leakage and based their actions regarding whether to drink the water again on their own observations.

With this testimony in mind we examine existing case law. First, in Corrigan v. Janney (1981), 192 Mont. 99, 102, 626 P.2d 838, 839, we indicated that by adopting the Residential Landlord and Tenant Act of 1977, there is an implied warranty of habitability present in the landlord/tenant relationship. In Corrigan, the tenants complained to their landlord after moving in that when touching various portions of the plumbing system an electric shock was received. Mr. and Mrs. Corrigan, as well as numerous guests, experienced such shocks and requested that the landlord have the electrical system inspected. It was also shown that the previous tenant moved out because the landlord refused to address the electrical problem. The landlord did nothing throughout the Corrigans’ tenancy, which lasted a year or more, until Mr. Corrigan was killed by an electric shock while bathing.

While Corrigan is an example of a severe result from a landlord’s failure to maintain rental property in a habitable condition, it bears similarity to the case at bar. There were serious and ongoing problems that went unabated despite the complaints of the tenants. In the case at bar the record indicates that the sewer and water systems were problematic and there were other conditions in the trailer court that were unclean and dangerous. The fact that no one incurred a fatal accident because of the lack of care exhibited by the landlords is irrelevant. The instant case and Corrigan are identical in that the tenants repeatedly made complaints about the unsafe and uninhabitable conditions, all of which were either addressed inadequately or more commonly not at all.

In Busch v. Kammerer (1982), 200 Mont. 130, 649 P.2d 1339, a tenant’s only source of domestic water came via a garden hose stretched from a neighboring house above ground. We indicated that such a condition was grounds for a claim against the landlord for a violation of the Residential Landlord and Tenant Act, which, as stated in Corrigan, encompasses an implied warranty of habitability.

Corrigan and Busch perpetuate the purpose and goals of the Residential Landlord and Tenant Act and are helpful by giving us examples of violations of the warranty of habitability.

In the case at bar, the testimony of Magruder is particularly revealing with regard to his true expectations of Brandvold in maintaining or repairing the trailer court.

Q. And yet you expected him to handle all of the business of the River Road Trailer Court.
A. Oh, no.
Q. The majority of it?
A. Just collecting the rent, and keeping the weeds cut down.

The examples in Corrigan and Busch are similar to the case at bar and we conclude that the landlords breached the warranty of habitability.

In reviewing the case at bar we also note the District Court’s inconsistent treatment of the habitability issue. For instance, in the court’s findings of fact and conclusions of law that spanned 26 pages, the court said:

The Court specifically finds that the River Road Trailer Court was not clean nor were the grounds, buildings and improvement[s] steadily in good order and repair.

Also the court found that the landlords failed to engage in cleanup activity after tenants vacated the premises, yet the court ruled in favor of the landlords and stated that the landlords met their duty to maintain the premises, and that they took steps to remedy the problems.

Also, after the court recited the condition of the trailer court and the ongoing nature of the problems, it used the adjectives “inconvenienced” and “discomfort” to describe what these tenants experienced. As mentioned previously the record does not support this characterization.

The tenants in the case at bar contended with ongoing serious violations of habitability standards few of which were addressed by the landlords in a timely manner, if at all. After reviewing the record we are left with the definite and firm conviction that a mistake has been committed under the third prong of the three-part test we adopted in DeSaye, 250 Mont. at 323, 820 P.2d at 1287, when the District Court determined that the landlords did not breach the warranty of habitability. We conclude that the landlords failed to adequately maintain the trailer court in a habitable manner and breached the warranty of habitability. Therefore, we reverse and remand to the District Court for further proceedings consistent with this opinion. Reversed.

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


author: CHIEF JUSTICE TURNAGE

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. DAVID LEE LYONS, Defendant and Appellant.
    No. 92-170.
    Submitted on briefs July 9, 1992.
    Decided Aug. 18, 1992.
    49 St.Rep. 730.
    838 P.2d 397.
    254 Mont. 360.

      For Defendant and Appellant: David W. Harman, Libby.
    For Plaintiff and Respondent: Marc Racicot, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Scott B. Spencer, County Attorney, Libby.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

A jury in the District Court for the Nineteenth Judicial District, Lincoln County, convicted David Lee Lyons of three counts of criminal sale of dangerous drugs. We reverse on all three counts, with directions that Count One be dismissed.

The dispositive issues are:

1. Did the court err in refusing to dismiss Count One for lack of sufficient evidence?

2. Did the court err in permitting law officer opinion testimony regarding the credibility of the informant?

To aid the court and counsel on remand, we also briefly address the following issues:

3. Was other crimes evidence admitted in violation of Just?

4. Did the court err in refusing to give defendant’s entrapment instruction concerning Count Three, the sale of four pills?

Between September 1990 and May 1991, an undercover drug operation was conducted in Lincoln County, Montana, in which Hal Turner acted as an undercover agent for the Lincoln County Sheriff’s Department. During his employment, Turner became acquainted with defendant Lyons.

On December 12, 1990, Turner went to Lyons’s apartment to talk to a third person about arranging a drug deal. A fourth individual present at Lyons’s apartment, Denyce Larson, provided some marijuana for everyone to smoke and said she knew where to buy more for $25 per quarter ounce. Lyons and Turner both told Larson that they wanted to buy some and each arranged to pay for a quarter ounce to be delivered to Lyons’s apartment later that evening.

Turner later returned to Lyons’s apartment to pick up his marijuana. The marijuana for both buyers had been delivered in one bag. After some joking around, Lyons’s girlfriend divided the marijuana into two bags, which Lyons readjusted to his satisfaction. Then Turner was allowed to choose which bag to take as his. This transaction is the basis of Count One charged against Lyons.

Counts Two and Three relate to sales of prescription sleeping pills by Lyons to Turner on December 18 and 19,1990. Count Two alleged that Lyons gave Turner one pill and Count Three alleged that he sold Turner four more pills. Turner testified that these transactions occurred at Lyons’s residence.

Lyons testified on his own behalf. He essentially admitted that the transaction charged as Count One occurred. However, he denied selling or giving Turner any prescription sleeping pills and maintained that Turner must have stolen the pills from him.

At the close of the defense’s case, the State asked to be allowed to offer character evidence in rebuttal to rehabilitate witness Turner because, it argued, Turner’s credibility had been directly attacked by the defense. The court granted the motion. Officer Klint, a Lincoln County detective, testified about the importance of credibility in an undercover agent. He further testified that planting evidence is illegal, that he had checked into Turner’s background before Turner began to work as an undercover agent, and that, in his opinion, Turner was “very truthful” as far as undercover work.

Lyons was convicted of three counts of selling dangerous drugs under § 45-9-101, MCA. A fourth count charged against him was dismissed during trial.

I

Did the court err in refusing to dismiss Count One for lack of sufficient evidence?

Lyons was convicted under Count One of criminal sale of dangerous drugs in violation of §§ 45-9-101 and 45-2-301, MCA. Section 45-9-101, MCA, defines the offense of sale of dangerous drugs as, inter alia, selling, bartering, exchanging, or giving away dangerous drugs as defined in § 50-32-101, MCA, or offering to do so. Section 45-2-301, MCA, provides:

Accountability for conduct of another. A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself or that of another and he is legally accountable for such conduct as provided in 45-2-302, or both.

The companion statute, § 45-2-302, MCA, provides in relevant part:

When accountability exists. A person is legally accountable for the conduct of another when:
(3) either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense ....

Lyons argues that as a co-buyer he cannot be guilty of the crime of sale of dangerous drugs through the accountability statute. He quotes the general rule that a purchaser of illegal drugs is not an accomplice to the crime of selling drugs. State v. Stokoe (1986), 224 Mont. 461, 464, 730 P.2d 415, 417. He moved for dismissal of Count One after he and the State had presented their respective cases-in-chief, but the motion was denied.

Amotion to dismiss a criminal charge because of insufficient evidence should be granted only when there is no evidence upon which a trier of fact could render a verdict. State v. Miller (1988), 231 Mont. 497, 509, 757 P.2d 1275, 1282. This Court’s standard of review of the propriety of the trial court’s ruling on such a motion is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Downing (1989), 240 Mont. 215, 217, 783 P.2d 412, 414. The requisite elements for holding a person legally accountable for the conduct of another under Montana’s accountability statutes are that 1) either before or during 2) the commission of an offense 3) with the purpose to promote or facilitate such commission 4) the person solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense. Downing, 783 P.2d at 414.

Turner testified as follows about ordering the marijuana:

Q. Okay. And then what transpired next?
A. Denyce said that she, there was some available that was $25.00 a quarter.
Q. Okay.
A. Okay. And David said that he wanted one. And I said well, I wanted one, too, just kind of barged in, too. And nothing was, barged in, the pot was smoked, okay, then —
Q. Okay.
A. Finally, David asked for something about the money part, okay. She needed the money. I said why sure, gets my money out and gave her $25.00.

He testified as follows concerning the delivery of the marijuana:

Q. Now, what were the arrangements for getting the pot? You gave the money to Denyce and then you left. You mean — what was supposed to be, mailed to you or what?
A. Okay, there was a mix-up there, right. She said she had to go to work and she was telling Dave about how the deal was going. I didn’t understand that totally how it was going to go down. So then when she left, I asked Jamie, I said, well, what is the deal? She said she got to go to work and, you know, I was worried about did I get ripped off for $25.00. And I am going to get something? And she said well later then around 6:00 or something. So anyway, I was supposed to be there later.
Q. So whatever that conversation was, you were to go back to the Lyons’ residence and pick up the marijuana?
A. Right.
Q. And did you go back to the Lyons’ residence and pick up the marijuana?
A. Yes, I did.
Q. And who was present?
A. David Lyons, Jamie Popp again, me and Angela Smith.
Q. Did Denyce or Mike show up at any time when you were there the second time?
A. No, sir.
Q. Okay. Was there any marijuana that you saw the second time?
A. Oh, yes, sir.
Q. How did it come about that you saw marijuana?
A. Well, David told Jamie to get it out, okay.
Q. Okay. And then what did Jamie do?
A. Got it out of her purse.
Q. Okay. And how was it packaged?
A. Okay, it was rolled in one bag. David — well, I suppose I should back up.
Q. Let’s just go through it?
A. Okay.
Q. You said all in one bag. Was it supposed to be in one bag?
A. Hmmm, well, I didn’t think so. I thought that I was supposed to get a package, okay.
Q. Who else was supposed to get a package?
A. David was supposed to get a package.
Q. And was anything said about why it was in one package?
A. Yes. First told the story there is none for you.
Q. Is that what somebody said?
A. David Lyons said.
Q. Okay. And how did you react to that?
A. I started whining, okay.
Q. Define whining.
A. Crying around, you know. He said there was only some for him.
Q. Okay.
A. And I asked him, I said, can’t I split it with you? And you know, I wanted to get something out of the deal.
Q. Is that unusual to do that if you don’t get your marijuana to whine?
A. No, sir, it is not.
Q. Okay. So you complained about it. Did he offer to give you your money back?
A. No, sir, I don’t believe that he did. It was all a joke.
Q. It was a joke they wouldn’t give you any?
A. Yes.
Q. How did you know that it was a joke?
A. Well, he told me finally, the bag, we had to split it in half. Anyway, my part was already in there.
Q. All right. And so the bag comes out of the purse and then it is split?
A. No, sir, it is not split yet.
Q. Do you get your part?
A. Yes, sir.
Q. How does that come about?
A. Well, David told somebody to grab something to split it. I think Angela went to the kitchen to get something, a plate or piece of cardboard. And then Jamie split it, okay. And I said, I get to pick. Usually that is how it is. Whoever has the drug splits it and the other person gets to pick, okay.
Q. Okay.
A. So I picked but Dave didn’t like the way that I picked because I picked the big bag. So then he got in it and, you know, mixed it around more so it looks better. And then I got to pick my bag.
Q. What did you do with the marijuana after that?
A. Wrapped it up and put it in my pocket.

In the other cases cited by the State in which defendants were convicted of sale of dangerous drugs under the accountability statutes, there was evidence that the defendants in some manner promoted or facilitated the drug sales. State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455 (with respect to Count IV, defendant’s wife told the buyer that she could deliver some cocaine to him only after she conferred with defendant; defendant drove his wife to deliver the cocaine to the buyer); State v. Downing (1989), 240 Mont. 215, 783 P.2d 412 (defendant admitted that he helped set up the deal; he arranged a meeting and was paid; he began the search for drugs for the buyer with the seller, but did not intend to limit his search to the seller).

In the present case, there was no evidence that Lyons had a purpose to promote or facilitate the sale of marijuana to Turner. This drug deal was not pre-arranged; it was not the reason Turner went to Lyons’s apartment. Turner testified that he “barged in” on the sale by Larson to Lyons to place his own order. The delivery of the marijuana to Lyons’s apartment and Lyons’s participation in dividing the marijuana into separate bags for himself and Turner show nothing more than that Lyons acted to obtain some marijuana for himself. Even when viewed in the light most favorable to the State, the best that can be said is that Lyons and Turner were parallel buyers from Larson.

We conclude that, in this case, no rational trier of fact could have found all of the elements of sale by accountability beyond a reasonable doubt and that this case falls "under the general rule set forth in Stokoe that the purchaser of drugs is not an accomplice to the crime of selling drugs. We therefore hold that the District Court erred in denying the motion to dismiss Count One. Because of this holding, we will not address the issue Lyons raised concerning the surveillance tape introduced into evidence on Count One.

II

Did the court err in permitting law officer opinion testimony regarding the credibility of the informant?

The State concedes this issue. In State v. Webb (Mont. 1992), 828 P.2d 1351, 1356, 49 St.Rep. 236, 239, this Court ruled that character evidence regarding a witness is not admissible into evidence solely on the basis that the witness has testified concerning a material fact and the testimony conflicts with that of the defendant. In the present case, the District Court allowed rebuttal character testimony about Turner for precisely that reason — that Turner’s testimony as to material facts concerning Counts Two and Three conflicted with Lyons’s testimony as to the same facts. We therefore reverse Lyons’s convictions on Counts Two and Three.

III

Was other crimes evidence admitted in violation of Just?

The evidence under this issue which relates to Counts Two and Three was testimony by Mike Brannon that he had obtained some pills from Lyons. No immediate objection was made to this testimony, but a brief was filed and an objection was made the next day.

Because no objection was made at the time and because Brannon’s testimony was unresponsive to the question he was asked, we hold that no violation of Just has been shown. If he testifies on retrial, Brannon should be advised not to mention obtaining pills from Lyons unless he is specifically asked about it.

IV

Did the court err in refusing to give defendant’s entrapment instruction concerning Count Three, the sale of four pills?

The District Court refused Lyons’s offered entrapment instruction on the basis that an entrapment defense would be inconsistent with Lyons’s defense that the sale of the four pills did not occur. The State did not brief this issue on appeal.

Lyons cites Mathews v. United States (1988), 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54, in which the United States Supreme Court held that, even if a criminal defendant denies one or more elements of the crime with which he is charged, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment. While we do not wish to prejudge the evidence which may be presented on retrial of Counts Two and Three, we call the attention of the District Court to the Mathews opinion.

Reversed as to Counts One, Two, and Three. Remanded with instructions that Count One be dismissed.

JUSTICES HARRISON, TRIEWEILER, WEBER and McDonough concur.