text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TOM HASKINS, Defendant and Appellant.
    No. 90-265.
    Submitted on Briefs May 7, 1992.
    Decided November 12, 1992.
    Rehearing Denied Dec. 17, 1992.
    49 St.Rep. 922.
    255 Mont. 202.
    841 P.2d 542.

      For Defendant and Appellant: Benjamin R. Anciaux, Poison.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, John Paulson, Assistant Attorney General, Helena; Larry J. Nistler, Lake County Attorney.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Tom Haskins was convicted by a jury on four counts of criminal sale of dangerous drugs on November 27, 1989, in the Twentieth Judicial District Court, Lake County. He appeals from those convictions.

We affirm.

Appellant raises the following issues on appeal:

1. Did the District Court abuse its discretion by not granting a trial continuance?

2. Did the outrageous conduct of undercover officer Nelson require a reversal of the convictions?

3. Did the District Court abuse its discretion by denying appellant’s motion for a directed verdict?

4. Did the District Court abuse its discretion by not granting appellant’s motion for a new trial?

5. Did the District Court abuse its discretion in not granting immunity to appellant’s witnesses?

6. Did the District Court abuse its discretion in limiting appellant’s scope of cross-examination of Nelson?

7. Did the District Court abuse its discretion in not allowing appellant to call Martin Cramer as an expert witness?

8. Was undercover officer Nelson competent to testify?

9. Did the State knowingly use peijured testimony?

10. Should appellant’s conviction be reversed because his conviction was based solely upon the testimony of an undercover officer who was accountable for the same conduct for which appellant was convicted?

11. Did the State fail to provide appellant with exculpatory evidence?

12. Did the Confederated Salish and Kootenai Tribes exceed its jurisdiction in the investigation and prosecution of appellant and its employment of under-cover officer Nelson?

13. Does cumulative error by the District Court warrant a new trial?

In September 1988, Robert Nelson was hired by the Confederated Salish and Kootenai Tribes (“the Tribe”) as an undercover officer for the Flathead Tribal Police Department. He was to infiltrate the drug scene in Lake County and the Flathead Reservation, gain the confidence of drug users, make purchases of illegal drugs, and gather information on major drug dealers.

Nelson assumed the identity and alias of “Biker Mike” Harris, a rough, crude drifter who drove a motorcycle, wore black leather clothing, and spent his time “hanging out” at bars. While in this role, Nelson made three separate drug buys from appellant.

The first “buy” occurred on December 6, 1988. Nelson was at the Smokehouse Bar in Poison when appellant approached him and asked if he wanted to buy an eighth of an ounce of marijuana for $25. Nelson bought the bag of marijuana from appellant, left the bar, marked and secured the evidence, and delivered the marijuana later that evening to Dave Morigeau, a criminal investigator for the Flathead Tribal Police Department who was Nelson’s contact officer.

Another “buy” transpired on December 10, 1988, at the Smokehouse Bar when appellant offered to sell Nelson three tablets of Valium for a dollar. Nelson purchased the drugs from appellant and again delivered them the next evening to Detective Morigeau.

The third “buy” occurred once again at the Smoke-house Bar on December 13, 1988. Nelson agreed to purchase another eighth of an ounce of marijuana from appellant. Appellant stated that he did not have any marijuana with him, but that his wife Sherry would bring the drug with her when she came to the bar later in the evening. Nelson witnessed the appellant’s wife enter the bar and give something to appellant. Appellant then approached Nelson and gave him some marijuana. Nelson delivered the sub-stance to Detective Morigeau on December 15, 1988.

The last transaction occurred on January 22, 1989. Appellant had borrowed $10 from Nelson two days earlier and agreed to pay Nelson back with some Darvon and Darvocet pills. This occurred in downtown Poison. Nelson delivered the pills to Detective Morigeau later in the evening. Apparently, a few weeks later, Nelson’s cover was “blown” and his effectiveness as an undercover agent in the drug community ceased.

On April 11, 1989, the Lake County Attorney filed an information charging appellant with four counts of criminal sale of dangerous drugs. After several continuances, trial commenced on November 20, 1989, and on November 27, 1989, the jury found appellant guilty on all four counts. On December 20, 1989, appellant was sentenced to four consecutive prison terms of 20 years, with 15 years suspended for each term. The court entered its written judgment and sentence on December 21,1989.

On December 27, 1989, appellant filed a motion for a new trial which was denied by the District Court on February 8, 1990. On March 7, 1990, appellant filed his notice of appeal. On February 7, 1991, this Court ordered that the appeal be stayed and the case remanded to the District Court for its consideration of a second motion for a new trial based on newly discovered evidence which was filed by appellant while the appeal was pending. An evidentiary hearing was held on April 29, 1991, and on June 12, 1991, the court denied the motion. Appellant appeals from this order.

At the outset, the State contends that several issues raised by appellant are not properly before this Court because appellant failed to file a timely appeal pursuant to Rule 5(b), M.R.App.P. The State acknowledges that appellant’s appeal was timely with respect to the District Court’s denial of his first motion for a new trial, entered on February 8, 1990. However, the notice is not timely with respect to the judgment. We have stated that this Court is without jurisdiction to hear an appeal where notice of an appeal is filed more than 60 days following the entry of judgment. State ex rel. Graveley v. District Court (1978), 178 Mont. 1, 582 P.2d 775. We conclude that the proper focus of this appeal should be limited to the District Court’s denial of appellant’s motions for new trial, and that we will only discuss the issues raised in those motions. There-fore, this Court will not discuss issues 7, 8, 10, 12, and 13.

I.

Did the District Court abuse its discretion by not granting a trial continuance?

When reviewing a denial of a motion for continuance, this Court determines whether the district court abused its discretion. State v. LaPier (1990), 242 Mont. 335, 790 P.2d 983. Motions for continuances are to be addressed at the discretion of the district court and are to be considered in light of the diligence shown by the movant. Section 46-13-202(3), MCA.

In this case, appellant requested a third trial continuance on the grounds that the transcripts of the suppression hearings in a related criminal case, and the report of the private investigator, had not been provided to him and would not be available in time to review and conduct any meaningful investigation into the conduct of undercover officer Nelson.

Defense counsel had approximately five months between the time of appointment and the time of trial to prepare a defense. The District Court had granted two previous continuances on behalf of the defense. Appellant has not shown that even with due diligence he would not have been able to obtain the information in the special investigation report prior to trial by either reinterviewing Nelson or interviewing the private investigator. Nor did the appellant file an affidavit showing the materiality of the evidence expected to be obtained during the continuance. State v. French (1988), 233 Mont. 364, 760 P.2d 86. We hold that the District Court did not abuse its discretion in denying appellant a third trial continuance.

II.

Did the outrageous conduct of undercover officer Nelson require a reversal of the convictions?

Appellant raises two subissues under this argument. First, appellant contends that Nelson engaged in various illegal activities while working as an under-cover agent, and as a result, appellant’s conviction should be overturned. Second, appellant contends that as a result of Nelson’s felony conviction in the state of Washington approximately 20 years ago, Nelson was ineligible to be hired by the Tribe and Lake County as a law enforcement officer.

The United States Supreme Court has recognized that there may come a day when:

[T]he conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.

United States v. Russell (1973), 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366.

The existence of police misconduct as a violation of due process is a question of law for the court to decide. United States v. Ramirez (4th Cir. 1983), 710 F.2d 535, 539. As a defense, it is a close relative to entrapment and is usually invoked where involvement of under-cover agents and Informers in contraband offenses reaches a point as to completely prevent a conviction of a predisposed defendant as a matter of due process. Ramirez, 710 F.2d at 539. Although the due process defense is potentially broad, it is limited. Ramirez, 710 F.2d at 539. The protection of the Due Process Clause of the Fifth Amendment comes into play only “when the Government activity in question violates some protected right of the defendant.” Hampton v. United States (1976), 425 U.S. 484, 490. The Hampton court concluded that:

If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provision of state or federal law.

Hampton, 425 U.S. at 490, 96 S.Ct at 1650.

In this instance, appellant has failed to show how Nelson’s alleged illegal activities violated appellant’s constitutional rights relating to the crimes charged. Appellant was not involved in any of the incidents during which Nelson may have violated the law. The Lake County Attorney properly filed misdemeanor complaints against Nelson for shooting from or across a road or highway right-of-way and knowingly purchasing alcohol for a person under 21 years of age. Appellant also contends that Nelson’s prior felony conviction constitutes outrageous conduct.

In 1974, Nelson pled guilty to a charge of grand larceny in the state of Washington. He later petitioned and received an order of dismissal. The order of dismissal states that Nelson was permitted to withdraw his guilty plea, that the plea of guilty was not entered, and that the cause was dismissed. The order also provides that Nelson was released from all penalties and disabilities resulting from the filing of the charge. In 1983, standard background criminal investigations for hiring conducted by the Montana Department of Justice revealed no criminal record. Subsequent checks in 1989 and 1991 also showed no criminal history for Nelson. Nelson had worked for the Washington police and the Drug Enforcement Agency. Lake County and the Tribe were fully justified in relying upon the absence of any criminal record in hiring Nelson.

In addition, appellant knew of the felony conviction before trial commenced. The State filed a motion in limine to preclude any evidence of Nelson’s criminal history. In his brief, appellant cites to various federal statutes and regulations regarding hiring. They are not applicable. Nelson was hired by the Tribe and paid from tribal funds. As a federal judicially recognized sovereign nation, the Tribe has its own inherent hiring authority and Nelson was properly represented to the jury as a tribal officer. We hold that the conduct of undercover officer Nelson does not warrant a reversal of the conviction.

III.

Did the District Court abuse its discretion by denying appellant’s motion to dismiss?

At the close of the State’s case, appellant moved for a directed verdict which the District Court denied. Section 46-16-403, MCA (1989), provides that a district court may dismiss an action against a defendant when:

[A]t the close of the state’s evidence or at the close of all the evidence, the evidence is insufficient to support a finding or verdict of guilty, the court may, on its own motion or on the motion of the defendant, dismiss the action and discharge the defendant.

We have construed this statute to mean that “a verdict of acquittal may be directed in favor of the defendant only if no evidence exists upon which to base a guilty verdict.” State v. Christofferson (1989), 238 Mont. 9, 11, 775 P.2d 690, 692. A directed verdict is warranted if reasonable men could not conclude from the evidence taken in light most favorable to the prosecution that guilt has been proven beyond a reasonable doubt. State v. Laverdure (1990), 241 Mont. 135, 138, 785 P.2d 718, 721. The decision to direct a verdict lies within the sound discretion of the district court and we will not overturn such a decision unless an abuse of discretion is shown. Christofferson, 775 P.2d at 692. Appellant argues that Nelson’s testimony was so inherently incredible that no reasonable person ought to accept it as true. Appellant also argues that his alibi witnesses established that he was not at the alleged crime scene on January 22, as Nelson testified, but was judging a pool tournament. We point out that if evidence conflicts it is well within the province of the jury to resolve the dispute.

In this instance, Nelson’s testimony relating to appellant’s involvement in the crimes charged was consistent. The jury chose to believe Nelson, not appellant’s alibi witnesses. We hold that the District Court did not abuse its discretion in denying appellant’s motion for a directed verdict.

IV.

Did the District Court abuse its discretion by not granting appellant’s motion for a new trial?

To determine whether a new trial is warranted on the basis of newly discovered evidence, this Court established three criteria which must be met:

1. The evidence must have come to the knowledge of the applicant since the trial;
2. That it is not through want of diligence that it was not discovered earlier;
3. That it is so material that it would probably produce a different result upon another trial.

State v. DeMers (1988), 234 Mont. 273, 278, 762 P.2d 860, 863-64. The granting and denying of a new trial rests within the sound discretion of the district court and this Court will not overturn that decision unless the district court abuses its discretion. DeMers, 762 P.2d at 864. In this instance, appellant claimed that upon receiving the investigator’s report after the trial, he only then discovered that Nelson had a prior felony conviction affecting his officer status. However, the record reveals that appellant knew of the felony conviction as early as August 9,1989. In addition, the prior felony conviction became the subject of a pretrial motion in limine. By exercising due diligence through interviewing Nelson for a second time, or through interviewing the investigator, appellant could have discovered Nelson’s felony conviction. Moreover, the discovery of the conviction was not material to the case and would not have affected the outcome. We hold that the District Court did not abuse its discretion in denying appellant’s motion for a new trial.

V.

Did the District Court abuse its discretion in not granting immunity to appellant’s witnesses?

Section 46-15-331, MCA (1989), states that the district court, upon the request of the prosecution or defense counsel, “may require a person to answer any question or produce any evidence that may incriminate him.” It is at the discretion of the district court to grant immunity to counsel’s witnesses.

In this instance, appellant requested that the District Court grant immunity to 16 witnesses. The court denied the motion, but stated that it would not compel incriminating testimony. Appellant offered no proof concerning the testimony he expected to elicit from the witnesses. He only explained to the corut that “a lot of witnesses” would testify about incriminating matters and would refuse to testify without immunity concerning Nelson’s activities during the undercover investigation. The record shows that the corut was given almost no information regarding the testimony of appellant’s witnesses. Even with the denial, eight of appellant’s witnesses testified concerning Nelson’s, as well as their own, use of marijuana during the investigation. We hold that the District Court did not abuse its discretion in denying immunity to appellant’s witnesses.

VI.

Did the District Court abuse its discretion in limiting appellant’s scope of cross-examination of Nelson?

In its order on the motion in limine, the District Court ruled that appellant was prohibited from introducing Nelson’s criminal history or record, specifically including the 1974 felony conviction in Washington. The District Court permitted appellant to introduce evidence of Nelson’s alleged criminal activities and wrongful conduct during the time period relevant to the charges against appellant. Appellant contends that he was denied his right to confront and cross-examine witnesses. Specifically, he argues that he was not allowed to question Nelson on his prior criminal conviction, on Nelson’s relationship with appellant’s wife, and Nelson’s criminal acts outside the time frame established by the court.

Rule 609, M.R.Evid. (1989), states that “[f]or the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is not admissible.” We have upheld this prohibition because of the inherent prejudicial effect of a witness’s criminal history on the jury’s deliberative process and its low probative value regarding the credibility of a witness. Sloan v. State (1989), 236 Mont. 100, 104-05, 768 P.2d 1365, 1367-68.

Appellant also contends that the court overly restricted his cross-examination relating to Nelson’s relationship with appellant’s wife as a possible motive for Nelson’s accusations against appellant. At trial, defense counsel did ask Nelson whether he had “hit on” or propositioned appellant’s wife. Nelson stated that he had not. The State objected on relevancy grounds to appellant’s next question concerning the proposition, and the objection was sustained by the court.

The District Court afforded appellant a threshold level of inquiry in his effort to present evidence of bias or motive to testify falsely. State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455. With the exception of one witness’s reference that Nelson would be cute or fresh to women, nothing in the record indicates that this line of questioning was based upon fact. Defense counsel did not even question appellant’s wife, Sherry Haskins, about the alleged proposition when she testified for the defense. Rule 402, M.R.Evid., allows the district court to exclude irrelevant evidence, and in this instance the District Court properly limited defense counsel’s speculative inquiry into this area.

Finally, appellant argues that the District Court did not permit him to question Nelson about his use of pills or the extent of Nelson’s efforts to stay in character and protect his cover. These questions were asked during recross-examination. The State objected on the basis that the questions went beyond the scope of redirect, and the District Court sustained the objection. Rule 611, M.R.Evid. (1989), grants the district court discretion to limit questions on recross-examination to those new matters brought out during redirect. We hold that the District Court was well within its discretion to limit appellant’s scope of cross-examination of Nelson.

As a result of our holding above, we conclude that the State did not knowingly use perjured testimony from Nelson, or that it withheld exculpatory evidence.

We affirm.

JUSTICES HARRISON, McDONOUGH, TRIEWEILER and WEBER concur.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    IN THE MATTER OF J.A., A Youth.
    No. 92-223.
    Submitted on Briefs October 22, 1992.
    Decided November 12, 1992.
    49 St.Rep. 972.
    255 Mont. 214.
    841 P.2d 1130.
    For Appellant: Chris J. Nelson, Nelson & Gai, Billings.
    For Respondent: Marc Racicot, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; Christine Cooke, Big Horn County Attorney, Donna K. Heffington, Deputy County Attorney, Hardin.
   JUSTICE GRAY

delivered the Opinion of the Court.

J.A. appeals from an order of the Youth Court transferring prosecution to the District Court of the Thirteenth Judicial District, Big Horn County, Montana. We affirm.

The sole issue on appeal is whether the Youth Court erred in finding probable cause to believe that the alleged offense was committed in an aggressive manner.

On February 11, 1991, appellant J.A. and three other youths were at the abandoned sugar factory in Hardin, Montana. J.A. and his friend Jace Rogers had .22 caliber rifles with them and they were shooting pigeons and other objects in the building. Neither Ben Arbogast, J.A.’s cousin, nor Billy Orthman had guns. J.A.’s weapon was defective; it would discharge even with the safety on.

Billy found a can of peanuts in the building and began eating the peanuts. J.A. requested the peanuts and moved toward Billy while carrying the gun. The evidence is conflicting as to subsequent events, but it is clear that the rifle discharged into Billy’s abdomen. Billy died at Saint Vincent Hospital in Billings later the same day.

The State of Montana filed a petition alleging that J.A. was a delinquent youth and that he committed an offense which, if committed by an adult, would constitute negligent homicide. The State subsequently moved to transfer the case from Youth Court to District Court. After a hearing, the Youth Court granted the motion. J.A. appealed.

Montana’s Youth Court Act authorizes the transfer of cases from youth court to district court under certain circumstances. The transfer statute sets forth the criteria which must be met before a transfer can be ordered; among the required criteria are certain probable cause findings. Section 41-5-206, MCA. In the event the statutory requirements are met, the court “may” order the transfer. Id. Thus, in the final analysis, the decision to transfer is within the court’s discretion.

Only one of the requirements of Sec. 41-5-206, MCA, is at issue here. Section 41-5-206(l)(d), MCA, requires that the court find probable cause to believe that “the alleged offense was committed in an aggressive, violent, or premeditated manner.” In this regard, the Youth Court specifically found as follows in Finding of Fact 18:

There is probable cause to believe that [J.A.’s] behavior leading to and including the shooting of Billy Orthman was aggressive behavior constituting criminal negligence.

Appellant asserts that the record does not contain sufficient evidence to support Finding of Fact 18.

Our overall standard of review on appeal of a youth court order transferring a matter to district court is whether the court abused its discretion. Matter of K.M.H. (1988), 231 Mont. 180, 183, 752 P.2d 162, 164. This standard is appropriate because, as discussed above, a transfer under Sec. 41-5-206, MCA, ultimately is left to the court’s discretion. Heretofore, our standard for reviewing a court’s findings of fact in the context of a Sec. 41-5-206, MCA, transfer was whether substantial credible evidence supports the court’s findings. K.M.H., 231 Mont. at 183, 752 P.2d at 164. While we recently have clarified that we will utilize a clearly erroneous standard in reviewing court findings of fact, the first prong of the clearly erroneous test remains whether substantial evidence supports the court’s findings. Interstate Prod. Credit Ass’n. v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

A review of the record supports the Youth Court’s finding of probable cause to believe that the offense was committed in an aggressive manner. It is true that Ben Arbogast’s testimony at the transfer hearing does not support the court’s finding. At the hearing, Ben testified that the shooting was an accident; J.A. did not confront Billy or act in a violent, premeditated or aggressive manner at the time of the shooting.

However, the record also contains an earlier statement by Ben to Detective John Shaw of the Big Horn County Sheriff’s Department that is at variance from his testimony at the transfer hearing. There, Ben stated that J.A. was “acting really reckless” with the gun as he walked towards Billy immediately prior to the shooting; the gun was not pointed at the floor, but was pointing straight ahead. J.A. was angry at the time because Billy would not give him the peanuts.

In addition, the court heard testimony from Don Miller, a psychiatric social worker who worked with Ben when he sought treatment for the stress induced by the shooting incident. Miller testified as to certain statements Ben made to him, including the look of sheer hatred on J.A.’s face just seconds before the shooting and Ben’s description of J.A.’s behavior at the time as aggressive.

Although the evidence as to whether J.A.’s conduct was aggressive is contradictory, it is not our function to resolve conflicts in the evidence. The trial court is in a position superior to that of this Court in assessing the demeanor and credibility of witnesses. Custody of Holm (1985), 215 Mont. 413, 418, 698 P.2d 414, 417. If sufficient evidence exists to support the court, we will defer to the court’s determination. Mental Health of R.J.W. (1987), 226 Mont. 419, 423, 736 P.2d 110, 112.

Based on the record before it, the Youth Court entered Finding of Fact 16, that there is probable cause to believe that J.A. “confronted” Billy over possession of the can of peanuts. It went on to find probable cause to believe that J.A.’s behavior leading to and including the shooting was aggressive. Substantial credible evidence supports the Youth Court’s finding and that finding is not clearly erroneous.

Appellant contends that the Youth Court failed to “seriously consider” whether there was evidence to make the finding of probable cause as required by In re Rodney Dean Stevenson (1975), 167 Mont. 220, 538 P.2d 5. On that basis, and in further reliance on State v. Rodriguez (1981), 192 Mont. 411, 628 P.2d 280, appellant asserts that this matter must be remanded to the Youth Court for further findings. This argument is premised on the court’s failure to recite the testimony on which it relied in entering Finding 18. Appellant further contends that it is “quite likely” that the court found that the act was not committed in an aggressive manner, based on its rejection of certain of the State’s proposed findings of fact.

Nothing in Stevenson or Rodriguez requires the detailed recitation of the testimony or other evidence on which the Youth Court’s findings are based. Stevenson requires that “all other factors set forth by statute” must be carefully considered. 167 Mont. at 229, 538 P.2d at 10. Rodriguez states that “it is sufficient if the record shows that each factor was seriously considered.” 192 Mont. at 416, 628 P.2d at 283. It is clear that the Youth Court considered the only statutory factor at issue here, namely, whether J.A.’s conduct was aggressive; it entered a specific finding regarding confrontation and a specific finding of probable cause to believe that the conduct was aggressive. Furthermore, in fight of these findings, appellant’s contention that the court likely found no aggressive conduct is totally without merit.

Affirmed.

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


author: JUSTICE WEBER

text:
    JAMES LANE, DEANNA LANE, d/b/a REALTY WEST, LANE ASSOCIATES, Plaintiffs and Respondents, v. H.W. SMITH, JR., and ELIZABETH A. SMITH and EDWARD C. KIBLER and DIANNA M. KIBLER, Defendants and Appellants.
    No. 91-496.
    Submitted on Briefs July 30, 1992.
    Decided November 16, 1992.
    49 St.Rep. 974.
    255 Mont. 218.
    841 P.2d 1143.

      For Defendants and Appellants: R.J. “Jim” Sewell, Jr., Smith Law Firm, Helena.
    For Plaintiffs and Respondents: Douglas Buxbaum, Poore, Roth & Robinson, Butte.
   JUSTICE WEBER

delivered the Opinion of the Corut.

This is an appeal from a judgment by the Third Judicial District Court, Powell County, granting plaintiffs’ motion for partial summary judgment and denying defendants’ motion for summary judgment. We affirm.

The issues on appeal are:

1. Was summary judgment appropriate where a realtor’s commission was claimed?

2. Did the District Court err in granting summary judgment to plaintiffs?

3. Did the District Corut err in awarding attorney’s fees to plaintiffs?

H.W. Smith, Jr. and Elizabeth Smith (Smiths) owned the Avon Family Cafe in Avon, Montana. The Smiths wished to sell this property and listed it with brokers James Lane and Deanna Lane (Lanes) who are realtors with Realty West, Lane and Associates. The Listing Agreement was signed on June 20,1986 and was to expire on June 20, 1987 with a 90-day grace period in which the terms were to be effective. Subsequently, the Lanes advertised the property and Edward C. and Diana M. Kibler (Kiblers) answered the ad. The Lanes showed the property to the Kiblers and although interested, the Kiblers could not afford a downpayment on the property.

The Kiblers were, however, interested in a Lease-Purchase Agreement which was agreed to within the time parameters of the Listing Agreement on September 5,1986, after negotiations with the Smiths. The Lease-Purchase Agreement, drawn up by the Lanes’ attorney and containing a provision that the Lanes receive a commission if the option was exercised, was effective for two years ending October 1, 1988. A provision in the Lease-Purchase Agreement also provided for a partial commission payment of $1,000. Such partial payment was made. The agreement provided the terms under which the option could be exercised, and provided for 90 days’ notice to the lessors when the lessees decided to exercise the option to buy.

The Smiths approached the Kiblers on July 3, 1988, before the Lease-Purchase Agreement expired, and wanted to know if the Kiblers intended to exercise their option. Subsequently, negotiations between the Smiths and Kiblers ensued and a title commitment on the property was issued on September 28, 1988, two days before the Lease-Purchase Agreement expired. The closing transaction took place on October 7, 1988, seven days after the expiration date specified in the agreement.

The Smiths refused to pay the remaining portion of the broker’s fee. The Lanes initiated this action on October 28, 1988. The parties filed cross motions for summary judgment. The court held a hearing on May 17, 1991 and granted summary judgment to the Lanes on June 3, 1991. The Smiths appeal the summary judgment entered against them.

I.

Was summary judgment appropriate where a realtor’s commission was claimed?

The Smiths argue on appeal that the District Court should not have considered summary judgment at all because summary judgment is inappropriate where determination of a realtor’s commission is at issue. The Smiths did not argue this to the District Court. We will not address this issue because it was not raised at the District Court level. See Weaver v. Law Firm of Graybill, Ostrem, Warner & Crotty (1990), 246 Mont. 175, 803 P.2d 1089.

II.

Did the District Court err in granting summary judgment to plaintiffs?

Our standard of review on appeal from a grant of summary judgment is a two-pronged determination: we consider whether there are genuine issues of material fact and whether the movant is entitled to judgment as a matter of law. Payne Realty & Housing v. First Security Bank of Livingston (1991), 247 Mont. 374, 807 P.2d 177. To be successful, the movant for summary judgment must show clearly what the truth is. Berens v. Wilson (1990), 246 Mont. 269, 806 P.2d 14. Once this is done, it is incumbent on the non-moving party to come forward with substantial evidence demonstrating there are genuine issues of material fact which preclude summary judgment. Cecil v. Cardinal Drilling Co. (1990), 244 Mont. 405, 797 P.2d 232.

The District Court determined that the Lanes performed their obligation under the Listing Agreement by procuring a buyer to whom the property was sold or conveyed on terms acceptable to the Smiths. The court found no genuine issues of material fact. We agree.

The undisputed material facts contained in the contracts involved are: the Smiths are the sellers who executed an exclusive one-year Listing Agreement with the Lanes as their brokers on June 20,1986, containing the following pertinent provisions:

In the event that [Lanes], or any other brokers cooperating with you, shall find a buyer ready and willing to enter into a deal for said price and terms, or such other terms and price as I may accept, or that during your employment you supply me the name of or place me in contact with a buyer to or through whom at any time within 90 days after termination of said employment I may sell or convey said property, I hereby agree to pay you in cash for your services a commission equal in amount to six percent of the above stated selling price.

The purchasers were the Kiblers who leased the property first and finally exercised an option to buy the property. The Lease-Purchase Agreement in which the option is contained was executed on September 5, 1986, within the time parameters of the Listing Agreement, and it contained a provision that the Lanes immediately receive a partial commission plus the remainder when the purchasers exercised their option.

The title commitment was issued on September 28,1988, two days before the Lease-Purchase Agreement expired and the transaction was closed on October 7, 1988, seven days after the expiration date of the Lease-Purchase Agreement. The terms of the final sale varied somewhat from the Lease-Purchase Agreement. The Smiths refused to pay the remainder of the commission.

On appeal, the Smiths argue that genuine issues of material fact preclude summary judgment. We note that argument was not presented at the District Court level. Smiths argue that there is a question of fact as to the source from which the commission was to be paid. We conclude that the determination of that question is not required in this case. We have reviewed the record and conclude there are no genuine issues of material fact concerning the contract issues which are presented by this case.

The District Court further determined that the Lanes were entitled to summary judgment as a matter of law. The court concluded that the Lanes had performed under their Listing Agreement because they procured a buyer for the property on terms which were acceptable to the seller. Further, the court concluded that the date of the sale must relate back to the time the original option to purchase was given, which, in this case, was within the time frame of the Listing Agreement. The court also concluded that the 90-day notice provision in the Lease-Purchase Agreement was inserted for lessors’ benefit and since the lessor negotiated the sale, they had notice despite the lack of a formal 90-day notice. The court concluded finally that because the Smiths refused to pay the Lanes the remainder of their commission, the Smiths had breached the Listing Agreement.

Appellants contend that the Listing Agreement is an exclusive Listing Agreement and, therefore, ‘procuring cause’ is an inappropriate test to use in determining whether a commission is due. Appellants cite Flinders v. Gilbert (1963), 141 Mont. 442, 378 P.2d 385, for this proposition. The listing agreement in Flinders was a non-exclusive listing agreement where determination of the ‘procuring cause’ among many brokers was a necessary determination. Respondents argue, and we agree, that Flinders does not hold that ‘procuring cause’ is only appropriate to non-exclusive listing agreements.

The procuring cause doctrine permits a broker to show that his or her part of the contract was performed and that the principal reaped a benefit from the efforts. D. Burke, Jr., The Law of Real Estate Brokers, Sec. 3.4 (1992). The doctrine is not confined to consideration of non-exclusive listing agreements; it applies in all situations unless the parties agree otherwise in the listing contract. Id.

Here, the contract contains no such prohibitive provision. The District Court determined that because the brokers had performed their contractual agreement, they were the procuring cause of the sale. We conclude that the brokers produced the Kiblers who purchased the property during the required period under the Listing Agreement. We further conclude that the Lease-Purchase contained a provision granting the Lanes their commission and that the Kiblers bought the property.

Other jurisdictions have used the procuring cause doctrine in tandem with an exclusive listing agreement. Humphrey v. Knobel (Nev. 1962), 369 P.2d 872; Fox. v. Stewart (Ill.App. 1980), 414 N.E.2d 881. These cases, along with recognized treatises, indicate that one instance in which procuring cause is appropriate is in regard to the change of purchase price from a listing agreement to final sales terms. D. Burke, Jr., Law of Real Estate Brokers, Sec. 3.4 (1992). The change in the final terms of the purchase does not automatically eliminate the broker’s commission as appellants contend. All that is necessary for the broker to receive his commission is that the seller and buyer were brought together by the broker:

Where an agent contracts to furnish a purchaser for land at a stipulated price and such agent does furnish a purchaser whom the owner accepts, and in the negotiations of the contract the owner agrees upon and accepts a different price from that at which the agent was instructed to sell, still such agent would be entitled to his compensation...

Barrett v. Ballard (1980), 191 Mont. 39, 47, 622 P.2d 180, 185; citing Shober v. Blackford (1912), 46 Mont. 194, 127 P. 329. Both parties agree that the buyer and seller were brought together by the ad placed by the Lanes.

The terms of the initial contract clearly state that the Lanes are due a commission either on the terms listed in the agreement, or any other terms that the sellers accept. The sellers accepted the terms of the Lease-Purchase Agreement made within the time frame of the Listing Agreement. The sellers also accepted the final terms of the sales contract, agreed to within the time frame of the Lease-Purchase Agreement, which provided the Lanes a commission.

We conclude that the Lanes met their responsibilities under the contract and were the procuring cause of the sale and that the different final contract terms do not deprive the Lanes of their commission.

The District Court further concluded that the date of the sale must relate back to the signing of this Lease-Purchase Agreement. The Smiths argue that this is inappropriate — the transaction was closed seven days after the termination of the Lease-Purchase Agreement and the Lanes are not entitled to a commission. The Lanes argue that other jurisdictions have determined that when an option is exercised, the date of sale relates back to the time the option was given.

The Lease-Purchase Agreement granted a commission to the Lanes if the Kiblers exercised their option to purchase. Basic fairness dictates that the date of sale relate back to the date the option was created in the Lease-Purchase Agreement. The payment of the partial commission to the Lanes demonstrates agreement between the parties that the Lanes were responsible for the sale to the Kiblers.

Other jurisdictions have reached the same results. In a case almost identical to the facts before us, the California Court of Appeals held that the date of final sale relates back to the date the option was given:

It is well established that an option is not a sale of property, but rather a sale of a right to purchase. The option becomes a contract of sale binding on both parties only on acceptance of the option by the optionee. This does not mean, however, that a new contract is in fact made by and at the time of the acceptance. On the contrary, the contract has already been made as far as the optionor is concerned, but is merely subject to conditions which are removed by acceptance. [Emphasis added.]

Anthony v. Enzler (CA App. 1976), 132 Cal.Rptr. 553, 556. The court went on to hold that where options to buy property were granted and executed before the expiration date of the listing agreement, brokers were entitled to commission when the buyer exercised the option, even though the option was not exercised until after the expiration date of the listing agreement. Anthony, 132 Cal.Rptr. at 557.

We conclude that when negotiated within the time parameters of a listing agreement, the date on which a lease-purchase agreement is entered into is the effective date of sale for purposes of determining a broker’s commission.

Appellants further argue that the Lanes are not due a commission because the Kiblers did not execute a notice of intent to buy 90 days before the exercise of the option as the contract requires. The court concluded that the purpose of the provision in the contract was to notice the lessors (Smiths), and the lack of notice does not affect the broker’s commission.

We conclude that the District Court was correct. The 90-day notice provision of the Lease-Purchase Agreement was for the benefit of the Smiths. See Zaniewski v. Mancinone (Conn. 1981), 435 A.2d 50. Thus, the lack of notice does not affect the Lanes’ commission because the Smiths knew about the sale as they alone negotiated the final terms of the agreement.

Finally, we conclude that the Lanes have performed their duties under the Listing Agreement by procuring a buyer on terms acceptable to the Smiths and are entitled to their commission. We further conclude that by refusing to pay the remainder of the commission owed to the Lanes, the Smiths have materially breached their contract and the Lanes are entitled to judgment as a matter of law.

Under these facts, we hold that the District Court did not err in granting summary judgment to the plaintiffs.

III.

Did the District Court err in awarding attorney’s fees to the plaintiffs?

The District Court concluded that because the Smiths had breached the Listing Agreement, and because the Lanes were obliged to enter into litigation to obtain their commission, the Lanes were entitled to reasonable attorney’s fees according to the provision of the Listing Agreement.

Attorney’s fees are properly awarded only when contractually or statutorily provided. Ehly v. Cady (1984), 212 Mont. 82, 687 P.2d 687. Here, the contract specifically states:

In case of suit or action on this contract, it is agreed between us that the court, whether trial or appellate, may allow the prevailing party such sum as may be adjudged that party’s reasonable attorney’s fees.

This language is clear and unambiguous. Where the language is clear, the court need only enforce the contract. Keller v. Dooling (1991), 248 Mont. 535, 813 P.2d 437.

We hold that the District Court did not err in awarding attorney’s fees to the plaintiffs.

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


author: JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JACK SAGE, Defendant and Appellant.
    No. 92-214.
    Submitted on Briefs September 4, 1992.
    Decided November 16, 1992.
    49 St.Rep. 978.
    255 Mont. 227.
    841 P.2d 1142.

      For Defendant and Appellant: Mark P. Yeshe, Donahoe & Yeshe, Helena.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, John Paulson, Assistant, Helena; Richard Llewellyn, County Attorney, and John P. Connor, Special Deputy County Attorney, Boulder.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from the Fifth Judicial District Court, Jefferson County, order denying defendant’s motion to dismiss. We affirm. The sole issue on appeal is whether solicitation of incest is a crime in Montana.

In September, 1990, J.S. was alone in a swimming pool with defendant, her natural father. Defendant repeatedly asked J.S. to “fool around” with him. She refused because the request had a sexual connotation.

J.S. told a social worker that her father became increasingly aggressive toward her. In mid-March of 1991, he cut a peep hole in the bathroom wall so he could watch J.S. Later that month, when J.S. and her father were home alone, he again asked her if she would “fool around” with him. When she refused he asked, “Please, for me?” J.S. continued to refuse her father’s propositions. After showering on April 2,1991, J.S. discovered a video camera hidden in the bathroom. The camera was running and aimed to video tape a person in the bathroom.

Defendant admitted to law enforcement officers that he asked his daughter to fool around with him in a sexual manner. Defendant further admitted that he had placed the video camera and drilled the peep hole. He conceded he knew these actions were wrong.

The State charged the defendant, Jack Sage, with two counts of solicitation of incest in violation of §§ 45-4-101, MCA, and 45-5-507, MCA. Defendant filed a motion to dismiss, arguing that solicitation of incest is not a crime in Montana. The District Court denied the motion. On December 9,1991, defendant entered a conditional guilty plea to one count of solicitation of incest. The District Court found that defendant was in fact guilty of soliciting incest and gave him a deferred imposition of sentence. Defendant appeals contending the District Court erred in denying his motion to dismiss.

Our standard of review of a district court’s conclusions of law is plenary. We determine whether the district court’s conclusions are correct. Steer, Inc. v. Dept, of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

The policy behind the crime of solicitation is to protect people from “exposure to inducements to commit or join in the commission of crime.” State v. Bush (1981), 195 Mont. 475, 480, 636 P.2d 849, 852. Among other things, the sohcitation statute facilitates prosecution of those who formulate and cultivate criminal schemes before a completed scheme can cause injury to others. William F. Crowley, Montana Criminal Law, 607-609 (1990).

Defendant contends sohcitation of incest is not a crime in Montana. He reasons he did not intend that J.S. commit a crime, rather she was his intended incest victim. Relying on Illinois law, defendant further reasons that the crime of sohcitation applies only where a person requests another to commit a crime and not when the person solicits a victim. However, under Montana’s statute the status of the person solicited is neither an element of nor a defense to the crime of sohcitation. See § 45-4-101, MCA.

Montana adopted its sohcitation statute from the Illinois Criminal Code of 1961. When Montana adopted it, the Illinois statute read, “A person commits sohcitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense.” 111. Ann. Stat. ch. 38 para. 8-1 (Smith-Hurd 1989) (emphasis added). When the Montana Legislature adopted the statute in 1973 it changed the language. See § 94-4-101, RCM (1977). The legislature has not changed the statute since its enactment. The Montana version states, “A person commits the offense of sohcitation when, with the purpose that an offense be committed, he commands, encourages or facilitates the commission of that offense.” § 45-4-101, MCA, (emphasis added).

By modifying the statute, the legislature broadened the types of conduct which are criminal under the sohcitation statute. Bush, 636 P.2d at 851. In Montana, the status of the person solicited is not a part of the offense of sohcitation, rather the intent of the solicitor is the basis of the crime. Bush, 636 P.2d at 852.

Defendant completed the crime of sohcitation of incest when he asked his daughter to aid him in performing incest. A person commits incest if he knowingly has sexual contact with a descendant. § 45-5-507, MCA. Defendant purposely urged his natural daughter to have sexual relations with him. Defendant thus encouraged the commission of incest with the purpose that incest be committed. Montana’s statute requires nothing more to bring the crime of solicitation to fruition. See § 45-4-101, MCA.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    PATTY DICKEN, Plaintiff and Appellant, v. WILLIAM A. SHAW, ANNE M. SHAW, AND FRANK O. WILLIAMS, Defendants and Respondents.
    No. 92-250.
    Submitted on Briefs September 24, 1992.
    Decided November 5, 1992.
    49 St.Rep. 914.
    255 Mont. 231.
    841 P.2d 1126.

      For Plaintiff and Appellant: Roderick K. Ermatinger, Missoula.
    For Defendants and Respondents: Kathleen O’Rourke-Mullins, Sullivan & Tabaracci; Gary Kalkstein, Quane, Smith, Howard & Hull; and Karl J. Englund, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Patty Dicken brought this action against the defendants, from whom she had leased office space, claiming breach of contract, forcible entry, wrongful eviction, and conversion of personal property. The District Court for the Fourth Judicial District, Missoula County, denied Dicken’s request for a preliminary injunction preventing the defendants from leasing the office space to others during this lawsuit. Dicken appeals. We affirm.

The issues are:

1. Did the District Court err when it held Dicken would not suffer irreparable injury and refused to enjoin defendants from leasing the subject premises to others?

2. Did the court err by limiting Dicken’s remedies to monetary damages?

3. Did the court exceed the scope of the preliminaiy injunction hearing?

On January 24, 1992, Patty Dicken entered into a two-year lease agreement to rent commercial office space in the Professional Village Complex in Missoula, Montana. Defendants William A. Shaw and Anne M. Shaw owned the Complex, which was managed by Missoula Realty. Defendant Frank O. Williams owned Missoula Realty.

Dicken planned to open a business to be called “A Pregnancy Solution,” which she initially described to Williams as a pregnancy counseling service. The office space Dicken rented was adjacent to office space rented by Blue Mountain Clinic, a tenant of the Complex which provided abortion services. Afew days after Dicken entered her lease with defendants, an article appeared in the local newspaper describing Dicken’s business as an “anti-abortion center.” Defendants became concerned. They retained an attorney who asked Dicken for written assurance that she would violate no laws in the operation of her business, that she and her staff would not harass employees, clients, or customers of other tenants, and that she and her staff would not trespass upon the leased premises of other tenants. Dicken refused to give such written assurances.

On February 14,1992, the defendants had the lock changed to the office space Dicken had rented so that she could not enter it. Dicken then filed this lawsuit. She asked for specific performance of her rental contract with the defendants, money damages, costs and attorney fees, and an injunction preventing the defendants from leasing the premises to others during the term of her lease.

Dicken also requested a preliminary injunction to prevent the defendants from renting the space to anyone else while this action is pending. After a hearing on that request, the District Court found that Dicken had not met her burden of proving that she would suffer great or irreparable injury if she were not granted possession of the premises or if the defendants were not enjoined from leasing the premises. The court stated that it appeared monetary damages would fully compensate Dicken if the facts and circumstances of the case are ultimately determined in her favor. In addition, the court ordered that Dicken’s personal property be removed from the premises and returned to her.

I

Did the court err when it held Dicken would not suffer irreparable injury and refused to enjoin defendants from leasing the subject premises to others?

(1) The standards for whether a preliminary injunction should be granted are set forth at Sec. 27-19-201, MCA. Dicken argues that she is entitled to a preliminary injunction under subsections (2) and (3) of Sec. 27-19-201, MCA:

An injunction order may be granted in the following cases:

(2) when it shall appear that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant;
(3) when it shall appear during the litigation that the adverse party is doing or threatens or is about to do or is procuring or suffering to be done some act in violation of the applicant’s rights, respecting the subject of the action, and tending to render the judgment ineffectual[.]

This Court’s standard of review of an order granting or denying a preliminary injunction is whether the trial court abused its discretion. Porter v. K & S Partnership (1981), 192 Mont. 175, 181, 627 P.2d 836, 839.

Dicken argues that she will be irreparably harmed if the defendants are allowed to lease the office space to another tenant because the location next to Blue Mountain Clinic is unique and ideal for her services. However, her testimony at the hearing contradicted this argument. She testified on both direct and cross examination that the features of this office space which were important to her were the amount of rent charged and the size of the space:

Q. Once you leased and possessed unit 14 would you tell us whether or not you believed there was any other location in Missoula which would serve your center’s purposes better than unit 14?
A. I believe it was the only location that would serve its purpose. Q. And why is that?
A. Strictly because of the deal I got. There’s no other office space available in town that you could get that cheap.
Q. Now, if it’s fine to look at downtown space, how is it now that unit number 14 is so unique that you don’t really want —
A. The price, the lease itself. 350 for utilities paid and the size of the office space.
Q. So it’s your testimony then that the real uniqueness of this space is the monetary advantage?
A. Uh-huh.
Q. And if you could find other space that was that cheap and had that square footage, then that would be fine, too?
A. Yes, it would.
Q. I guess I’m a little bit confused. If you’re not going to physically interfere with patients who are going to utilize the [Blue Mountain Clinic] facility, then why does location matter? If you’re going to reach these people through advertising and through churches, then what difference does proximity to the clinic make?
A. It doesn’t. Like I said, so far as to me being at Blue Mountain, yes, they do abortions and maybe the women will see us. The location itself, yes, is important. If I could have found — If there was an office space open to Western Montana Clinic, you know, it doesn’t —
Q. So the fact that it’s [Blue Mountain Clinic] there, really isn’t important because you’re not planning to go out and intercept these people. You’re planning —
A. No.
Q. Your plan was to advertise and reach them through other means; is that correct?
A. Yes.
Q. So location really isn’t that important to you?
A. Not too important, no.

In her testimony, Dicken did not identify any attributes of the leased premises that singularly fit her proposed business other than her belief that the property was less expensive than other similar property. If the defendants are found to have breached the lease by changing the locks, it appears Dicken can be adequately compensated for that breach through monetary damages.

Money damages are not considered “irreparable harm” because money damages may be recovered in an action at law without resort to equity. New Club Carlin v. City of Billings (1989), 237 Mont. 194, 196-97, 772 P.2d 303, 305. Therefore, we conclude that Dicken has failed to prove that she will be greatly or irreparably injured if the defendants rent the office space to someone else during this litigation. Similarly, Dicken has not shown, as would be necessary to justify a preliminary injunction under Sec. 27-19-201(3), MCA, that renting the office space to another tenant during this litigation will tend to render the potential judgment ineffectual, because she has not shown that she has been damaged other than monetarily.

We hold that the District Court did not abuse its discretion in ruling that Dicken would not suffer irreparable injury and in refusing to enjoin defendants from leasing the subject premises to others while this litigation proceeds.

II

Did the court err by limiting Dicken’s remedies to monetary damages?

The District Court stated “it appears to the Court that monetary damages would fully compensate Plaintiff if the facts and circumstances of this case are ultimately determined to be in her favor.” Dicken contends her remedies have been prematurely limited before trial.

The District Court’s statement is clearly not a final ruling on the extent and type of Dicken’s damages. It is only a statement of her failure to prove entitlement to injunctive relief and does not preclude proof of other damages at trial. We hold that the court’s statement was not error.

Ill

Did the District Court exceed the scope of the preliminary injunction hearing?

Dicken argues that the court erred when it ordered removal of her personal property (a large file cabinet, books, videos, a fetal model kit, and posters) from the office space she had rented from the defendants. She states that this relief was not requested by the defendants and that the defendants did not prove that irreparable injury would result if her property were allowed to remain there. Also, she argues that the court should not have changed the status quo and that she was the last party in legitimate possession of the property.

A court should act to preserve the status quo only after the applicant has made a showing that he or she will be irreparably injured if an injunction is not granted while the matter is being litigated. Porter, 627 P.2d at 839. As discussed above under Issue I, Dicken has not made such a showing of irreparable injury.

Defendants point out that it is the duty of the court to minimize injury to all parties. Porter, 627 P.2d at 840. At the time of the hearing on her motion for a preliminary injunction, Dicken was locked out of the premises where her personal property remained. At the hearing, the District Court determined that Dicken had shown no reason why the premises could not be leased to others. We hold that the District Court did not err in then acting to protect Dicken’s personal property by ordering the defendants to arrange to have it returned to her.

Affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and GRAY concur.


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF MARK LOPEZ, Petitioner and Appellant, and LAURI LOPEZ, Respondent and Respondent.
    No. 91-583.
    Submitted on Briefs July 30, 1992.
    Decided October 29, 1992.
    49 St.Rep. 890.
    255 Mont. 238.
    841 P.2d 1122.

      For Petitioner and Appellant: E. Lee LeVeque, Conklin, Nybo, LeVeque & Murphy, Great Falls.
    For Respondent and Respondent: Daniel L. Falcon, Matteucci, Falcon & Squires, Great Falls.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Mark Lopez appeals from the findings of fact, conclusions of law, and decree of dissolution entered by the District Court of the Eighth Judicial District, Cascade County. At issue is the District Court’s valuation and distribution of the marital estate. We affirm.

We phrase the issues to be considered as follows:

1. Was the District Court’s valuation of appellant’s interest in Century Financial Services, Inc., and the Century Court Partnership clearly erroneous?

2. Did the District Court abuse its discretion in finding that a school loan taken out by respondent after the separation, but prior to the dissolution, was a marital debt to be considered in the valuation and distribution of the marital assets?

3. Was the District Court clearly erroneous in finding that a bank account of $2,577.13 was an asset of the marital estate?

4. Was it an abuse of discretion for the District Court to admit into evidence respondent’s Exhibit D, a report prepared by respondent’s expert witness?

Appellant Mark Lopez and respondent Lauri Lopez were married on June 18, 1977, in Cascade County, Montana. Two minor children were bom during the marriage. The children were ages nine and seven at the time of the dissolution. The parties separated in April 1990, and Mark filed a petition for dissolution on May 24, 1990.

At the time of the parties’ marriage, Mark was employed as a service station attendant. Approximately three years after their marriage, Mark began selling insurance for an insurance company in Great Falls. The District Court found that during the marriage Mark excelled as an insurance salesman. Mark left the insurance company he had been working for, and in the fall of 1987, along with three other individuals, formed Century Financial Services, Inc. (CFS). CFS is primarily involved in the sale of life, health, and disability insurance. Mark is the only employee of CFS and owns 30 percent of the stock.

In the spring of 1989, Mark and the other three shareholders in CFS, formed the Century Court Partnership (partnership). The only asset of the partnership is a commercial building in Great Falls which houses CFS’s office. Mark has a 25 percent interest in the partnership. The commercial building was purchased for $231,000, with Mark’s 25 percent interest costing him an initial investment of $7500.

Prior to the marriage, Lauri had been a student at the University of Montana. Immediately prior to the marriage, Lauri returned to Great Falls and obtained an associate degree in criminal justice from the College of Great Falls. Lauri worked full time until the spring of 1990 when her employment was terminated through no fault of her own. Following her termination, Lauri unsuccessfully sought employment. Lauri is currently in college working toward a degree in special education. After the separation, but prior to the dissolution, Lauri obtained a student loan in the amount of $4000 to enable her to continue her education.

The bench trial in this matter began on March 29, 1991, and concluded on April 2, 1991. On June 17, 1991, the court entered the final decree of dissolution. From the findings of fact, conclusions of law, and decree of dissolution entered by the District Court, Mark brought this appeal. Mark alleges that the District Court’s findings regarding the valuation of several assets of the marital estate were clearly erroneous and must be reversed. The parties stipulation prior to trial regarding child custody, child support, and visitation was adopted by the District Court in the final decree of dissolution and is not at issue in this appeal.

I

Was the District Court’s valuation of appellant’s interest in his insurance business and the Century Court Partnership clearly erroneous?

Mark attacks the findings, conclusions, and decree entered by the District Court as they relate to the valuation and distribution of the marital estate. In the past, district court decisions concerning the division of the marital estate have been reviewed by this court under an abuse of discretion standard. This Court’s standard of review in these cases has been recently clarified. The factual findings of the district court relating to the division of marital property will be reviewed using the clearly erroneous standard. In re Marriage of Sacry (Mont. 1992), 833 P.2d 1035, 49 St. Rep. 452; Rule 52(a) M.R.Civ.P. Concerning this Court’s review of conclusions of law made by a lower court “[w]e are not bound by the lower court’s conclusions and remain free to reach our own.” Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523. The basis for simply determining if the lower court’s conclusions of law are correct is that there is no discretion in determining a question of law. The lower court either correctly or incorrectly applies the law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

The courts are obligated to fashion a distribution which is equitable to each party under the circumstances. In re Marriage of Jones (1987), 229 Mont. 128, 745 P.2d 350; § 40-4-202, MCA. Working in equity, the courts must seek a fair distribution of the marital property using reasonable judgment and relying on common sense. Reaching this equitable distribution will at times require the court to engage in discretionary action which cannot be accurately categorized as either a finding of fact or a conclusion of law. These discretionary judgments made by the trial court are presumed to be correct and will not be disturbed on appeal absent an abuse of discretion by the lower court. Meridian Minerals Co. v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 742 P.2d 456.

Mark’s first issue concerns the District Court’s valuation of his interest in his insurance business and the Century Court Partnership. The District Court found that Mark’s interest in his business was $100,240, and his interest in the partnership was $17,000.

We will first review the District Court’s valuation of Mark’s interest in his insurance business. The court’s valuation of $100,240 was based on goodwill, the only asset of the business. Mark concedes that the value of goodwill in a business is to be considered a part of the marital estate and may properly be distributed between the parties. In re Marriage of Arrotta (1990), 244 Mont. 508, 797 P.2d 940. It is the District Court’s valuation of the goodwill in this instance which is disputed by Mark.

Lauri presented testimony at trial from Jack Stevens, a certified public accountant. Mr. Stevens was asked to prepare a valuation of Mark’s business. In preparing the valuation, Mr. Stevens relied on various authorities and information, most of which he included in a written report. This report, respondent’s Exhibit D, was introduced into evidence at trial over Mark’s objection. The method used by Mr. Stevens to calculate the value of goodwill in this case is similar to the method approved of by this Court in In re Marriage of Hull (1986), 219 Mont. 480, 712 P.2d 1317. The method used by Mr. Stevens requires the capitalization of the income generated by the business over and above what the individual would have earned as a salaried employee without the business. These excess earnings or discretionary cash, when capitalized using the appropriate formulas, result in a valuation for goodwill. As the amount of excess earnings increases, so will the value of goodwill. Using this method, Mr. Stevens calculated the value of goodwill in Mark’s business at $102,240.

Mark does not take issue with the method employed by Mr. Stevens in determining the value of goodwill. Mark argues that the wrong numbers were used in the formula, resulting in an exaggerated value for goodwill. Mark called Marshall Bertsch, an accountant, to testify. Mr. Bertsch was asked to use the same formula, but was asked to use a higher number for what Mark’s salary would have been without his business. Mr. Bertsch arrived at a value of $37,039.60 for goodwill in the business. Additionally, Mark called two associates in the insurance industry who testified that the value of goodwill in the business was very little or nothing.

In a dispute over the value of property in a marriage dissolution, the District Court may assign any value that is within the range of values presented into evidence. In re Marriage of Kramer (1987), 229 Mont. 476, 747 P.2d 865. In this instance, the District Court, after weighing all the evidence and the credibility of the witnesses, found the value of the goodwill in the business to be $100,240. This value was within the range of figures presented. The finding of the District Court as to the value of the business is not clearly erroneous.

Mark also disputes the District Court’s valuation of his interest in the partnership. Mark had a 25 percent interest in a partnership which owned as its sole asset a commercial building located in Great Falls. The building was purchased in 1988 for approximately $231,000. Mark’s share of the initial investment in the building was $7500. At the time of trial, the outstanding loan balance on the building was $207,000.

No evidence was presented by Mark concerning the fair market value of the building at the time of trial. When asked on direct examination, Mark answered that he did not know the fair market value of the building. However, evidence was presented that the partnership agreement provided that in the event of the death of a partner the value of the building would be considered to be $275,000. The District Court adopted this figure, subtracted the outstanding balance on the loan, and determined that the partnership equity in the building was $68,000. Mark’s 25 percent interest in the building was valued at $17,000. The District Court’s valuation of Mark’s interest in the partnership was not clearly erroneous.

II

Did the District Court abuse its discretion in finding that a school loan taken out by Lauri after the separation, but prior to the dissolution, was a marital debt to be considered in the valuation and distribution of the marital estate?

Following the parties’ separation, Lauri’s employment was terminated through no fault of her own. When she was unable to find other employment, Lauri decided to go back to school. In order to do so, she took out a student loan in the amount of $4000 prior to the time of dissolution. The District Court considered this debt in determining the net marital estate. Mark argues that the debt should not have been included.

The well-settled rule in Montana is that absent unique circumstances, the marital estate should be valued at or near the time of dissolution. In re Marriage of Swanson (1986), 220 Mont. 490, 716 P.2d 219. However, the appropriate time for valuing the marital estate cannot always be tied to some specific time or event in the dissolution process and the District Court must exercise discretion in determining the proper time for valuation. In re Marriage of Wagner (1984), 208 Mont. 369, 679 P.2d 753. In some instances, a valuation at or near the time of dissolution may effectuate an injustice because of the nature of the assets or the course of conduct by the parties. In re Marriage of Gebhardt (1989), 240 Mont. 165, 783 P.2d 400. The unique circumstances found in the Gebhardt case requiring valuation at a time other than the time of dissolution, are not present in this case. The District Court did not abuse its discretion by including Lauri’s student loan debt in the marital estate.

III

Was the District Court clearly erroneous in finding that a bank account of $2,577.13 was an asset of the marital estate?

The District Court included in the net marital estate $2,577.13 that Mark had in a checking account. Mark testified at trial that following the separation the parties decided to equally divide certain assets and that the $2,577.13 represented his half. On appeal, Mark contends that the amount should deducted from the net assets of the estate, or that an equivalent amount should be charged to the wife. While the record regarding this matter is less than enlightening, it appears that Lauri testified at trial that the $2,577.13 in question was earned during the marriage and that she did not receive an equivalent amount of money. The evidence was conflicting as to whether an equal division of some assets occurred following the separation. In light of the District Court’s opportunity to observe and judge the credibility of the witnesses, we cannot say that the court’s determination in this matter was clearly erroneous.

IV

Was it an abuse of discretion for the District Court to admit into evidence respondent’s Exhibit D, a report prepared by respondent’s expert witness?

Rulings on the admissibility of evidence are within the discretion of the district court. Cooper v. Rosston (1988), 232 Mont. 186, 756 P.2d 1125. Absent an abuse of discretion, this Court will not reverse a district court’s ruling on the admissibility of evidence. Cooper, 756 P.2d at 1127. However, an abuse of discretion by a district court in allowing into evidence that which properly should have been excluded is not always grounds for reversal. In order for the abuse of discretion to warrant a reversal, it must be so significant so as to materially affect the substantial rights of the complaining party. Rule 61, M.R.Civ.P.; Zeke’s Distributing Co. v. Brown-Forman Corp. (1989), 239 Mont. 272, 779 P.2d 908.

Mark alleges that much of the material in respondent’s Exhibit D, which was admitted into evidence over objection, is inadmissible hearsay and materially affected his substantial rights. Lauri’s expert testified concerning much of the material which was contained in the report. While some of the material in the report may have been inadmissible hearsay, there is no evidence showing that the admission of the report materially affected Mark’s substantial rights. There has been no showing that the District Court relied on any inadmissible material or that Mark was prejudiced in any way.

Affirmed.

JUSTICES HARRISON, WEBER, McDONOUGH and GRAY concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SEAN DEAN OGLE, Defendant and Appellant.
    No. 91-334.
    Submitted on Briefs June 26, 1992.
    Decided November 12, 1992.
    49 St.Rep. 932.
    255 Mont. 246.
    841 P.2d 1133.

      For Defendant and Appellant: Thomas Alan Kragh, Rosscup & Kragh, Poison.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, George Schunk, Assistant Attorney General, Helena; Larry J. Nistler, County Attorney, Poison.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Sean Dean Ogle was tried by a jury and convicted of sexual assault, a felony, pursuant to § 45-5-502, MCA (1989), in the Twentieth Judicial District Court, Lake County. Appellant appeals from this conviction. We affirm.

Appellant offers three issues for this Court to consider.

1. Was appellant denied his right to a fair trial by repeated instances of alleged prosecutorial misconduct?

2. Did the District Court err by instructing the jury that sexual assault was a lesser included offense of sexual intercourse without consent?

3. Did the District Court err by instructing the jury that “without consent” was an essential element of the offense of sexual assault?

Appellant lived in Poison with his parents across the street from K.B. and S.B. and their children, including their 13-year-old adopted daughter, J.C.B. K.B. was the pastor of a local church and appellant became active in church activities. At the same time, appellant also developed a friendship with J.C.B., who was developmentally disabled and needed special education. J.C.B. enjoyed fishing and frequently would go fishing at the public boat docks near her home. Appellant would sometimes go with J.C.B. and play guitar while she fished.

On October 11, 1990, the family planned to attend a local high school basketball game. J.C.B. told her parents that she would rather go fishing and they agreed. At some point, appellant said that he would watch J.C.B. to ensure her safety. When her parents returned from the game, J.C.B. was at home and they did not notice anything ■unusual.

The following Saturday, S.B. was doing the weekly laundry when she found a note in the pocket of J.C.B.’s jeans. The note was addressed to appellant and was signed “your sex girlfriend.” A few days later, J.C.B.’s mother spoke with her about the note and during the conversation J.C.B. admitted to having sex with appellant. Later in the evening, J.C.B. repeated her story to her father, who then informed the Lake County Sheriff’s Office. After J.C.B. was privately interviewed by Officer Walrod, a Justice Court complaint was filed against appellant and he was arrested and taken into custody on October 17, 1990.

The next morning appellant voluntarily confessed during two taped interviews to having sexual contact with J.C.B. On the night of the arrest, he also confessed to a fellow jail inmate, Corey White. At trial, White testified that appellant said he had touched J.C.B. ■with his penis.

An information was filed in Lake County District Court charging appellant with sexual intercourse without consent, a felony, and failure to register as a sexual offender, a misdemeanor. Appellant pled guilty to the misdemeanor, with sentencing deferred until after the completion of trial on the charge of sexual intercourse without consent. A jury trial was held on January 21, 1991, and appellant was found guilty of the lesser-included offense of sexual assault, a felony.

On direct examination, the Lake County Attorney questioned J.C.B. in the following manner:

Q. We talked about what promising to tell the truth “so help you God” meant, remember?
A. (Witness nodded.)
Q. What would it mean if you lied?
A. I don’t know.
Q. Would it be a bad thing towards God?
A. Yeah.
Q. Okay. Do you love God?
A. Yeah.
Q. And you’re very — you attend church at your father’s church?

J.C.B. also testified at trial that appellant placed his penis in her vagina and rubbed his penis on her buttocks. This testimony was consistent with what J.C.B. had previously told her father, and the Lake County Undersheriff, both of whom testified at trial. At trial, the appellant denied he had any sexual contact with J.C.B.

Appellant also testified that after reading a law book provided to him on his first night in jail, he decided to confess to the lesser-included offense of sexual assault in hope of securing a deal with the interviewing undersheriff and receiving half the prison sentence possible for sexual intercourse without consent. During cross-examination, the following exchange took place between appellant and the Lake County Attorney.

Q. You’re married, are you not?
A. Yes.
Q. You have a small baby?
A. She has a baby.
Q. It’s not yours?
A. It’s not mine.
Q. But she is still married to you?
A. I’m not sure. She put in for a divorce and that’s the last I heard about it. I haven’t talked to her. She moved. Well, I had asked her for a divorce because I caught her in bed with my best friend and some other things that happened.
Q. And you don’t find her any more attractive than you found [J.C.B.], right?
A. I loved my wife a great deal.
Q. You loved [J.C.B.], too, didn’t you?
A. No.
Q. You used her and threw her away the same way you threw your wife away?
A. I never told [Corey White] anything had happened.
Q. All of those things were lies; is that right?
A. I never told Corey White I had anything to do with her. I had told Walrod what was necessary to make it through to the next day to where I could try and fight that tape because I can fight a tape and I can’t fight death.
Q. Let’s get this straight. [J.C.B.] lied, right?
A. Apparently, yes.
Q. Corey White lied?
A. Yes, and he had plenty of reason to. [Emphasis added.]
During closing argument the State made the following comments:
You have to accept his version of the facts as he testified today and reject his version of the facts as he gave it at other times. You have to find that little [J.C.B.], when she came in and testified, lied. You have to find that Corey White, who heard the confession from the defendant, lied. You would have to find that both the previous confessions of the defendant on tape are lies.
Today one of the worst lies I would suggest you may have heard is when he said he didn’t find her desirable.

During the settling of jury instructions, the prosecution requested that certain instructions be given on sexual assault. Defense counsel objected to the giving of the instructions without explanation. The instructions on sexual assault were given over this objection.

At trial, the jury found the defendant not guilty of sexual intercourse without consent, but convicted him of the crime of sexual assault, a felony. At sentencing, the District Court found appellant to be a persistent felony offender pursuant to § 46-18-501, MCA. The court sentenced appellant to 60 years in the Montana State Prison with 20 years suspended. For purposes of this appeal, the appellant only appeals his conviction of sexual assault.

I.

Was appellant denied his right to a fair trial by repeated instances of alleged prosecutorial misconduct?

Appellant contends that the State engaged in prosecutorial misconduct by eliciting inadmissible evidence with no factual basis; characterizing witnesses as liars; using misleading and inflammatory argument; expressing personal opinions; and using the complaining witness’s religious beliefs to enhance her credibility.

Section 46-20-104(2), MCA, procedurally bars review of alleged errors not objected to at trial.

(2)Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).

§ 46-20-70l(2)(a)-(c), MCA, allows claims which are presented for the first time on appeal if the error is prejudicial to the defendant’s guilt and:

(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated where not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence. The record reflects that in all of the instances appellant claims

were prosecutorial misconduct, not one objection was made by defense counsel. Appellant’s claim does not fall into one of the three exceptions listed in § 46-20-701, MCA.

Appellant also alleges that not withstanding the lack of objections at trial, the prosecution’s misconduct amounted to plain error. In State v. Wilkins (1987), 229 Mont. 78, 746 P.2d 588, we stated:

The plain error doctrine provides a remedy in such situations to prevent manifest injustice. When the substantial rights of a defendant are involved, the lack of timely objection does not preclude us from exercising our power of discretionary review to examine any error at the trial court level.

Wilkins, 746 P.2d at 589. We utilize the plain error doctrine only when it is necessary to insure a fair and impartial trial. Wilkins, 746 P.2d at 589. The plain error doctrine is used sparingly and should not be relied upon by counsel. Wilkins, 746 P.2d at 589. The record does not contain any error not objected to that demonstrates an infringement of the substantial rights of appellant that persuades us to exercise our discretionary review. We hold that appellant was not denied his right to a fair trial.

II.

Did the District Court err by instructing the jury that sexual assault was a lesser included offense of sexual intercourse without consent?

At the settlement conference for jury instructions, the State proposed a series of instructions which sought to include sexual assault as a lesser included offense of sexual intercourse. The record reflects that defense counsel objected to the giving of the lesser included instruction but did not specifically state his reasons for the objections. Over defense counsel objections, the District Court gave the State’s lesser included instructions as Court Instructions No. 11 through No. 15.

Section 46-16-401(4)(b), MCA (1989), requires that counsel has a duty to specify the grounds upon which a jury instruction objection is based. The statute provides in relevant part:

On such settlement of instructions, the respective counsel or the parties shall specify and state the particular ground on which an instruction is objected to. It shall not be sufficient to object generally that the instruction does not state the law or is against the law, but the objection must specify particularly wherein the instruction is insufficient or does not state the law or what particular clause therein is objected to.

In absence of a proper objection, the lesser-included offense issue was not preserved for appeal in accordance with § 46-20-701(2), MCA. Without discussing whether § 45-5-502, MCA (1989), is a lesser-included offense of § 45-5-503, MCA (1989), we hold that appellant waived his objection for the pin-pose of this appeal.

III.

Did the District Court err by instructing the jury that “without consent” was an essential element of the offense of sexual assault?

In Instruction No. 12, the District Court stated that an element of sexual assault is that the sexual contact was without the consent of J.C.B. It has long been the rule in Montana that “without consent” is not an element of sexual assault where the victim is less than 14 years old and the offender is three or more years older than the victim. State v. Price (1980), 191 Mont. 1, 622 P.2d 160; State v. Hall (1986), 224 Mont. 187, 728 P.2d 1339; State v. SorLokken (1991), 247 Mont. 343, 805 P.2d 1367; § 45-5-502, MCA (1989). J.C.B. was 13 years old and appellant was 25 years old at the time of the offense. The court also gave Instruction No. 14 which stated that:

Consent is ineffective, under the offense of Sexual Assault, if the victim is less than 14 years old and the offender is 3 or more years older than the victim.

Instruction No. 12 added an extra element for the State to prove beyond a reasonable doubt. Thus, the giving of the erroneous instruction did not prejudice the appellant.

In addition, appellant failed to object to this instruction on the grounds stated for in this appeal. Defense counsel objected to Instruction No. 12 on the grounds that it addressed the lesser-included offense. The giving of Instruction No. 14 cured any possible error by the erroneous instruction. We hold that the District Court did not error in giving Instruction No. 12.

We affirm.

JUSTICES HARRISON, TRIEWEILER, McDONOUGH and WEBER concur.