text:
    JOHN P. TURNER, Plaintiff and Appellant, v. KERIN & ASSOCIATES and RICHARD T. KERIN, Defendants and Respondents.
    No. 96-002.
    Argued January 30, 1997.
    Submitted March 20, 1997.
    Decided June 11, 1997.
    54 St.Rep. 522.
    283 Mont. 117.
    938 P.2d 1368.

      For Appellant: James A. McLean; Drysdale, McLean & Nellen, Bozeman; George A. Guynes (argued), Attorney at Law, Santa Fe, New Mexico.
    For Respondents: Jon M. Hesse (argued), Attorney at Law, Livingston.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

John P. Turner (Turner) appeals from the Eighteenth Judicial District Court’s order dismissing his complaint against the engineering firm of Kerin & Associates and against civil engineer Richard Kerin (jointly referred to as Kerin) for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), M.R.Civ.R We affirm in part, reverse in part and remand.

We restate the issues on appeal as follows:

1. Did the District Court err in holding that there is no cause of action for impairment of a security interest?

2. Did the District Court err in dismissing Turner’s claim for breach of contract?

3. Did the District Court err in dismissing Turner’s claim for breach of professional duty?

BACKGROUND

A motion to dismiss under Rule 12(b)(6), M.R.Civ.R, has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true. Common Cause of Montana v. Argenbright (1996), 276 Mont. 382, 386, 917 P.2d 425, 427. The allegations in the complaint indicate that Turner holds three mortgages secured by real property (the Property) which was owned by Ameritrust. The three mortgages were held by Sterling Trading, Ltd. Turner, who had a judgment against Sterling Trading, Ltd., executed on two of the mortgages in 1991 and on the third in 1993. In June of 1995, Turner foreclosed his three mortgages on the Property after the Eighteenth Judicial District Court ordered a foreclosure sale. At the foreclosure sale, Turner submitted the highest bid for the property; however, the debt secured by the three mortgages remained unsatisfied as the price bid for the Property was less than the unpaid principal and accrued interest.

Before Turner acquired his security interests in the Property in 1991 and 1993, Ameritrust had, in 1986, contracted with Kerin to perform engineering and supervisory services on the Property for purposes of preparing the Property for subdivision use, including installation of sewer collection and water distribution systems. Kerin completed its work under the 1986 contract well before Turner acquired the mortgages in 1991 and 1993. Kerin’s contract with Ameritrust required it to bring the existing approved plans into compliance with standards of the State Department of Health Water Quality Bureau and to take any and all steps which were necessary to certify the installed utilities. A water main had previously been installed on the property. The water main did not meet the AWWA C900 Class Pipe standards and had not been buried at the proper depth. Turner alleged that Kerin knew that the water main pipe was not in compliance and needed to be replaced. Turner alleged that Kerin, nonetheless, replaced the main with new pipe which also failed to comply with AWWA C900 Class Pipe standards. Turner alleged that Kerin, in deviating from the approved plans without having received prior approval of the State of Montana Department of Health, damaged the real property and thereby impaired the value of the property as collateral securing the three mortgages which were subsequently acquired by Turner through foreclosure.

Turner filed this action in District Court raising three claims against Kerin; a claim for impairment of security, a claim for breach of contract, and a claim for breach of professional duty. First, Turner claimed that the water pipe installed by Kerin did not comply with required standards and thus impaired the security interest he subsequently acquired in the Property. Second, Turner claimed that Kerin breached its contract with Ameritrust by failing to bring the modifications into compliance with standards and to obtain certification of the installed utilities. Finally, he alleged that Kerin breached its duty to Ameritrust to exercise due and reasonable care in performing services as a professional engineer. Turner claimed that Ameritrust’s claims against Kerin for breach of contract and breach of duty were assets of Ameritrust upon which Turner, as a creditor of Ameritrust, could execute. In response to Turner’s complaint, Kerin filed a motion to dismiss claiming that it did not owe a duty to Turner and that since Turner was not an intended beneficiary of the contract, Kerin could not pursue a claim for breach of the contract. The District Court granted Kerin’s motion to dismiss for failure to state claims upon which relief could be granted. Turner appeals from the District Court’s order.

DISCUSSION

Under Rule 12(b)(6), M.R.Civ.R, a defendant, by motion, may raise the defense that the plaintiff has failed to state a claim upon which relief can be granted. Irving v. Valley Co. Sch. Dist. No. 1-1A (1991), 248 Mont. 460, 464, 813 P.2d 417, 418. Under Rule 12(b), M.R.Civ.R, a complaint shall not be dismissed unless it appears that the plaintiff can not prove a set of facts in support of his or her claim that entitles her to relief. Proto v. Missoula County (1988), 230 Mont. 351, 353, 749 P.2d 1094, 1095-96. In the instant case, the question is whether Turner can prove a set of facts which would entitle him to relief under any of the claims he asserts in his complaint. Therefore, we will address each of Turner’s claims separately.

A. Impairment of Security

In dismissing the complaint, the District Court was unwilling to accept Turner’s “impairment of security” theory holding that the relationship between Turner and Kerin was too remote to impose liability for the damage, if any, that Kerin may have inflicted on the Property in 1986 before Turner acquired the three mortgages. The District Court held, “[n] either party has cited authority whereby either the Montana Supreme Court or the Montana legislature has adopted the ‘impairment of security theory. Only California has applied the ‘impairment of security’ theory to the acts of construction professionals.”

In order to resolve the issues presented in this case, we need to engage in a three-step analysis: First, we must determine whether Montana recognizes a mortgagee’s right to state a claim for impairment of security. Secondly, assuming we do recognize a claim for impairment of security, may such a claim be asserted by a mortgagee against a third party not in possession of the property? Finally, may such a claim be asserted by a mortgagee who purchases mortgages at a foreclosure sale subsequent to the time at which the damage was inflicted on the security?

Does Montana recognize a claim for impairment of security?

Over 100 years ago, this Court first recognized a mortgagee’s right to sue a mortgagor for impairment to a security interest in Dutro v. Kennedy (1889), 9 Mont. 101, 22 P. 763. Kennedy, a mortgagor, attached fixtures and caused improvements to be made to the subject property after execution of the mortgage. After the mortgage had been foreclosed and the property sold at a sheriff’s sale, the mortgagor attempted to remove the fixtures and improvements. Dutro, 22 P. at 763-64. The mortgagee, Branch, instituted suit against the mortgagors. During the pendency of the litigation, Branch transferred his interests in the suit to Dutro who successfully prosecuted the suit to a final judgment. The Dutro Court held:

Whenever the mortgagor endeavors to remove the fixtures or improvements upon mortgaged property, he may be enjoined, or the creditor may have his choice of an action for damages, or one of claim and delivery, after he has become the purchaser of the property at sheriff’s sale, as in the present instance.

Dutro, 22 P. at 764.

In a similar vein, we have held that, on redemption, a mortgagee is accountable to the mortgagor for waste committed by him on the premises while in his possession, including the permanent depreciation in the property caused by failure to make necessary repairs or depreciation resulting from reckless or improvident management of the property. Toole v. Weirick (1909), 39 Mont. 359, 364, 102 P. 590, 593.

Although the Dutro and Weirick decisions do not explicitly draw a distinction between damage to the property as opposed to damage to the security interest, we conclude that these decisions are consistent with the rule that a mortgagee can, before a foreclosure sale, or afterwards if the debt has not been satisfied, bring suit alleging that his security (as distinct from the property itself) has been diminished through the actions (or inactions) of the mortgagor. As the Supreme Court of California recognized in Cornelison v. Kornbluth (Cal. 1975), 542 P.2d 981, 986, the cause of action for waste evolved in the common law so as to afford protection to concurrent holders of interests in land who were out of possession, e.g. mortgagees, from harm committed by persons who were in possession, e.g. mortgagors. The California court cited the New York decision of Van Pelt v. McGraw (1850), 4 N.Y. 110, 112, for the proposition that a holder of a mortgage on lands has a cause of action on the case against the mortgagor for acts of waste committed by the latter with knowledge that the value of the security would thereby be injured. Van Pelt set forth the measure of damages:

Now this action is not based upon the assumption that the plaintiff’s [mortgagee’s] land has been injured, but that his mortgage as security has been impaired. His damages, therefore, would be limited to the amount of injury to the mortgage, however great the injury to the land might be.

Van Pelt, 4 N.Y. at 112.

In W. & R. Inv. Co. v. Edwards Supply Co. (Mass. 1939), 24 N.E.2d 518, 519, the Massachusetts court held that a mortgagee of real estate, at least before foreclosure, has a right of action against the mortgagor or any other person who, without license, removes any part of the mortgaged property.

“Whether the mortgagee is in possession of the mortgaged premises or not, or whether his right to possession begins only with the breach of condition and there has been no breach, nevertheless he has such an interest in the property and its preservation as enables him to maintain an action in his own name for injury to it. Such right of action is founded not upon the right to present possession, but on title to the estate. He may maintain such an action, ... although the security remains ample for his protection. He has a right to his security unimpaired.”

W. & R. Inv., 24 N.E.2d at 519 (quoting Delano v. Smith (1910), 92 N.E. 500, 501). The Massachusetts court held that this right of action is not personal to the mortgagee, “but arises out of and pertains to the estate, and whatever may be recovered is to be applied in payment, pro tanto, of the mortgage debt and thus is ultimately for the benefit of the mortgagor, if he redeems.” W. & R. Inv., 24 N.E.2d at 520.

We agree that a mortgagee may state a cause of action against a mortgagor for actions or inactions which damage the collateral and thereby impair the mortgagee’s ability to satisfy the secured debt.

Does a mortgagee have a cause of action for impairment of security as against a third party not in possession?

This Court’s decisions in Dutro and Weirick recognize a cause of action against the party in possession for damage or waste to the collateral. We have not, however, addressed whether a mortgagee may bring a cause of action against a third party not in possession for impairment of the security.

Although this Court has not addressed a mortgagee’s right to bring an action against a third party for damage to the security interest, other jurisdictions have recognized such a cause of action. The California Supreme Court has held that when a third person tortiously damages the property, both the mortgagor and mortgagee may sue the third party tortfeasor. Cornelison v. Kornbluth (Cal. 1975), 542 P.2d 981, 987 n.3; American Savings and Loan Ass’n v. Leeds (Cal. 1968), 440 P.2d 933, 936.

In Mathews v. Silsby Bros. (Iowa 1924), 201 N.W. 94, 94-95, the Iowa Supreme Court recognized that in a ‘lien state” such as Iowa, although a mortgagee cannot maintain a cause of action for trespass quare clausum fregit, he may maintain a cause of action against the mortgagor or a third party for damages to his security. Montana, like Iowa, is a lien state, State ex rel. Highway Comm. v. District Court (1972), 160 Mont. 35, 499 P.2d 1228; Miller v. Federal Land Bank of Spokane (9th Cir. 1978), 587 F.2d 415, cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1067 (1979).

In Sloss-Shefield Steel & Iron Co. v. Wilkes (Ala. 1936), 165 So. 764, 767, the Alabama Supreme Court, citing Mathews, held that, where the mortgage is foreclosed after the damage occurred (as herein), the mortgagee has a right of action against a third party for damages to the real property which impairs his security.

When damage occurs before foreclosure, the right of action by the mortgagee whatever it may be, or the nature of the action, is only for the recovery of an amount not exceeding the mortgage debt. The right of action is collateral to the debt, and as security for it. The mortgagee may pursue any course he pleases to collect the debt, whether it be a suit for a personal judgment against the debtor, or for damages against one who has wrongfully converted the mortgaged property, or otherwise destroyed his rights in it, or for a foreclosure. And he may do them all at the same time. But when he once collects his debt, by any one of those proceedings, or by a voluntary payment of it, he cannot pursue any other remedy. They are all but means to accomplish one purpose, and when that is accomplished, all the remedies, not used in so doing, are terminated.

Sloss-Sheffield, 165 So. at 767.

The Fifth Circuit has also held that the damages in a claim against a third party for impairment of security are limited to damages to the ability to collect the debt as opposed to diminution in the value of the property itself. Allstate Finance Corp. v. Zimmerman (5th. Cir. 1959), 272 F.2d 323, 325. In Allstate, the plaintiff-mortgagee purchased the property at a foreclosure sale and, since he bid the full amount of the debt, the debt was satisfied and the court held that he could not state a cause of action. Allstate, 272 F.2d at 325-26. Similarly, in the present case, Turner purchased the property at foreclosure. However, he alleged that since the price bid was less than the outstanding debt, the debt remained unsatisfied. Thus, he has stated a cause of action.

In accordance with the above authorities, we hold that a mortgagee can state a cause of action against a third party for damages to real property which impair his or her security interest in that property. A third party who contracts to work on property has a duty to perform his work in such a manner that he does not damage the property or impair the value of the property as collateral for a then-existing security interest.

Can a claim for impairment of security be asserted by one who succeeds to the mortgagee’s security interest after the point in time when the damage to the security is alleged to have occurred?

In the case at hand, Turner purchased the mortgages in question in 1991 and 1993, some five to seven years after Kerin had performed the work in question. Thus a question arises as to whether Turner can assert a claim against Kerin since Turner did not hold the security interests in the property at the time Kerin was performing its work on the property. We first note that, although Turner did not acquire the mortgages until 1991 and 1993, the mortgages themselves were in existence in 1986 when Kerin performed the work in question. Turner acquired the mortgages by foreclosing against the predecessor mortgagee, Sterling Trading, Ltd. Our decision in Dutro is instructive on this point. In Dutro v. Kennedy (1889), 9 Mont. 101, 22 P. 763, Branch, the original mortgagee, filed suit against the mortgagors Kennedy and Scheurman, but, during the pendency of the litigation, Branch transferred his interests in the mortgage to Dutro who prosecuted the suit to a final judgment. Thus Dutro, who successfully prosecuted the claim, had no interest in the property at the time the mortgagor damaged the property. Rather, he acquired his interests from Branch, after the fact. Dutro, 22 P. at 764. In a similar vein, we hold that in acquiring these mortgages at foreclosure sale in 1991 and 1993, Turner stands in the shoes of a transferee of the mortgages and has the same rights to pursue a claim for impairment of security that Dutro acquired from Branch. That is, he acquired all the rights and liabilities of the predecessor mortgagee Sterling Trading, Ltd. Like his predecessor Sterling Trading, Ltd., Turner can pursue a claim against a third party who has impaired the ability of the holder of the mortgage to collect the debt secured thereby.

The District Court, relying on our holding in Jim’s Excavating Service v. HKM Assoc. (1994), 265 Mont. 494, 878 P.2d 248, held that Turner could not state a claim for impairment of security because he had not alleged nor could he prove that Kerin “should have foreseen that the particular plaintiff, or an identifiable class of plaintiffs were at risk in relying on the information supplied.” Jim’s Excavating involved a claim by a third party contractor against a project engineer, HKM, for economic damages. HKM argued that there could be no tort liability to HKM because there was no privity between HKM and the contractor JES; particularly since the negligence complained of (preparation of plans and specifications) occurred before HKM actually knew JES would be part of the proj ect. Jim’s Excavating, 878 P.2d at 251. We rejected the contention that HKM could escape liability simply because it did not know JES would receive the bid “when it knew that some contractor would be relying on its plans and specifications.” Jim’s Excavating, 878 P.2d at 254. We relied upon an example given in William L. Prosser, The Law of Torts, § 93 (4th ed. 1971), which bears repeating:

[B]y entering into a contract with A, the defendant may place himself in such a relation toward B that the law will impose upon him an obligation, sounding in tort and not in contract, to act in such a way that B will not be injured. The incidental fact of the existence of the contract with A does not negative the responsibility of the actor when he enters upon a course of affirmative conduct which may be expected to affect the interests of another person....
[T]here are situations in which the making of the contract creates a relation between the defendant and the promisee, which is sufficient to impose a tort duty of reasonable care. By the same token, there are situations in which the making of a contract with A may create a relation between the defendant and B, which will create a similar duty toward B, and may result in liability for failure to act. ...

In applying the above reasoning to the facts before us, we concluded that, although HKM did not actually know JES would receive the bid, it knew that some contractor would be relying on its plans and specifications.

Thus, we hold that a third party contractor may successfully recover for purely economic loss against a project engineer or architect when the design professional knew or should have foreseen that the particular plaintiff or an identifiable class of plaintiffs were at risk in relying on the information supplied.

Jim’s Excavating, 878 P.2d at 255.

In the present case, by contracting with the owners to perform engineering work on the property, Kerin placed itself in a relation toward any party who held a security interest in the property that the law imposed upon him an obligation, sounding in tort and not in contract, to act in such a way that the security interest would not be injured. Kerin knew or should have foreseen that if, contrary to his representations, he relaid with pipe not meeting requisite pipe standards, he would diminish the value of the property and thereby impair the value of the property as security. It was foreseeable that failure to lay the proper pipe would damage an identifiable class of plaintiffs; i.e. those who held an interest in the property, both mortgagors and mortgagees. The fact that Kerin could not specifically foresee Turner’s entry into the picture does not change the fact that Turner is a member of an identifiable class of plaintiffs, that is, he is a mortgagee by virtue of having purchased mortgages which were in existence at the time of Kerin’s work and which, allegedly, have not been satisfied.

In keeping with the reasoning of Jim’s Excavating, we hold that a person who, subsequent to the damage to the property, acquires a pre-existing security interest in the property can maintain a cause of action for impairment of that security interest to the extent of the outstanding debt.

B. Breach of Contract

The District Court dismissed Turner’s breach of contract claim holding that there was no privity of contract between Turner and Kerin and that Turner, “at best, could only be considered as a type (or class) of incidental beneficiary to the contract between Defendants and previous owners.” The court relied upon our decision in Harman v. MIA Service Contracts (1993), 260 Mont. 67, 72, 858 P.2d 19, 22-23. Turner contends that the District Court misconstrued his second cause of action. He contends that he is not seeking to enforce the contractual obligation as a third party beneficiary, either incidental or intended. Rather, he, as a creditor of Ameritrust, seeks to execute upon Ameritrust’s assets, which include any claims (choses in action) that Ameritrust has against Kerin for breach of contract. He relies on our decision in State ex rel. Coffey v. District Court (1925), 74 Mont. 355, 240 P. 667, wherein we held that claims for breach of contract or for tort connected with contract are choses in action, which are personal property subject to execution. Coffey, 240 P. at 669. That proposition is still good law. However, when put in its proper context, it only has application to a judgment creditor. Mr. Coffey had filed a cost bill which ‘had the effect of the entry of a judgment for $94 in favor of Herman and Coffey and against Albert W. Ogg upon which execution might issue.” Coffey, 240 P. at 668-69. The statutory law pertaining to writs of execution, now, as then, provides:

Execution against property of judgment debtor. If the writ be against the property of the judgment debtor, it shall require the sheriff or levying officer to satisfy the judgment, with interest, out of the personal property of such debtor and, if sufficient personal property cannot be found, out of his real property as provided in 25-13-305.

Section 25-13-304, MCA (emphasis added).

Thus, in order to come within the ambit of Coffey and § 25-13-305, MCA, Turner must be a judgment creditor asserting a claim against a judgment debtor. In reviewing Count II of his complaint (Breach of Contract) it is apparent that Turner has not alleged that he has a judgment against Ameritrust. Rather, he alleges that he is “a direct creditor of Ameritrust and is entitled to execute on any asset of Ameritrust.” This allegation is not sufficient to state a cause of action. A creditor who has not yet reduced his claim to judgment is not in a position to execute. Although the District Court dismissed Count II for the wrong reasons, the dismissal was correct and is therefore affirmed. See Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, 927 P.2d 995, 1000.

C. Breach of Professional Duty

In Count III, Turner contends that he is entitled to execute upon Ameritrust’s claim that Kerin breached its professional duty to exercise due care as a civil engineer. Applying the same reasoning it used in rejecting the impairment of security claim, the District Court dismissed the claim for lack of foreseeability under the principles enunciated in Jim’s Excavating. As with Count II, the District Court has misconstrued the nature of Turner’s claim in which he seeks to execute upon a chose in action rather than assert the claim in his own right. However, since Count III, like Count II, does not allege that Turner is a judgment creditor entitled to execute, the same reasoning we set forth with regard to the breach of contract claim pertains. We affirm the District Court’s ruling that Count III fails to state a claim upon which relief can be granted.

Accordingly, we affirm the dismissal of Counts II and III and reverse the order dismissing Count I (Impairment of Security) and remand for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON, REGNIER, GRAY and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE REGNIER

license: Public Domain

text:
    CLARA LIEDLE, Plaintiff, Appellant, and Cross-Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Defendant, Respondent, and Cross-Appellant.
    No. 96-597.
    Submitted on Briefs May 15, 1997.
    Decided June 11, 1997.
    54 St.Rep. 528.
    283 Mont. 129.
    938 P.2d 1379.

      For Appellant: Bruce E. Lee, Attorney at Law, Billings.
    For Respondent: Lyman H. Bennett, III; Sedivy, Bennett & White; Bozeman.
   JUSTICE REGNIER

delivered the Opinion of the Court.

On October 25,1994, Clara Liedle filed a claim against State Farm Mutual Automobile Insurance Company upon her automobile insurance contract with State Farm for underinsured motorist coverage with regard to injuries sustained by her in an automobile accident. A jury trial was held on January 16,1996. The jury returned its Special Verdict finding Liedle’s damages in the sum of $83,359. The Eighteenth Judicial District Court, Gallatin County, reduced this verdict by $25,000 in insurance proceeds which Liedle had received from the tort-feasor’s liability insurer, and $50,000 already paid by State Farm pursuant to a separate policy of underinsured motorist coverage in that amount. The District Court then reduced the jury’s award by medical pay benefits which Liedle had received from State Farm pursuant to the collateral source reduction statute, § 27-1-308, MCA. Liedle’s net jury award was thus reduced to zero. Liedle appeals the reduction of the jury award by the medical pay insurance benefits received. State Farm cross-appeals the District Court’s award of costs to Liedle for the deposition of Dr. Kurtz. We affirm.

The issues on appeal are:

1. Did the District Court err by applying the collateral source reduction statute, § 27-1-308, MCA, to reduce the jury’s verdict by benefits paid to Liedle pursuant to medical pay coverage?

2. Did the District Court err in permitting, as an allowable cost to Liedle, the cost of a copy of the deposition transcript of Dr. Kurtz, recognizing that the cost of the original transcript of the deposition was paid by State Farm?

FACTUAL BACKGROUND

On May 22, 1992, Clara Liedle was injured in an automobile accident when her automobile was rear-ended by a vehicle driven by Kennan Skeen. The Skeen vehicle was insured by State Farm with a policy having a liability limit of $25,000. State Farm also insured the Liedle automobile involved in the accident and another automobile owned by Liedle and her husband. The Liedles’ two State Farm insurance policies contained underinsured motorist coverage with liability limits of $50,000 each.

Prior to Liedle filing her suit, State Farm paid to her the $25,000 limit on the Skeen policy, and the $50,000 limit on one policy of underinsured motorist coverage. No payment was made by State Farm on the second underinsured motorist policy. State Farm also paid to Liedle the sum of $10,000, which represented medical expenses incurred as a result of the accident under the medical pay coverage of Liedle’s policy with State Farm.

Liedle sought to recover damages over the $75,000 already paid by State Farm and upon the second policy of underinsured motorist coverage. The case was tried before a jury which returned a Special Verdict on January 19, 1996, finding that Liedle’s total damages arising out of the automobile accident were in the amount of $83,359.

The District Court reduced the verdict by $75,000, representing the insurance proceeds received by Liedle under Skeen’s liability policy and under her own underinsured motorist coverage. The court next reduced the jury’s award by the medical pay benefits received, pursuant to the collateral source reduction statute, § 27-1-308, MCA. The $10,000 medical pay set-off was itself reduced by the sum of $200.57, which represented the premiums paid by Liedle for the medical pay coverage from the date of inception of the policy through July 1,1996, for a total net offset in the sum of $9,799.43. The District Court therefore reduced the verdict to zero and entered judgment in favor of Liedle for the sum of zero dollars along with costs and disbursements in favor of Liedle.

Included in the award of costs was the cost of a copy of the deposition transcript of Dr. Kurtz. The District Court, in response to objections to Liedle’s memorandum of costs, entered an order on June 7, 1996, stating that Liedle may recover the costs of her copy of Dr. Kurtz’s deposition which was read at trial.

Liedle appeals the reduction of the jury award by the medical pay insurance benefits received. State Farm cross-appeals the District Court’s award of costs for the deposition of Dr. Kurtz to Liedle.

ISSUE 1

Did the District Court err by applying the collateral source reduction statute, § 27-1-308, MCA, to reduce the jury’s verdict by benefits paid to Liedle pursuant to medical pay coverage?

We review a district court’s conclusions of law to determine whether they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

Liedle asserts that the District Court erred in applying the collateral source reduction or offset statute because it does not apply to contract actions. Liedle argues that this action is not a tort claim against the tort-feasor, but rather a breach of contract action against State Farm on a policy of underinsured motorist coverage. State Farm counters that Liedle’s argument is incorrect, as the language of § 27-1-308, MCA, is not confined to actions arising in tort. State Farm contends that the District Court did not err when it applied the collateral source offset statute to Liedle’s recovery as against her insured.

The collateral source reduction statute, § 27-1-308, MCA, provides: Collateral source reductions in actions arising from bodily injury or death — subrogation rights. (1) In an action arising from bodily injury or death when the total award against all defendants is in excess of $50,000 and the plaintiff will be fully compensated for his damages, exclusive of court costs and attorney fees, a plaintiff’s recovery must be reduced by any amount paid or payable from a collateral source that does not have a subrogation right.
(2) Before an insurance policy payment is used to reduce an award under subsection (1), the following amounts must be deducted from the amount of the insurance policy payment:
(a) the amount the plaintiff paid for the 5 years prior to the date of injury;
(b) the amount the plaintiff paid from date of injury to date of judgment; and
(c) the present value of the amount the plaintiff is thereafter obligated to pay to keep the policy in force for the period for which any reduction of an award is made pursuant to subsection (3).
(3) The jury shall determine its award without consideration of any collateral sources. After the jury determines its award, reduction of the award must be made by the trial judge at a hearing and upon a separate submission of evidence relevant to the existence and amount of collateral sources. Evidence is admissible at the hearing to show that the plaintiff has been or may be reimbursed from a collateral source that does not have a subrogation right. If the trial judge finds that, at the time of hearing, it is not reasonably determinable whether or in what amount a benefit from such a collateral source will be payable, he shall:
(a) order any person against whom an award was rendered and who claims a deduction under this section to make a deposit into court of the disputed amount, at interest; and
(b) reduce the award by the amount deposited. The amount deposited and any interest thereon are subject to the further order of the court, pursuant to the requirements of this section.
(4) Except for subrogation rights specifically granted by state or federal law, there is no right to subrogation for any amount paid or payable to a plaintiff from a collateral source if an award is reduced by that amount under subsection (1).

Liedle argues that the language of this statute, in particular the phrase “[i]n an action arising from bodily injury or death,” limits the collateral source reduction law to tort actions, but acknowledges that Montana has not ruled upon the issue of whether § 27-1-308, MCA, is limited to tort actions. She then attempts to argue by analogy that because the application of the collateral source statute is similar to the effect of subrogation, the distinction between tort and contract actions which courts apply in subrogation matters should also apply to the collateral source reduction statute. Liedle makes this analogy based on the maxim of jurisprudence that where the reason is the same, the rule should be the same. Section 1-3-202, MCA. In addition she contends that allowing a collateral source reduction as against a party’s own insurer is the equivalent of allowing an insurance company to subrogate against its own insured, which is prohibited in the State of Montana. Truck Ins. Exch. v. Transport Indem. Co. (1979), 180 Mont. 419, 591 P.2d 188.

First, it is clear that State Farm is not asserting a right of subrogation and is not seeking to be substituted and succeed to the rights of Liedle under § 27-1-308, MCA. State Farm is only claiming the benefits of the collateral source reduction statute as set forth in § 27-1-308, MCA. In fact, § 27-1-308(1), MCA, is only applicable when there is no subrogation right. Regardless, it is not necessary to reach Liedle’s argument by analogy, as the language of the statute itself does not confine its applicability to actions only arising in tort.

The language of § 27-1-308, MCA, applies to actions arising from “bodily injury or death.” The policy of insurance upon which Liedle was seeking recovery is the underinsurance policy issued to her by State Farm. This policy states that the insurer

will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an underinsured motor vehicle.

(Emphasis added.) Liedle’s claim made pursuant to this underinsured motor vehicle policy is an action arising from bodily injury as contemplated by § 27-1-308, MCA.

Liedle argues that the collateral source reduction statute impairs her right to contract as provided by Article II, Section 31, of the Montana Constitution. She asserts that to allow a collateral offset by one’s own insurer violates the substantive rule that an insurance company not be allowed to subrogate its own insured who purchased the policy. In addition, Liedle asserts that she has paid the premiums for her underinsured motorist coverage and that the collateral source rule confiscates the benefit of that insurance coverage by not affording any adjustment for the premiums she paid.

The collateral source reduction rule does not reduce the amount of available underinsured motorist coverage for which Liedle paid premiums, it only reduces the amount of damages recoverable in an underinsured motorist claim. The statute does not authorize collateral source payments to be deducted from the claimant’s available underinsured motorist coverage, but authorizes that such payments be entered into the calculation of the claimant’s compensable injuries and losses. Liedle does receive the benefit of the insurance policy she has purchased, and her contractual rights under this policy are not impaired. Liedle’s policy provides that State Farm is required to pay only those damages to which “an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle.” Liedle received exactly those amounts of damages, less the collateral source offset as provided for by § 27-1-308, MCA.

We hold therefore that the District Court did properly apply the collateral source offset statute, § 27-1-308, MCA, to Liedle’s recovery as against her insured.

ISSUE 2

Did the District Court err in permitting, as an allowable cost to Liedle, the cost of a copy of the deposition transcript of Dr. Kurtz, recognizing that the cost of the original transcript of the deposition was paid by State Farm?

As we previously stated, the standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County, 898 P.2d at 686. This Court has previously held that the trial court has broad authority to tax costs. Fisher v. State Farm Ins. Cos. (1997), [281 Mont. 236], 934 P.2d 163, 164; Baeta v. Don Tripp Trucking (1992), 254 Mont. 487, 839 P.2d 566.

State Farm contends that the District Court erred in awarding Liedle the expense incurred by her in purchasing a copy of Dr. Kurtz’s deposition. State Farm argues that the cost of the copy of Dr. Kurtz’s deposition was solely for her benefit and was not an appropriate cost to be awarded against State Farm. Liedle counters that the copy of the deposition was not merely for her convenience and because the deposition was read at trial it is a recoverable cost.

This Court has previously held that depositions used at trial are a recoverable cost. Semenza v. Leitzke (1988), 232 Mont. 15, 754 P.2d 509. We have further held that when the purpose of the deposition is merely to assist the requesting party in compiling its case and is taken only for the convenience of counsel, the cost of that deposition is not allowable. Fisher, 934 P.2d 163; McGinley v. Ole’s Country Stores, Inc. (1990), 241 Mont. 248, 786 P.2d 1156; Semenza, 754 P.2d 509.

The copy of Dr. Kurtz’s deposition obtained by Liedle’s counsel was not obtained for the sole convenience of counsel or solely for Liedle’s benefit. The copy of the deposition was a practical necessity to allow counsel to be fully prepared for trial. As the deposition was read at trial, the District Court did not err in awarding as a cost the expense of the deposition copy.

We hereby affirm the District Court.

JUSTICES NELSON, HUNT, TRIEWEILER and LEAPHART concur.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL ADAIR ELLENBURG, Defendant and Appellant.
    Nos. 96-466, 96-467.
    Submitted on Briefs April 4, 1997.
    Decided June 11, 1997.
    54 St.Rep. 532.
    283 Mont. 136.
    938 P.2d 1376.

      For Appellant: Terry G. Sehestedt, Missoula.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Robert L. Deschamps III, County Attorney; Fred Van Valkenburg, Deputy County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

In proceedings before the Fourth Judicial District Court, Missoula County, Michael Adair Ellenburg was convicted of two separate offenses of operating a motor vehicle while under the influence of alcohol or drugs (DUI), fourth or subsequent offense. Ellenburg appeals from those convictions, raising issues reserved pursuant to § 46-12-204(3), MCA. We affirm.

The issues are:

1. What is the effect of legislative silence concerning mental state in the felony provision of § 61-8-714, MCA, on the status of DUI, fourth or subsequent offense, as an absolute liability offense?

2. Does suspension of a driver’s license pursuant to the implied consent law followed by criminal prosecution arising from the same conduct violate the Double Jeopardy clauses of the Montana and United States Constitutions?

On January 12, 1996, Ellenburg was charged with four offenses said to have occurred on December 30,1995: DUI, driving after being declared a habitual traffic offender, driving with a suspended or revoked license, and felony intimidation. On March 4, 1996, he was separately charged with a DUI offense alleged to have occurred on February 5, 1996.

Ellenburg moved to dismiss the January 12 charges on grounds including those raised in this appeal. His motion was denied by written opinion and order. He later pled guilty to the first three offenses charged on January 12, reserving the right to appeal the two issues here presented pursuant to § 46-12-204(3), MCA. In exchange for Ellenburg’s plea, the State agreed to dismiss the intimidation charge and to recommend specific sentences with respect to the other charges.

Ellenburg also pled guilty to the March 4 DUI charge, after having unsuccessfully moved for its dismissal. He reserved, however, the right to appeal the issue set forth here as Issue 1.

Following entry of judgments in both cases, Ellenburg filed notices of appeal. Inasmuch as the same issues are raised, the appeals have been consolidated.

Standard of Review

The grant or denial of a motion to dismiss in a criminal case is a question of law. State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195. Our standard of review is plenary; we review the decision to determine whether the conclusion of law is correct. Hansen, 903 P.2d at 195.

Issue 1

What is the effect of legislative silence concerning mental state in the felony provision of § 61-8-714, MCA, on the status of DUI, fourth or subsequent offense, as an absolute liability offense?

Section 61-8-714, MCA, sets forth the penalties for conviction of DUI. Ellenburg was sentenced under subsection (4) thereof:

On the fourth or subsequent conviction, the person is guilty of a felony offense and shall be punished by imprisonment for a term of not less than 1 year or more than 10 years and by a fine of not less than $1,000 or more than $10,000. Except as provided in subsection (8), notwithstanding any provision to the contrary providing for suspension of execution of a sentence imposed under this subsection, the imposition or execution of the first 6 months of the imprisonment sentence imposed for a fourth or subsequent offense may not be suspended.

Section 61-8-714(4), MCA.

Citing the § 45-2-104, MCA, requirement that absolute liability may only be imposed for a felony offense if the statute defining the offense clearly indicates a legislative purpose to impose absolute liability, Ellenburg points out that while § 61-8-714(4), MCA, does not mention a required mental state, neither does it clearly indicate a legislative purpose to impose absolute liability. He argues that there is no clearly-indicated legislative intent to impose absolute liability for fourth or subsequent conviction of DUI, as is required under § 45-2-104, MCA.

Ellenburg’s argument is without merit. It fails to recognize that in the DUI convictions here appealed, while Ellenburg was sentenced pursuant to § 61-8-714(4), MCA, the statute defining the offense is § 61-8-401, MCA. That statute clearly states, andhas since 1987, that “[a]bsolute liability as provided in 45-2-104 will be imposed for a violation of this section.” Section 61-8-401(7), MCA.

Ellenburg contends that the absolute liability provision of § 61-8-401(7), MCA, applies only to misdemeanor DUI charges which existed at the time the absolute liability provision was adopted in 1987. The § 61-8-714(4), MCA, felony penalty for fourth or subsequent offense DUI was enacted as part of Ch. 447, L. 1995.

Section 61-8-401(7), MCA, does not, by its terms, limit absolute liability to misdemeanor DUI offenses, and Ellenburg has not demonstrated any good reason to “read in” such a limitation. Nor does Ellenburg contend that the lack of reference to absolute liability in the misdemeanor DUI penalty provisions of § 61-8-714, MCA, prohibits imposition of absolute liability for misdemeanor DUI offenses. We conclude that, under § 61-8-401(7), MCA, absolute liability is imposed for both felony and misdemeanor DUI convictions.

In denying Ellenburg’s motion to dismiss, the District Court referred to this Court’s opinion in State v. McDole (1987), 226 Mont. 169, 734 P.2d 683. On appeal, Ellenburg argues that this Court erred in McDole in concluding that § 45-2-104, MCA, did not apply to the motor vehicle code in general and to DUI in particular. However, given the above statutory analysis, it is unnecessary for us to scrutinize McDole. Our decision in this case is based on the language of the statutes themselves, not on McDole.

We hold that legislative silence concerning mental state in the felony provision of § 61-8-714, MCA, has no effect on the status of DUI, fourth or subsequent offense, as an absolute liability offense pursuant to § 61-8-401(7), MCA.

Issue 2

Does suspension of a driver’s license pursuant to the implied consent law followed by criminal prosecution arising from the same conduct violate the Double Jeopardy clauses of the Montana and United States Constitutions?

When he refused to submit to a breathalyzer test in connection with the incidents which formed the basis of the January 12, 1996 charges against him, Ellenburg’s driver’s license was suspended pursuant to § 61-8-402, MCA. He appealed to this Court. We affirmed the suspension of Ellenburg’s driver’s license in Ellenburg v. Montana Dept. of Justice (1996), [280 Mont. 268], 929 P.2d 861.

Ellenburg claims that the license suspension and the subsequent DUI prosecution violate the Double Jeopardy clauses of both the Montana and the United States Constitutions. He argues that he has been prosecuted for two offenses arising out of the same transaction and that the “same elements” test from Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, applies in making the double jeopardy determination.

This Court soundly rejected application of the Blockburger test to a similar double jeopardy claim in City of Helena v. Danichek (1996), 277 Mont. 461, 922 P.2d 1170. Like Ellenburg, Danichek argued that constitutional protections against double jeopardy prohibited him from being criminally prosecuted for operating a motor vehicle under the influence of alcohol following suspension of his driver’s license for refusing a breathalyzer test. We denied Danichek’s claim.

Danichek violated § 61-8-402, MCA (1993), by refusing the police officer’s request to submit to a breathalyzer test. He violated § 61-8-401, MCA (1993), by driving a vehicle upon the public ways of the state while under the influence of alcohol. The conduct that triggered the violation of § -402 was separate and distinct from the conduct that triggered the violation of § -401. Danichek exhibited two different courses of conduct and committed two different offenses. Danichek’s argument that the implied consent law only becomes operative when a DUI violation occurs is shortsighted. A person who violates § -402 has his or her license immediately suspended regardless of whether or not he or she is subsequently convicted of the DUI violation. The license suspension is imposed for refusing the sobriety test and not for the DUI offense.

Danichek, 922 P.2d at 1174. Ellenburg acknowledges the Court’s holding in Danichek, but nonetheless asks the Court to revisit the issue and hold, in contravention of that opinion, that Blockburger is the correct analysis and that a double jeopardy violation occurred here. We decline to do so. Danichek is this Court’s official pronouncement that suspension of a driver’s license followed by a DUI prosecution does not violate state or federal constitutional provisions regarding double jeopardy.

Affirmed.

JUSTICES NELSON, LEAPHART, HUNT and TRIEWEILER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STEPHEN GARY ASMUNDSON, Defendant and Appellant.
    No. 96-437.
    Submitted on Briefs April 24, 1997.
    Decided June 12, 1997.
    54 St.Rep. 535.
    283 Mont. 141.
    940 P.2d 104.

      For Appellant: Richard R. Buley, Tipp and Buley, Missoula.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Christina Lechner Goe, Assistant Attorney General, Helena; Robert L. Deschamps IH, County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Stephen Asmundson appeals from a Fourth Judicial District Court, Missoula County, jury verdict finding him guilty of two counts of violating a protective order. We reverse.

Asmundson raises six issues on appeal, which we restate as follows:

1. Did the District Court err when it refused to dismiss Count II?

2. Did the District Court err when it refused to dismiss Count III?

3. Did the District Court err when it relied on documents from the Asmundson dissolution in ruling on Asmundson’s motions to dismiss?

4. Was there sufficient evidence to support a jury finding that Asmundson had knowledge of the restraining orders?

5. Is violation of a protective order a lesser included offense of stalking?

6. Did the District Court err when it allowed testimony concerning the contents of an audiotape which was not offered into evidence?

BACKGROUND

Patricia Asmundson, Stephen Asmundson’s wife, applied ex parte for a temporary restraining order in Missoula County Justice Court on August 4,1995, pursuant to § 40-4-121(3), MCA. The Justice Court issued a temporary restraining order which prohibited Asmundson from contacting or attempting to contact Patricia. The August 4 temporary restraining order (TRO) expired on August 21, 1995, unless continued at a hearing scheduled for August 18, 1995.

Asmundson was served with the TRO on August 9,1995. The next day he informed the Justice Court that he had petitioned, pro se, for dissolution of marriage. On August 14, 1995, the Justice Court sua sponte filed a notice of transmittal based on § 40-4-123(2), MCA, informing the parties that the TRO was transmitted to District Court based on Asmundson’s filing a separate request for a temporary restraining order and petition for dissolution. The Justice Court vacated the August 18 hearing and ordered the TRO to remain in effect pending review by the District Court. The parties dispute whether Asmundson received a copy of the notice of transmittal, although a “cc” and check mark appear next to his name and address on the notice.

On September 18, 1995, the District Court held a hearing on the TRO. Asmundson did not appear. The District Court issued a restraining order which extended the TRO for one year. The parties dispute whether Asmundson was served with the restraining order and whether he had agreed not to contest it.

Asmundson was charged by information with three counts of violation of a protective order and one count of stalking. Count I alleged that on August 10 and 16, 1995, Asmundson violated the August 4,1995, protective order by calling Patricia and having other persons contact her. Count II alleged that on August 27, 1995, Asmundson violated the August 4 protective order by calling Patricia and leaving messages on her answering machine. Count III alleged that on October 10,1995, Asmundson violated the August 4 protective order by sending Patricia a greeting card. Count IV alleged that between August 4, 1995, and January 24, 1996, while Patricia was under the protection of a restraining order, Asmundson caused her substantial emotional distress by harassing or intimidating her by telephone, mail, and other actions. Asmundson pled not guilty to all four counts.

A jury trial was held. The State introduced the TRO referred to in the information as aprotective order. Patricia testified that onAugust 27, 1995, Asmundson called and spoke with her. She hung up, but Asmundson called back and left messages on her answering machine. Patricia called 911 and gave the answering machine tape to the responding sheriff’s deputy. The tape was lost while in the possession of the Sheriff’s Department and was not introduced at trial. Over Asmundson’s objection, Patricia testified as to her recollection of the tape’s contents. The State also sought to introduce the September 18 restraining order. Asmundson objected, claiming that the order was irrelevant, but the court admitted it as “the type of protection order that could apply to Count IV.”

At the close of the State’s case, Asmundson moved to dismiss Count IV for lack of sufficient evidence. The motion was denied. He also moved to dismiss Counts II and III, arguing that as a matter of law he could not be found guilty because the TRO expired twenty days after it was issued, and no hearing was held. The District Court requested the clerk to obtain the Asmundson dissolution file. Asmundson objected to the consideration of any document not admitted into evidence during the State’s case-in-chief.

The District Court reviewed the notice of transmittal contained in the Asmundson dissolution file and denied Asmundson’s motion to dismiss Counts II and III. It ruled that the TRO remained in effect because the Justice Court, pursuant to the notice of transmittal, had continued the TRO, and that Asmundson waived his right to a hearing on the TRO at the end of twenty days by filing for dissolution. The State then moved to reopen its case. Asmundson objected, arguing that the District Court had already ruled based on evidence outside of the record. The State’s motion was granted, and the State reopened its case-in-chief wherein it introduced, and the court received, the notice of transmittal.

During the State’s closing, the county attorney admitted there was insufficient evidence to convict Asmundson on Count I, which was dismissed. The case was submitted to the jury with Count IV to be considered first. If Asmundson was found not guilty on Count TV, then the jury was to consider Counts II and III as lesser included offenses. The jury found Asmundson not guilty on Count IV but guilty on Counts II and III.

The District Court sentenced Asmundson to six months in jail and a $500 fine on each count, with the sentences to run consecutively. Asmundson appeals.

DISCUSSION

1. Did the District Court err when it refused to dismiss Count II?

As a preliminary matter, this Court must decide whether to take judicial notice of the record of the Asmundson dissolution which contains the Justice Court notice of transmittal and the District Court September 18 restraining order. Except for the notice of transmittal and the September 18 restraining order set forth by Asmundson in his brief, we conclude that the remaining record of the Asmundson dissolution is unnecessary to resolve the issues presently before the Court. Therefore, pursuant to Rule 201, M.R.Evid., we take judicial notice only of the Justice Court notice of transmittal and the District Court September 18 restraining order.

The grant or denial of a motion to dismiss in a criminal case is a question of law. State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195. We review conclusions of law to determine whether the district court’s conclusions were correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

Asmundson argues that by its own terms the TRO issued by the Justice Court on August 4,1995, expired on August 21,1995, and by operation of § 40-4-121(4), MCA, the TRO expired twenty days after it was issued because no hearing was held prior to August 24, 1995. Since the acts alleged in Count II did not occur until August 27, 1995, Asmundson maintains the District Court erred when it refused to dismiss Count II. The State responds that Asmundson incorrectly interprets § 40-4-121(4), MCA, which does not require a hearing to be held within twenty days for a TRO to remain in effect.

Section 40-4-121, MCA, provides, in relevant part:

(4) The court may issue a temporary restraining order for a period not to exceed 20 days without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.
(5) A response may be filed within 20 days after service of notice of motion or at the time specified in the temporary restraining order.
(6) At the time of the hearing, the court shall determine whether good cause exists for the injunction to continue for 1 year.

When interpreting a statute, we look first to the plain meaning of its words. State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540. When the language of a statute is plain, unambiguous, direct, and certain, the statute speaks for itself and there is no need to resort to extrinsic means of interpretation. Gould, 902 P.2d at 540. The plain, unambiguous language of § 40-4-121, MCA, clearly provides that a TRO is only valid for twenty days, absent a hearing and extension by the issuing court. Therefore, we hold that the District Court erred when it refused to dismiss Count II because the alleged August 27 violation of the protective order occurred after the TRO had expired.

The Justice Court also lacked jurisdiction under § 40-4-123, MCA, to sua sponte continue the TRO pending review by the District Court. Section 40-4-123, MCA, provides:

(1) District courts, municipal courts, justices’ courts and city courts have concurrent jurisdiction to hear and issue orders under 40-4-121.
(2) A municipal judge, justice of the peace, or city court judge shall on motion suspend all further proceedings in the action and certify the pleading and any orders to the clerk of the district court of the county where the action was begun if an action for ... dissolution of marriage ... is pending between the parties.

The record does not indicate that any party moved to “suspend all further proceedings.” Rather, the Justice Court on its own initiative issued the notice of transmittal and continued the TRO pending review by the District Court. Absent either a motion required by § 40-4-121(2), MCA, or a hearing required by § 40-4-121(4), MCA, the Justice Court lacked jurisdiction to issue the notice of transmittal and continue the TRO.

When ruling on Asmundson’s motion to dismiss Count II, the District Court held that, by notifying the Justice Court of his filing a petition for dissolution, Asmundson waived his right to a hearing on the TRO because the notification amounted to a motion to transfer. No language in § 40-4-121 or -123, MCA, states that a petition for dissolution of marriage is equivalent to a motion to transfer a TRO from justice court to district court. We conclude that the District Court erred when it determined that a petition for dissolution of marriage is a motion to transfer. Therefore, we hold that the District Court erred when it determined that Asmundson waived his right to a hearing on the TRO when he petitioned for dissolution of marriage.

We conclude that the TRO issued by the Justice Court on August 4,1995, expired by its own terms on August 21,1995, and in any event expired by operation of law under § 40-4-121, MCA, by August 24, 1995. The basis of the alleged violation in Count II did not occur until August 27, 1995. We hold that the District Court erred as a matter of law when it refused to dismiss Count II.

2. Did the District Court err when it refused to dismiss Count III?

Asmundson contends that when the District Court allowed the State to argue in its closing that he violated the September 18 restraining order, the State amended Count III of the information. We agree and conclude that our decision in State v. Later (1993), 260 Mont. 363, 860 P.2d 135, is controlling.

In Later, the defendant was charged with misdemeanor official misconduct. During settlement of jury instructions, the State conceded that the defendant had been charged under the incorrect statute. The State offered an alternate instruction charging the defendant with violation of another statute. We reversed, reasoning that a function of the information is to notify the defendant of the offense charged, thereby giving the defendant the opportunity to defend. Later, 860 P.2d at 137 (citing State v. Tropf (1975), 166 Mont. 79, 88, 530 P.2d 1158, 1163).

In this case, the “amendment” to the State’s information was one of substance. After the State presented its case and the September 18 restraining order was admitted for purposes of proving Count IV, the State placed the September 18 restraining order at issue to prove Count III. It was the August 4 TRO contained in the State’s information against which Asmundson believed he would have to defend. When the District Court allowed the State to argue that Asmundson had violated the September 18 restraining order instead of the August 4 TRO, Asmundson did not have the opportunity to defend because the “amendment” occurred after the defense had rested. Fundamental principles of due process dictate that Asmundson should have been given the opportunity to know against which TRO he had to defend. The State’s use of the September 18 restraining order to prove Count III amounted to a substantive amendment to the State’s information, and Count III should have been dismissed. We hold that the District Court erred when it refused to dismiss Count III.

Because Issues 1 and 2 are dispositive, we decline to address the remaining issues presented on appeal.

Reversed.

JUSTICES NELSON, LEAPHART, TRIEWEILER and GRAY concur.

      . During trial, the District Court dismissed Count I and renumbered the remaining counts. For clarity, we refer to the counts as they appeared in the information.


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JACK MASON, Defendant and Appellant.
    No. 96-094.
    Submitted on Briefs April 24, 1997.
    Decided June 17, 1997.
    54 St.Rep. 539.
    283 Mont. 149.
    941 P.2d 437.

      For Appellant: Steven M. Hudspeth, Great Falls.
    For Respondent: Thomas P. Meissner, Fergus County Attorney, Lewistown; Honorable Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Jack Mason (Mason) appeals convictions entered by the Tenth Judicial District Court, Fergus County, after a jury found him guilty of two counts of sexual intercourse without consent and one count of felony sexual assault. We affirm.

ISSUES

Mason presents the following restated issues upon appeal:

1. Did the District Court abuse its discretion in denying Mason’s motion to dismiss Count II and Count III of the information for lack of probable cause?

2. Did the District Court abuse its discretion in denying Mason’s motion to dismiss the charges for violation of the applicable statute of limitations?

3. Did the District Court abuse its discretion in allowing witnesses to testify that the victim displayed psychological characteristics consistent with having been sexually abused?

FACTS

On December 6,1993, the Fergus County Attorney charged Mason with two counts of sexual intercourse without consent and one count of felony sexual assault against his grand-niece, R.K. R.K. contacted the County Attorney in April of 1992, when she was nineteen years old. The incidents giving rise to the charges, however, took place some six years before, when R.K. was about thirteen years old.

Prior to trial, Mason moved to dismiss Count II, felony sexual assault and Count III, sexual intercourse without consent. The District Court denied these motions. After the evidence was submitted at trial, Mason moved the District Court to direct an acquittal based on the State’s alleged failure to prove that the charges had been filed within the applicable statute of limitations. The District Court denied this motion as well. In addition, Mason objected at trial to the testimony of R.K.’s school and psychological counselors. The District Court prohibited the counselors from testifying regarding R.K.’s credibility, but otherwise allowed their testimony.

Following a three-day jury trial, Mason was convicted of all the charged offenses. Mason appeals the denial of his motions to dismiss two of the charges, the denial of his motion to direct an acquittal, and the allowance of the testimony of R.K’s counselors.

ISSUE 1

Did the District Court abuse its discretion in denying Mason’s motion to dismiss Count II and Count III of the information for lack of probable cause?

Mason argues that the District Court abused its discretion in denying his motion to dismiss Counts II and III of the information. He contends that the information did not contain allegations specific enough to meet the probable cause requirement of § 46-11-201(2), MCA.

Leave to file an information will be granted if it appears from the application that probable cause exists to indicate that the offenses have been committed by the defendant. State v. Ramstead (1990), 243 Mont. 162, 165-66, 793 P.2d 802, 804. In the supporting affidavit, the State need only recite facts sufficient to indicate a probability that the named defendant committed the charged offenses; the State need not demonstrate a prima facie case. Ramstead, 793 P.2d at 804. See also State v. Little (1993), 260 Mont. 460, 861 P.2d 154. In reviewing an affidavit for probable cause, the district court may use common sense and draw permissible inferences. On appeal, this Court will not reverse a district court’s determination regarding probable cause absent an abuse of discretion. Little, 861 P.2d at 160; Ramstead, 793 P.2d at 804.

In this case, the affidavit underlying the information contained a long excerpt from R.K’s journal, detailing the abuse she suffered as a child. This excerpt vividly recounted the progression of the abuse as well as the details of the particular incidents which gave rise to the charges. However, as Mason notes, R.K. in the journal sometimes employed euphemisms, such as recounting the initial events of one incident and then stating that Mason “proceeded to do his thing.” Mason contends that such phrases are vague and insufficient to support a finding of probable cause to charge him with the challenged crimes.

The affidavit, however, is not limited to the excerpt from R.K’s journal. It also contains the testimony of the county attorney, who attested that the victim had told him that sexual contact took place during the incident giving rise to the charge of sexual assault, and that penetration took place during the incident giving rise to the charge of sexual intercourse without consent. The affidavit in this case was both lengthy and detailed, and the representations of the victim, together with the statements of the county attorney, constituted more than sufficient probable cause to support the information. As noted above, the prosecution need not prove its case before charging a defendant; it need only recite facts indicating that it is probable that the defendant committed the offenses. Ramstead, 793 P.2d at 804. We conclude that the District Court did not abuse its discretion in finding sufficient probable cause to charge Mason with the crimes alleged.

ISSUE 2

Did the District Court err in denying Mason’s motion to dismiss the charges for violation of the applicable statute of limitations?

Mason next argues that the District Court erred in denying his motion to dismiss the charges for violation of the statute of limitations. Mason did not move to dismiss the charges until the end of the case but, as he correctly notes, a claimed violation of the applicable statute of limitations is a jurisdictional issue which may be raised at any time. State v. Larson (1989), 240 Mont. 203, 205, 783 P.2d 416, 417. Whether the District Court correctly applied the statute of limitations is a question of law. Hollister v. Forsythe (1995), 270 Mont. 91, 93, 889 P.2d 1205, 1206. See also Barthule v. Karman (1994), 268 Mont. 477, 484, 886 P.2d 971, 976. This Court reviews questions of law to ensure the trial court’s application of the law was correct. Hollister, 889 P.2d at 1206; Barthule, 886 P.2d at 976.

A felony prosecution must be commenced within five years of the commission of the offense. Section 45-l-205(2)(a), MCA. However, if the victim is under eighteen years old, the statute of limitations is tolled for certain sex offenses (including both felony sexual assault and sexual intercourse without consent) until he or she reaches eighteen. Section 45-l-205(l)(b), MCA. This provision regarding victims under eighteen was enacted in 1989 and applied retroactively to all offenses that were committed before the effective date and for which the statute of limitations had not yet expired. Since the statute of limitations for a felony prosecution is five years, the State was empowered to prosecute any felony occurring after March24,1984, or five years prior to the relevant amendment of § 45-l-205(l)(b), MCA.

Mason contends that the State failed to prove that the incidents giving rise to the offenses charged occurred after March 24,1984. He notes that R.K. was unable to pinpoint when the incidents took place, testifying only that they occurred when she was in the seventh and eighth grades. Mason contends these vague references to time are not sufficient to confirm that the statute of limitations on these offenses had not previously expired.

We disagree. The testimony at trial established that R.K. was born in February of 1973 and was a sophomore in high school in February of 1989. According to these dates, R.K. progressed through school at the usual rate of one grade per year, starting first grade at age six. In March of 1984, she would have been eleven years old and in the fifth grade. Yet at trial R.K. testified that the abuse began during her twelfth year, and that the incidents giving rise to the charges occurred when she was in the seventh and eighth grades. While R.K. was unable to fix the dates of the offenses with particularity, the record is devoid of any indication that they occurred prior to March of 1984, thereby exceeding the statute of limitations. We have held that “because children are less likely to distinguish dates and times with specificity, the fact that a victim cannot set a date for the crime should not be fatal to the State’s case. To hold otherwise would leave the defendant virtually immune from prosecution.” Little, 861 P.2d at 161. We conclude that the District Court did not err by refusing to dismiss the charges or by concluding that the applicable statute of limitations had not expired.

ISSUE 3

Did the District Court abuse its discretion in allowing witnesses to testify that the victim displayed psychological characteristics consistent with having been sexually abused?

Lastly, Mason argues that the District Court abused its discretion in allowing the testimony of R.K.’s high school and psychological counselors. He contends that these individuals impermissibly commented on the victim’s credibility and that, therefore, their testimony should have been excluded. This Court reviews evidentiary rulings to determine whether the District Court abused its discretion in admitting or refusing the evidence in question. State v. Stuit (1996), 277 Mont. 227, 230, 921 P.2d 866, 868 (citing State v. Riley (1995), 270 Mont. 436, 440, 893 P.2d 310, 313; State v. Santos (1995), 273 Mont. 125, 137, 902 P.2d 510, 517).

Mason’s assertion of error is premised on his characterization of the counselors’ testimony as tending to “bolster or corroborate” R.K’s testimony. He correctly notes that evidence presented to corrobórate a victim’s testimony is generally inadmissable, absent an attack on the victim’s credibility by the defendant. Rule 801(d)(1)(B), M.R.Evid. Since Mason did not attack the victim’s credibility, he argues that the counselors’ testimony was inadmissable and should have been excluded. In support of this contention, Mason cites State v. Hensley (1991), 250 Mont. 478, 821 P.2d 1029, and In re the Teaching Certificate of Thompson (1995), 270 Mont. 419, 893 P.2d 301. These cases are not on point. Hensley addressed the ability of a qualified expert to testify directly about the credibility of a victim who testifies in a child sexual abuse case. Thompson involved a lack of foundation for the use of expert testimony to address the credibility of a victim over the age of seventeen. Thus, both Hensley and Thompson are cases involving testimony commenting directly on the victim’s credibility. Mason’s reliance on these cases is premised on the assumption that the counselors’ remarks also constituted direct commentary on R.K’s credibility. This assumption misconstrues the testimony.

The counselors in question worked with the victim during high school, prior to her reporting the offenses to the authorities and before investigation of the charges. The counselors described their counseling relationships with R.K. and testified that during those relationships they observed certain behavioral characteristics, such as depression, guilt and anger, which are symptomatic of sexual abuse victims. The counselors did not testify regarding whether R.K. was telling the truth or give their opinions as to her credibility. To the contrary, the District Court before trial specifically prohibited the State from eliciting their testimony regarding R.K’s credibility. The counselors’ testimony regarding counseling sessions which occurred long before trial did not serve to corroborate R.K.’s testimony. Instead, it set forth the counselors’ personal observations regarding her behavior, which was relevant to the issue of whether the offenses charged actually occurred. This in turn was relevant to the jury’s determination of whether Mason had or had not committed the offenses charged. The District Court did not abuse its discretion in allowing the challenged testimony.

Affirmed.

JUSTICES NELSON, REGNIER, TRIEWEILER and GRAY concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICKY EUGENE HAGEN, Defendant and Appellant.
    No. 96-234.
    Submitted on Briefs April 24, 1997.
    Decided June 17, 1997.
    54 St.Rep. 542.
    283 Mont. 156.
    939 P.2d 994.

      For Appellant: Eric Rasmusson, Boulder.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Valerie D. Wilson, County Attorney, Boulder.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Ricky Hagen appeals from the judgment and sentence of the Fifth Judicial District Court, Jefferson County, where a jury found him guilty of driving under the influence of alcohol in violation of § 61-8-401, MCA. We affirm.

Hagen raises three issues on appeal:

1. Was Hagen’s breath alcohol concentration obtained by an improperly calibrated intoxilyzer?

2. Were Hagen’s due process rights violated through the introduction of evidence obtained by an improperly calibrated intoxilyzer?

3. Is there sufficient evidence to support Hagen’s conviction?

BACKGROUND

On June 29,1995, Jefferson County Jailer David Kosola responded to a report of a person slumped over the steering wheel of a vehicle parked along the Little Boulder Road, Jefferson County, Montana. Kosola approached the vehicle and opened the door. He shook the individual inside, who awoke and identified himself as Ricky Hagen. Hagen informed Kosola that Hagen had to go to work. He then reached for the key in the ignition and started his pickup. Kosola reached inside, turned off the ignition, and took Hagen’s keys.

Because Kosola’s radio was not operating, he informed Hagen that he would be “right back.” Kosola returned with Jefferson County Deputy Sheriff Sally Buckles, who arrested Hagen. At booking, Hagen consented to a breath test. The intoxilyzer indicated a breath alcohol concentration of .106. Deputy Buckles cited Hagen for being in actual physical control of a motor vehicle while under the influence of alcohol.

Hagen was convicted in Justice Court and appealed. At trial in District Court, Hagen testified that he and his wife had gone to a bar. After it closed, they decided to continue “partying,” but got into an argument. Hagen’s wife, who was driving, informed Hagen that she was going home, but he could go with his friends. According to Hagen, his wife parked the pickup off the road and took the keys. Hagen yelled that he needed his keys, so she threw him a set and walked the rest of the way home.

Hagen testified that, rather than driving to the party, he fell asleep. The next event he remembered was Kosola knocking on his window. Hagen denied trying to start his pickup, a GMC diesel which takes thirty seconds to start. Hagen’s wife testified that the keys she threw to Hagen belonged to her son and did not contain a key to Hagen’s pickup. On cross-examination, however, she admitted that among her son’s keys was a worn key which possibly could have fit Hagen’s pickup. She also testified it was possible that she threw Hagen his keys.

Ajury found Hagen guilty of driving under the influence of alcohol. Hagen appeals.

DISCUSSION

1. Was Hagen’s breath alcohol concentration obtained by an improperly calibrated intoxilyzer?

2. Were Hagen’s due process rights violated through the introduction of evidence obtained by an improperly calibrated intoxilyzer?

Hagen argues that his conviction should be reversed because the solution used to calibrate the intoxilyzer was not approved by the Division of Forensic Sciences as required by Rule 23.4.213(1), ARM. He bases his argument on a March 7, 1996, Helena Independent Record article entitled “DUI Cases Threatened by Mistake.” According to the article, an untested batch of ethyl alcohol used to calibrate intoxilyzers was distributed to various Montana testing sites, including Jefferson County.

The scope of appellate review is limited to matters contained within the trial record. Rule 9(a), M.R.App.P.; State v. Hatfield (1993), 256 Mont. 340, 344, 846 P.2d 1025, 1028. Hagen does not demonstrate that the untested solution was in use at the time his breath sample was taken. He assumes this fact based on the newspaper article attached to his brief. Hagen also raises his claim for the first time on appeal based on information not contained in the trial record.

Hagen argues that his appeal is properly before this Court pursuant to § 46-20-701, MCA. Section 46-20-701(2)(c), MCA, allows for appellate review of “material and controlling facts ... [that] were not known to the defendant... and could not have been ascertained by the exercise of reasonable diligence.”

The statute is inapplicable here because it would require this Court to conduct a hearing and act as a finder of fact. Hagen’s calibration evidence claim is based on presently unknown facts — was the untested solution in use at the time his breath test was taken? Because the basis for the arguments Hagen raises in Issues 1 and 2 depend on facts which have not yet been determined by the District Court, we decline to further address them on direct appeal.

In his reply brief, Hagen cites State v. Finley (1996), 276 Mont. 126, 915 P.2d 208, for the argument that the calibration evidence is subj ect to appellate review based on common law plain error. An issue first raised in a reply brief is not properly raised for consideration on appeal. Rule 23, M.R.App.R; State v. Mummey (1994), 264 Mont. 272, 281, 871 P.2d 868, 873.

3. Is there sufficient evidence to support Hagen’s conviction?

Hagen argues there is insufficient evidence from which a jury could find that he was in actual physical control of his vehicle. Therefore, he could be not be found guilty of driving under the influence. The State responds that Hagen could have filed a motion for judgment of acquittal based on insufficiency of evidence pursuant to § 46-16-403, MCA; but because he did not, the issue is waived on appeal.

We recently held that a defendant is not required to move for acquittal or for a directed verdict in order to preserve the issue of sufficiency of evidence on appeal. State v. Granby (1997), [283 Mont. 193], 939 P.2d 1006. Accordingly, we address whether there was sufficient evidence to support the jury verdict finding Hagen guilty of driving under the influence.

To convict a defendant of driving under the influence, the State must prove that the defendant was (1) driving or in actual physical control of a vehicle; (2) upon the ways of the State open to the public; and (3) while under the influence of alcohol. Section 61-8-401, MCA; State v. Robison (1997), [281 Mont. 64], 931 P.2d 706, 707. In this case, only element (1) is in dispute. Based on his testimony and that of his wife, Hagen denies that he was in actual physical control of his pickup.

This Court reviews sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318.

A person has actual physical control of a vehicle when he “has existing or present bodily restraint, directing influence, domination or regulation, of an automobile. ...” Robison, 931 P.2d at 707, citing State v. Ruona (1958), 133 Mont. 243, 321 P.2d 615. According to Hagen, he was not in actual physical control of his pickup because: (1) he did not attempt to move or start it on the date of his arrest; (2) he could not start it because it required thirty seconds to warm up; and (3) he did not have the keys.

Viewed in the light most favorable to the State, the evidence shows that Hagen had actual physical control of his pickup. Kosola testified when he shook Hagen, that Hagen stated he had to go to work and started his pickup. Hagen’s wife testified that although she may have given Hagen the keys to her son’s truck, that there was a worn key which could fit Hagen’s pickup. This evidence was before the jury, which was free to accept or reject it when it found that Hagen was in actual physical control of a vehicle.

It is well settled that witness credibility and the weight to be given that testimony are to be determined by the trier of fact, and findings on disputed questions of fact and credibility will not be disturbed on appeal. State v. Moreno (1990), 241 Mont. 359, 361, 787 P.2d 334, 336. We conclude that a rational trier of fact could have found beyond a reasonable doubt that Hagen exercised actual physical control over his vehicle. We hold that there was sufficient evidence for a jury to convict Hagen of driving under the influence.

In his reply brief, Hagen argues for the first time that the State did not offer, and the District Court did not instruct the jury on the definition of “actual physical control.” There are two problems with Hagen’s argument. First, he did not object at trial or offer an instruction of his own. Second, he raised the issue for the first time in his reply brief, which as explained above does not make the issue proper for consideration pursuant to Rule 23, M.R.App.P.

Affirmed.

JUSTICES REGNIER, GRAY, LEAPHART and TRIEWEILER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CURTIS A. FITZGERALD, Defendant and Appellant.
    No. 96-613.
    Submitted on Briefs May 30, 1997.
    Decided June 17, 1997.
    54 St.Rep. 545.
    283 Mont. 162.
    940 P.2d 108.

      For Appellant: Mark E. Jones, Attorney at Law, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General; Helena; Robert L. “Dusty” Deschamps III, Missoula County Attorney; Betty Wing, Deputy County Attorney; Missoula.
   JUSTICE REGNIER

delivered the Opinion of the Court.

Curtis A. Fitzgerald was cited with driving under the influence of alcohol pursuant to § 61-8-401, MCA, on August 22, 1995. The Missoula County Justice Court denied both Fitzgerald’s motion to suppress evidence of his breathalyzer test result, and his motion to dismiss for lack of speedy trial. Fitzgerald pled guilty, reserving his right to appeal both rulings in District Court. Prior to trial in the District Court, Fitzgerald again moved to dismiss for lack of speedy trial, or in the alternative, to suppress the breathalyzer test result. The Fourth Judicial District Court, Missoula County, denied both motions. Fitzgerald entered a plea of guilty. Fitzgerald appeals from the sentence and judgment of the District Court, and from the order denying his motion to dismiss for lack of speedy trial, or in the alternative, to suppress the breathalyzer test result. We affirm.

The issues on appeal are:

1. Did the District Court err when it failed to dismiss for lack of speedy trial pursuant to § 46-13-401(2), MCA?

2. Did the District Court err when it failed to suppress Fitzgerald’s blood alcohol content test results?

FACTUAL BACKGROUND

Curtis A. Fitzgerald was charged with driving under the influence of alcohol in Missoula County Justice Court on August 23, 1995. He appeared in court and pled not guilty to the charged offense on August 29, 1995.

An omnibus hearing was originally set for October 5, 1995. On October 2, defendant’s counsel filed a motion to continue the hearing. Apparently, that motion was not received by the Justice Court prior to the omnibus hearing because, on October 23, the court issued a formal notice that defendant and his attorney failed to appear at the scheduled hearing and that this was “not acceptable practice.” Nevertheless, the court rescheduled the omnibus hearing for November 2,1995. At the defendant’s request, however, the court postponed the hearing until December 7, 1995.

At the omnibus hearing on December 7, 1995, the defendant informed the court that he would be filing two pretrial motions: (1) to suppress the evidence of the blood alcohol test results; and (2) to challenge probable cause for his arrest. The court ordered that the motions be briefed and filed by December 20, with the State’s response due January 5, 1996. The court set a trial date of March 26, 1996.

On December 19, 1995, the defendant filed a motion to suppress the blood alcohol test results. The State responded and the defendant failed to file a reply brief. The motion was denied by the Justice Court on February 5, 1996.

On March 7, 1996, the defendant filed a motion to dismiss the complaint on the ground that he was not brought to trial within six months. The motion was denied on March 21, 1996. Thereafter, Fitzgerald pled guilty, while reserving his right to appeal the suppression and speedy trial issues.

On appeal to the District Court, Fitzgerald presented the same motions to suppress and dismiss for lack of speedy trial. The District Court denied both motions on the briefs without a hearing. Fitzgerald entered a guilty plea, reserving the right to appeal the legal issues raised. The District Court sentenced Fitzgerald to sixty days in the Missoula county jail, with all but seven days suspended upon conditions.

ISSUE 1

Did the District Court err when it failed to dismiss for lack of speedy trial pursuant to § 46-13-401(2), MCA?

Because the basis of the motion to dismiss for lack of speedy trial is based upon a legal interpretation made by the district court, we will review the court’s legal conclusions as to whether the comb was correct in its interpretation of the law. State v. Mantz (1994), 269 Mont. 135, 137, 887 P.2d 251, 253 (citing Doting v. Trunk (1993), 259 Mont. 343, 856 P.2d 536).

Fitzgerald argues that § 46-13-401(2), MCA, mandates dismissal of this matter. Section 46-13-401(2), MCA, reads:

After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months.

Fitzgerald argues that his right to a speedy trial was violated because the Justice Court scheduled his trial more than six months after the entry of plea. Furthermore, he contends that the State cannot show that good cause exists not to dismiss the motion. On the other hand, the State argues that good cause to the contrary is shown, as two postponements are directly attributable to Fitzgerald.

This Court explained that § 46-13-201(2) (since renumbered § 46-13-401(2)), MCA, mandates the dismissal of a misdemeanor charge not brought to trial within six months only if two conditions are met: (1) the defendant has not asked for a postponement; and (2) the State has not shown good cause for the delay. State v. Crane (1989), 240 Mont. 235, 238, 784 P.2d 901, 903.

In this case, Fitzgerald entered his plea of not guilty on August 29, 1995. The six-month period would have expired on February 29,1996. After two continuances requested by defense counsel, the Justice Court held an omnibus hearing on December 7, 1995. At that time, the Justice Court set atrial date of March 26,1996, which was beyond the six-month time limit. On March 7, 1996, Fitzgerald moved to dismiss the charge pursuant to § 46-13-401(2), MCA, which was denied by the Justice Court.

Fitzgerald renewed his motion to dismiss for lack of a speedy trial on appeal to the District Court. The District Court denied Fitzgerald’s motion, concluding that the scheduled trial date fit within the “good cause to the contrary” exception in the statute. The District Court concluded that the record clearly showed that the two postponements resulted from Fitzgerald’s actions and requests. The District Court explained that, first, Fitzgerald and his counsel failed to notify the Justice Court prior to the omnibus hearing set on October 5, 1995, that they wished a continuance in this matter. That hearing was rescheduled due to their failure to appear. Second, at the rescheduled hearing on November 2,1995, the defendant sought and was granted a continuance until December 7, 1995.

In support of its decision, the District Court cited State v. Crane (1989), 240 Mont. 235, 784 P.2d 901. In Crane, we held that dismissal of a misdemeanor charge was not mandated under the former version of § 46-13-401(2), MCA, where the defendant’s motion for continuance caused the trial to be delayed beyond the six-month limitation. Crane, 240 Mont. at 238, 784 P.2d at 903.

Fitzgerald asserts that Crane is not applicable to the facts in his case. Fitzgerald distinguishes the facts in Crane by stating that he never requested a postponement of the trial date, as Crane did, but only sought continuance with respect to the omnibus hearing. Fitzgerald suggests that this Court’s decision in Crane should be limited to only those cases where a defendant specifically requests that a trial date be extended beyond the six-month period set forth in § 46-13-401(2), MCA.

The State counters that the District Court was correct in taking into account Fitzgerald’s actions in postponing the scheduling of the omnibus hearing in denying his motion to dismiss. The State points out that pretrial motions for continuance often necessitate delays in the trial itself. Also, the State argues that nothing in § 46-13-401(2), MCA, or in this Court’s holding in Crane, limits a district court’s consideration of delay strictly to motions to continue the trial. The State contends that it is only proper that a district court take into account any delay occasioned by a defendant when considering whether to dismiss a misdemeanor charge. Otherwise, defendants could manipulate a court’s calendar to delay the start of a trial.

We conclude the District Court correctly determined that dismissal of the charge against Fitzgerald was not mandated by § 46-13-401(2), MCA. We hold that any pretrial motion for continuance filed by a defendant which has the incidental effect of delaying the trial beyond the six month time limit could be said to “postpone trial” for purposes of § 46-13-401(2), MCA. In this instance, Fitzgerald sought or caused several postponements that necessitated the delay of the trial. The Justice Court accommodated Fitzgerald by moving back the date of the omnibus hearing twice, from October 5 to December 7. After these delays caused by Fitzgerald, the Justice Court cannot be expected to alter its schedule to ensure that the misdemeanor charge is tried within six months. A Justice Court must retain a measure of flexibility over scheduling to hear cases on its docket. As such, we determine that the trial date of March 26, 1996, fell within the “good cause to the contrary” exception of § 46-13-401(2), MCA.

ISSUE 2

Did the District Court err when it failed to suppress Fitzgerald’s blood alcohol content test results?

The standard of review for a district court’s denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Flack (1993), 260 Mont. 181, 185-88, 860 P.2d 89, 92-94.

Fitzgerald contends that the blood alcohol content (“BAC”) test result should be suppressed, as the Intoxilyzer machine used to test his breath was not tested within the time frame mandated by Rule 23.4.213, ARM. That rule states:

(1) Breath analysis instruments shall be field certified for accuracy at least once every seven (7) days by a breath test specialist/senior operator, or in the event of a senior operator’s absence, his/her authorized designee, using a solution of ethyl alcohol approved by the division of forensic science and using the field certification report form for the breath analysis instrument being certified.

Rule 23.4.213, ARM.

The field certification report form for the machine used to test Fitzgerald’s BAC shows that the machine was tested on August 16, 1995, and again on August 23,1995. Fitzgerald’s BAC test was taken on August 22, 1995.

Fitzgerald argues that, since the August 16 test was performed at 8:47 a.m., and the August 23 test at 8:59 a.m., more than seven days had passed between the tests, due to the twelve minute discrepancy. Thus, he asserts that the Intoxilyzer machine was not certified “every seven days” as required by Rule 23.4.213, ARM. The State counters that this argument is wholly frivolous because the field certification reports show that the tests were routinely performed every seven calendar days.

Section 1-1-305, MCA, provides that “[f]r actions of a day are disregarded in computations which include more than 1 day and involve no questions of priority.” For most purposes, the law regards the day as an indivisible unit. Kelly v. Independent Publishing Co. (1912), 45 Mont. 127, 133, 122 P. 735, 736. Departure from this rule is allowed when it becomes necessary to inquire into the order or sequence of two or more events occurring on the same day to determine a question of priority or right, or when the computation includes only one day or less. Kelly, 45 Mont. at 133, 122 P. at 736.

Fitzgerald asserts that § 1-1-305, MCA, does not apply when construing Rule 23.4.213, ARM. However, Fitzgerald is attempting to reduce a day into fractions for purposes of field certification. We conclude that neither the administrative rule nor the law supports Fitzgerald’s argument, nor does this case fall within either of the exceptions provided for in the Kelly case.

This Court concludes that the District Court was correct in denying Fitzgerald’s motion to suppress the results of his BAC test. We determine that the field certifications on August 16,1995, and August 23,1995, complied with the procedural safeguards of the administrative rule.

We affirm.

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