author: CHIEF JUSTICE TURNAGE

text:
    In the Matter of the CUSTODY AND PARENTAL RIGHTS OF N. J. AND A. J., Youths in Need of Care.
    No. 91-098.
    Submitted on briefs July 2, 1991.
    Decided August 12, 1991.
    250 Mont. 198.
    819 P.2d 166.
    Leo J. Gallagher, Helena, for appellant.
    Marc Racicot, Atty. Gen., Micheál S. Wellenstein, Asst. Atty. Gen., Mike McGrath, Lewis and Clark County Atty., Carolyn Clemens, Deputy County Atty., Randi Hood, Public Defender’s Office, Nick Jacques, Helena, for respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

G. J. (Mother) appeals an order of the District Court of the First Judicial District, Lewis and Clark County, which terminated her parental rights to her two children, N. J. and A. J. We affirm.

Mother presents one issue on appeal; we rephrase this issue as follows:

Did the District Court abuse its discretion when it terminated Mother’s parental rights to N.J. and A.J.?

Mother married S. J. (Father) at an early age. The couple had two children, N.J., born September 27, 1986, and A.J., bom August 16, 1988. The couple separated in January 1989. Mother testified that the couple separated because she “[c]ouldn’t handle [Father’s] drags and his booze and he wasn’t coming home at nights.” Mother further testified that in May 1989, she left her children with B. J., her mother and the children’s grandmother, and departed to Nevada because she “decided to screw off my life too ...”

The record indicates that Mother and Father share a history of chronic drug and alcohol abuse. Additionally, the record indicates that Mother has a history of emotional problems stemming from her childhood. B.J. testified that Mother has a problem with being truthful.

When Father discovered that Mother had left for Nevada leaving the children with B.J., he retrieved the children from B.J. and took them to his residence in Wickes, Montana. Mother testified that she was unaware that Father had taken the children from B.J. until shortly before she returned to Montana on July 7, 1989. Apparently, however, the children remained living with Father following Mother’s return to Montana.

On July 31, 1989, Father left the children with a babysitter but failed to return to pick them up. On August 4, 1989, the babysitter attempted but failed to contact Mother to pick up the children. The babysitter then took the children to the Jefferson County Sheriff’s Office to report their abandonment. The Jefferson County Sheriff’s Office notified Lewis and Clark County Department of Family Services (Department) of the children’s situation. The Department had knowledge of these children as it had investigated past reports of alleged neglect of the children starting in September 1988. Following a conversation between the Department and the babysitter, the children remained at the home of the babysitter over the next few days with B.J. providing the babysitter her assistance with the children.

Department records indicate that Father returned on August 7, 1989. Additionally, Department records dated August 7, 1989, indicate that Mother contacted the Department about the children, but stated that she could not provide adequate care for them as she was then living in a friend’s “filthy” house.

On August 8, 1989, the Department petitioned the District Court for temporary investigative authority and protective services regarding the children. On August 8, 1989, the District Court, granted the Department temporary investigative authority for six months and the authority to place the children in foster care with B. J. Thereafter, the Department placed the children in foster care with B. J.

B.J. later took N.J. to Sandi Ashley (Ashley), a therapist, because B. J. was concerned about N.J.’s behavior. N. J., who was around three years old at this time, was having serious temper tantrums and nightmares. He also was exhibiting unusual fear responses and high levels of anxiety. Ashley testified that N.J. was displaying the symptoms of an abandoned child.

On August 10,1989, Mother met with Scott Harris (Harris) of the Department and inquired about regaining custody of her children. At this time, Mother had no home, no job, and no means to care for her children. On September 5, 1989, Mother signed a stipulation with the Department agreeing to give the Department temporary investigative authority and protective service and temporary custody of her children. The stipulation provided for visitation between Mother and her children, foster care placement of the children with B. J., and the preparation of a treatment plan which would “include chemical dependency evaluations and treatment, psychological evaluations and parenting skills instruction for the parents.”

At first, Mother abided by the stipulation and visited her children on a regular basis. Around November or December 1989, however, Mother left Montana for Salt Lake City, Utah, without notifying Harris. While in Salt Lake City, Mother was hospitalized for depression. During this time, Mother was also physically abused by her boyfriend, S.W.

Mother returned to Helena in January 1990, and indicated to Harris her desire to begin implementation of a treatment plan. On February 28, 1990, Mother agreed to a treatment plan previously prepared by Harris on December 29, 1989.

Father’s whereabouts were unknown at this time. He was notified by publication of a March 2, 1990 hearing concerning the Department’s December 5, 1989 petition for protective services and adjudication of the children as youths in need of care. Accordingly, the Department was unable to discuss with Father and Father was unavailable to agree to the implementation of the treatment plan. However, later when Father’s whereabouts were determined, Father expressed no interest in regaining custody of his children. The last time Father expressed interest in regaining custody of the children was August 1989.

The District Court approved the treatment plan at the March 2, 1990 hearing. The treatment plan set forth the following goals:

“Goal I: To obtain chemical dependency evaluations and follow the recommendations of the evaluation.
“Goal II: [Mother] and [Father] will have psychological evaluations and follow the recommendations of the evaluation.
“Goal III: [Mother] or [Father] will provide a stable environment for the children that will meet their emotional, psychological, and physical needs.”

Additionally, the District Court determined the children to be youths in need of care in an order dated March 6, 1990.

In an effort to meet the first goal of the treatment plan, Mother successfully completed an out-patient treatment program at Boyd Andrew Chemical Dependency Care Center (Center) on April 19, 1990, after the Center evaluated and diagnosed her as chemically dependent. Mother then began the program’s required after-care program, but she quit attending the after-care program in June 1990 because she did not want to discuss at group therapy sessions the trauma she suffered as a child. She testified on direct examination at the termination hearing that she would have continued attending the after-care program if she could have attended one-to-one sessions instead of group sessions. The after-care program, however, offered the one-to-one sessions, which Mother for a time attended. On cross-examination, Mother testified that she did not know why she quit attending the one-to-one sessions.

The second goal of the treatment plan required Mother to submit to and obtain a psychological evaluation and abide by the evaluation’s recommendations. Mother failed to submit to a psychological evaluation despite repeated reminders from her social workers to schedule a time with a psychologist for an evaluation. Mother admitted that she lied to one of her social workers when, at one point, she told him that she was undergoing a psychological evaluation.

The third goal of the treatment plan was that Mother would provide a stable environment for her children. Mother failed to provide adequate housing for the children and failed to maintain steady employment. Mother failed to qualify for general assistance through Aid to Families with Dependent Children because she refused to participate in a project work program.

Mother testified that, in May 1990, while she was attempting to comply with the treatment plan, she was hospitalized because she intentionally “OD’ed on Tylenol.” Mother further testified that some time later, she was hospitalized for depression. The record indicates that regarding the last hospitalization for depression, Mother was admitted to an emergency room for taking pills.

On September 14, 1990, six months after the court approved the treatment plan, the Department petitioned the District Court to terminate the parental rights of Mother and Father to the children because the goals of the treatment plan were unmet. The District Court conducted a hearing on the Department’s petition on November 5,1990. Although Father was notified of this hearing, he did not attend. Father’s court-appointed counsel appeared at this hearing but the District Court excused him from participating in the proceeding after counsel explained that he had no contact with Father and had no evidence to rebut any of the evidence to be presented. Mother and her court-appointed counsel attended this hearing. On November 20,1990, the District Court terminated the parental rights of Mother and Father to A.J. and N. J. On December 18,1990, the District Court amended its November 20, 1990 ruling in an order nunc pro tunc dated December 18, 1990, which amendment does not relate to any issue in this appeal. From this order, Mother appeals.

Did the District Court abuse its discretion when it terminated mother’s parental rights to N.J. and A.J.?

Mother argues that the District Court erred when it found that her “conduct or condition rendering her unfit as a parent was unlikely to change within a reasonable time.” She further argues that although she technically failed to meet the goals of the treatment plan by not getting a psychological evaluation, she did, on a number of occasions, attempt to get an evaluation completed. She argues that she has been drug-free since February 1990. And, she argues that she has secured a place to live for her and the children.

Section 41-3-609(2), MCA, provides in pertinent part:

“In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making such determinations, the corut shall consider but is not limited to the following:
“(a) emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
“(d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child;
“(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.”

Here, the record indicates that Mother is not emotionally stable enough to care for the children. Sin^e December 1989, Mother has been hospitalized and treated for depression and has been hospitalized twice for pill overdoses. A psychological evaluation and treatment, as recommended in her treatment plan, could have assisted Mother, but she chose not to pursue this avenue. The record also indicates that Mother has a history of chronic alcohol and drug abuse. Although the record indicates that she has made efforts to remedy her chemical dependency through a treatment program, the record also indicates that she failed to complete the required after-care program. Furthermore, the record indicates that the Department’s efforts to rehabilitate Mother failed because she was unwilling to comply with the three goals of the court-approved treatment plan over a six-month time span.

Furthermore, § 42-3-609(3), MCA, provides that “the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child[ren].” Here, the record indicates that in May 1989, Mother left her children with B.J. and departed to Nevada because she “decided to screw oft” her life. The record indicates that in August 1989, the children were subjected to abandonment by both of her parents when a babysitter turned the children over to the Jefferson County Sheriff’s Office. N.J.’s therapist testified that N. J. displayed the behavior of a child who has been abandoned. Because of Mother’s and Father’s actions, the physical, mental, and emotional condition of N. J. has been harmed, and his needs have been left unfulfilled. Regarding A. J., although she does not exhibit outward signs of abandonment, her abandonment by her parents threatened her physical, mental, and emotional condition and left her needs unfulfilled.

In conclusion, we hold that the District Court did not err when it found that Mother’s conduct or condition rendering her unfit as a parent was unlikely to change within a reasonable time. Additionally, we hold that Mother failed to comply with the three goals under the treatment plan. We therefore affirm the District Court’s order.

JUSTICES GRAY, TRIEWEILER, HUNT, and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    IN THE MATTER OF THE ADOPTION OF J.B.T. and W.D.T., Minors.
    No. 91-061.
    Submitted on briefs May 16, 1991.
    Decided August 27, 1991.
    250 Mont. 205.
    819 P.2d 178.

      Loren J. O’Toole, II, O’Toole & O’Toole, Plentywood, for appellant.
    Francis J. McCarvel, Glasgow, for respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

The natural mother and stepfather appeal from an order of the District Court, Fifteenth Judicial District, Daniels County, denying their petition to terminate the natural father’s parental rights. We affirm.

The parties raise the following issue:

Whether the District Court erred in finding that the evidence was not clear and convincing that the natural father was able to contribute to the child support but did not do so for a period of one year prior to the filing of the petition for adoption pursuant to § 40-8-lll(lXaXv), MCA.

Appellant, Teresa Ann (Tryan) Jagiello, and respondent, Bruce Lee Tryan, were married on February 27, 1982, in Daniels County. Two children, J.B.T. and W.D.T., were born as a result of the marriage. The marriage was dissolved on October 14, 1987. The wife became the custodial parent of the minor children, subject to the natural father’s visitation rights.

The natural father agreed to pay $100 per month per child in child support and he also agreed to pay all debts contracted under the marriage. The natural father fell behind in payments, and as a result, the District Court found the natural father in contempt for failure to pay child support and house payments. On October 19,1988, the court issued an order which awarded the mother $1226 in back house payments and attorney’s fees and increased the natural father’s child support payments of $100 per month per child to $300 per month to make up the arrearage. The child support records of the Clerk of the District Court show no child support payments from July 1989 through August 1990.

During the same period, the natural father was unemployed for four months. He attempted to find work during this period and actively contacted a number of construction companies for employment. From the end of September 1989 through mid-February 1990, the natural father was only able to work as a part-time bartender earning $120 a week in Flaxville. From mid-February 1990 to August 1990, the natural father worked numerous jobs in the Scobey area with a construction company. He was unemployed in April of that year and in May, June, and July he worked as a carpenter.

From March to August 1990, the mother garnished the natural father’s wages in the amount of $597. She applied the proceeds toward house payments and attorney fees. None of the money was used for child support.

In early August 1990, the stepfather and mother petitioned the District Court for adoption of the children. The petition alleged that the natural father’s consent was not required because he failed to contribute to the support the children for a period of one year, even though he was able to do so. The District Court denied the petition and found there was not clear and convincing evidence that the natural father was able to contribute to the child support but did not do so for over a year. It is from this decision that the mother and stepfather appeal.

Generally, in order for the District Court to decree an adoption of a child there must be written consents filed by both parents, if living. Section 40-8-lll(l)(a), MCA. The statute provides that consent is not required by either parent if:

“[I]t is proven to the satisfaction of the court that the father or mother, if able, has not contributed to the support of the child during a period of 1 year before the filing of the petition for adoption ....” Section 40-8-lll(l)(a)(v), MCA.

For the court to find that a parent’s consent is not necessary to terminate its parental rights, the burden of proof requires that there must be clear and convincing evidence that the parent has not contributed to the support of the child for one year and was able to do so. In re Adoption of S.E. (1988), 232 Mont. 31, 35, 755 P.2d 27, 29. Hence, the statute requires a two-tier analysis before parental rights can be terminated. Matter of Adoption of R.A.S. (1984), 208 Mont. 438, 442, 679 P.2d 220, 223. First, the court must decide if the nonconsenting parent failed to contribute to the support of the child during a period of one year prior to the filing of the petition. The court must then determine if the nonconsenting parent had the ability to pay child support. Matter of the Adoption of S.L.R. (1982), 196 Mont. 411, 413-414, 640 P.2d 886, 887. The burden of proof falls upon the petitioner to show that the two-prong test is met. Adoption of R.A.S., 679 P.2d at 223; Adoption of S.L.R., 640 P.2d at 886-87. Because the natural parent can forever lose parental rights, this Court requires strict compliance with the statute. In re Adoption of Biery (1974), 164 Mont. 353, 359, 522 P.2d 1377, 1380.

In a previous case, we interpreted “support” to mean the “ ‘financial support that a parent owes a child.’ ” Matter of Adoption of K.L.J.K. (1986), 224 Mont. 418, 422-23, 730 P.2d 1135, 1138. This definition is designed to prevent parents from giving token child support payments once or twice a year in order to avoid having their parental rights terminated. Adoption of K.L.J.K., 730 P.2d at 1138. We are much more diligent in deciding whether a parent is “able” to contribute to child support. Adoption of K.L.J.K., 730 P.2d at 1138. Therefore, when determining whether a parent is “able” to contribute we examine four factors.

1) The parent’s ability to earn an income;

2) The parent’s willingness to earn an income and support his child;

3) The availability of jobs;

4) The parent’s use of his funds to provide for himself only with the bare necessities of life prior to providing support for his child. Adoption of K.L.J.K., 730 P.2d at 1139.

In this case, the natural father’s ability to earn income was limited. From July 1989 through August 1990, he was unemployed for four months. He worked approximately four months as a part-time bartender earning less than $500 a month. While unemployed, the natural father demonstrated his willingness to seek employment by actively contacting numerous construction companies but was temporarily unsuccessful. He sought unemployment compensation but was refused benefits. The natural father testified he had difficulty making rental payments and paying bills while working because his wages were being garnished by his wife. The District Court concluded that the wife should have applied the payments to child support.

We hold that the District Court did not err in finding that the evidence was not clear and convincing that the natural father was able to contribute to child support but did not to do so for a period of one year.

We affirm.

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


text:
    IN RE THE MARRIAGE OF DEBORAH LYNNE COOK, Petitioner and Appellant, and MARK STEVEN COOK, Respondent and Respondent.
    No. 91-099.
    Submitted on briefs July 25, 1991.
    Decided August 27, 1991.
    250 Mont. 210.
    819 P.2d 180.

      Joan Meyer Nye, Nye & Meyer, Billings, for petitioner and appellant.
    Christopher R Thimsen, Billings, for respondent and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is an appeal from the child custody determination in a dissolution of marriage. The District Court for the Thirteenth Judicial District, Yellowstone County, granted Mark Steven Cook sole custody of the parties’ son and ordered that Deborah Lynne Cook’s visitation be supervised. She appeals. We affirm.

Deborah lists nine issues, all of which relate to whether the District Court erred in its custody determination.

Deborah Lynne Cook (Deborah) and Mark Steven Cook (Mark) were married in 1986. Their marriage was marked by several lengthy separations, but it survived to produce a son, Ryan, born in January 1990. At the time of trial, Ryan was six months old.

Deborah had primary physical custody of the baby until an April 20, 1990, incident in which she confronted Mark at the Billings, Montana, airport. While the parties presented different descriptions of this incident, the District Court found that

“[Deborah] shoved Ryan into [Mark’s] arms, became verbally abusive, physically removed [Mark’s] boarding pass and had [Mark’s] luggage pulled. In addition, [Deborah] knocked [Mark’s] glasses off and physically removed [Mark’s] camera, which [Mark] later retrieved with the assistance of airport security.”

Mark had physical custody of the baby from that time until the time of trial. During Mark’s pre-trial custody, Deborah was granted supervised visitation.

At trial, Deborah testified that Mark had been abusive during their marriage. Mark testified that Deborah had disappeared from the marital home for months at a time, without explanation. Both parties presented testimony by mental health professionals who had treated Deborah. While their diagnoses differed, all agreed that Deborah was in need of continued mental health treatment.

A court-appointed social worker conducted an investigation on the issues of custody and visitation. In her report to the court, she recommended that Mark be granted sole custody of Ryan and that Deborah, have supervised visitation until her treating mental health professional determined it was no longer necessary. She stated that Deborah “has many unresolved problems in her history and she consistently blames others for her experiences and her actions.” She also stated that Deborah “uses manipulation, intimidation and threats in her attempt to control her environment,” and “has expressed her anger and hostility in a frightening, vicious and vindictive manner.” The District Court adopted the custody arrangement recommended by the social worker in its findings and conclusions entered August 7, 1990.

In an order entered October 16, 1990, the District Court named the supervisor for Deborah’s visitation with her son and set the visitation schedule at 10:00 a.m. to 1:00 p.m. on Tuesday, Thursday and Saturday. On December 18, 1990, the District Court denied Deborah’s motion for new trial and other relief.

Did the District Court err in its custody determination?

Initially, we note that this Court’s standard of review of the findings of fact in a child custody determination is whether the trial court has abused its discretion. In re Marriage of Obergfell (1985) 218 Mont. 83, 87, 708 P.2d 561, 563. This Court will not substitute its judgment for that of the district court where the evidence conflicts, but rather will limit itself to determining whether there is substantial credible evidence in the record to support the district court’s findings. Obergfell, 708 P.2d at 563.

Deborah argues that the District Court erred in failing to set forth the reasons it did not award joint custody. Section 40-4-224(1), MCA, requires that

“[ujpon application of either parent or both parents for joint custody, the court shall presume joint custody is in the best interest of a minor child unless the court finds, under the factors set forth in 40-4-212, that joint custody is not in the best interest of the minor child.”

Deborah points out that she requested joint custody.

The court found, at finding # 16, that “it is in Ryan’s best interest that [Mark] be awarded sole custody and [Deborah] receive visitation.” We conclude that, in combination with the court’s other findings, finding # 16 meets the requirements of § 40-4-224(1), MCA.

Deborah states that the District Court failed to make a finding as to the mental health of the parties. This assertion is incorrect. The District Court found that Deborah “has seen a variety of mental health care professionals during the course of the marriage,” and that, although their diagnoses differ, some concluding that she suffers a mixed personality disorder, others that she suffers from a bipolar affective disorder, all agree that she is in need of farther treatment. The court also found that Mark has previously been treated by mental health care professionals, has received in-patient treatment for alcohol abuse, and was in counseling at the time of trial.

Deborah also asserts that the District Court erred in failing to have a full custodial investigation. The court-appointed social worker testified that the report was “the best that I can do.” In her report, she stated that she was not able to do an actual custody investigation because “Instead of interviewing the mother, Deborah, I was only in contact with her at her direction.” She testified that, in making her report, she referred to written records including court files, police records, written reports from mental health records, and medical reports. She interviewed Mark, Deborah, and Deborah’s father. She further testified that the previous fall she had prepared a report concerning custody of Deborah’s daughter. She noted the confusion as to Deborah’s diagnosis. As the incompleteness in the investigation seems to result primarily from Deborah’s uncertain diagnosis and her unavailability to meet with the social worker, we conclude that no reversible error has been shown as to this aspect.

Deborah argues that the court should have relied more on the testimony of her psychologist and psychiatrist. Those witnesses testified that they believed Ryan would be safe with Deborah. However, as Mark points out, none of Deborah’s witnesses went so far as to say that it would be in Ryan’s best interest to be placed in Deborah’s custody. We conclude that no error has been shown.

Deborah contends that the District Court should not have relied so heavily on the opinions of the court-appointed social worker and of counselor Swaggerty, both of whom recommended that Mark be granted custody of Ryan and that Deborah be granted only supervised visitation. Nothing in the record indicates that the court failed to exercise its own independent judgment after listening to all of the evidence. However, even heavy reliance on expert testimony does not necessarily constitute abuse of a district court’s discretion. In re Marriage of Ereth (1988), 232 Mont. 492, 494, 757 P.2d 1312, 1313-14.

Deborah argues that she should have been awarded primary physical custody of Ryan because of a presumption that primary custody should be awarded to a nursing mother. We are unaware of such a presumption, and, even if such a presumption were recognized in Montana, it could be outweighed by other circumstances.

Deborah also cites § 40-4-217(1), MCA, which provides that

“[a] parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral, or emotional health.”

She argues that limiting her to supervised visitation is improper because there was no finding that visitation would seriously endanger Ryan’s physical, mental, moral, or emotional health.

The statute does not state that “reasonable visitation,” with no further qualifiers, will be awarded if none of the listed findings are made. Under the statute, some visitation will be allowed unless one of the listed findings is made. Deborah has been granted some visitation. We conclude that no violation of § 40-4-217(1), MCA, has been shown.

Deborah points out that the record shows that when she had her son, she provided him with good, loving care. While she is correct, two expert witnesses recommended that she be granted only supervised visitation until her mental problems are treated.

At finding #10, the District Court stated that

“Similarly, [Deborah] has only supervised visitation with a child by a previous marriage, pursuant to an Order issued by a State Court in Hawaii on April 2, 1990. Furthermore, the father of that child has obtained sole custody.”

Deborah argues that this finding constitutes error because custodial and visitation arrangements for a party’s previous children are not factors to be considered under § 40-4-212, MCA, in determining best interest of the child.

Mark introduced into evidence a copy of the stipulation by which Deborah agreed that her former husband would have custody of her daughter. That stipulation provided that Deborah’s visitation would be limited to one hour of supervised visitation once a week, to be preceded by two months of therapy for the daughter so that her “fears and anxiety concerning [the] visitation” could be minimized. The stipulation further required Deborah to supply her daughter’s therapist with “a complete copy of her present psychiatric/psychological records, files and reports for the purpose of assisting said psychologist/therapist in reaching his or her recommendation.” We conclude that this matter relates to Deborah’s mental health, a factor listed under § 40-4-212, MCA, in determining best interests of the child, and was thus properly considered.

Deborah argues that the District Court abused its discretion in limiting Ryan’s time with her to nine hours a week. We disagree. The proposals for supervised visitation which were before the District Court were Mark’s, which was adopted, and Deborah’s, which was that she be granted visitation from 7 a.m. until 7 p.m. each weekday and for six hours a day on weekends. Mark also submitted an affidavit that Deborah’s proposed schedule would be a hardship requiring him to get Ryan up early simply to take him to Deborah’s, that Deborah was continuing to harass him by phone and in person, and that Deborah had changed the supervising person and the time of visitation on several occasions in the interim since the trial. We conclude that the court did not abuse its discretion in adopting Mark’s proposed schedule.

Deborah asserts that counselor Swaggerty misrepresented his educational background in court. He testified that his educational “background is from U.C.L.A. and the Graduate School of Psychology in the University of California, Los Angeles.” In her motion for new trial, Deborah submitted an affidavit of the Dean of Administration of Rosemead School of Psychology at Biola University in La Mirada, California. The dean stated that Swaggerty received his Ph.D. from Rosemead in 1978. Swaggerty did receive a B.A. in psychology from U.C.L.A.

No prejudice has been shown from the apparent error in Swaggerty’s statement at trial concerning his alma mater. It does not appear critical to his testimony which university granted his advanced degree. We conclude that the District Court did not err in denying the motion for new trial on this basis.

Affirmed.

JUSTICES HARRISON, GRAY, TRIEWEILER and HUNT concur.


author: JUSTICE TRIEWEILER

text:
    CHRIS L. ALEXANDER and SUSAN M. ALEXANDER, husband and wife; Cheryl Barnes; Phillip M. Dale and Mary Ann Dale, husband and wife; Janet I. Dougherty; James H. Dunn and Eleanor Dunn, husband and wife; David H. Kirsch and Rhonda L. Kirsch, husband and wife; Janet E. Lewis; Mathew G. Salminen and Becky J. Salminen, husband and wife; Deborah M. (Prechtl) Scoville; and Edward Wilkinson and Ruth Mae Wilkinson, husband and wife, Plaintiffs and Appellants, v. EDWARD K. McCAULEY and ANITA L. McCAULEY, husband and wife, Defendants and Respondents.
    No. 91-196.
    Submitted on briefs July 2, 1991.
    Decided August 27, 1991.
    250 Mont. 216.
    819 P.2d. 176.

      David N. Hull, Helena, for plaintiffs and appellants.
    Paul B. Smith, Boulder, for defendants and respondents.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Plaintiffs appeal from the decision of the District Court of the Fifth Judicial District for Jefferson County, granting the defendants’ motion for summary judgment. We affirm the District Court.

The sole issue for our determination is whether the District Court erred in granting the defendants’ motion for summary judgment.

Appellants in this action are homeowners in the city of Boulder, Montana. Edward and Anita McCauley are owners of an irrigation ditch running from the Boulder River through the town. The Mc-Cauleys acquired their ditch and water rights on April 14,1988, from their predecessor, B.W. Phelan. Edward McCauley first diverted water from the Boulder River into the ditch on May 9,1988. However, Phelan had been doing so since 1946, and the ditch had been similarly used since at least 1888.

United States Soil Conservation Service Central Forecast records show that between May 27 and 31, 1988, 2.55 inches of rain fell in the Boulder vicinity. A May 30 storm dropped 1.17 inches of rain, the largest precipitation event in five years. On May 30 or 31, many Boulder residents’ basements flooded. The parties agree that the flooding resulted from subsurface seepage and not from surface water.

From the time that defendants acquired their water rights in April 1988, until the flooding occurred, no work was done on the ditch other than normal maintenance to clear obstructions within the ditch. On June 5 or 6, 1988, the defendants placed straw bales at the point of their diversion of the Boulder River to increase flow and hold the ditch banks steady while work was done on the headgate and a culvert. The defendants restored the headgate to its pre-1981 level and dredged portions of the ditch on June 9, 1988.

Water level data compiled during April to July 1988 showed a 15 to 20 foot rise in several town wells. On June 27, 1988, an additional valve to an outfall line was opened into the Boulder sewage lagoon system. The Town Administrator testified that the water level in several sewer manholes dropped four to five feet within one hour. During the late evening of June 27 and the morning of June 28,1988, Edward McCauley shut down his ditch by placing boards and a tarpaulin across the ditch. The barrier remained in place until July 7, 1988. Water levels in many of the affected homes went down or dissipated completely over the next few days.

The homeowners filed suit on July 20, 1989, alleging that defendants negligently caused excessive water to flow through the ditch resulting in ground saturation and the eventual flooding of their properties. Extensive discovery took place, and McCauleys eventually moved for summary judgment. Briefs were submitted, and the District Court thereafter granted defendants’ motion for summary judgment. In its order, the District Court found that the record disclosed no genuine issues of material fact “in light of long established legal principles of water and ditch right law of this state.” The court stated that (1) because the situation giving rise to the complaint existed for over 50 years, prior to homeowners’ acquisition of their property, § 85-7-2212, MCA, entitled the defendants to immunity; and (2) the ditch owners are entitled to summary judgment under the rationale of Thelen v. City of Billings (1989), 238 Mont. 82, 776 P.2d 528, since the homeowners were unable to show that the damage to their property was proximately caused by the ditch owners. This appeal followed.

We find that § 85-7-2212, MCA, is dispositive of plaintiffs’ appeal. That section reads in pertinent part:

“An irrigation district or private person or entity owning or operating irrigation ditches is not liable for:
“(1) personal injury or property damage resulting from floodwaters caused by rainfall or other weather conditions or acts of nature;
“(2) personal injury or property damage occurring on another’s land and caused by water seepage that existed or began before the injured person first arrived on or obtained an interest in the land or before the damaged property was first placed on the land, if the seepage does not carry toxic chemicals onto the land ....”

Homeowners assert that there was no seepage before the current ditch owners overused the ditch. However, none of the homeowners acquired an interest in their land prior to 1970, and prior owners in the area stated in affidavits that homes in that area suffered from subsurface seepage as far back as 1935. The ditch had been used in its present form long before 1935. In this case, even if the damage to plaintiffs’ basements was contributed to by defendants’ ditch, the undisputed facts establish that it was either because of weather conditions or the same kind of seepage that had existed for at least 53 years before the plaintiffs arrived or obtained an interest in the land. Under either circumstance, plaintiffs’ cause of action is barred by § 85-7-2212(2), MCA.

Accordingly, we affirm the judgment of the District Court.

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


text:
    In the Matter of the ESTATE OF LEONARD LEROY SANDVIG CHARLES E. BRENTON and ARLA MAE BRENTON, Petitioners and Appellants, v. The ESTATE OF LEONARD LEROY SANDVIG, Deceased, Respondent and Respondent.
    No. 90-555.
    Submitted on briefs May 30, 1991.
    Decided Sept. 24, 1991.
    250 Mont. 220.
    819 P.2d 184.

      Malcolm H. Goodrich, Crowley Law Firm, Billings, for petitioners and appellants.
    John L. Pratt, Ask & Pratt, Roundup, for respondent and respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellants Charles B. Brenton and Arla Mae Brenton appeal an order from the Fourteenth Judicial District, Musselshell County, denying their petition for Allowance of Judgment Debtors’ Interest in a 1929 Model A Ford automobile.

We affirm.

Appellants raise the following issues:

1. Whether the District Court erred when it held that the operation of § 25-13-609(2), MCA, is not automatic.

2. Whether the District Court erred when it held that appellants waived an exemption in a 1929 Model A Ford automobile under the provisions of § 25-13-609(2), MCA.

On October 9,1988, the District Court issued a writ to sell the 1929 Model AFord automobile to satisfy a judgment in favor of the personal representative of the Estate of Leonard Leroy Sandvig against appellants. The amount of the judgment was $7892.

On November 25, 1988, the Model A Ford was sold at a sheriff’s sale for $7000. After deducting $66 for sale costs, the remaining proceeds were paid to the personal representative of the estate. The money was deposited in the attorney’s trust account and distributed to pay estate costs and attorney’s fees. These costs exceeded $6934 and depleted the proceeds. Appellants made no claim of exemption under § 25-13-609(2), MCA, until after the sheriff’s sale.

On December 21, 1988, appellants executed a joint voluntary petition for bankruptcy. The judgment of $7892 was listed as an unliquidated debt. The bankruptcy schedules failed to list a claim of their interest in the Model A Ford, and did not indicate any claims against the Sandvig estate. Appellants listed the levy of execution of the Ford as having been seized under legal process within the year immediately preceding the filing of the original petition. They did not claim the Ford exempt. They did, however, claim as exempt a $900 vehicle owned by the husband. The Ford was jointly owned.

On January 6, 1989, appellants filed pro se petitions, which were subsequently amended, for recovery of $1200 for each individual, together with interest at 10 percent per annum until paid, from the Sandvig estate for their exemption interest as judgment debtors in the Model A Ford.

On September 20,1990, the District Court issued an order denying appellants interest in the Model A Ford, as they had waived such interest in light of their previous exemption in bankruptcy. It is from this order that appellants appeal. Because the two issues are closely related, we will discuss them simultaneously.

Section 25-13-609, MCA, grants certain personal property exemptions subject to value limitations. The purpose of the exemption statutes is to attempt to strike a balance between the debtor’s need to maintain a livelihood through rehabilitation while doing as little damage as possible to the creditor’s ability to collect money. 31 Am.Jur.2d Exemptions § 4(1989). The exemption statutes are a personal privilege granted by the legislature. Tetrault v. Ingram (1918), 54 Mont. 524, 525, 171 P. 1148, 1149. The exemptions should not exceed the means necessary for the support and rehabilitation of the debtor and his dependents. To do so would create a windfall for the debtor and deny creditors payments to which they are entitled. 31 Am.Jur.2d Exemptions § 4 (1989).

Section 25-13-609, MCA, provides in part that:

‘A judgment debtor is entitled to exemption from execution of the following:
“(2) the judgment debtor’s interest, not to exceed $1,200 in value, in one motor vehicle .... [Emphasis added.]”

Appellants argue that § 25-13-609(2), MCA, is automatic and excuses them from taking any affirmative steps to protect their interest in the Model A Ford. We disagree.

Our codes fail to provide a specific procedure on how a judgment debtor should claim certain property exempt. Previously, this Court has held that a judgment debtor must take some sort of affirmative action in order to claim property exempt.

‘Where a debtor owns more property of a given class than the law exempts, it is necessary for him, in order to secure the benefit intended to be conferred, to identify the particular property to which his claim attaches ....”

Tetrault, 171 P. at 1149. In addition, federal bankruptcy law requires debtors to file a list of property claimed as exempt. 11 U.S.C. § 522 (1988).

Moreover, we have noted that there is an informal procedure which exists for a debtor to follow in order to assert his exemption.

“Frequently persons desiring to claim property as exempt from attachment or execution file a sworn claim with the officer making the levy, who, if he retains the property, ordinarily demands an indemnity bond.”

State ex rel. Bartol v. Justice of the Peace Court (1936), 102 Mont. 1, 5, 55 P.2d 691, 692-93. Therefore, we hold that the debtor is required to take certain affirmative steps to inform creditors of an exemption.

In this case, appellants claimed an exemption for another motor vehicle in the bankruptcy proceeding. While in bankruptcy they did not claim an exemption in the Model A Ford, nor did they assert a claim against the Sandvig estate.

In addition, § 25-13-609(2), MCA, grants an exemption in only one motor vehicle. It does not grant an exemption in all of appellants’ motor vehicles. By exempting the husband’s vehicle, appellants made their election. Granting an additional election would create a windfall for appellants. If the statute were automatic, creditors would not be able to determine which of the debtor’s motor vehicles would be exempt.

Affirmed.

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


author: JUSTICE WEBER JUSTICE TRIEWEILER,

text:
    CARLENE DAGEL, Plaintiff and Appellant, v. CITY OF GREAT FALLS, Defendant and Respondent.
    No. 91-069.
    Submitted on briefs June 6, 1991.
    Decided Oct. 10, 1991.
    250 Mont. 224.
    819 P.2d 186.

      Elizabeth A. Best, Best Law Offices, Great Falls, for plaintiff and appellant.
    J. Dennis Moreen, Chronister, Driscoll & Moreen, P.C., Helena, for defendant and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff, Carlene Dagel, brought this action alleging harassment by her supervisor which forced her to resign from her job. She sued the City of Great Falls under theories of violation of constitutional rights under 42 U.S.C. § 1983, wrongful discharge, and both negligent and intentional infliction of emotional distress. Plaintiff also filed a motion to join Charlis Manzer, her supervisor, as a party defendant and also filed a motion for summary judgment on a number of grounds. The City also filed a motion for summary judgment. The District Corut for the Eighth Judicial District, Cascade County, denied plaintiff’s motions and granted summary judgment in favor of the City of Great Falls. Plaintiff appeals. We affirm in part and reverse in part.

The issues are:

1. Did the District Court properly conclude that the City of Great Falls is not liable under 42 U.S.C. § 1983?

2. Did the District Court properly hold that the City of Great Falls is immune from plaintiff’s state law claims under § 2-9-111, MCA?

3. Did the District Court properly conclude that plaintiff was covered by a written collective bargaining agreement at the time of her discharge, thus preempting suit under the Wrongful Discharge from Employment Act?

4. Did the District Court properly conclude that plaintiff’s claims of violation of the implied covenant of good faith and fair dealing and for infliction of emotional distress are barred by the Wrongful Discharge from Employment Act?

5. Did the District Court properly deny plaintiff’s motion to join Ms. Manzer under Rules 19 and 20, M.R.Civ.P.?

Plaintiff, Carlene Dagel, was hired on August 16,1984, by the City of Great Falls Public Works Department (City) as a “Clerk II.” Plaintiff’s duties included taking phone messages, doing reports, billing, filing, and some typing for various divisions within the Public Works Department. Her immediate supervisor was Charlis Manzer (Ms. Manzer). Ms. Manzer was an administrative assistant who also supervised one or two other clerks and a secretary.

Ms. Manzer disciplined plaintiff for poor performance of her duties with disciplinary actions ranging from oral counseling to suspension for a period of days. Plaintiff maintains that only one reprimand was contained in her personnel file when she was terminated but that Ms. Manzer kept other information concerning plaintiff in her own separate file. In November 1987, plaintiff resigned her employment following the last of these disciplinary actions because she felt her treatment by Ms. Manzer was causing her emotional problems. Plaintiff stated under oath:

"... it was three years, I have been so frustrated, and I have tried five times to commit suicide within the last few years .... And I decided, well, hey maybe that isn’t the way that should be. If she’s getting to me that much, maybe I should just get out of there. And so I drew up my letter of resignation after the last reprimand she gave me. I just felt that was so far out of fine, and it just really, really upset me.”

During most of her employment, plaintiff was a member of a union, the Montana Public Employees’ Association, a collective bargaining unit, which had contracted with the City. The union contract with the City expired on June 30, 1986; plaintiff resigned in November 1987; and a new contract was executed December 1, 1987.

Both plaintiff and the union attempted to file a grievance under the procedure set forth in the union contract. The City refused that request, as set forth in the following letter submitted as an exhibit in the summary judgment proceeding:
“City of GREAT FALLS Montana
“P.O. Box 5021
“December 17, 1990
“Mr. Jim Adams
“Montana Public Employees Association
“P.O. Box 5600
“Helena, MT 59604
“Re: Carlene Dagel
“Dear Mr. Adams:
“I have your letter of December 11, 1987, where for the first time you attempt to assert the grievance procedure in this matter under a contract negotiated with the City.
“In response, it is the City’s position that the union lacks jurisdiction to initiate the grievance procedure for the following reasons:
“ ‘1. The dates of Dagel’s suspension, November 3, 4, 5, 1987, occurred after the expiration of the former contract which terminated on June 30, 1986, and before the date of the current contract, December 1, 1987. In other words, there was no contract and no grievance procedure in effect or available to the union members during the dates of suspension.
“ ‘2. Dagel voluntarily terminated her employment with the City by letter dated November 4, 1987. By terminating her employment on November 4, 1987, Dagel severed her rights under any grievance procedure of a collective bargaining agreement or otherwise. No question was raised on the disciplinary procedure prior to Dagel’s termination letter of November 4, 1987, and we submit neither she nor the union has jurisdiction to pursue such a claim now that she has voluntarily terminated her employment.’
“As explained in previous correspondence, we deem the City’s disciplinary action to be proper under the circumstances and, for the reasons stated above, consider the matter closed.
“Sincerely,
“s/ Hal Million
“Hal Million
“Acting Public Works
“Director”

Subsequently, plaintiff filed this action in District Court to recover damages for wrongful discharge, violation of her constitutional rights, and intentional and negligent infliction of emotional distress. Plaintiff claimed that throughout her employment with the City, she was subjected to continual harassment by Ms. Manzer in the form of “purported counselings and reprimands.”

Plaintiff moved for summary judgment and to join Ms. Manzer, as a defendant. The City responded by filing a cross-motion for summary judgment. The District Court adopted the City’s proposed findings of fact and conclusions of law and granted the City’s motion for summary judgment. Plaintiff moved to amend judgment or grant a new trial, which motion was denied. This appeal followed.

I.

Did the District Court properly conclude that the City of Great Falls is not liable under 42 U.S.C. § 1983?

Plaintiff sought recovery under 42 U.S.C. § 1983 which provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities seemed by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....”

The District Court concluded:

“Carlene’s allegations in her complaint are, in effect, that the defendant City of Great Falls is responsible for any alleged acts of Charlis Manzer because it is the employer. In other words, that the City is liable under Respondeat Superior. It is settled that a municipality cannot be liable for money damages in an action under 42 U.S.C. § 1983 based upon the theory of Respondeat Superior. Monell v. New York, 436 U.S. 658, 694, [98 S.Ct. 2019, 2037, 56 L.Ed.2d 611, (1978); City of Oklahoma City v. Tuttle, 471 U.S. 808, [105 S.Ct. 2427, 85 L.Ed.2d 791] (1985). Plaintiff’s 1983 claims against the City are therefore without merit.

“If a plaintiff can establish the existence of a widespread practice that, although not authorized by written law or express policy, is so permanent and well settled as to constitute a custom or usage with the force of law a municipality may be liable for the actions of its employees. [City of St. Louis v.] Praprotnik, supra, [485 U.S. 112, 127, 108 S.Ct. 915, 926] 99 L.Ed.[2d 107] at 120[(1988)]. However, plaintiff has failed to allege either in her complaint or in her briefs any such widespread practice regarding harassment of employees.

“Plaintiff has no valid cause of action under 42 U.S.C. § 1983 against the defendant City of Great Falls.”

Plaintiff maintains that the City was responsible for the individual acts of its agent, Ms. Manzer, and adopted them as its own. She also maintains that under § 2-9-305, MCA, governmental employees have a responsibility beyond respondeat superior. She further argues Ms. Manzer was a policy maker for the City.

The City maintains that plaintiff’s § 1983 claim must fail because the facts established by the plaintiff demonstrate that the City’s liability under § 1983 is based upon respondeat superior, which is not a valid basis for recovery under § 1983. We agree.

The United States Supreme Court has held that respondeat superior or vicarious liability will not attach under § 1983. Monell v. New York City Dept. of Social Serv. (1978), 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611; City of Canton, Ohio v. Harris (1989), 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed. 2d 412. In Monell, the Supreme Court held that § 1983 authorizes suit “for constitutional deprivations visited pursuant to governmental ‘custom,’ even though such a custom has not received formal approval through the body’s official decision-making channels.” Monell, 436 U.S. at 690-691, 98 S.Ct. at 2035-2036..

In City of Saint Louis v. Praprotnik (1988), 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107, the Court further explained Monell, outlining four guiding principles for holding a municipality liable under § 1983:

(1) Municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually responsible — those which the municipality has officially sanctioned or ordered;

(2) Only officials who have final policy-making authority may, by their actions, subject the government to § 1983 liability;

(3) Whether a particular official has final policy-making authority is a question of state law; and

(4) The challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city’s business.

The City of Saint Louis Court went on to state:

“If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability. If, however, a city’s lawful policy makers could insulate the government from liability simply by delegating their policy-making authority to others, § 1983 could not serve its intended purpose.
“[A] plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law ....
“[T]he authority to make municipal policy is necessarily the authority to make final policy. When an official’s discretionary decisions are constrained by policies not of that official’s making, those policies, rather than the subordinate’s departures from them, are the act of the municipality. Similarly, when a subordinate’s decision is subject to review by the municipality’s authorized policy makers, they have retained the authority to measure the official’s conduct for conformance with their policies. If the authorized policy makers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.”

City of Saint Louis, 485 U.S. at 126, 127, 108 S.Ct. at 925, 926. (Citations omitted.)

However,

“[s]imply going along with discretionary decisions made by one’s subordinates ... is not a delegation to them of the authority to make policy.” (Emphasis added).

Id. at 129, 108 S.Ct. at 927.

Such is the case here. Plaintiff contends that Ms. Manzer harassed her and that Ms. Manzer discussed some of her disciplinary actions of plaintiff with her superiors. Plaintiff has failed to present facts establishing any delegation of policy-making authority to Ms. Manzer. At most, the facts presented by the plaintiff establish that the City went along with the discretionary decisions made by Ms. Manzer. Further, plaintiff presented facts to establish that she was singled out by Ms. Manzer and harassed unfairly. Such facts contradict her contention that the behavior of Ms. Manzer was policy on the part of the City. We agree with the conclusion of the District Court that the factual basis for plaintiff’s complaint under § 1983 is founded on a theory of respondeat superior which is not a sufficient basis for recovery under § 1983.

We hold that the District Court was correct in concluding that the City is not liable under 42 U.S.C. § 1983.

II.

Did the District Court properly hold that the City of Great Falls is immune from plaintiff’s state law claims under § 2-9-111, MCA?

The District Court held that the City is immune from all state law claims under Peterson v. Great Falls School Dist. No. 1 (1989), 237 Mont. 376, 733 P.2d 316, [8 Ed.Law 61,] and Eccleston v. Third Judicial Dist. Ct. (1990), 240 Mont. 44, 783 P.2d 363, [8 Ed. Law 146g], Plaintiff maintains that the City is not immune under § 2-9-Ill. MCA, and, even if it was, that such immunity was waived under this Court’s holding in Crowell v. School Dist. No. 7 of Gallatin County (Mont. 1991), [247 Mont. 38,] 805 P.2d 522, [10 Ed.Law 8,] 48 St.Rep. 81, by the City’s purchase of liability insurance.

Section 2-9-111, MCA, was significantly amended by the 1991 Legislature. On May 24, 1991, Governor Stephens signed into law Senate Bill No. 154. The purpose of the act is stated as:

“AN ACT CLARIFYING THAT STATUTORY LEGISLATIVE IMMUNITY EXTENDS ONLY TO LEGISLATIVE BODIES OF GOVERNMENTAL ENTITIES AND ONLY TO LEGISLATIVE ACTIONS TAKEN BY THOSE BODIES; CLARIFYING THAT GOVERNMENTAL ENTITIES ARE NOT IMMUNE UNDER THE LEGISLATIVE IMMUNITY STATUTE FOR NONLEGISLATIVE ACTIONS; CLARIFYING THAT THE ACQUISITION OF INSURANCE DOES NOT WAIVE IMMUNITY; AMENDING SECTION 2-9-111, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND A RETROACTIVE APPLICABILITY DATE.”

Section 2-9-111, MCA (1991), now reads:

“2-9-111. Immunity from suit for legislative acts and omissions. (1) As used in this section:
“(a) the term ‘governmental entity’ means only the state, counties, municipalities, school districts, and any other local government entity or local political subdivision vested with legislative power by statute;
“(b) the term ‘legislative body means only the legislature vested with legislative power by Article V of The Constitution of the State of Montana and that branch or portion of any other local governmental entity or local political subdivision empowered by law to consider and enact statutes, charters, ordinances, orders, rules, policies, resolutions, or resolves;
“(c)(i) the term ‘legislative act’ means:
“(A) actions by a legislative body that result in creation of law or declaration of public policy;
“(B) other actions of the legislature authorized by Article V of The Constitution of the State of Montana; or
“(C) actions by a school board that result in adoption of school board policies pursuant to 20-3-323(1);
“(ii) the term legislative act does not include administrative actions undertaken in the execution of a law or public policy.
“(2) A governmental entity is immune from suit for a legislative act or omission by its legislative body, or any member or staff of the legislative body, engaged in legislative acts.
“(3) Any member or staff of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with legislative acts of the legislative body.
“(4) The acquisition of insurance coverage, including self-insurance or group self-insurance, by a governmental entity does not waive the immunity provided by this section.
“(5) The immunity provided for in this section does not extend to any tort committed by the use of a motor vehicle, aircraft, or other means of transportation.”

The act was given retroactive applicability within the meaning of § 1-2-109, MCA, to causes of action that have not been reduced to final judgment on or before the effective date of May 24, 1991. The amended statute controls in this case.

Section 2-9-111, MCA(1991), significantly changed the statute and therefore modified the theories expressed in the various immunity cases, as well as in Crowell with regard to insurance. First, under the new statute, a legislative body is not immune from the negligent acts of its employees. § 2-9-lll(l)(c), MCA (1991). Second, the purchase of insurance does not waive immunity. § 2-9-111(4), MCA (1991).

Thus, the pertinent question here is whether harassment by a supervisor is considered a “legislative act.” Clearly it is not. Plaintiff’s claim of constructive discharge is not related to action by a legislative body which resulted in the creation of law or declaration of public policy under § 2-9-lll(l)(c)(i)(A), MCA (1991).

The District Court’s decision predated the adoption of the amended statute. Because of the retroactive applicability of the immunity statute to the present case, we conclude the City is not immune from plaintiff’s state law claims under § 2-9-111, MCA (1991). We reverse on this issue.

III.

Did the District Court properly conclude that plaintiff was covered by a written collective bargaining agreement at the time of her discharge, thus preempting suit under the Wrongful Discharge from Employment Act?

Plaintiff contends that because the City took the position in its letter of December 17, 1987, that there was “no contract and no grievance procedure in effect or available to the union members during the dates of suspension,” the City should be precluded from arguing on appeal that the wrongful discharge claim of the plaintiff was barred and preempted because she was a union member covered by a collective bargaining agreement. The District Court did not rule upon plaintiff’s contention. The District Court did adopt the theory of the City that the suit under the Wrongful Discharge from Employment Act was barred.

Clearly the City’s position that there was no contract and no grievance procedure available to the plaintiff contradicts its later position that there was a collective bargaining agreement which bars her right to sue. Our question is whether such contradictory positions are barred under statute or case law.

We have reviewed the Montana case law with regard to equitable estoppel as well as the applicable statute on conclusive presumption. Unfortunately, our cases have not been consistent in consideration of either the principles of equitable estoppel or conclusive statutory presumption.

In Howeth v. D. A. Davidson and Co. (1973), 163 Mont. 355, 517 P.2d 722, this Court stated the following with regard to the equitable principle of estoppel:

“The estoppel and waiver contention is grounded upon the equitable principle of estoppel. That doctrine is set out in section 93-1301-6(3), R.C.M.1947, which provides:
‘Whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it.’
“This Court has farther defined estoppel and its essential elements in Hustad v. Reed, 133 Mont. 211, 223, 321 P.2d 1083: ...”

The Court then described six essential elements which it concluded were necessary to constitute an equitable estoppel. We do not set forth the six essential elements in detail because the cases have not consistently followed them.

In In re Marriage of Adams v. Adams (1979), 185 Mont. 63, 604 P.2d 332, we set forth five principles which were stated to be required in order that equitable estoppel would exist. Again we will not set forth these elements in detail as the cases have not consistently applied them.

In Sweet v. Colborn School Supply (1982), 196 Mont. 367, 639 P.2d 521, this Court set forth six essential elements which it held to be necessary to constitute an equitable estoppel, without specific reference to the elements described in Howeth and Adams. Sweet describes the elements of equitable estoppel as follows:

“Six essential elements have been held necessary to constitute an equitable estoppel:
‘(1) there must be conduct, acts, language, or silence amounting to a representation or a concealment of material facts; (2) these facts must be known to the party estopped at the time of his conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him; (3) the truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time it was acted upon by him; (4) the conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under the circumstances that it is both natural and probable that it will be so acted upon; (5) the conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it, and (6) he must in fact act upon it in such a manner as to change his position for the worse.’ ” (Citations omitted.)

With the aim of eliminating confusion, we expressly reverse the holdings on the essential elements of equitable estoppel as contained in Howeth and Adams and expressly reaffirm and readopt the six essential elements of equitable estoppel as above set forth in Sweet. Unfortunately, Sweet failed to refer to the statutory provision described in the following paragraph which also should have been considered.

In 1983, the legislature adopted general revisions of the laws relating to evidence and, as a part of those revisions, amended § 26-1-601, MCA (1989), to read in pertinent part as follows:

“26-1-601. List of conclusive presumptions. The following presumptions are conclusive:
“(1) the truth of a declaration, act, or omission of a party, as against that party in any litigation arising out of such declaration, act or omission, whenever he has, by such declaration, act, or omission, intentionally led another to believe a particular thing true and to act upon such belief;...”

We are required to consider the foregoing statute on the issues before us.

In Kenneth D. Collins Agency v. Hagerott (1984), 211 Mont. 303, 310, 684 P.2d 487, 490, this Court set forth the following general principles regarding estoppel:

“Estoppel is a principle of equity ... equity will grant relief sought when in view of all the circumstances to deny it would permit one of the parties to suffer a gross wrong at the hands of the other party who brought about the condition .... Estoppel is not favored and will only be sustained upon clear and convincing evidence ...”

We caution the user that the foregoing general statement of estoppel may be properly subject to the holdings of this case with regard to the elements of equitable estoppel, as well as the above quoted statutory provision.

In Safeco Insurance Co. v. Ellinghouse (1986), 223 Mont. 239, 725 P.2d 217, this Court made specific reference to the above-cited § 26-1-601, MCA, and pointed out that Safeco had failed to mention the controlling statute.

We come now to the present case. We conclude that § 26-1-601, MCA (1989), and the Sweet statement of the six essential elements of equitable estoppel are the controlling principles of law to be applied. We have previously quoted the position of the City in its December 17, 1987, letter. The deposition of the plaintiff establishes her position regarding the letter and her reliance upon that letter. In analyzing the provisions of § 26-1-601(1), MCA (1989), we conclude that the City’s letter of December 17,1987, constituted a declaration or act, which intentionally led the plaintiff to believe that the facts set forth in the letter were true and caused her to act upon that belief. As a result, under the statute, the truth of the dated letter has been established conclusively as against the City. The requirements of § 26-1-601(1), MCA (1989), have been met.

We next analyze the facts of this case to determine if the six essential elements of equitable estoppel, as set forth in Sweet, have been met. We conclude as follows: (1) there was conduct by the City which amounted to a representation of a material fact; (2) the facts set forth in the December 17 letter were known to the City as the writer of the letter; (3) the truth concerning the December 17 letter was unknown to the plaintiff at the time; (4) the City acted with the intention that the plaintiff in turn would also act; (5) the plaintiff relied upon the letter of December 17 and was led to do so by the wording of the letter; and (6) she in fact acted in such a manner as to change her position for the worse. We conclude that the facts in this case clearly meet the required six elements of equitable estoppel contained in Sweet.

We reverse the District Court on this issue. We hold that the City may not contend the plaintiff was covered by a written collective bargaining agreement at the time of her discharge. As a result, we hold that the plaintiff may proceed with her suit under the Wrongful Discharge from Employment Act.

IV.

Did the District Court properly conclude that plaintiff’s claims of violation of the implied covenant of good faith and fair dealing and for infliction of emotional distress are barred by the Wrongful Discharge from Employment Act?

The District Court held that plaintiffs claims for violation of the covenant of good faith and fair dealing and for infliction of emotional distress are not allowed by the Wrongful Discharge from Employment Act. It also held that even if her claims could otherwise have survived summary judgment, the City was immune from such claims under § 2-9-111, MCA (1989). The District Court dismissed those claims.

Under Issue II of this opinion, we concluded that the City was not immune from the plaintiffs claims under amended § 2-9-111, MCA (1991). As a result, the immunity theory is not controlling on this issue.

The District Court was correct in holding that no claim for discharge may arise from tort or express or implied contract under the provisions of the Wrongful Discharge from Employment Act. § 39-2-913, MCA, Section 39-2-904, MCA, provides that a discharge is wrongful only if:

“(1) it was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy;
“(2) the discharge was not for good cause and the employee had completed the employer’s probationary period of employment; or
“(3) the employer violated the express provisions of its own written personnel policy.”

The City maintains that plaintiff failed to properly state a cause of action under the Wrongful Discharge from Employment Act. Plaintiff’s complaint contained the following pertinent allegations:

“6. That Plaintiff’s immediate supervisor, Charlis Manzer, continually and repeatedly harassed Plaintiff and treated her in a different fashion than she treated other employees in like circumstances, and created such an environment that the Plaintiff found it so intolerable that voluntary termination was her only reasonable alternative.
“7. That the City discharged Plaintiff without warning, without written notice or valid reason, and contrary to the City’s own articulated policies and procedures.
“8. By reason of Plaintiff’s satisfactory service and the performance of her duties, her employer’s assurances, policies, and procedures, salary increases, and the absence of criticism of her performance, there was an implied promise by the City that Plaintiff’s employment would not be terminated and she would not be discharged except for just cause. In terminating Plaintiff’s employment as alleged, the City wrongfully, unreasonably, and tortiously violated its implied promise and its duty implied in the employment relationship to deal fairly and in good faith with Plaintiff.” (Emphasis added).

As plaintiff argues, the Complaint clearly states a cause of action for claims under the Wrongful Discharge from Employment Act. She also sets forth a claim for breach of the implied covenant of good faith and fair dealing and for infliction of emotional distress.

Section 39-2-905(3), MCA, provides that, under the Act, there is no right to damages for wrongful discharge for pain and suffering, emotional distress, or punitive damages. Thus, plaintiff cannot bring claims for breach of the implied covenant of good faith and fair dealing and emotional distress under the Act. However, plaintiff claims that many of the acts occurred prior to July 1987, the effective date of the Wrongful Discharge from Employment Act. It may be that plaintiff will desire to amend her complaint in order to more clearly allege acts which occurred prior to the effective date of the Act, which would allow a pre-Act claim for those damages otherwise excluded by the Act.

We hold that the District Court incorrectly concluded that plaintiff’s claims of violation of the implied covenant of good faith and fair dealing and for infliction of emotional distress which occurred prior to the effective date of the Wrongful Discharge from Employment Act were barred by the Act. We reverse on this issue and remand to the District Court, pointing out that the District Court may properly allow the plaintiff to amend her complaint to conform to the facts as she contends them to be, pursuant to Rule 15(b), M.R.Civ.R

V.

Did the District Court properly deny plaintiff’s motion to join Ms. Manzer under Rules 19 and 20, M.R.Civ.P.?

Plaintiff sought to join as a defendant her supervisor, Ms. Manzer, pursuant to Rules 19 and 20, M.R.Civ.P. The District Court denied plaintiff’s motion, holding:

“7. Plaintiff attempts to avoid summary judgment against her by moving pursuant to Rule 19 of the Montana Rules of Civil Procedure to join Manzer as a party defendant. She has filed no proposed amended complaint naming Manzer as defendant and her argument to do so does not change the basis of her claims. In fact it appears plaintiff continues to affirmatively argue that Manzer was acting within the course and scope of her employment. Plaintiff argues that since the Montana Tort Claims Act indemnified a sued employee who acts within the course and scope of employment, Manzer canbe joined without prejudice to her and that this will save plaintiff’s claims.”

Rule 20(a), M.R.Civ.P., provides:

“All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action ...”

As plaintiff points out, she has filed a separate complaint against Ms. Manzer in her official and personal capacities. Clearly, both actions arise out of the same “transaction, occurrence, or series of transactions or occurrences.” In the interest of judicial economy, plaintiff should be allowed to join Ms. Manzer as a party defendant, individually and officially.

We hold that the District Court improperly denied plaintiff’s motion to join Ms. Manzer under Rides 19 and 20, M.R.Civ.P.

We affirm the holding of the District Court that the City is not liable under 42 U.S.C. § 1983. We reverse as to the remaining issues and remand for further proceedings consistent with this opinion.

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

JUSTICE TRIEWEILER,

specially concurring:

I concur with the result of the majority opinion. However, I cannot agree with all that is said therein.

Specifically, I do not feel it is necessary to reconcile the past 18 years of inconsistent decisions on the subject of equitable estoppel and, in the process, reverse two prior decisions, when that issue was never briefed, argued, nor raised by the parties.

The majority’s dissertation on the history of equitable estoppel is especially unnecessary to this opinion in light of § 26-1-601, MCA, which seems to clearly resolve the third issue on appeal.

Defendant argues, and the District Court concluded, that plaintiff’s wrongful discharge suit was preempted by a collective bargaining agreement which defendant now contends was in effect at the time plaintiff terminated her employment. However, as pointed out by the majority, when plaintiff sought to avail herself of the grievance procedure provided for under the collective bargaining agreement, defendant denied that such an agreement existed and refused her the opportunity to do so. Hal Million, the acting public works director for the City of Great Falls, plainly stated that:

“[TJhere was no contract and no grievance procedure in effect or available to the union members during the dates of suspension.”

Because of defendant’s representation as set forth above, plaintiff was denied the opportunity to pursue the grievance process and as a result, filed this litigation. Therefore, the truth of Mr. Million’s earlier statement is conclusively presumed pursuant to § 26-1-601, MCA, and there was no grievance procedure available to claimant which could preempt her claim under the Wrongful Discharge from Employment Act.

I agree with the result arrived at by the majority. However, I would wait for another day, after the issue had been raised and briefed, before trying to reconcile and rewrite Montana’s decisions on the law of equitable estoppel.


text:
    STATE OF MONTANA, Plaintiff and Appellant, v. DANIEL LIONEL WILLSON, Defendant and Appellant.
    No. 91-063.
    Submitted on briefs Aug. 29, 1991.
    Decided Oct. 8, 1991.
    250 Mont. 241.
    818 P.2d 1199.

      Richard J. Carstensen, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Micheál S. Wellenstein, Asst. Atty. Gen., Helena, Dennis Paxinos, County Atty., Charles Bradley, Deputy County Atty., Billings, for plaintiff and appellant.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Daniel Lionel Willson (Willson) appeals from his sentences imposed by the Thirteenth Judicial District, Yellowstone County, for his convictions of criminal endangerment, criminal possession of dangerous drugs, criminal possession of drug paraphernalia, and escape. Willson further appeals his designation as a dangerous offender. We remand for resentencing on the criminal possession of dangerous drugs conviction and affirm on all other issues.

Willson presents the following issues:

1. Whether the ten-year sentence for criminal possession of dangerous drugs was erroneous.

2. Whether the District Court’s statement concerning excessive previous convictions requires resentencing.

3. Whether the sentence designation as a dangerous offender was erroneous.

4. Whether on remand for resentencing Willson should be entitled to a different sentencing judge.

On February 7,1990, Willson was charged by information with one count of criminal endangerment, one count of criminal possession of dangerous drugs, and one count of criminal possession of drug paraphernalia. These charges stemmed from a January 8, 1990, incident where Willson, in a motor vehicle, drove through downtown Billings, Montana, at speeds of up to 100 miles an hour. In this high-speed drive, Willson collided with two separate occupied motor vehicles, destroying these vehicles and causing injuries. Following this incident, police obtained Willson’s consent to search his clothing. In this search, police found a clear plastic syringe and a white powder substance later identified as cocaine.

At his arraignment, Willson pled not guilty to all three charges. The court ordered that he be remanded to the custody of the Yellowstone County Sheriff.

On March 30,1990, Willson escaped from the Yellowstone County jail with six other inmates. Willson later turned himself in to authorities. The State amended its information against Willson to include one count of escape. Willson pled not guilty to the now four charges against him.

On October 17, 1990, Willson changed his pleas of not guilty to guilty under a plea agreement. The District Court ordered a presentence investigation report. The presentence investigation report recommended a “lengthy sentence” for Willson. On December 3,1990, the District Court conducted a sentencing hearing. At the sentencing hearing, Willson testified that he has suffered from a drug problem for several years and was under the influence of crank and cocaine at the time of the incident. Following a review of the plea agreement, the presentence investigation report, and the testimony presented at the sentencing hearing, the District Court sentenced Willson to the following: ten years imprisonment with three years suspended for criminal endangerment, and ten years imprisonment with three years suspended for criminal possession of dangerous drugs, these two sentences to run consecutively; six months imprisonment for possession of drug paraphernalia, this sentence to run concurrently to the above sentences; and five years imprisonment with two years suspended for escape, this sentence to run concurrently with the above sentences. The District Court also designated Willson a dangerous offender for parole purposes. From these sentences, Willson appeals.

1. Whether the ten-year sentence for criminal possession of dangerous drugs was erroneous.

Willson admits that he is guilty of criminal possession of dangerous drugs, a violation of § 45-9-102, MCA (1989). Willson, however, argues that the District Court erred when it sentenced him to ten years imprisonment with three years suspended for this offense. We agree.

The sentencing statute for cocaine possession, § 45-9-102(3), MCA, (1989), provides in pertinent part:

“A person convicted of criminal possession of an opiate, as defined in 50-32-101(19), shall be imprisoned in the state prison for a term of not less that 2 years or more than 5 years ....”

The District Court’s sentence of ten years imprisonment with three years suspended exceeded the maximum sentence allowed under § 45-9-102(3), MCA (1989). We therefore remand this case to the District Court for resentencing of this offense.

2. Whether the District Court’s statement concerning excessive previous convictions requires resentencing.

Willson argues that diming the sentencing hearing, the District Court miscounted Willson’s past felony offenses contained in the presentence investigation report and relied on an incorrect number of five past felony offenses when it sentenced Willson. Willson argues that this Court should remand this case to the District Court for resentencing based upon Willson’s criminal record of two past felony convictions prior to this case. Willson further argues that the District Court failed to clearly state its reasons for sentencing him. We disagree with Willson’s arguments.

The record indicates that although the District Court misinterpreted Willson’s criminal record as contained in the presentence investigation report, it nonetheless properly concluded that Willson has five current felony convictions. The record further indicates that the District Court did not rely solely on these five current felony convictions in sentencing Willson.

This Court notes that the presentence investigation report indicates that Willson currently has a total of five felony convictions: 1. criminal endangerment on May 1, 1990; 2. criminal possession of dangerous drugs on May 1,1990; 3. escape on May 1,1990; 4. criminal mischief on July 27,1983; and 5. criminal sale of dangerous drugs on June 28, 1983. Willson’s May 25, 1983, conviction for criminal mischief is not considered as an offense, as it was a deferred sentence successfully completed. Additionally, Willson’s December 11, 1986, felony conviction for criminal mischief is not considered as a separate offense because it was the revocation of the June 27, 1983, criminal mischief offense.

The District Court, in relying on the presentence investigation report, incorrectly counted the criminal mischief offense dated December 11, 1986, as a new felony conviction, when in fact, it was the revocation of a June 27, 1983, criminal mischief offense that the court had previously counted. Additionally, the District Court incorrectly counted the criminal endangerment and criminal possession of dangerous drugs offenses dated May 1, 1990, as one felony instead of as two separate felonies. However, although the court misinterpreted Willson’s criminal record contained in the presentence investigation report, it properly concluded that Willson has a criminal record, which includes five felony convictions. We hold that the District Court arrived at the right conclusion by the wrong means, and, as such, committed no error that mandates resentencing in this instance.

Furthermore, the District Court did not commit error when it relied in part on Willson’s entire criminal record in sentencing Willson. A district corut is given “broad discretion to determine the appropriate punishment for a conviction.” State v. Carson (1984), 208 Mont. 320, 322, 677 P.2d 587, 588. A district corut, however, must set forth its reasons for sentencing a defendant in order for the sentence to be properly reviewed at a later time by the Sentence Review Board or this Corut. State v. Stumpf (1980), 187 Mont. 225, 226, 609 P.2d 298, 299.

Here, the District Court, in pronouncing Willson’s sentence, stated that its reasons behind Willson’s sentence were Willson’s entire and extensive criminal record, as well as Willson’s threat to society. It is also noteworthy that Willson’s sentence is consistent with the presentence investigation report, which recommended that Willson be given a “lengthy sentence.” We hold that the District Court sufficiently explained its reasons for Willson’s sentence and, as such, committed no error in sentencing Willson that mandates his resentencing other than as discussed in the first issue of this opinion.

3. Whether the sentence designation as a dangerous offender was erroneous.

Willson argues that the District Court erred when it designated him a dangerous offender for parole eligibility purposes. He argues that this designation was erroneous because of the District Court’s miscounting of his felony convictions. We already have held that the District Court committed no reversible error when it misinterpreted Willson’s criminal record yet arrived at the correct number of Willson’s current felony convictions.

Furthermore, the District Court did not find Willson a dangerous offender because of a specific number of felony convictions. Rather, the District Court considered the presentence investigation report, which included Willson’s entire criminal record beginning in 1983 and, more importantly, found that Willson represented a substantial danger to society. Section 46-18-404(l)(b), MCA (1989), provides that a defendant shall be designated a non-dangerous offender if “the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society.” Here, Willson’s own testimony and his criminal record reveal that he has suffered from a serious drug problem for several years. In his current offenses, Willson drove through downtown Billings at speeds up to 100 miles an hour while under the influence of crank and cocaine. His actions resulted in property damage and injuries to innocent people. The record indicates that Willson represents a substantial danger to other persons and society. We therefore hold that the District Court committed no error when it designated Willson a dangerous offender for parole purposes.

4. Whether on remand for resentencing Willson should be entitled to a different sentencing judge.

Willson argues that this Court should order a new district court judge for resentencing of this case, or, in the alternative, allow him the right to move for substitution of the sentencing judge.

Section 3-l-804(l)(g), MCA, (1989), provides:

‘When a new trial is ordered by the district court, each adverse party shall thereupon be entitled to one motion for substitution of judge in the manner provided herein. When on appeal the judgment or order appealed from is reversed or modified and the cause is remanded to the district court for a new trial, or when a summary judgment or judgment of dismissal is reversed and the cause remanded, each adverse party shall thereupon be entitled to one motion for substitution of judge in the manner provided herein. Such motion must be filed, with the required filing fee in civil cases, within twenty (20) days after a new trial has been ordered by the district court or after the remittitur from the Supreme Court has been filed with the district court. No other right of further substitution shall arise in cases remanded by the supreme court. In criminal cases, no further right of substitution shall arise when the cause is remanded for resentencing.”

(Emphasis added.)

In interpreting legislative intent of statutory language, this Court first examines “the plain meaning of the words used.” Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 80, 438 P.2d 660, 662 (citations omitted). Clearly, by the plain meaning of the words used, § 3-1-804(l)(g), MCA, (1989), does not provide for substitution of a district court judge when a cause of action is remanded for resentencing. We therefore hold that Willson is not entitled to a new district court judge nor is he entitled to move for substitution of a sentencing judge.

In conclusion, we remand this case for resentencing on the possession of dangerous drugs conviction and affirm on all other issues.

JUSTICES HUNT, GRAY, McDONOUGH and WEBER concur.