author: JUSTICE HARRISON

text:
    MORNING STAR ENTERPRISES, INC., Plaintiff and Appellant, v. R. H. GROVER, INC., Defendant and Respondent.
    No. 90-194.
    Submitted on briefs Nov. 29, 1990.
    Decided Jan. 31, 1991.
    247 Mont. 105.
    805 P.2d 553.

      J. David Penwell, Bozeman, for plaintiff and appellant.
    Ronald A. Bender, Worden, Thane, & Haines, P.C., Missoula, for defendant and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a final judgment enforcing a contract in favor of respondent, entered by the District Court of the Fourth Judicial District for Missoula County. We affirm in part and reverse in part.

The issues presented for review are as follows:

(1) Whether the District Court erred in its interpretation of the contract between Morning Star Enterprises, Inc. and R. H. Grover, Inc.

(2) Whether the District Court abused its discretion in allowing Thomas Pew to testify as an expert witness for R. H. Grover, Inc.

(3) Whether the District Court erred in granting R. H. Grover, Inc. prejudgment interest on the sums awarded.

(4) Whether the District Court abused its discretion in awarding costs which are not allowed by statute and by allowing attorney’s fees far in excess of the amount recovered.

The appellant, Morning Star Enterprises, Inc., initiated this suit in 1984 seeking sums it claimed were due from R. H. Grover, Inc. (Grover) arising from the construction of a sludge stabilization and dewatering facility in Missoula. Morning Star was the subcontractor on that project and Grover was the general contractor. Grover has counterclaimed against Morning Star alleging that Morning Star owes Grover additional sums on the Missoula project and also additional sums from a waste water treatment project in Glacier Park wherein Morning Star was the general contractor and Grover was the subcontractor.

On the 8th day of June, 1982 Morning Star entered into an agreement as a subcontractor with Grover whereby Morning Star was to perform certain work on the expansion of the waste water treatment plant for the city of Missoula. Morning Star began construction under the subcontract by the end of June, 1982.

The three page subcontract was prepared by Grover. A provision of the subcontract at issue here required Morning Star to perform the following work: “Division 504 — Doors, Windows, Frames — Install contractor furnished material complete. Subcontractor to furnish supports and accessories as necessary for installation.” At trial, Morning Star contended that this provision did not obligate them to seal an alleged two-inch gap between the windows and the walls which was caused, according to Morning Star, by Grover’s own oversight. Grover disputed the existence of a two-inch gap. In addition, Grover as contractor would “furnish an adequate crane with operator for subcontractor’s use as normally required on a project of this type, excluding concrete placement.” (Emphasis added.) The question regarding this portion of the subcontract is how to define “excluding concrete placement.” At trial, Morning Star contended that the subcontract obligated Grover to allow Morning Star to use Grover’s crane to put in place precast concrete panels.

The court, sitting without a jury, found in favor of Grover and awarded a judgment in the sum of $7,067.54 plus prejudgment interest at the rate of ten percent per annum from August 31, 1984 until the date of the judgment, for the Missoula project. The court awarded the further sum of $880.64 plus interest from the date of judgment, for the balance due on the retainage from the Glacier National Park job. In addition, the court awarded Grover attorney’s fees in the sum of $28,865.63 and costs and disbursements in the amount of $1,724. It is from that judgment that Morning Star now appeals, claiming that the District Court’s decision was unreasonable, contrary to the parties’ intentions and improper under the rules of contract construction.

I.

Whether the District Court abused its discretion in allowing Thomas Pew to testify as Grover’s expert witness.

In March of 1986, Grover was required under interrogatories and Rules 33 and 34 of the Montana Rules of Civil Procedure to provide Morning Star with a list of any and all expert witnesses with whom they expected to call at the trial. In addition, Grover was required to fist in detail the subject matter of any testimony that an expert witness would make. Twelve days prior to trial, which began on May 24, Grover notified Morning Star that Grover would be bringing Thomas Pew before the District Court to testify as an expert in this matter. Grover also supplemented his answers pursuant to Rule 26(e), M.R.Civ.P., by a formal supplement, dated May 12, 1989, in terms of Pew’s background, what he would testify to and disclosed the underlying facts to which he would testify. Grover, furthermore, made Pew available for deposition by Morning Star. Then, on May 26, 1989, at a bench discussion, counsel for Grover informed Morning Star that Pew would be called as a witness on June 15,1989, the next scheduled trial date. During the June 15 hearing, after objections and an extensive discussion, the District Court allowed a recess in order to give Morning Star an opportunity to discuss Pew’s testimony with Pew. Then, over another objection, Pew was allowed to testify. Morning Star now argues that the District Court abused its discretion by admitting Pew’s testimony because such admission amounted to unfair surprise.

Admissibility of evidence is within the sound discretion of the District Court and we will not reverse the District Court’s admission of evidence unless the ruling amounts to an abuse of that discretion. Massman v. City of Helena (1989), 237 Mont. 234, 773 P.2d 1206. It is uncontested that counsel for Morning Star knew of Pew’s existence and potential testimony as early as May 12,1989. Furthermore, Pew’s May 22,1989 deposition was videotaped. This videotape as well as the transcribed copy of the deposition was available to Morning Star. In addition, Pew testified on June 15, 1989. Lastly, Morning Star had its own expert, Mr. Springer, available to testify in order to rebut any claims made by Pew. In view of the disclosure of the testimony of Pew, the availability of the depositions and the actual opportunity to examine Pew prior to his testimony, we find no error. We hold that there was no abuse of discretion by the District Court in allowing the testimony of Mr. Pew.

II.

Whether the District Court erred in its interpretation of the contract.

As its first assignment of error, Morning Star argues that the District Court erred by finding that the subcontract in question did not provide for Morning Star’s use of Grover’s crane to pick up and put in place precast concrete panels which would become the walls of the structure. Under the terms of the subcontract, Grover was to provide to Morning Star an adequate crane and qualified operator, for Morning Star’s use, “excluding concrete placement.” Dining construction of the sewage plant, Grover refused to allow Morning Star to use the crane for placement of precast concrete panels. At trial, Mr. Grover testified as follows:

“I discussed and, in fact, negotiated the entire agreement with Morning Star with Mr. Ray Murphy. We discussed the scope of their work, what who would be on the job, what Mr. Murphy had included in his price. These negotiations took place during several telephone conversations... . I had worked with Mr. Murphy on other projects before he went to work for Morning Star and he was aware of the equipment that R. H. Grover owned... . We both agreed that it was not adequate to place concrete, either to place concrete in the forms with the bucket, to pour the concrete, or place the precast-concrete panels... . I came up with the wording that was put in the contract and discussed it with Ray before I wrote the contract.... He was well aware of the capacities of the crane, what the crane was able to do, and that’s why the contract was written as it was.”

Conversely, Morning Star contends that they meant to contract for the use of Grover’s crane to place precast concrete panels in position as the walls of the sludge handling building.

When the language of a contract is clear and unambiguous, the contract does not require the application of the rules of construction and it is the court’s duty too enforce the contract as made by the parties. Schulz v. Peake (1978), 178 Mont. 261, 583 P.2d 425. Where the words are clear, certain, and unambiguous, the language alone controls and there is nothing for the courts to interpret or construe. The language employed must be given its ordinary meaning. Payne v. Buechler (1981), 192 Mont. 311, 628 P.2d 646. We may resort to the usual rules of construction to ascertain what the parties intended by the language they employed only when an ambiguity exists. An ambiguity exists when the contract taken as a whole in its wording or phraseology is reasonably subject to two different interpretations. Lemley v. Bozeman Community Hotel, Co. (1982), 200 Mont. 470, 651 P.2d 979. In interpreting a written contract, the intention of the parties must be ascertained, first and foremost from the writing alone, taken as a whole if possible, and resort to extrinsic evidence in aid of discovering the parties’ intent may be had only when the contract appears on its face to be ambiguous or uncertain in this regard. Glacier Campground v. Wild Rivers, Inc. (1978), 182 Mont. 389, 597 P.2d 689; unmodified by Bain v. Williams (Mont. 1990), [245 Mont. 228,] 800 P.2d 693, 695, 47 St.Rep. 2049, 2052. Furthermore, in the construction of contracts, the courts may look not only to the language employed but to the subject matter and the surrounding circumstances and may avail themselves of the same light which the parties possessed when the contract was made. Kintner v. Harr (1965), 146 Mont. 461, 408 P.2d 487.

In applying the above rules, it is clear that this issue does not involve contract interpretation because there exists no ambiguity in the contract. The District Court found that the term “concrete” included, specifically, precast concrete panels. The District Court then enforced the contract in favor of Grover. We have reviewed the record before us and find no error on behalf of the District Court. We hold that the court properly enforced the contract in this regard.

Morning Star next assigns error to the District Court’s enforcement of the contract in Grover’s favor regarding sealing windows and installing ladders on the roof.

The District Court found that Morning Star failed to perform its work in a reasonable and workmanlike manner as required by the subcontract. The District Court specifically found that Morning Star wrongfully failed to seal seventeen windows and failed to install ship ladders on the roof of an existing building. The subcontract, regarding windows, calls for the installation of windows supplied by the contractor (Grover). Concerning installation of the ship ladders, the record shows through testimony and documentation that a change order which was signed by Morning Starls president, Mr. Thomas Trusler, obligated Morning Star to install the ladders.

Testimony was heard regarding the windows and the ship ladders by Grover’s expert, Mr. Thomas Pew. Pew has been a general contractor for approximately ten years. Pew testified that under the contract and change orders between Morning Star and Grover, Morning Star was responsible for sealing the installed windows as well as installing the ship ladders.

Furthermore, during cross-examination of Mr. Pew, Morning Star’s counsel acknowledged that there was indeed a provision in a change order which obligated Morning Star to install the ladders.

“Q. [By Mr. Penwell] I’m handing you what is Plaintiff’s Exhibit No. 19, which is the change order that we’re talking about.... It says ship’s ladders, two thousand dollars, furnish and install?
“Mr. Bender: Let the record show that it’s signed by Thomas W. Trusler dated August 3,1983.
“Q. [By Mr. Penwell] Where does it show on that that the rails are in addition to the cost of installing that ship’s ladder? There is a provision for the installing of a ship’s ladder, yes.” (Emphasis added.)

Testimony conflicts regarding the installation of windows. Morning Star claimed that, due to Grover’s mistake, a two-inch gap existed between the side of the window frame and the panels. Morning Star argued that this two-inch gap was created by Grover’s error and Morning Star was not obligated under the contract to cure this problem. Morning Star asserted that although they did contract to install and caulk the windows, they did not, however, contract to seal a two-inch gap caused by Grover’s oversight. Conversely, Mr. White, Grover’s engineer, testified that prior to trial he visited the construction site again and that the actual space between the window and the wall was approximately % of an inch as opposed to the statement by Mr. Trusler, that the space amounted to two inches. The District Court found Mr. White’s and Mr. Pew’s testimony to be:

“[V]ery credible in view of their experience and continued familiarity with the construction industry, and in particular, construction of sewer plants and digesters similar to the one in question.
“Both witnesses were candid, frank and impartial witnesses not related to the parties nor having any interest in the outcome of the lawsuit. In particular, Mr. White’s candid and frank observations based upon his physically being on the job daily and observing and reporting the progress of the work was extremely credible.”

The credibility and weight accorded evidence and witnesses by the trial court must be given great weight on appeal. Rule 52(a), M.R.Civ.P.; Corscadden v. Kenney (1977), 175 Mont. 98, 572 P.2d 1234. Based on the evidence presented at trial, the District Court found that Morning Star was obligated under the subcontract to completely install and seal the windows, and to install the ship ladders as well. We have reviewed the entire record before us and we find no error. We hold that there was no abuse of discretion and that the District Court properly enforced the contract in these respects.

III.

Did the District Court abuse its discretion in awarding attorney’s fees and costs?

Morning Star claims that the District Court’s award of attorney’s fees in the amount of $28,865.63, approximately four times the amount of damages recovered, is excessive. In determining the reasonableness of attorney’s fees the trial court should consider the following factors: (1) the amount and character of the services rendered; (2) the labor, time, and trouble involved; (3) the character and importance of the litigation in which the services were rendered; (4) the professional skill and experience required; (5) the character and standing of the attorneys in their profession; and (6) the result secured by the services of the attorneys. Majers v. Shining Mountains (1988), 230 Mont. 373, 379-80, 750 P.2d 449, 453. These guidelines are not necessarily exclusive; the trial court may consider other factors as well. Talmage v. Gruss (1982), 202 Mont. 410, 413, 658 P.2d 419, 421.

Morning Star cites Carkeek v. Ayer (1980), 188 Mont. 345, 613 P.2d 1013, for the proposition that attorney’s fees should not exceed the amount of the judgment. In Carkeek we upheld a trial court’s decision to disapprove fees which were greater than the amount of damages awarded and noted:

“We interpret the District Court’s memorandum as saying that while a fee of $5,773.20 is fair and reasonable, it would be unreasonable to assess this entire amount against the lienholder under the circumstances of this case.” (Emphasis added.)

Carkeek, 188 Mont. at 348-49, 613 P.2d at 1016. If Carkeek stands for anything, it stands for the concept that reasonableness of attorney’s fees must be ascertained under the facts of each case. The “result secured” factor is only one of the factors which the district court should weigh in arriving at a reasonable fee. Western Media, Inc. v. Merrick (1988), 232 Mont. 480, 484, 757 P.2d 1308, 1311.

The District Court specifically addressed each factor set forth in Majers and, relying on expert testimony, found the fees requested reasonable in light of the complexity of the litigation and time spent in preparing the case. Initiated in 1984, this suit concerned two contracts worth $436,000, and requests by Morning Star and Grover for damages totaling $122,679.90 and $72,943.17 respectively. The case involved five days of trial, seven witnesses, 169 exhibits, and numerous issues.

We will not disturb a district court’s award of attorneys fees absent abuse of discretion. DeVoe v. Gust. Lagerquist & Sons, Inc. (Mont. 1990), [244 Mont. 141,] 796 P.2d 579, 582, 47 St.Rep. 1527, 1530.

“In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but rather did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or exceed the bounds of reason, in view of all the circumstances, ignoring recognized principles resulting in substantial injustice.”

Carkeek, 188 Mont. at 348, 613 P.2d at 1015 (quoting Porter v. Porter (1970), 155 Mont. 451, 457, 473 P.2d 538, 541). We find that under the circumstances of this case the District Court did not abuse its discretion in awarding attorneys fees.

Morning Star also protests the amount the District Court awarded for costs. The District Court refused to consider this issue because Morning Star’s objections were not timely filed pursuant to § 25-10-502, MCA. Our examination of the record does not reveal abuse of discretion by the District Court.

IV.

Did the District Court err in granting Grover prejudgment interest on damages?

Grover sought damages in the amount of $59,621.16 for twelve items, the largest of which were $26,600 for use of a Grover crane and $21,728.54 prejudgment interest. The District Court ordered Morning Star to pay for the first eight of the twelve items sought, comprised of the following:

a) roll-up door $2,582.00
b) frame work on cone 116.96 fan support
c) seal 17 windows 640.00
d) repair roof damage, 95.16 caused by plaintiff
e) repair damage to yard 209 89 island caused by plaintiff
f) install ship ladders on roof of g70 qq existing building
g) temporary utilities 147.53
h) rental of 50 ton crane 2,500.00

These damages totaled $7,067.54. Grover also sought $13,321.98 for retainages withheld by Morning Star. Since Grover had retained $12,441.34 for amounts paid by Grover for performing Morning Star’s work, the District Court awarded Grover the difference, $880.64 plus interest from the date of judgment. The District Court ordered that prejudgment interest be paid on the $7,067.54 in damages on the basis that the sums were “fixed, definite and certain as of August 31, 1984.”

The statute govern ing prejudgment interest provides: “Every person who is entitled to recover damages certain or capable of being made certain by calculation and the right to recover which is vested in him upon a particular day is entitled also to recover interest thereon from that day except during such time as the debtor is prevented by law or by the act of the creditor from paying the debt.”

Section 27-1-211, MCA. In order for prejudgment interest to be awarded, the following criteria must be met: (1) an underlying monetary obligation exists; (2) the amount of recovery is capable of being made certain by calculation; and (3) the right to recover the obligation vests on a particular day. Albers v. Bar ZF Ranch, Inc. (1987), 229 Mont. 396, 408, 747 P.2d 1347, 1354.

The trial court determined damages owing for work which Morning Star “failed to perform ... in a reasonable and workmanlike manner.” Since the sums were not for items set forth in the contract, the damages were not certain until the court delivered its judgment. We therefore reverse the District Court’s award of prejudgment interest to Grover and remand for entry of an order consistent with this opinion. We affirm the District Court in all other respects.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, HUNT and McDONOUGH concur.


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    BEAVERHEAD BAR SUPPLY, INC., a Montana corporation, Plaintiff and Appellant, v. DONALD P. HARRINGTON, d/b/a HARRINGTON BOTTLING COMPANY, Defendant and Respondent.
    No. 90-287.
    Submitted on briefs Nov. 8, 1990.
    Decided Feb. 1, 1991.
    247 Mont. 117.
    805 P.2d 560.

      Frank B. Morrison, Jr., John M. Morrison, Morrison Law Offices, Helena, for plaintiff and appellant.
    Donald C. Robinson, Poore, Roth & Robinson, Butte, for defendant and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The plaintiff Beaverhead Bar Supply (Beaverhead) appeals the order of the Montana Fifth Judicial District Court, Beaverhead County, granting the defendant Donald P. Harrington, d/b/a/Harrington Bottling Company (Harrington), summary judgment on Beaverhead’s claims of breach of contract and breach of the implied covenant of good faith and fair dealing. We reverse.

The plaintiff raises several issues on appeal, which we restate as follows:

1) Did the District Court err in concluding as a matter of law that no contract existed between the parties?

2) Does the statute of frauds bar the plaintiff from seeking enforcement of an alleged oral agreement on the grounds that the agreement could not be performed within one year?

3) Does the implied covenant of good faith and fair dealing apply to the relationship alleged in this case?

In 1978, Dan Carpita, Jr. (Carpita) began negotiating an agreement with his father (Carpita, Sr.) to purchase his father’s interest in Beaverhead Bar Supply for $294,705.00. Carpita was also contemplating a $300,000.00 expansion over five years. The terms of the agreement called for a down payment of $85,000.00 and monthly payments of $1,754.08 over 20 years. At the time, Pepsi-Cola products allegedly represented approximately 30% of Beaverhead’s inventory and approximately $7000.00 to $8000.00 per month gross profit. Beaverhead obtained all of its Pepsi products from Harrington on an order basis.

As part of negotiations, Carpita sought assurances from Beaverhead’s major suppliers for their continued business. Both Carpita and Carpita, Sr. allegedly met with Don Harrington in Harrington’s office and explained the proposed financial transaction and expansion. They allegedly advised Harrington of the terms of their agreement and told him that Carpita was also planning on incurring additional debt of approximately $300,000.00 for expansion of Beaverhead. Carpita alleges that they explained to Harrington that in order to effectively carry out this plan for sale and expansion that it was necessary for Beaverhead to maintain the Pepsi-Cola distributorship in order to service the proposed debt.

Harrington alleges that while the Carpitas did inform him of the transfer of ownership of Beaverhead, no such in-depth discussion took place.

In 1979, Harrington began directly distributing Pepsi-Cola products in adjacent Madison County, thus removing that market from what had been part of Beaverhead’s distribution area. In 1982, an agent of Harrington allegedly came to Carpita and asked if Beaver-head was for sale. Carpita informed him that it was not. Due to these two incidents, Carpita claims that he began to be concerned about the intentions of Harrington sometime in 1983. About this time Harrington suggested that Carpita invest more heavily in an aggressive promotion of Pepsi-Cola products and Carpita stated that as a prerequisite to additional investment, he would need the alleged oral assurance of Harrington for a continued relationship, put into a written contract. Don Harrington allegedly agreed to “work up” a written contract.

In June of 1984, Carpita, Sr. died leaving Harrington and Carpita as the only witnesses to the alleged 1978 agreement. In August, Harrington’s agent presented Carpita a proposed written contract providing for a termination of the bottler-distributor relationship “at will.” Carpita counterproposed certain terms reflecting the continuation of the alleged 1978 agreement.

On December 18, 1984 Don Harrington notified Carpita that effective January 7, 1985, Harrington Bottling would begin distributing Pepsi-Cola products directly and would no longer make those products available to Beaverhead. Beaverhead filed suit in June of 1985, alleging that as a result of the termination it lost over $90,000.00 a year, approximately one-third of its income, and entirely lost 65 accounts as a result of the termination, of which approximately 39 were allegedly developed since 1978 through the efforts of Carpita. Beaverhead alleges that the loss of this income has brought it to the brink of insolvency.

Harrington moved for summary judgment, which the District Court granted on April 26,1990, and subsequently amended its order on May 4, 1990. Beaverhead now appeals.

In its order granting summary judgment, the District Court concluded that there existed a “vague, indefinite, and uncertain,” type of relationship between the parties, but that no contract existed between them. Consequently, the court found no implied covenant of good faith and fair dealing attendant to a contract. Moreover, the court concluded that the statute of frauds, § 28-2-903, MCA, bars enforcement of whatever oral relationship or agreement may have existed between the parties.

We disagree. Summary judgment under Rule 56(c), M.R.Civ.P. is proper only if the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Reaves v. Reinbold (1980), 189 Mont. 284, 287, 615 P.2d 896, 898. While it is true that the purpose of summary judgment is to encourage judicial economy, it is also true that the procedure is never to be a substitute for trial if a material factual controversy exists. Reaves, 615 P.2d at 898. In Reaves we held that there was a genuine issue of material fact as to the existence of an oral contract for $900.00 a month salary that precluded summary judgment. Reaves, 615 P.2d 898-99. Similarly, in this case there are genuine issues of material fact regarding whether Beaverhead and Harrington had a contract based on the 1978 meeting. This factual dispute is more evident in the deposition testimony of the parties. In his deposition, Harrington testified as follows:

“Q. At the time that Dan purchased the business from his father, do you recall a meeting in Butte with Carpita, Sr. and Dan and yourself present?
“A. Yes.
“Q. Where was that meeting held?
“A. It was in our old offices at the plant here, and Dan, Sr. put his head in the door and he said, Tm turning this business over to young Dan,’ and he says, ‘But I’m going to be around to look after it for awhile.’
“Q. Was that the extent of the meeting?
“A. It was very brief.
“Q. Did anybody come in and sit down in your office?
“A. No, never did. Dan was standing there and his dad was standing there, right in the door of the office.
“Q. And what was said by you?
“A. As I recall, I said something to the effect that, ‘If he does as good a job as you did, well, things will be okay,’ or words to that effect.
“Q. If other people testify that something like that was said, you wouldn’t disagree with it? In fact, you do remember saying something like that?
“A. Correct. Dan’s dad was a good businessman.”

Carpita’s account of the meeting given in his deposition differs substantially:

“Q. Mr. Harrington was asked this morning about a conversation that took place between he and your father back at about the time you were taking over the business from your father here in Butte. Did you witness that conversation?
“A. I did.
“Q. What is your recollection of where that conversation took place?
“A. It took place in Don’s office on Holmes Avenue.
“Q. And Mr. Harrington testified that while he was in his office, your father stuck his head in the door and indicated, said something to the effect that you had taken over the business, and he was being advised of that, so to speak, and Mr. Harrington indicated that that was fine and wished you all well, and said something to the effect that if you did as good a job as your, as Dan, Sr. did, everything will be okay, or words to that effect. Is that your recollection of the conversation?
“A. No.
“Q. What is your recollection of the conversation?
“A. We called and made an appointment to see Don and made a specific trip for that reason. We spent some three hours in Don’s office and explained the financial transaction between my father and I and also the transaction with the expansion of the business, building, etcetera.
“Q. Who participated in that conversation?
“A. My dad, Don and myself.
“A. [I] [e]xplained the financial situation and pointed out to him the importance of having it, because nothing could take — I couldn’t service the debt to him. I couldn’t service the debt for the expansion without it.
“Q. Without what?
“A. Without Pepsi-Cola.
“A. ... [A]t the time the first discussion took place, I asked Don if we needed something in writing. And he says, ‘Ahandshake should always be good enough. It always has been.’
“Q. When did he say that?
“A. In 1978.
“Q. He said, You have a handshake.’ Did you shake hands?
“A. Yes.
“Q. What did you shake hands over?
“A. Over the discussion, over the relationship, over the friendship that we assumed after 30 years that we have.
“Q. Did he say anything to the effect about, or compliment your father and say If [sic] things went like your father ran the business, that he thought everything would be okay, or words to those [sic] effect?
“A. What the words were to the effect was that we had always enjoyed a good relationship. We didn’t see any reason to change anything if it kept going.
“Q. That isn’t my question, Mr. Carpita. My question is, did he ever say anything to the effect that your father had done an excellent job and that if you continued along the same lines, that everything would be okay?
“A. No.
“Q. He didn’t say that?
“A. That was not the specific words that he said.
“Q. Did he say words to that effect?
“A. The words to the effect that I just said, that we had always enjoyed a good relationship.
“Q. By Ve’, he meant he and your father, right?
“A. Beaverhead Bar Supply.”

In light of the deposition testimony and the continued relationship of the parties for some 30 years there is a genuine issue of material fact regarding whether an agreement was made at the 1978 meeting, and what was that agreement. Furthermore, if an agreement was made, the deposition testimony indicates that factual issues exist regarding the length of the contract’s term. According to Harrington’s testimony, such a contract could be construed as being “for so long as Beaverhead continued to perform satisfactorily”, measured comparatively to the performance of Beaverhead under Carpita, Sr. See, e.g., Burgermeister Brewing Corp. v. Bowman (1964), 227 Cal.App.2d 274, 38 Cal.Rptr. 597. Or, as Beaverhead argues in its brief, the term of the contract could be construed as an exclusive distributorship of Pepsi-Cola products for an implied term of twenty years, i.e. the time necessary for Beaverhead to service its debt. Finally, according to Carpita’s testimony that “we had always enjoyed a good relationship [and] [w]e didn’t see any reason to change anything if it kept going” the contract could be construed as providing for termination at will. See e.g., Bronken’s Good Time Co. v. J. W. Brown & Associates (1983), 203 Mont. 427, 661 P.2d 861.

The District Court also ruled that the statute of frauds barred enforcement of any agreement that may have existed between the parties. Again, we disagree. The statute provides that an agreement that by its terms is not to be performed within a year from the making thereof must be in writing. Section 28-2-903(i)(a), MCA. Evidence of such an agreement is not admissible without the writing or secondary evidence of its contents. Section 28-2-903(2), MCA.

However, courts have uniformly construed this provision narrowly. If there is any possibility that a contract may be performed within one year, it is not within the statute. 2 Corbin on Contracts, § 444 at 535; Farnsworth, Contracts, § 6.4 at 392. Thus, the issues of fact regarding the terms of the alleged oral agreement discussed hereinabove are also material toward determining whether the statute bars enforcement of the alleged agreement. Assuming arguendo that there is an oral contract, if its term is for “so long as Beaverhead continued to perform satisfactorily” Harrington could not terminate the contract at will. Rather, the contract would be one of indefinite duration that, depending upon Beaverhead’s performance, might possibly be performed within one year, and therefore enforcement would not be barred by the statute. Burgermeister, 38 Cal.Rptr. at 601-602. On the other hand, if the jury finds that the oral contract was for a twenty-year term — thus enabling Beaverhead to service the debt incurred in expansion — enforcement is clearly barred by the statute because by its terms such a contract cannot possibly be performed within a year. Section 28-2-903(l)(a), MCA. Finally, if the alleged oral contract was terminable at will, the rule of Bronken’s Good Time Co. v. J W. Brown & Associates, supra, as to reasonable notice of termination applies. If so, Beaverhead is entitled to reasonable notice of termination. As to what is a reasonable amount of time is a question of fact. Bronken’s, 661 P.2d at 864. If the jury finds that a reasonable amount of time to be given by a notice to terminate exceeds one year, then such contract, being wholly oral, is -unenforceable. Section 28-2-903(l)(a), MCA; San Francisco Brewing Corp. v. Bowman (1959), 52 Cal.2d 607, 343 P.2d 1, 7, also discussed in appeal after remand, Burgermeister Brewing Corp., supra, 38 Cal.Rptr. at 602.

Beaverhead’s final issue on appeal asks us to rule on whether the implied covenant of good faith and fair dealing applies to the relationship alleged in this case. In order for Beaverhead to recover from Harrington on a theory of breach of the implied covenant, there mustbe an enforceable contract to which the covenant attends. See Story v. City of Bozeman (1990), 242 Mont. 436, 450, 791 P.2d 767, 775. In Story we held that “every contract, regardless of type, contains an implied covenant of good faith and fair dealing.” In essence, the covenant is a mutual promise implied in every contract that the parties will deal with each other in good faith, and not attempt to deprive the other party of the benefits of the contract through dishonesty or abuse of discretion in performance. Story, 791 P.2d at 775.

First, we note that this case is before us on appeal from an order granting summary judgment. We decline to rule on application of the covenant in this case where only a sparse record has been developed at this point and where there are still genuine factual issues to be resolved regarding the existence and enforceability of the alleged contract. However, we do note that Beaverhead correctly concedes in its brief that even if it can prove a breach of the implied covenant, it cannot prove that it entered into the contract for a non-profit motivation and thus any damages it might recover will be limited to contractual remedies. Story, 791 P.2d at 776.

We conclude that there are genuine issues of material fact regarding the existence of a contract and its enforceability that preclude summary judgment under Rule 56(c), M.R.Civ.P. We therefore reverse the order of the District Court granting summary judgment.

REVERSED and REMANDED for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HARRISON, HUNT and WEBER, and THE HONORABLE PETER L. RAPKOCH, District Judge, sitting for JUSTICE SHEEHY, concur.


author: JUSTICE McDONOUGH JUSTICE WEBER

text:
    THOMAS P. DOOHAN, Plaintiff and Respondent, v. BIGFORK SCHOOL DISTRICT NO. 38, Bigfork, Mt., Dr. Robert W. Bowman, Robert Chrysler, Albert Cochrane, Robert Boese, Lloyd Magnall, Joseph Potoczny, Ronald Martin, Edwin Anderson, and Charles Mason, Trustees thereof, the following Bigfork School District No. 38 Board Members in their individual capacity; ROBERT CHRYSLER and ALBERT COCHRANE, Defendants and Appellants.
    No. 89-207.
    Heard Nov. 1, 1989.
    Submitted Oct. 18, 1990.
    Decided Feb. 5, 1991.
    Rehearing Denied March 14, 1991.
    247 Mont. 125.
    805 P.2d 1354.

      Stephen C. Berg, Warden, Christensen, Johnson & Berg, Kalispell, for defendants and appellants.
    Chris P. Christensen, Kalispell, John K. Addy, Matovich, Addy & Keller, Billings, for plaintiff and respondent.
    Catherine Swift, Montana School Boards Assn., Helena, for amicus.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This case is an appeal from a judgment against Bigfork School District No. 38 (School District) and Trustees Robert Chrysler and Albert Cochrane individually, following a trial in the Eleventh Judicial District, Flathead County, Montana. The jury fixed damages of $87,583.33 against the School District for unlawfully depriving the respondent, Thomas P. Doohan, of his constitutionally protected right to continued employment as a school district superintendent. The jury found defendant School Board Trustees Robert Chrysler and Albert Cochrane each individually liable for intentional infliction of emotional distress and fixed damages in the amount of $1 against Chrysler and $12,500 against Cochrane. We reverse and remand for new trial.

The parties raise several issues which we restate as follows:

As to School District No. 38:

I. Did the District Court err in giving Instruction No. 12?

II. Did Doohan properly state a claim for deprivation of a property right under 42 U.S.C. § 1983?

III. Does substantial evidence support the jury verdict against the School District?

IV. Is the School District immune from liability for civil damages under 42 U.S.C. § 1983?

As to School Trustees Robert Chrysler and Albert Cochrane:

V. Does substantial evidence support the jury’s verdict that Cochrane and Chrysler inflicted emotional distress on Doohan?

VI. Are Cochrane and Chrysler entitled to immunity under § 2-9-111, MCA?

Doohan raises an issue on cross-appeal:

VII. Did the filing of the Notice of Appeal divest the District Court of jurisdiction to decide Doohan’s application for attorney fees pursuant to 42 U.S.C. § 1983?

Doohan was the Superintendent of School District No. 38 in Bigfork, Montana from July 1, 1983, to June 6,1985, when he took a medical disability retirement. Chrysler was a trustee of the School Board when Doohan began work and Cochrane was appointed to the Board in May of 1984. Doohan alleged that the School Board collectively and Cochrane and Chrysler individually made his working conditions intolerable. Doohan alleged that, as a result of these intolerable working conditions, he suffered severe mental distress and physical illness which forced him into a medical disability retirement. Further, Doohan alleged that Cochrane and Chrysler engaged in a concerted effort to force him out of his job and that their actions constituted an intentional infliction of emotional distress upon him.

During the eight-day trial, Doohan introduced evidence, both testimonial and documentary, relating to numerous specific instances of conduct by the School Board and Chrysler and Cochrane. These instances began in August of 1983 and occurred frequently, oftentimes each month, until June 6, 1985. Testimony related to the appellants’ conduct during open School Board meetings, executive School Board sessions, communication with school personnel, communication with the media, communication with the public, School Board members’ communication with each other privately, and various private communications with Doohan.

Defendants introduced evidence that conflicted substantially with Doohan’s evidence regarding the same incidents. More specific facts will be discussed as necessary.

I and II.

We will discuss the first two issues together. First, the defendant School District argues that Instruction No. 12 provides an inadequate definition of the requirements of due process and essentially directed a verdict on the § 1983 claim in Doohan’s favor. Instruction No. 12 provided:

“INSTRUCTION NO. 12
“Under the United States Constitution and the Federal Statute I [the corut] previously referred to, the Plaintiff is claiming he has been deprived of property and liberty ‘without due process of law.’ To be deprived of one’s property and liberty ‘without due process of law’ means to be deprived of such rights without authority of the law. Before you can determine, then, whether or not the Plaintiff was deprived by the Defendants of his property and liberty ‘without due process of law,’ you must first determine from a preponderance of the evidence in the case whether the Defendants committed the acts alleged, and, if so, whether the Defendants acted under circumstances within or without the bounds of their lawful authority under state law. If the Defendants acted within the limits of their lawful authority under state law, then the Defendants could not have deprived the Plaintiff of any right ‘without due process of law.’
“Under Montana law, the Trustees may terminate the services of a Superintendent of Schools only at the expiration of his term, and only if they give him written notice of the termination prior to February 1 of the last year of his contract. The Trustees also have an implied right to terminate the Superintendent prior to the expiration date in the contract only if they give him a hearing on the reasons for the dismissal and find that there is just cause to dismiss him.
“In this case, Mr. Doohan, the Plaintiff, has claimed that the Defendant Board of Trustees has constructively discharged him from his position as Superintendent without giving him a hearing, and that their actions have deprived him of his constitutionally protected rights to property and liberty.
“If you find that the Defendant Board constructively discharged the Plaintiff without notice and hearing you may find the Plaintiff was deprived of the due process of law.” (Emphasis in original.)

This instruction was fashioned by the court from the court’s own language, several of the plaintiff’s instructions, and the first paragraph of the defendant’s Proposed Instruction No. 14, which is identical to the first paragraph of Instruction 12 above. Defendant’s proposed instruction No. 14, contained the following language in its second paragraph, which was omitted by the Court:

“Due process may be defined as notice and opportunity for hearing appropriate to the nature of the case. It is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those entrusted with the unfolding of the process. Among the considerations that must enter into the judgment is the precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged and the balance of the hurt complained of and good accomplished.”

Defendant’s definition of due process is taken directly from the United States Supreme Court decision in Anti-Fascist Committee v. McGrath (1951), 341 U.S. 123, 162-163, 71 S.Ct. 624, 643-644, 95 L.Ed. 817, 849, as cited in Montana Power Co. v. Public Service Commission (1983), 206 Mont. 359, 367-368, 671 P.2d 604, 609.

While we agree with the trial judge’s assessment of this definition as better suited for judicial opinions than jury instructions, nevertheless it is a better definition of due process than the one given in Instruction No. 12. However, we sympathize with the presiding judge in this case for guidelines are sparse in this evolving field of the law.

Instruction No. 12 briefly defines “without due process of law” as “without authority of the law.” This definition is conclusory, its inaccuracy is evident in the many cases that have held that a particular law or statute violates the due process requirement of the 14th Amendment. Rather, as the defendant’s proposed instruction notes, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge (1976), 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed. 2d 18, 32; Fuentes v. Shevin (1972), 407 U.S. 67, 81, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556, 570. Generally, “some kind of a hearing” is ordinarily a constitutional requirement for due process purposes before a public employee who has a property interest in his job may be terminated. Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494, 504. And as noted by Justice Frankfurter in the language used in the defendant’s proposed instruction, the notice and hearing required are not inflexible; rather they should be “appropriate to the nature of the case.” See Anti-Fascist Com., supra.

Obviously, the very nature of a constructive discharge in many cases precludes the giving of notice and hearing on the subject employee’s discharge. This does not, as we shall discuss later, always lead to the conclusion in every case that a constructive discharge in the context of public employment also gives rise to a claim for deprivation of a constitutional right under 42 U.S.C. § 1983. But here, Instruction No. 12 implies that the foregoing is correct. It instructed that the Trustees could terminate Doohan prior to the expiration of his contract only after a hearing on the reasons for dismissal and a finding of just cause. Furthermore, it instructed that Doohan alleged that the Trustees “constructively discharged him from his position as Superintendent without giving him a hearing.” The instruction then provided:

“If you find that the Defendant Board constructively discharged the Plaintiff without notice and hearing you may find the Plaintiff was deprived of the due process of law.” (Emphasis added.)

The instruction essentially directed a verdict for Doohan on his § 1983 claim because it incorrectly focused on the idea of constructive discharge “without a hearing”, and tells the jury that it may find that Doohan was deprived of due process if they find such. However, there was no issue as to giving notice or hearing in this case — both parties agreed that there had been neither notice or hearing. Nor is lack of notice and hearing unusual in a constructive discharge claim. Nevertheless, once the jury found a constructive discharge, they were directed to find a violation of plaintiff’s due process rights.

This is not supported by the law. Under the law of this case, the elements of constructive discharge required facts sufficient to logically lead a prudent person to believe his tenure had been terminated; generally no notice or hearing is in any way involved in that type of a termination. These elements were contained in the court’s Instruction No. 10:

“INSTRUCTION NO. 10
“Plaintiff has asserted a claim for constructive wrongful discharge against the School Board and against Defendants Chrysler and Cochrane as individuals.
“The doctrine of constructive discharge applies where facts are present showing harassment, intimidation, coercion or other aggravating conduct on the employer’s part which renders working conditions intolerable.
“The fact of discharge does not depend upon the use of formal words of firing. The test is whether sufficient words or actions by the employer would logically lead a prudent person to believe his tenure had been terminated.”

Because defendants did not object to this instruction, we will riot discuss it at length. However, we do point out that while the wording of the second paragraph reflects the definition of constructive discharge given in Snell v. Montana Dakota Utilities Co. (1982), 198 Mont. 56, 65, 643 P.2d 841, 846, the wording of the third paragraph of this instruction was rejected in Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 119, 760 P.2d 57, 61, because it actually applies to cases alleging actual discharge. See Hannifin v. Retail Clerks Int’l Ass’n. (1973), 162 Mont. 170, 178, 511 P.2d 982, 987.

Our decision in Snell pointed out that a determination of constructive discharge depends on the totality of the circumstances, and must be supported by more than an employee’s subjective judgment that working conditions are intolerable. Snell, 643 P.2d at 846, citing Nolan v. Cleland (N.D.Cal.1979), 482 F.Supp. 668, 672; aff’d in part, rev’d in part, 686 F.2d 806, 812-813 (9th Cir.1982). Snell involved a federal law claim of constructive discharge in an employment discrimination case under Title VII of the Civil Rights Act of 1974, 42 U.S.C. § 2000e. Many such Title VII employment discrimination cases are accompanied by due process claims under 42 U.S.C. § 1983. See e.g., Hervey v. City of Little Rock (8th Cir. 1986), 787 F.2d 1223, Bailey v. Kirk (10th Cir. 1985), 777 F.2d 567, Satterwhite v. Smith (9th Cir. 1984), 744 F.2d 1380, Nolan, supra, (9th Cir.1982), 686 F.2d 806, Bourque v. Powell Manufacturing Co. (5th Cir.1980), 617 F.2d 61, Young v. Southwestern Savings and Loan Association (5th Cir. 1975), 509 F.2d 140,144. TxiNolan the Ninth Circuit recognized the standard for constructive discharge in Title VII employment discrimination cases adopted by the Fifth Circuit in Young:

“The general rule is that if the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is as liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee.”

Nolan, 688 F.2d at 812-813; citing Young, 509 F.2d at 144. The Fifth Circuit later clarified Young and adopted an objective standard, stating that a constructive discharge exists when “working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” See Bourque v. Powell Manufacturing Co. 617 F.2d at 65. The Bourque court specifically rejected arguments that an employee has to prove that it was the employer’s intent to force the employee to resign in Title VII discrimination cases.

While Title VII employment discrimination cases under 42 U.S.C. § 2000e may involve similar issues and are often accompanied by claims under 42 U.S.C. § 1983, such claims are not analogous to § 1983 claims based solely on deprivation of due process where a constructive discharge is alleged as the basis of the claim. Failure to recognize the distinctions between a straight § 1983 action based on constructive discharge and Title VII constructive discharge has led to confusion among the circuits in adopting an appropriate standard for the straight § 1983 action:

“The elements required to establish a constructive discharge claim under the due process clause are not entirely clear. Some courts have required an individual asserting a constructive discharge claim to establish that the defendant forced a discharge in order to avoid a pretermination hearing, see, Fowler v. Carrollton Public Library, 799 F.2d 976 (5th Cir.), reh. denied, 803 F.2d 717 (1986); others have required that the plaintiff show that the employer either obtained the plaintiffs resignation through misrepresentations or deceit or forced the resignation by duress or coercion, see Stone v. University of Maryland Medical System, 855 F.2d 167 (4th Cir. 1988); and still others appear to adopt the Title VII standard, see, e.g., Greenberg v. Kmetko, 840 F.2d 467, 475 (7th Cir. 1988).”

Desper v. Montgomery County (E.D.Pa.1990), 727 F.Supp. 959, 964. Other jurisdictions apparently hold that a § 1983 claim can never be based on an allegation of constructive discharge. See, e.g., Beard v. Baum (Alaska 1990), 796 P.2d 1344, 1350.

We think that the position adopted by the Fifth Circuit in Fowler v. Carrollton Public Library, supra, is the better-reasoned one. There, the court analyzed § 1983 claims based on constructive discharge in light of the general principles governing § 1983 claims set forth by the United States Supreme Court in Loudermill and Daniels v. Williams (1986), 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed. 2d 662. We quote at length the Fifth Circuit’s reasoning:

“The Loudermill rule does not a fortiori apply to cases of alleged constructive discharge. A pretermination hearing is just not feasible when the gist of the employee’s claim is that he was forced to resign by unbearable working conditions. More significantly, the lack of a pretermination hearing does not necessarily create a constitutional procedural due process violation when that deficiency was an unintended or fortuitous consequence of harassment at work. In Daniels v. Williams [citation omitted] the Supreme Court recently held that negligent conduct does not implicate the Due Process Clause of the Fourteenth Amendment... . The Court cited with approval Justice Powell’s concurrence in Parratt, [Parratt v. Taylor (1981), 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed. 2d 420] urging that the word ‘deprive’ in the Due Process Clause connotes more than a negligent act and that the doors of the federal court house should not be ‘open ... where there has been no affirmative abuse of power.’ Daniels 106 S.Ct. at 664-65, citing Parratt, 101 S.Ct. at 1919-20. Discussing a public employee dismissal case, the Court cautioned, ‘In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee’s constitutionally protected rights, we must presume that official action ... if erroneous, can best be corrected in other ways.’ Bishop v. Wood, 426 U.S. 341, 350, 96 S.Ct. 2074, 2080, 48 L.Ed. 2d 684 (1976) (emphasis added.)

No issue of intent arises in a Loudermill case, because the employee ... has been actually terminated without resort to constitutionally required procedures. The employer must have consciously ignored procedural due process... . [H]owever, constructive discharge may often result as an unintended consequence from the course of interpersonal relations among employees and supervisors. Indeed, that was very likely the case here, for to the extent that Fowler demonstrated unbearable working conditions in the library, there was nevertheless no evidence that Mjaaland and Fowler’s coworkers purposefully sought to force her to resign or purposefully planned to avoid the City’s post-termination hearing procedure. Without proof of that critical nexus between the conduct complained of and the constitutional right being asserted, we find no general procedural due process protection against harassment at work.

“From the forgoing discussion, it appears that the district court erroneously submitted actual and constructive discharge as theories of § 1983 recovery in the same jury interrogatory. Constructive discharge in a procedural due process case constitutes a § 1983 claim only if it amounts to forced discharge to avoid affording pretermination procedures.” (Emphasis added.)

Fowler, 799 F.2d at 980-981. We adopt the rationale of the Fifth Circuit and hold that a valid procedural due process claim based on constructive discharge requires employer conduct motivated by a desire to avoid subjecting its actions to the scrutiny of a termination related hearing. We also note, as did the Fowler court, that our holding here does not affect the viability of the objective constructive discharge standard in a Title VII employment discrimination claim, under 42 U.S.C. § 2000e. In those cases, harassment motivated by the discrimination proscribed in the statute automatically establishes the “critical nexus” between the conduct complained-of and the employee’s constitutional right. Fowler, 799 F.2d at 980-981.

Thus, not only was it error in this case for the District Court to give an incomplete instruction on the definition of due process and essentially direct a verdict for the plaintiff, the court also erred in instructing the jury that it could find a deprivation of due process if it merely found a constructive discharge under the traditional objective test. Under the law we adopt here a § 1983 claim based on harassment at work requires additional proof of the employer’s subjective intent to deprive the employee of his due process hearing.

In this regard, evidence that the Trustees in this case withdrew their request for Doohan’s resignation — allegedly for the purpose of investigating the due process requirements to ensure compliance therewith — would be material to the issue of the Trustees actual intent concerning the alleged on-the-job harassment of Doohan. If the jury finds that the Trustees were sincere in their concerns about termination law, it cannot find that the Trustees deprived Doohan of due process of the law. If, on the other hand a jury finds that the Board is merely attempting to disguise its intentional attempts to deprive Doohan of his job and his right to a hearing on his discharge then Doohan has a cognizable claim under § 1983.

It was imperative that Instruction No. 12 told the jury specifically what Doohan had to prove to satisfy each element of the § 1983 claim. To establish a deprivation of that constitutional right, Doohan first had to prove that the School District constructively discharged him. Additionally, he had to prove that such discharge was intentionally carried out with the purpose of depriving Doohan of his right to notice and a hearing. The Court’s instructions failed to require this additional proof. The jury was not correctly instructed concerning the requirements of due process in this case nor was it properly instructed on the type of conduct required for liability in a § 1983 case. The giving of Instruction No. 12 was reversible error.

III.

Because we have determined that the giving of Instruction No. 12 was error, we decline to determine the defendant’s third issue regarding sufficiency of the evidence to support the verdict against the School District. Because we are essentially adopting a new standard for § 1983 claims based on constructive discharge, we think it fair that the plaintiff have an opportunity to present proof of his § 1983 claim under the Fowler standard at a new trial. Therefore, we decline to rule on the sufficiency of the evidence based on a record developed under a different standard. “The supreme court may not be bound in advance to a record which was not in existence at the time the decision was rendered.... If the prior decision of the supreme court does not expressly pass on the sufficiency of the evidence, the district court is free to consider a motion for directed verdict as if there had been no prior proceedings.” O’Brien v. Great Northern Ry. Co. (1966), 148 Mont. 429, 441, 421 P.2d 710, 716. Inasmuch as Doohan’s § 1983 claim will be re-tried under the new standard, the defendants will have an opportunity to raise the issue of the sufficiency of the evidence supporting the § 1983 claim at an appropriate time. See, e.g., Zeke’s Distributing Co. v. Brown Forman Corp. (1989), 239 Mont. 272, 279-280, 779 P.2d 908, 913.

IV.

Appellants argue that the School District is immune from damages under the U.S. Supreme Court’s decision in Harlow v. Fitzgerald (1982), 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396. The Harlow decision held that government officials are immune from civil liability as long as their conduct does not violate clearly established law. In pertinent part, Harlow provides:

“If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.... If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.”

Harlow 102 S.Ct. at 2738. Appellants argue that the law applicable to the School Board’s conduct in relation to terminating a superintendent is not clearly established. However § 20-4-401, MCA, plainly delineates how a school board must terminate a superintendent. The District Court correctly presumed the Board to have knowledge of this statute and appellants do not argue otherwise.

According to appellants the termination process required by § 20-4-401, MCA, would be the “clearly established” law only if it had affirmatively discharged Doohan and Doohan had alleged that it had wrongfully discharged him. Constructive discharge, however, is a form of wrongful discharge. Thus, if the School Board constructively discharged Doohan, then it did so in violation of § 20-4-401, MCA, which the Board knew outlined the required termination procedure. Furthermore, if a jury finds that the Board constructively discharged Doohan with the purpose of depriving Doohan of the procedures prescribed in § 20-4-401, MCA, the Board obviously cannot claim immunity based on ignorance of the procedures it was purposefully avoiding. Moreover, a state law defense of sovereign immunity under § 2-9-111, MCA, is not available in a § 1983 suit where a defendant school board is otherwise subject to suit in a state court and where such a defense would not be available had the action been brought in a federal forum. Howlett v. Rose (1990),_U.S._,_, 110 S.Ct. 2430, 2442-2445, 110 L.Ed. 2d 332, 352-356. Thus, the immunity afforded by § 2-9-111, MCA, does not apply to causes of action granted by the federal constitution such as the Civil Rights Act, 42 U.S.C. § 1983. We hold that the School District is not entitled to immunity from damages under 42 U.S.C. § 1983.

V.

The defendants Cochrane and Chrysler contend that the record lacks substantial evidence to support the jury’s verdict that they intentionally inflicted emotional distress on Doohan. Instruction No. 19 as given by the District Court covered the elements of the intentional infliction of emotional distress and also the scope of the immunity Cochrane and Chrysler pled as a defense to the alleged infliction. It stated:

“INSTRUCTION NO. 19
“Plaintiff has asserted a claim for the intentional infliction of emotional distress upon the Plaintiff by Defendants Chrysler and Cochrane. One who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. In order for you to find these two Defendants intentionally inflicted emotional distress upon the Plaintiff, you must find that their behavior, in their relationship with the Plaintiff, was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. The liability does not extend to mere insults, indignities, threats, annoyances, petty oppression and other trivialities.
“Emotional distress is defined as mental suffering, anguish, mental or nervous shock or the like. Severe emotional distress is defined as emotional distress such that no reasonable man could be expected to endure it.
“I further instruct you that if you find the conduct of Defendants Chrysler and Cochrane, in their dealings with the Plaintiff, arose from their lawful discharge of official duties associated with the introduction or consideration of legislation or action by the Board of Trustees, acting on behalf of the School District, then you cannot find these Defendants intentionally inflicted emotional distress upon the Plaintiff. Nor can you find liability based upon such Defendants’ insistence upon his legal rights in a permissible manner even though he is well aware that such insistence is certain to cause emotional distress.”

The defendants did not object to this instruction at trial. They now contend on appeal that the record does not contain substantial credible evidence to support the verdict of the intentional infliction of emotional distress. In addition they contend that under § 2-9-111, MCA, they were immunized from liability.

This Comb has not yet dealt with a case which merits recognition of a separate cause of action for the intentional infliction of emotional distress. Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 123-124, 760 P.2d 57, 63-64. We have not, however, rejected outright the validity of such a cause of action. Rather, we simply have not addressed a factual situation that may give rise to liability for such a tort under the standard set forth in § 46 of the Restatement (Second) of Torts:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm results from it, such bodily harm.”

Comment “d” to § 46 explains the nature of the conduct necessary to impose liability:

“The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’
“The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some oné’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.”

Restatement (Second) of Torts § 46 (1965), comment d.

Doohan introduced evidence tending to show that Chrysler and Cochrane, over a period of eight months to a year, engaged in a campaign designed to oust him from his position as Superintendent. Doohan alleges that prior to this campaign, the record indicates that he had performed exceptionally well and received good evaluations during his first year as Superintendent, and was coping well with the normal positive stresses that the job entailed. Doohan alleges that Cochrane and Chrysler then began their campaign seeking to undermine his credibility and effectiveness by directing the attention of the School Board, the media and the community towards certain events characterizing Doohan unfavorably. He alleges that they attempted to manipulate the media and they utilized every opportunity to characterize events so as to cast doubt on Doohan’s professional abilities and moral character. Doohan alleges that Chrysler and Cochrane worked with others outside of School Board meetings to circumvent Doohan’s authority and to lay something in the nature of an ambush during meetings. Chrysler and Cochrane allegedly continued their campaign in the face of Doohan’s deteriorating mental and physical condition of which they were allegedly aware. The evidence Doohan contends constitutes extreme and outrageous conduct by Cochrane and Chrysler includes the following:

ROBERT CHRYSLER

1) Doohan insinuates that Chrysler changed his mind about retiring as a Trustee after Doohan determined that there were not enough funds in the school budget to support a school nurse program — for which Chrysler’s wife had already applied — so that he could carry out a campaign against Doohan for not recommending the creation of the position and the hiring of Mrs. Chrysler.

2) Doohan and Chrysler disagreed regarding Chrysler’s assertion that it,is a Trustee’s duty to periodically observe classes although not for the purpose of evaluation. Chrysler attempted to observe a class against Doohan’s wishes to which the principal, with Doohan’s support, objected and eventually prevented Chrysler from doing.

3) Chrysler issued a memorandum critical of Doohan the morning after a school meeting during which Doohan became angry at a school employee, threw down his pencil in disgust and publicly criticized the employee.

4) Doohan was authorized by the Board to investigate and purchase a computer. Doohan purchased the computer pursuant to the lowest bid with only consulting one Board member for approval, allegedly because it was a time limited offer that required immediate action. At a School Board meeting Chrysler criticized Doohan for purchasing the computer without consulting the Board and for allegedly not investigating the compatibility of the software with the appropriate state agency. Doohan alleges that Chrysler would not accept any answer from him as a valid reason for his sudden purchase and attempted to undermine Doohan by insinuating that Doohan was attempting to conceal his failure to investigate software compatibility from the Board.

5) Doohan alleges that Chrysler coordinated a November 26,1984 School Board meeting agenda in advance and actively urged the Board to listen to totally inappropriate criticism of a superintendent by an elementary school principal in executive session. Chrysler also allegedly encouraged elementary school principal Chris Hagar to request this executive session to discuss the Board’s evaluation of him when such an evaluation would properly be performed by Doohan.

6) Doohan asserts that Chrysler gave him a marginal evaluation after the end of the second evaluation period and refused to disclose to Doohan the basis of a comment insinuating that Doohan was not “totally open and factual.”

7) Chrysler supposedly refused to permit Doohan to observe or participate in the tallying of the results of questionnaires which ultimately concluded that the local mill levy did not pass because the voters were dissatisfied with the school administration.

8) Doohan recommended that the School Board not join the Montana School Board Association. Chrysler sent Doohan’s memorandum setting forth the reasoning behind his recommendation to the association requesting an opinion thereon.

9) Doohan contends that Chrysler concocted a story regarding a threatening telephone call Doohan supposedly made to Chrysler after a discussion concerning wages for a new secretary position.

ALBERT COCHRANE

1) Doohan alleges that Cochrane had prior knowledge of and probably participated in the preparation of the November 26th meeting agenda with Chrysler.

2) Doohan alleges that Cochrane also brought out in the Board meeting that he had independently investigated charges brought by Hagar regarding an incident in the teacher’s lounge and related to the Board that an individual present in the teacher’s lounge verified that Doohan had called Hagar an “S.O.B.” Cochrane thereby concluded to the Board that Doohan was lying regarding the incident at a time when Doohan was absent and unable to respond to such a serious charge.

3) Doohan asserts that when he entered the meeting Cochrane criticized him for failing to communicate effectively with Hagar, shook his finger at Doohan and told him to straighten out his relationship with Hagar “or else.” Doohan also criticizes Cochrane because he allegedly urged the Board to inappropriately issue a public memorandum suggesting that Doohan was responsible for the lack of communication between Hagar and himself, when in reality the problem was Hagar’s fault.

4) Cochrane stated that there was a “cloud of mystery” surrounding the apparent disappearance of the original of Doohan’s contract. The absence of the original was discovered when uncertainty arose as to whether the Board had agreed to give Doohan a one or two year contract. Doohan alleges that this comment was meant to insinuate that Doohan was somehow responsible for the contract’s disappearance.

5) Cochrane also gave Doohan a marginal evaluation at the close of the second evaluation period and refused to disclose to Doohan the meaning of the “totally open and factual” comment which Doohan alleges was an accusation that he was a liar.

6) When Doohan announced he would hold a faculty morale session, Cochrane allegedly insisted on attending despite Doohan’s explanation that Cochrane’s attendance was inappropriate and would be disruptive. After much disagreement on this issue Cochrane eventually did not attend.

7) When Cochrane’s son Tim was caught in possession of alcohol at school, Doohan alleges that Cochrane attempted to persuade Doohan to impose a lesser penalty on Tim and then berated him for not doing so. Doohan insinuates that this escalated the motive underlying Cochrane’s campaign to oust Doohan, just as the school nurse position incident increased Chrysler’s motive to undermine him.

8) Doohan asserts that Cochrane was instrumental in preparing and conducting a survey of School District residents. He alleges that the questions were designed and the results later manipulated to reflect badly upon Doohan’s performance as Superintendent, and to imply that Doohan was the reason for the failure of the voters to pass the school mill levy. Doohan alleges that the survey was not scientifically valid and that Cochrane intentionally disregarded a number of suggestions on survey methodology made by High School Principal Zepp concerning distribution and the wording of questions. Doohan also asserts that Cochrane arranged Doohan’s absence as a chaperon for a group of students visiting Washington, D.C. so that he would be away from Bigfork and unable to protest at the time the survey was conducted and the results were published.

In reviewing the evidence, we are required to consider it in a light most favorable to Doohan, the prevailing party. Nelson v. Fairmont Hotsprings Resort, Inc. (1988), 234 Mont. 452, 455, 763 P.2d 1135, 1137. We note that the record discloses substantial conflict in the evidence regarding Chrysler and Cochrane’s alleged campaign of harassment. The jury apparently resolved these conflicts in favor of Doohan. Even so, it is a question of law whether a plaintiff has introduced sufficient evidence to support a prima facie case for intentional infliction of emotional distress. Philip R. Morrow, Inc. v. FBS Ins. Montana-Hoiness Labar, Inc. (1989), 236 Mont. 394, 403, 770 P.2d 859, 864. As unfortunate as the apparent consequences to Doohan’s health that allegedly arose from his tenure at Bigfork may be, when the evidence is considered as a whole and in the light most favorable to Doohan, the alleged actions of Chrysler and Cochrane still fail to approach the threshold level of “outrageousness” necessary to establish a prima facie case of intentional infliction of emotional distress. In ruling on the defendants’ motions for directed verdict, the trial judge stated that “there was copious evidence that the Plaintiff was under acute emotional distress.” Indeed, the record does demonstrate that Doohan suffered mental distress or symptoms commonly related to mental distress. However, the record also indicates that Doohan suffered from medical and psychological problems prior to his employment in Bigfork. Thus whether the symptoms he suffered were entirely a result of the Trustees’ conduct is unclear. Moreover, we do not live in an “eggshell society” in which every harm gives rise to a right of action for mental distress. First Bank Billings v. Clark (1989), 236 Mont. 195, 206, 771 P.2d 84, 91. As the commentators to the Restatement note:

“Complete emotional tranquillity is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable person could be expected to endure it...
“The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiarly susceptibility to such distress of which the actor has knowledge. ...” (Emphasis added.)

Restatement (Second) of Torts § 46 (1965), comment j. In this regard, Doohan presented the testimony of a psychologist who concluded that Doohan suffered from a personality disorder that arose from his being a recovering alcoholic. This disorder allegedly caused Doohan to over extend himself in order to gain approval of others and be viewed as an extraordinary individual, and consequently made him particularly sensitive to criticism. However, there is no evidence in the record that the Board knew about Doohan’s past struggle with substance abuse or any resulting peculiarity in Doohan’s personality that would make him unusually susceptible to their alleged attacks.

As we held in Philip R. Morrow, no facts here demonstrate extreme and outrageous conduct going “beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) of Torts § 46 (1965), comment d; Philip R. Morrow, 770 P.2d at 864, Frigon, 760 P.2d at 64. Nor has Doohan presented facts showing a “substantial invasion of a legally protected interest.” Johnson v. Supersave Markets, Inc. (1984), 211 Mont. 465, 473, 686 P.2d 209, 213. While we have yet to decide under what facts we will recognize this tort, we have at least decided some situations where we will not. Philip R. Morrow, 770 P.2d 864. We add the situation here to that list. We conclude that the District Court erred when it denied the defendants’ motions for directed verdict on Doohan’s intentional infliction of emotional distress claims.

We also note that there is an inconsistency in the jury’s answer to interrogatory 2(a) in the special verdict form regarding trustee Chrysler. There the jury found that Chrysler intentionally inflicted emotional distress upon Doohan and awarded $ 1.00 as damages. One element of a prima facie case for intentional infliction of emotional distress is that the plaintiff actually suffer severe emotional distress. See Prosser and Keeton on Torts § 12, pp. 63-64 (5th Ed. 1984), see also Clark 771 P.2d at 91. Thus, unlike other intentional torts against the person — such as assault, battery, or false imprisonment — intentional infliction of emotional distress requires a showing of actual damages. Afinding of $1.00 in actual damages — in essence an award of nominal damages — is inconsistent with the finding that defendant Chrysler inflicted “severe emotional distress” upon Doohan. Such distress by its very nature must manifest itself as actual damage, and certainly if “severe” it would amount to substantially more than $1.00.

VI.

Finally, Cochrane and Chrysler argue that they are entitled to immunity under § 2-9-111, MCA, and as instructed in Instruction No. 19, quoted earlier. However, we need not determine this issue. Doohan brought two state law claims against the individual defendants Chiysler and Cochrane, one for constructive discharge and one for intentional infliction of emotional distress. The jury found no liability against the individual defendants for constructive discharge and, as we have determined, Doohan failed to state a prima facie case for intentional infliction of emotional distress against Chrysler and Cochrane. Thus, all that remains to be determined at retrial is Doohan’s § 1983 claim against the remaining defendant, the School District, under the law we have set forth in this opinion. Under our holding on Issue III, immunity does not apply to the School Board on this claim. Howlett, supra, 110 S.Ct. at 2442-2445.

VII.

Finally, the issue raised by Doohan on cross appeal — whether the filing of the Notice of Appeal divested the District Court of jurisdiction to decide Doohan’s application for attorney fees pursuant to 42 U.S.C. § 1988 — is rendered moot by our remand of this case for retrial of Doohan’s claim -under 42 U.S.C. § 1983.

REVERSED and REMANDED for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and BARZ concur.

JUSTICE WEBER

dissenting:

My review of the record in a light most favorable to Mr. Doohan demonstrates that he presented a compelling factual case in support of his claims. In addition, I disagree that the defendants presented valid legal grounds for reversal.

In its ruling reversing the judgment on the constructive discharge claim, the majority adopts and retroactively applies a new standard which has been adopted in the Fifth Circuit of the federal courts. That rule is not universally recognized and it was not argued in the parties’ briefs. I do not agree that it is a workable rule. I find it inappropriate to retroactively apply such a new standard.

When the challenged jury instruction, Instruction No. 12, is read as a whole and considered with the other instructions given, it does not misrepresent the law. The instructions as given required that the plaintiff prove the key elements of constructive discharge and provided that the defendants could not be held hable if they acted within limits of their lawful authority. I would not recommend the use of Instruction No. 12 in a constructive discharge case because it contained various comments which were not essential in the absence of an issue as to notice or hearing. However, I would conclude that there was no reversible error in the giving of Instruction No. 12.

I further conclude that the record supports the court’s action in submitting the issue of intentional infliction of emotional distress to the jury, because the evidence of the defendants’ acts reached the threshold level of “outrageousness.” Mr. Doohan presented evidence of many events demonstrating that the conduct on the part of Mr. Cochrane and Mr. Chrysler was intentional in nature, and sufficient to demonstrate a basis for the jury’s verdict in his favor. While the defendants presented conflicting evidence, when we view all of the evidence in the light most favorable to Mr. Doohan, as we are required to do, there is clearly sufficient evidence to support the verdict against both Mr. Cochrane and Mr. Chrysler. Our review is of the cold record which is a poor foundation on which to evaluate testimony here and conclude it was not “outrageous.” The record clearly demonstrates that the acts of Mr. Chrysler and Mr. Cochrane caused serious emotional distress for Mr. Doohan.

I would affirm the judgment of the District Court.

JUSTICES SHEEHY and HUNT concur in the foregoing dissent.


author: JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BABE BEACH, Defendant and Appellant.
    No. 90-147.
    Submitted on briefs Dec. 20, 1990.
    Decided Feb. 5, 1991.
    247 Mont. 147.
    805 P.2d 564.

      James G. Hunt, Dix & Hunt Law Firm, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Joe Thaggard, Asst. Atty. Gen., Helena, Richard Harkins, Carter County Atty., Ekalaka, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Babe Beach, was convicted of misdemeanor assault, a violation of § 45-5-202, MCA, in the District Court for the Sixteenth Judicial District, Carter County. From that conviction, defendant appeals.

The sole issue for our review is whether sufficient evidence supported defendant’s conviction for misdemeanor assault.

Defendant and his girlfriend, Beverly Winkley (Ms. Winkley) lived together in Ekalaka, Montana. Ms. Winkley’s three children also lived with the couple.

On the morning of December 28,1988, defendant and Ms. Winkley drove to Baker, Montana where she left her two older children to visit with their grandmother. While in Baker, defendant and Ms. Winkley had an argument. Defendant returned home to Ekalaka alone. When defendant returned home, Ms. Winkley’s youngest child, Josh, was still at defendant’s house.

That evening, Ms. Winkley contacted the Carter County Sheriff, Joe Carey, and asked him to retrieve Josh from defendant’s home. That same evening Joe Carey and Neil Kettelmann, Ekalaka’s chief of police, went to defendant’s home and asked him to get Josh. Defendant refused and stated that Ms. Winkley would have to pick the child up herself. Joe Carey informed Ms. Winkley of what happened and she returned to Ekalaka, accompanied by a friend, Alma Janz.

About 9:30 p.m., Joe Carey, Neil Kettelmann, Ms. Winkley, Ms. Janz and Steve Markuson, a former Ekalaka policeman, went to defendant’s home. The house was dark. After knocking on the back door and calling defendant’s name with no response, Ms. Winkley then retrieved a house key from its hiding place within the yard. The group then entered the house.

Ms. Winkley testified that when she saw defendant standing in the living room, she walked passed him and told him she had come to get Josh. From upstairs, she heard defendant tell Joe Carey to get out of his house. She testified that she then heard a gun cock. When she came back downstairs with Josh she saw that defendant was holding a gun. Joe Carey and the others had gone back outside. Ms. Winkley then left the house.

Joe Carey testified that he, Neil Kettelmann, and Ms. Winkley were at the kitchen door when defendant said, “Get the hell out of here”. He testified that when the group did not leave, defendant said, “I am going to get a gun”. When defendant came back with a gun, with the exception of Joe Carey and Ms. Winkley, the rest of the group ran out of the house. Joe Carey testified that Ms. Winkley went on to retrieve her son. He testified that he told defendant that “we’d come after the three-year-old boy and we didn’t want any problems. And then he yelled at me to get out.” He testified that he then left the house.

I.

Was there sufficient evidence to support defendant’s conviction for misdemeanor assault?

Defendant claims the defense of justifiable use of force to protect his family, his property and his home, under §§ 45-3-102, 45-3-103, and 45-3-104, MCA. The State maintains that defendants contention has no merit because each element of the crime of misdemeanor assault was proven beyond a reasonable doubt.

Section 45-5-201, MCA, provides:

“(1) A person commits the offense of assault if he:
“(d) purposely or knowingly causes reasonable apprehension of bodily injury in another. The purpose to cause reasonable apprehension or the knowledge that reasonable apprehension would be caused shall be presumed in any case in which a person knowingly points a firearm at or in the direction of another, whether or not the offender believes the firearm to be loaded.”

Defendant admits to knowingly and purposely pointing the gun at the group. Hence, the elements of misdemeanor assault have been proven. Therefore, the next question is whether the assault was a justifiable use of force. This contention has little merit. Defense of person pursuant to § 45-3-102, MCA, is justifiable to defend oneself or another against such other’s “imminent use of unlawful force”. There are no facts to support an argument that Ms. Winkley and her group used such unlawful force.

There are also no facts to support the contention of “unlawful entry into defendant’s home to justify defense of his home pursuant to § 45-3-103, MCA. Ms. Winkley herself lived in the home with her children as late as the morning of the day of the incident in question. Her youngest child was still there and she had not yet moved out her personal belongings. Ms. Winkley asked the others to enter the house with her. Defendant failed to show evidence of unlawful entry.

Section 45-3-104, MCA, provides:

“Use of force in defense of other property. A person is justified in the use of force or threat to use force against another when ... he reasonably believes that such conduct is necessary to prevent or terminate such other’s trespass on or other tortious or criminal interference with either real property (other than an occupied structure) or personal property lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect.”

The standard of review on issues of substantial evidence is that the conviction cannot be overturned if evidence, when viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find essential elements of the crime beyond a reasonable doubt. State v. Laverdure (1990), 241 Mont. 135, 785 P.2d 718. We hold that sufficient evidence supported defendant’s conviction for misdemeanor assault.

Affirmed.

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