author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHRISTOPHER ARTHUR MCKEON, Defendant and Appellant.
    No. 96-330.
    Submitted on Briefs March 27, 1997.
    Decided May 8, 1997.
    54 St.Rep. 404.
    282 Mont. 397.
    938 P.2d 643.

      See C.J.S. Criminal Law § 1040.

      For Appellant: Brian P. Fay, Angel, Serenar, Coil, Bartlett & Fay, Bozeman.
    For Respondent: Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena; Marty Lambert, Gallatin County Attorney, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Christopher Arthur McKeon (McKeon) was found guilty of one count of robbery and one count of felony theft following a jury trial in the Eighteenth Judicial District Court, Gallatin County, and was subsequently sentenced to a term of years at the Montana State Prison. McKeon appeals, arguing that the District Court made several incorrect evidentiary rulings which require that his guilty verdicts be reversed.

We affirm the District Court.

McKeon presents the following issues for our review:

1. Whether McKeon’s booking photo, which was not part of the reciprocal discovery package, should have been admitted into evidence.

2. Whether photographs depicting McKeon with his alleged accomplices, brandishing firearms, should have been excluded as irrelevant and highly prejudicial.

3. Whether the prosecution should have been permitted to elicit testimony from the arresting officer speculating as to the most direct route McKeon may have traveled from Montana to Iowa.

4. Whether testimony identifying McKeon’s vehicle as a stolen vehicle should have been excluded as “other crimes” evidence.

5. Whether the “cumulative error doctrine” as applied to the above-cited errors warrants a finding of reversible error.

BACKGROUND

At approximately 10:50 a.m. on November 5,1994, two men robbed the Story Exxon gas station and convenience store in Bozeman, Montana. The clerk on duty at the time of the robbery testified at trial that the two men wore black knit caps pulled down to partly cover their faces. The caps had eye holes cut into them to allow the robbers to see. One of the robbers, robber #1, was carrying a sawed-off shotgun partly concealed under his coat. Robber #2 was carrying under his coat a sawed-off rifle. The clerk described robber #1 as in his forties, approximately five feet, six inches tall and 160 pounds, and unshaven, with dark, grey-specked facial hair. The clerk described robber #2 as a younger man, in his thirties, nearly six feet tall, and, like robber #1, unshaven.

The robbers pointed their weapons at the clerk and demanded the money in the till and in the store safe. The robbers then made the clerk lie face down on the floor, where they bound his wrists and covered his eyes with duct tape. Before leaving the store with nearly $1460, the robbers took a ten-pack roll of Copenhagen snuff from the counter and a twelve-pack of Budweiser beer from the cooler. The clerk notified the authorities shortly after the robbers left, but a police investigation in Bozeman failed to result in either the identification or apprehension of any suspects in the robbery.

However, at approximately 8:00 p.m. on November 5, 1994, a Johnson County, Wyoming Deputy Sheriff, John Wohlbrandt, after investigating a stolen vehicle report, arrested Cecil Ashworth outside of a convenience store in Buffalo, Wyoming. At the time of his arrest, Ashworth was unkempt and unshaven, and had $450 in his pocket.

Deputy Wohlbrandt impounded the stolen vehicle. Officers from the Bozeman Police Department who were investigating the robbery there were dispatched to Buffalo the next day. A search of the stolen vehicle resulted in the seizure of a roll of Copenhagen, a sawed-off 22-caliber rifle and ammunition, an open twelve-pack of Budweiser beer, a brown knit cap with eye holes cut into it, and an Oregon license plate.

Meanwhile, on November 6,1994, at approximately 10:00 p.m., an Iowa state trooper pulled over a black Ford Courier pick-up truck for speeding. The truck’s lone license plate was from Oregon, and it was later determined that the license plate’s mate was the Oregon plate found in the car Ashworth stole in Wyoming. It was also determined later that the pick-up was similar in color, year, and design to the truck seen circling the area around the Story Exxon shortly before the robbery occurred there. The trooper ran a check on the truck, determined that it was stolen, and then arrested the driver, McKeon, and the female passenger, Debbie Ashley. At the time of their arrests, McKeon had $482 cash in his billfold and Ashley had $160 cash in her purse. A booking photograph was later taken of McKeon, which depicts a man with dark hair and dark, grey-specked facial stubble.

The pick-up was impounded, and subsequently searched. Iowa authorities initially discovered a sawed-off .12-gauge shotgun, 40 rounds of .12-gauge shotgun ammunition, a plastic bag with loose change, and a bag containing rolls of quarters, dimes, and nickels. They also found a hacksaw blade, a dark blue knit cap with eye holes cut into it, an atlas opened to the state of Iowa, a .22-caliber shell and a roll of duct tape. A subsequent search revealed a receipt from Sunshine Foods in Sioux Falls, South Dakota, dated November 6, 1994, and a receipt from Thrifty Motor Inn in Rapid City, South Dakota, dated November 5, 1994.

Ashworth and McKeon were charged with robbery and theft in connection with the Story Exxon hold up, and Ashley was charged with accountability for robbery. McKeon and Ashworth, identified as robbers #1 and #2, respectively, were tried separately, and Ashley, pursuant to a plea agreement, testified as a State witness in McKeon’s trial. Ashley testified that she, McKeon and Ashworth traveled together through the western United States in the fall of 1994; that in October in Colorado she purchased a shotgun for McKeon and a rifle for Ashworth, weapons which the men later altered and used in the robbery in November; that she, McKeon and Ashworth drove to Bozeman in the black Ford Courier pick-up truck, and that McKeon and Ashworth, with masks on and their weapons tmder their jackets, entered the Story Exxon mid-morning on November 5,1994; that after the robbery, the three of them drove to Gillette, Wyoming, where Ashworth separated from McKeon and Ashley; and, that she and McKeon continued on eastward until they were arrested in Eldora, Iowa.

Over McKeon’s objections, the court admitted the following evidence relevant to this appeal: the booking photograph of McKeon taken after his arrest in Iowa; a photograph, taken in October 1994, of McKeon brandishing a shotgun and Ashworth brandishing a rifle; a photograph, taken in October 1994, of McKeon and Ashley; a photograph, taken in October 1994, of Ashworth and Ashley; testimony regarding the most direct route McKeon may have traveled from Montana to Iowa; and, testimony identifying as stolen the pick-up McKeon was driving when he was arrested in Iowa. Following the presentation of this and other evidence, the jury found McKeon guilty of the crimes charged. McKeon appeals.

STANDARD OF REVIEW

The district courts have broad discretion to determine whether or not evidence is relevant and admissible. State v. Oatman (1996), 275 Mont. 139, 143-44, 911 P.2d 213, 216. An item of evidence is relevant if it will have any value, as determined by logic and experience, in proving the proposition for which it is offered. Oatman, 911 P.2d at 216 (citation omitted). We review a district court’s evidentiary ruling to determine whether the court has abused its discretion. Oatman, 911 P.2d at 216 (citation omitted). Even if evidence is improperly admitted, we will reverse the district court only if the admission of the evidence prejudiced the defendant. State v. Gray (1983), 202 Mont. 445, 449, 659 P.2d 255, 257. “The test of prejudicial error requiring reversal is this: Is there a reasonable possibility that the inadmissible evidence might have contributed to the conviction?” Gray, 659 P.2d at 257 (citation omitted).

ISSUE ONE

Whether McKeon’s booking photo, which was not part of the reciprocal discovery package, should have been admitted into evidence.

At trial, McKeon’s hair was a brownish-red color. The Story Exxon clerk and others who had glimpsed the robbers described robber #1 as having dark hair. When Iowa State Trooper Pearson, who had arrested McKeon in Iowa, came to Bozeman to testify, he brought with him McKeon’s booking photograph. When the State discovered that Trooper Pearson had the photo, it notified McKeon and provided him with the photo the day before trial. The photograph, which shows a dark-haired McKeon at the time of his arrest in Iowa, was admitted at trial and served to support the State’s assertion that McKeon was indeed robber #1, while at the same time undermined McKeon’s assertion that he was not robber #1 because his appearance was inconsistent with the descriptions given by the State’s witnesses.

McKeon contends the photograph was improperly admitted because it was not part of the reciprocal discovery package. Sections 46-15-322 and -323, MCA, require the prosecution and the defense to disclose all relevant information in order to “provide notice and prevent surprise.” State v. Davidson (1994), 266 Mont. 404, 410, 880 P.2d 1331, 1335 (citing State ex rel. Sikora v. District Court (1969), 154 Mont. 241, 462 P.2d 897).

When deciding whether a photograph is admissible, the court must first determine whether the photograph is relevant and, second, whether the probative value of the photograph outweighs the possible prejudicial effect. Rule 403, M.R. Evid.; see also State v. Bristow (1994), 267 Mont. 170, 176, 882 P.2d 1041, 1045. Here, the relevancy of the photograph is not seriously disputed. This case is about the identity of robber #1, and the photograph, taken two days after the commission of the robbery, establishes McKeon’s identity around the time of the robbery and corroborates State witness descriptions of the hair color of robber #1.

However, McKeon contends that because the photograph was not produced with other evidence at the time of reciprocal discovery, but rather was produced the day before trial, he was unfairly surprised, the prosecution gained an unfair advantage, and his case was prejudiced. McKeon’s argument here would be stronger were there any indication that the State deliberately withheld the photograph until the day before trial. A review of the record does not reveal this to be the case. Instead, the record shows McKeon acknowledged that the State had not intentionally withheld the photograph from him. That being the case, the State correctly contends that it properly and timely informed McKeon of the photo’s existence, pursuant to its continuing duty to disclose. Section 46-15-327, MCA.

The State’s compliance with the spirit of the discovery rules does not end the inquiry here. A relevant piece of evidence disclosed in accordance with the discovery rules may still be excluded from trial if its probative value is outweighed by its potential prejudicial effect. That is not, however, the situation here. McKeon placed identity at issue at trial, noting in his opening statement the discrepancy between the State’s witnesses’ descriptions of robber #1, and his appearance at trial. The photograph’s value in linking McKeon and robber #1 as the same person outweighs any potential prejudicial effect. In any event, we are not convinced that McKeon was unfairly prejudiced by the photograph. McKeon’s decision to alter his physical appearance at trial from his described physical appearance at the time of the robbery, to insert the issue of mistaken identity, was a strategic decision that failed. We commented on another defendant’s failed strategic decision in State v. Madera (1983), 206 Mont. 140, 148, 670 P.2d 552, 556:

He took a chance and his strategy failed. He was caught in a trap of his own making, and no constitutional or statutory impurity arose thereby.

The court did not abuse its discretion when it admitted McKeon’s booking photograph.

ISSUE TWO

Whether photographs depicting McKeon with his alleged accomplices, brandishing firearms, should have been excluded as irrelevant and highly prejudicial.

Iowa police officers discovered among Debbie Ashley’s personal effects three Polaroid photographs which were ultimately admitted at McKeon’s trial. State’s exhibit 69 is a photograph of McKeon posing with a shotgun in his hands, and Ashworth posing with a rifle in his hands. On the back of the photograph are the inscriptions “10/17/94” “Bubba & my Baby” and “Utah.” State’s exhibit 70 is a photograph of Ashley and McKeon standing closely together, McKeon’s arm around Ashley’s shoulder. On the back of the photograph are the inscriptions “10/17/94” “Me and my Baby” and “Utah.” State’s exhibit 71 is a photograph of Ashley and Ashworth, on the back of which are the inscriptions “10/17/94” “Me and Bubba” and “Utah.”

McKeon contends that the photographs should not have been admitted, as they are irrelevant to the issue of the identity of robber #1, unnecessary cumulative evidence, and prejudicial. McKeon asserts that State’s exhibit 71, the photograph of Ashley and Ashworth, is irrelevant to the ultimate issue at trial, whether McKeon is robber #1. McKeon argues that the other two photographs are cumulative evidence of McKeon’s identity in light of the testimony of the arresting officer and the Iowa booking photograph, both of which establish McKeon’s identity near the time of the robbery. Finally, McKeon claims that State’s exhibit 69, the photograph of McKeon and Ash-worth “boastfully” posing with their weapons, is by its very nature unfairly prejudicial.

We do not agree with McKeon’s characterization of the purpose and effect of these photographs. All three photographs are relevant for the purpose of corroborating portions of Debbie Ashley’s accomplice testimony, in which she described the chain of events leading up to and following the Story Exxon robbery. In particular, the photographs corroborate that she, Ashworth, and McKeon were traveling together around the western United States in the latter part of 1994, and that she purchased a shotgun for McKeon and a rifle for Ashworth in Colorado in mid-October, 1994, weapons similar to the sawed-off shotgun and sawed-off rifle used in the Story Exxon robbery on November 4, 1994.

We are not swayed by McKeon’s argument that because he did not dispute the portions of Ashley’s testimony that these photographs corroborate, and because those portions of testimony do not address the ultimate issue in the case, the photographs therefore are not corroborative of anything relevant and should have been excluded. This argument loses sight of both the fact that McKeon strongly attacked Ashley’s credibility as a witness, and, similarly, that as an accomplice Ashley’s testimony was by statute ineffective if not corroborated. See § 46-16-213, MCA. Nor are we convinced that exhibit 69, the photograph of McKeon and Ashworth brandishing their weapons, is so prejudicial as to render it inadmissible. As stated, the photograph corroborates Ashley’s testimony that she purchased for the men weapons similar to those used in the robbery. Moreover, the photograph is probative of the fact that McKeon and Ashworth had in their possession approximately three weeks prior to the robbery weapons similar to those used in the robbery. That the weapons in the picture are not altered in the way that the robbery weapons were does not render the photograph irrelevant, especially when considered in conjunction with other pertinent evidence in the case, namely the hacksaw blade found in the black Ford pick-up truck. The probative value of this photograph outweighs any possible prejudicial effect.

The State’s corroboration of Ashley’s testimony was both necessary and prudent, and the Polaroid photographs were properly admitted for that purpose. The court did not abuse its discretion.

ISSUE THREE

Whether the prosecution should have been permitted to elicit testimony from the arresting officer speculating as to the most direct route McKeon may have traveled from Montana to Iowa.

At trial the State questioned Iowa Police Trooper Stoner about two receipts he discovered pursuant to a search of the black pick-up after it had been impounded. Officer Stoner explained that he found a receipt dated November 5 from the Thrifty Motor Inn in Rapid City, South Dakota, and a receipt dated November 6,1994, from Sunshine Foods in Sioux Falls, South Dakota. Officer Stoner then was asked to describe the most direct route from Bozeman to Eldora, Iowa, where McKeon was arrested. In describing this route, Trooper Stoner used as mileposts Gillette, Wyoming; Rapid City, South Dakota; and Sioux Falls, South Dakota. McKeon contends that this testimony was improper because it allowed the jury “to indulge in improper speculation and guesswork.” Kuiper v. Goodyear Tire & Rubber Co. (1983), 207 Mont. 37, 53, 673 P.2d 1208, 1217. McKeon argues that in admitting this testimony, the court committed reversible error.

We agree that Trooper Stoner’s “direct route” testimony was improper, but do not agree that in allowing the testimony, the court committed reversible error. Officer Stoner had no personal knowledge of the route McKeon had traveled prior to his arrest in Iowa, and, while he did not expressly state that McKeon followed the direct route from Montana to Iowa, the implication is clear. The description of the route, along with the receipts from two towns along the route, would together promote improper juror speculation as to where McKeon had been prior to his arrest in Iowa.

However, McKeon has failed to demonstrate how the admission of this testimony requires that we reverse. “The test of prejudicial error requiring reversal is this: Is there a reasonable possibility that the inadmissible evidence might have contributed to the conviction?” Gray, 659 P.2d at 257 (citation omitted). The prejudice McKeon alleges resulted from the testimony is that the jury could, through sheer speculation, follow the “direct route” backwards from Eldora, Iowa to Bozeman, placing McKeon at the site of the robbery. However, McKeon fails to consider the other evidence properly admitted at trial which is probative of both his involvement in the Story Exxon robbery and his travel route from Bozeman to Eldora: testimony from Bozeman resident Mark Bissell that he saw a black Ford Courier pick-up with three occupants circle around and then park in the Story Exxon parking lot mid-morning on November 5, 1994; testimony from Trooper Pearson that McKeon was driving a black Ford Courier pick-up when he was arrested in Iowa; the clerk’s description of the robbers, corroborated by the physical evidence recovered in Wyoming and Iowa; and, Ashley’s account of the robbery and her subsequent travels with McKeon and Ashworth to Wyoming, then with McKeon only on to Iowa. In light of the other evidence placing McKeon in Bozeman on November 5, 1994, the court’s erroneous admission of Trooper Stoner’s “direct route” testimony did not unfairly prejudice McKeon, did not contribute to his conviction, and is not cause for reversal.

ISSUE FOUR

Whether testimony identifying McKeon’s vehicle as a stolen vehicle should have been excluded as “other crimes” evidence.

At trial, the State elicited testimony from Trooper Pearson that when he pulled McKeon over for speeding in Iowa and subsequently “ran a check” on the pick-up’s license plate, he learned that the truck was reported as stolen. McKeon argues that this testimony was admitted in violation of the rule prohibiting “other crimes” evidence. See State v. Matt (1991), 249 Mont. 136, 814 P.2d 52; see also Rule 404(b), M.R.Evid.

The State contends, however, that at trial McKeon did not enter a specific objection to this testimony, and therefore improperly raises this issue on appeal. Citing Rule 103(a)(1), M.R.Evid., and State v. Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098, the State argues that a defendant is required to “object in a timely manner and state the specific ground unless the specific ground was apparent from the context.” While McKeon did object at trial, the State claims that this objection was not specific, nor was the specific ground for the objection apparent from the context.

The relevant testimony involved the Gallatin County Attorney’s questioning of Trooper Pearson about his, Pearson’s, actions upon stopping McKeon for speeding. The County Attorney asked Trooper Pearson after Pearson explained that McKeon gave him false identification:

Q: And what happened then?
A: Then I called in to dispatch my location and I gave them the plate that was on the Ford Courier.
Q: What do you mean, you gave them the plate that was on the Ford Courier?
A: I told them the vehicle I was out with, and I gave them the plate numbers so they could rim it to find out if it would be stolen or who it came back to, what kind of vehicle it came back to.
Q: And did you receive that information from your radio dispatch?
A: I did.
[Defense Counsel]: Objection, Your Honor.
THE COURT: Overruled.
[County Attorney]: You may answer.
Q: Did you receive that information?
A: I did.
Q: And what information did you receive?
A: I received that it was a stolen vehicle.

McKeon’s objection was generic, not specific. Moreover, we are not convinced that when this dialogue took place, the specific grounds for McKeon’s objection were apparent either to the court or to the county attorney. “Before the trial court will be put in error it must be given a chance to correct itself.” State v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300, 304. Similarly, the party offering the evidence should be given an opportunity to make an offer of proof or rephrase his questions to explain, contest, or avoid the purported error. McKeon’s nonspecific objection to Trooper Pearson’s testimony was insufficient for purposes of appeal, and we therefore will not consider the merits of this issue.

ISSUE FIVE

Whether the “cumulative error doctrine” as applied to the above-cited errors warrants a finding of reversible error.

McKeon contends that his allegations of court error, in the aggregate, were so prejudicial as to warrant reversal. However, we have determined that the only court error here was in allowing the speculative “direct route” testimony, and that the error was not prejudicial. McKeon’s “cumulative error” argument is therefore inapplicable and we need not address it.

CONCLUSION

The District Court did not abuse its discretion in making the evidentiary rulings at issue here. McKeon has made no showing of prejudice. The evidence of his guilt is overwhelming. Therefore, we affirm the decision of the District Court.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, TRIEWEILER and LEAPHART concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    IN RE THE MARRIAGE OF SHAWN LEE, Petitioner and Respondent, and LISA KERRY LEE, Respondent and Appellant.
    No. 96-253.
    Submitted on Briefs April 4, 1997.
    Decided May 13, 1997.
    54 St.Rep. 409.
    282 Mont. 410.
    938 P.2d 650.

      See C.J.S. Divorce § 399.

      For Appellant: Richard A. Reep, Reep, Spoon & Gordon, Missoula.
    For Respondent: Richard R. Buley, Tipp & Buley, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Shawn Lee and Lisa Kerry Lee were divorced in 1996. Lisa appeals from the findings, conclusions, decree of dissolution, and other rulings of the Twenty-First Judicial District Court, Ravalli County. We affirm.

Lisa raises eight issues on appeal, which we restate as follows:

1. Did the District Court err when it modified its temporary maintenance order?

2. Did the District Court err when it awarded maintenance of $100 a year to Lisa?

3. Did the District Court err when it ordered returned an issued writ of execution?

4. Did the District Court err when it did not consider Shawn’s failure to carry health insurance for Lisa?

5. Did the District Court err when it valued Shawn’s veterinary practice?

6. Did the District Court err when it did not consider Lisa’s contribution of premarital property and inherited funds?

7. Did the District Court err when it refused to hear Lisa’s testimony as an expert witness concerning the value of the clinic?

8. Did the District Court err when it failed to award Lisa attorney fees?

BACKGROUND

Shawn and Lisa were married in 1985. At the time of their marriage, neither party owned any significant assets. No children were born of the marriage.

Lisa obtained a Bachelor of Arts degree in radio/television advertising management in 1983 and worked full-time until 1987, when she quit due to job-related stress. Lisa suffers from health problems but maintains an active lifestyle and full-time employment. Following the parties’ separation, Lisa was employed by a veterinary clinic earning $1,600 per month. She applied to law school in 1995 but was not admitted.

Shawn obtained a Bachelor of Science degree in 1986 and his doctorate in veterinary medicine in 1990 from Washington State University. He financed his education with loans, in his name only, that totaled $61,500. From 1983 to 1996, he also obtained a total of $50,000 from his parents. No promissory notes were executed for these funds, and no interest or specific repayment plan was discussed.

Between 1986 and 1988, Lisa received $45,000 from her grandmother’s estate, which was deposited in a joint account in the names of Lisa, her mother, and her brother. The inheritance was apparently spent for the joint living expenses of Shawn and Lisa. From 1984 to 1993, Shawn and Lisareported total taxable incomes of$103,462 and $101,111 to the IRS.

In 1993, the parties moved to Hamilton, Montana, to establish the Montana Large Animal Veterinary Clinic, obtaining a $108,000 SBA loan and a $30,000 unsecured loan to open the clinic. The SBA loan is a joint loan between Shawn and Lisa and is guaranteed by Shawn’s parents. The other loan is personal to Shawn. Eighty-four thousand dollars is still owed on the SBA loan.

Shawn and Lisa opened the clinic in 1993. They projected their first-year income at $120,000, which was exceeded by $10,000, but they underestimated their expenses. Although their business plan projected a break-even first year after a $30,000 salary, the Lees suffered a loss of over $18,000 with no salary. The parties offered conflicting evidence regarding Lisa’s involvement with the clinic. Shawn acknowledged that Lisa attempted to promote the clinic among horse owners and performed bookkeeping and office functions, but denied that she played a significant role as a veterinary assistant as originally planned.

In 1994, Shawn petitioned for dissolution of marriage. Lisa requested temporary maintenance of $4,800 per month, based on her ordinary living expenses established during the marriage. The court awarded her $1,500 per month in temporary maintenance and $175 per month for the care of the parties’ horses. On March 28, 1995, the District Court issued a writ of execution in favor of Lisa for unpaid maintenance, but then the court ordered the writ returned. Shawn moved to modify temporary maintenance due to insufficient income.

After Shawn failed to make any substantial maintenance payments, a contempt hearing was held. The court ordered Shawn incarcerated for one day and allowed him twenty days to bring temporary maintenance into compliance. On July 11, 1995, the District Court heard Shawn’s motion to modify temporary maintenance. The court found that the clinic had a “negative value.” In 1994, Shawn reported $101,700 in gross receipts, leaving the clinic with a net loss of $2,600, with no salary paid. In 1995, the clinic grossed $75,000. The court determined that Shawn had proven unable to support himself and to pay maintenance and ordered cessation of temporary maintenance. It also reserved jurisdiction to reconsider modification of temporary maintenance retroactively and ordered Shawn to provide Lisa with health insurance until the parties’ marriage was dissolved.

At trial, Shawn testified that the parties’ breakup caused a decline in patronage, and he lost accounts due to ownership changes. He relied on a friend for a place to live and basic living expenses, supplemented by loans from his parents. Dr. Brown, a veterinarian with a large animal practice in Missoula, Montana, testified that in 1995 his gross income was $95,000. Dr. Kelly, a veterinarian with a large animal practice in Corvallis, Montana, testified that during the first year of her clinic in 1995, she earned over $10,000 per month in gross receipts.

The District Court calculated the parties’ assets as $64,775 and the debts incurred during the marriage as $228,455. It then divided the marital estate as follows:

Shawn Lisa

Assets $ 38,500 $26,275

Debts -$190,204 -$.3.8.251

Net Distribution -$151,704 -$11,976

The court concluded that Shawn should be hable for the debt owed to his parents, and Lisa should be liable for her contract for deed obligations associated with property acquired after the parties’ separation. The court dissolved the marriage, retroactively modified its 1994 order requiring temporary maintenance, ordered Shawn to pay maintenance of $100 a year for five years and $686 in back-due temporary maintenance, and ordered Shawn and Lisa to bear their own legal fees. Lisa appeals from the findings, conclusions, final decree, and other rulings issued during the action.

DISCUSSION

1. Did the District Court err when it modified its temporary maintenance order?

Lisa argues that the District Court lacked jurisdiction in July 1995 to modify temporary maintenance because Shawn’s motion should have been deemed denied for not having been ruled on within forty-five days pursuant to Rule 52(d), M.R.Civ.P. This argument misconstrues Rule 52(d), which applies to Rule 52(b) motions to amend a final judgment and associated findings of fact and conclusions of law. We conclude that the District Court had jurisdiction to modify temporary maintenance.

Lisa maintains that Shawn’s motion to modify temporary maintenance was previously denied and that no other motion was before the court. Lisa misstates the record. On October 28, 1994, Shawn moved to modify temporary maintenance. The hearing was continued. At a contempt hearing on June 14,1995, Shawn explained why he had not paid temporary maintenance and moved for a hearing on his outstanding motion to modify temporary maintenance, which was held on July 11,1995. When the District Court ruled on Shawn’s motion to modify temporary maintenance, it ruled on a still-pending motion. We hold that the District Corut did not err when it modified its temporary maintenance order.

Lisa also argues that the District Court amended its temporary maintenance order without making proper findings and conclusions. Lisa has not provided this Court with a complete transcript of the July 11, 1995, hearing for modification of temporary maintenance. Absent a complete record of the hearing, we are not in the position to, and will not, review the trial court’s findings related to modification of temporary maintenance.

2. Did the District Court err when it awarded maintenance of $100 a year to Lisa?

Lisa requested $3,333 monthly in maintenance for sixty months to fund a law school education, pay bills, and provide for living expenses. The court awarded her $100 in annual maintenance for five years based on its determination that Shawn had insufficient income to meet the needs of himself and Lisa. Lisa argues the court erred because: (1) it did not consider all of the requirements of § 40-4-203, MCA; (2) it did not impute income to Shawn; and (3) it did not provide Lisa with rehabilitative maintenance.

We review a district court’s award of maintenance to determine if the court’s findings are clearly erroneous. In re Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355. The District Court made the following findings of fact concerning maintenance:

54. Lisa lack[s] sufficient property to provide for her reasonable needs. She will emerge from this action with a negative net worth and in debt. She [owns] an adequate home but has insufficient resources to finish the remodeling and ... no equity in the property.
55. Lisa is able to support herself at a spartan level while making payments on the debt allocated to her through appropriate employment .... She has a college education and a varied work history at responsible jobs. She is currently a business manager of a prospering veterinary clinic ... receiving ... net pay of $603.85 biweekly. ... Lisa lacks sufficient disposable income to monthly retire her current debts in full, obtain health insurance, or the medical care she requires, much less the upper middle class lifestyle the couple originally aspired to. Nevertheless she has continued to retain custody of the horses the [cjourt concluded should be sold to pay expenses ....
56. Shawn is leaving the marriage under a staggering debt load and with a far worse negative net worth than Lisa. After three years in Montana ... his professional practice is in a downward spiral with three successive years of losses. His business is worth less now than three years ago. His professional income is enough to make payments on the marital debt sufficient to prevent collection suits and foreclosure as well as immediate business accounts payable, but is insufficient to provide any draw or salary. His personal needs are being met by his parents and ... this situation is [not] likely to change without his bankruptcy or closure of the practice and acceptance of an employment position which would likely carry a monthly salary... insufficient to service the debt load and provide any other income for his individual needs or individual acquisition of capital assets.

Based on these facts, and the other factors required by § 40-4-203, MCA, the District Court concluded that no significant award of maintenance was warranted or possible. However, because it was concerned that a near-term reversal of Shawn’s fortunes following the final decree could cause an inequitable long-term result, it ordered Shawn to pay Lisa maintenance of $100 per year for five years, subject to modification by Lisa upon a showing of changed circumstances so substantial and continuing as to make the terms of the decree unconscionable under § 40-4-208(2)(b), MCA.

The District Court found that Lisa lacked sufficient property to provide for her reasonable needs but also found that she was able to support herself through appropriate employment. These findings do not appear to meet the statutory criteria necessary for maintenance under § 40-4-203, MCA, which require as a condition precedent to an award of maintenance, that the court must find the spouse seeking maintenance ‘lacks sufficient property to provide for [her] reasonable needs; and is unable to support [her] self through appropriate employment.” Section 40-4-203(1), MCA; See also In re Marriage of Luisi (1988), 232 Mont. 243,247-48, 756 P.2d 456,459. However, this Court has held the term “appropriate employment,” as used in § 40-4-203, MCA, “must be determined with relation to the standard of living achieved by the parties during the marriage.” Luisi, 756 P.2d at 459.

The District Court qualified its findings by explaining that Lisa was able to support herself at a spartan level through appropriate employment. The court considered Lisa’s need for health insurance, her continuing medical problems, her income and debt, and lowered standard of living. The court also considered Shawn’s financial situation and ability to meet his needs when it awarded Lisa $100 in annual maintenance. We conclude that the District Court’s findings are not clearly erroneous, and that in its sixty findings the court adequately considered the factors contained in § 40-4-203, MCA, when it awarded maintenance.

Lisa argues that the District Court should have imputed income to Shawn to reflect his earning capacity and his ability to pay maintenance. The findings do not support such a result. The evidence showed that Shawn’s clinic suffered from a decline in gross receipts due to a loss of clients and increased competition from other veterinarians, not from his lack of willingness to work. We hold that the District Court did not err when it did not impute income to Shawn.

Lisa also claims that she is entitled to an award of rehabilitative maintenance because her full-time employment from 1984 to 1987 made it possible for Shawn to attend school and obtain his degree, that she contributed her inheritance to support Shawn, and that her earnings between 1990 and 1993 supplemented Shawn’s employment before he established his practice in Hamilton. Shawn argues that through extensive loans he financed his own education and part of the parties’ living expenses. He notes that over the first decade of the parties’ relationship they had nearly equal earnings. He maintains that his education and license have no intrinsic value, are not marketable or transferable, and have no value apart from his professional practice. We agree.

In a majority of jurisdictions that have ruled on the question, it has been held that an educational degree or a professional license does not constitute marital property subject to division by the court in a marriage dissolution proceeding. See 24 Am.Jur.2d Divorce and Separation § 898 (1983). Such items have no exchange or transferrable value. In re Marriage of Graham (Colo. 1978), 574 P.2d 75, 77. They are personal to the holder, terminate upon death, and are not subject to inheritance, assignment, sale, conveyance, or pledge. Graham, 574 P.2d at 77. They are intellectual achievements which may potentially assist in the future acquisition of property but possess none of the usual attributes of property. Graham, 574 P.2d at 77. See also 4 A.L.R. 4th 1294 (1981).

The District Court recognized that a spouse may have an equitable claim to repayment for any investment she may have made in the license holder’s education or career enhancement to allow that license holder to attain his education and training. The record demonstrates that Shawn financed his own education with student loans included as liabilities in his distribution of the marital estate. Lisa did not put her career on hold or place her own advanced educational plans, if any, on hold for the sake of Shawn’s advancement. According to the record, she was voluntarily unemployed during three of the four years that Shawn attended veterinary school. After Shawn’s graduation, the parties lived primarily on Shawn’s professional income for three years before moving to Hamilton. Between the years of 1984 and 1993, the parties reported nearly the same amount of income to the IRS. It does not appear that Lisa had difficulty finding appropriate self-sustaining employment since the parties’ separation by using her premarital education and the work skills acquired during marriage. Under the facts of this case, the District Court did not abuse its discretion when it did not consider Shawn’s veterinary degree as part of the marital estate.

Lisa suggests she should have been awarded rehabilitative maintenance pursuant to § 40-4-203, MCA, so that she could establish herself at a professional level similar to Shawn’s. This Court and other jurisdictions have considered the concept of rehabilitative maintenance. In Marriage of Williams, this Court affirmed a ten-year $162,597 maintenance award to an attorney’s wife based on the value of her lost career. In re Marriage of Williams (1986), 220 Mont. 232, 714 P.2d 548. Likewise, in Downs v. Downs (Vt. 1990), 574 A.2d 156, the Vermont Supreme Court considered the case of a spouse who had contributed to the education and training of her husband, a physician, when there was insufficient property for distribution. The court held “when one spouse obtains a professional degree during the marriage, but the marriage ends before the benefits of the degree can be realized, the future value of the professional degree is a relevant factor to be considered in reaching a just and equitable maintenance award.” Downs, 574 A.2d at 159. See also Washburn v. Washburn (Wash. 1984), 677 P.2d 152; Reiss v. Reiss (N. J.Super.A.D. 1985), 500 A.2d 24.

We need not decide whether rehabilitative maintenance is receivable in situations where one spouse sacrifices an education or career to enable the other spouse to obtain a professional degree, education, or license. Even if this Court adopted that concept, the facts of this case would not justify such an award. We hold that the District Court did not abuse its discretion when it did not provide Lisa with rehabilitative maintenance.

Lisa argues that she is entitled to maintenance and a property settlement because she was instrumental in preparing a business plan for the SBA loan. The District Court correctly determined that there was insufficient evidence to conclude that the business plan was instrumental in securing the parties’ SBA loan. As the court found, it is more likely that, because the parties possessed no collateral and no net worth, the willingness of Shawn’s parents to guarantee the loan carried more weight in the bank’s decision than the business plan.

The District Court’s findings in support of its maintenance award are not clearly erroneous. We hold that the District Court did not err when it awarded Lisa $100 in annual maintenance for five years.

3. Did the District Court err when it ordered returned an issued writ of execution?

Lisa claims that the District Court erred when it ordered the return of an issued writ of execution because Shawn did not properly object. A question is moot when this Court can fashion no effective relief. Turner v. Mountain Engineering and Const., Inc. (1996), 276 Mont. 55, 63, 915 P.2d 799, 804. We have held under Issue 1 above that the District Court did not err when it modified its temporary maintenance order. A determination of whether the court erred when it ordered returned the issued writ of execution will not grant Lisa effective relief. We conclude that the issue is moot and do not address it farther.

4. Did the District Court err when it did not consider Shawn’s failure to carry health insurance for Lisa?

Lisa claims that the court did not consider Shawn’s failure to comply with its temporary order requiring him to provide her with health insurance. Lisa provides no legal authority, as required by Rule 23, M.R.App.R, to explain how the court erred. Therefore, we decline to further address this issue on appeal.

5. Did the District Court err when it valued Shawn’s veterinary practice?

Following a maintenance modification hearing held on July 11, 1995, the District Court found that Shawn’s practice had a negative value. Lisa argues that there is insufficient evidence in the record to support the court’s finding. Lisa did not file a complete transcript of the hearing as required by Rule 9(b), M.R.App.P. As a result, we cannot review the sufficiency of the evidence on that issue.

The distribution of marital property in a dissolution proceeding is governed by § 40-4-202, MCA. Under this statute, a district court is vested with broad discretion to distribute the marital estate in a manner which is equitable to each party according to the circumstances of the case. In re Marriage of Smith (1995), 270 Mont. 263,267,891 P.2d 522,525. The standard of review of a district court’s division of marital property is whether the court’s findings are clearly erroneous. In re Marriage ofHogstad (1996), 275 Mont. 489, 496, 914 P.2d 584, 588. If substantial credible evidence supports the district court’s judgment, it will not be disturbed absent an abuse of discretion. Hogstad, 914 P.2d at 588.

Lisa claims that when the District Court divided the marital estate, it did not consider the value of the clinic’s good will. The findings and conclusions indicate otherwise. The District Cotut found that Shawn’s professional practice is a marital asset eligible for equitable distribution. It determined that the only recognizable value of a professional practice over and above the net value of its tangible physical assets is the present value of its good will, i.e. the extent to which the practitioner’s net profits exceed that of the average practitioner in the region of the practice. In re Marriage of Hull (1986), 219 Mont. 480, 712 P.2d 1317. The value of the tangible assets of Shawn’s practice is far more than fully secured by his SBA loan.

The court also found that through competition Shawn’s potential market share has been eroded and that his practice has no good will to be distributed. There is substantial credible evidence from Shawn’s testimony and financial records to support the court’s finding that the clinic has a “negative value.” Therefore, the court’s finding is not clearly erroneous. We conclude that the District Court did not abuse its discretion when it valued Shawn’s veterinary practice.

6. Did the District Court err when it did not consider Lisa’s contribution of premarital property and inherited funds?

Lisa argues that the court did not consider her premarital property when it divided the marital estate. The District Court found that neither party owned any significant assets at the time of their marriage. We conclude that the District Court did not abuse its discretion.

Lisa also argues that the court did not consider her inheritance in its division of the marital estate. Whether inherited property is a marital asset remains a question to be treated on a case-by-case basis. In re Marriage ofKimm (1993), 260 Mont. 479, 485, 861 P.2d 165, 169. The District Court found that, “No proof was presented to document Lisa’s representations and the [c]ourt is unable to verify her claims as to the disposition of her inheritance.” At trial, Lisa testified that she used her inheritance for living expenses when she was not working after 1987. The remainder was spent for a pickup truck and other personal property still in Lisa’s possession. Lisa is not entitled to a credit in the division of the marital estate based on her inheritance. We hold that the District Court did not abuse its discretion when it did not include Lisa’s inherited funds in the marital estate.

7. Did the District Court err when it refused to hear Lisa’s testimony as an expert witness concerning the value of the clinic?

Lisa argues that the court abused its discretion when, at trial, it refused to hear her opinion concerning the value of the clinic because she was not qualified under Rule 702, M.R.Evid. The determination of the qualification of an expert witness is a matter of discretion for the trial court. Absent a showing of abuse of that discretion, the decision will not be disturbed. In re Marriage ofArrotta (1990), 244 Mont. 508, 511, 797 P.2d 940, 942.

After sustaining Shawn’s objection regarding Lisa’s proposed expert testimony, the District Court allowed Lisa to make an offer of proof. Lisa testified that the average annual gross income for veterinary practices in western Montana similar to Shawn’s is $263,000. The issue of Lisa’s proposed expert testimony is not determinative in this case. We conclude that the District Court did not abuse its discretion when it determined that Lisa was not qualified to testify as an expert witness.

8. Did the District Court err when it failed to award Lisa attorney fees?

Lisa argues that the court erred by requiring each party to bear their own legal expenses. She also argues that the court abused its discretion because she incurred substantial attorney fees attempting to enforce court-ordered temporary maintenance.

Section 40-4-110, MCA, grants a district court discretion to award attorney fees in a marriage dissolution action after considering the financial resources of both parties. In re Marriage of Walls (1996), [278 Mont. 413], 925 P.2d 483, 487. A district court’s determination regarding attorney fees will not be disturbed absent an abuse of discretion. Walls, 925 P.2d at 487.

The District Court found that both parties incurred substantial legal fees and neither had the income or resources to pay their own fees, much less those of the other party. We hold that the District Court did not abuse its discretion when it did not award Lisa attorney fees.

We affirm the District Court’s findings of fact, conclusions of law, final decree of dissolution, and other rulings issued during the action.

JUSTICES NELSON, REGNIER, TRIEWEILER and LEAPHART concur.


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    DARWIN ZEMPEL, Petitioner and Appellant, v. UNINSURED EMPLOYERS’ FUND, Respondent and Insurer.
    No. 96-103.
    Submitted on Briefs July 11, 1996.
    Decided May 15, 1997.
    54 St.Rep. 415.
    282 Mont. 424.
    938 P.2d 658.

      See C.J.S. Workmen’s Compensation § 19.

      For Appellant: Thomas C. Bulman; Bulman Law Associates, Missoula.
    For Respondent: Mark Cadwallader, Department of Labor & Industry, Legal Services Division, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Darwin Zempel (Zempel) appeals from the judgment of the Workers’ Compensation Court dismissing his petition for a declaratory judgment. We affirm.

We restate the issues on appeal as follows:

1. Did the Workers’ Compensation Court err in concluding that § 39-71-501, MCA (1991), as applied, does not deny Zempel equal protection of the laws?

2. Did the Workers’ Compensation Court err in concluding that § 39-71-501, MCA (1991), as applied, does not deny Zempel access to the courts?

FACTUAL AND PROCEDURAL BACKGROUND

The facts in this case are undisputed. In early December of 1991, Zempel was living and working on the Flathead Reservation in Lake County, Montana. He injured his eye while employed by Rodney Schall (Schall), an enrolled member of the Confederated Salish and Kootenai Tribes (Confederated Tribes) of the Flathead Reservation. Zempel is not a member of the Confederated Tribes.

At the time of Zempel’s injury, Schall was conducting a logging operation on the Flathead Reservation pursuant to a contract with Flathead Post and Pole Yard, Inc. (Flathead Post and Pole), a tribally-owned business. Schall did not have workers’ compensation insuranee at the time of Zempel’s injury. The Confederated Tribes carried workers’ compensation insurance, obtained through the State Compensation Mutual Insurance Fund (State Fund), which covered tribal members employed by Flathead Post and Pole.

Following his injury, Zempel filed two petitions in the Workers’ Compensation Court seeking workers’ compensation benefits from the State Fund. Those petitions were dismissed without prejudice after the parties agreed to proceed in the Confederated Tribes’ tribal court (Tribal Court).

In accordance with the parties’ agreement, the State Fund, together with Flathead Post and Pole, filed a declaratory judgment action in the Tribal Court, naming Schall and other loggers as respondents. The State Fund and Flathead Post and Pole requested the Tribal Court to determine whether Schall and the other loggers’ contracts with Flathead Post and Pole required them to carry workers’ compensation insurance. The petition also requested the Tribal Court to determine whether the Workers’ Compensation Act (the Act) is applicable to a business wholly owned by an enrolled tribal member (Indian business) and operated exclusively within the exterior boundaries of the Flathead Reservation. Zempel intervened in the action.

The Tribal Court concluded that Schall’s contract with Flathead Post and Pole did not require him to carry workers’ compensation insurance. It further concluded that the Act does not apply to an Indian business conducted exclusively within the exterior boundaries of the Flathead Reservation.

Zempel then sought benefits for his injury from the Uninsured Employers’ Fund (UEF), a statutory fund which is part of the Act and the general purpose of which is to pay an injured employee of an “uninsured employer” the benefits the employee would have received if the employer had been properly enrolled under the Act. The UEF denied Zempel’s claim for benefits on the basis that Schall was not an “uninsured employer” as defined in § 39-71-501, MCA (1991), because he was not — and could not be — required to carry workers’ compensation insurance under the Act.

Zempel subsequently petitioned the Workers’ Compensation Court for a declaratory judgment, naming the UEF as the respondent. Zempel and the UEF agreed that Schall could not be required to carry workers’ compensation insurance and, therefore, that he was not an “uninsured employer” as defined in § 39-71-501, MCA (1991). By stipulation, they limited the issue before the Workers’ Compensation Court to whether § 39-71-501, MCA(1991), as applied, denies Zempel equal protection of the laws or access to the courts in violation of the Montana Constitution.

In accordance with well-established case law requiring courts to avoid constitutional questions whenever possible, the Workers’ Compensation Court made an independent determination that the Act does not apply to a business wholly owned by tribal members and operating exclusively on the Flathead Reservation. As a result, the court concluded that Schall was not required to provide workers’ compensation insurance for his employees; that, for the same reason, Schall was not an uninsured employer within the meaning of § 39-71-501, MCA (1991); and, therefore, that the UEF is not statutorily obligated to pay benefits for Zempel’s work-related injury. Turning to the constitutional questions of whether § 39-71-501, MCA (1991), as applied, denied Zempel equal protection of the laws or access to the courts under the Montana Constitution, the Workers’ Compensation Court concluded that it did not. Zempel appeals the court’s conclusions on his constitutional arguments.

STANDARD OF REVIEW

It is well-established in Montana that a legislative enactment “is presumed to be constitutional and will be upheld on review except when proven to be unconstitutional beyond a reasonable doubt.” City of Billings v. Laedeke (1991), 247 Mont. 151, 154, 805 P.2d 1348, 1349. Aparty attacking the constitutionality of a statute bears a significant burden in establishing its invalidity. In re Matter of Wood (1989), 236 Mont. 118, 122, 768 P.2d 1370, 1373 (citation omitted).

Zempel asserts error by the Workers’ Compensation Court in interpreting the law applicable to this case. We review the Workers’ Compensation Court’s conclusions of law to determine if the court’s interpretation of the law is correct. Caekaert v. State Compensation Mutual Ins. Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 498.

DISCUSSION

1. Did the Workers’ Compensation Court err in concluding that § 39-71-501, MCA (1991), as applied, does not deny Zempel equal protection of the laws?

The principal purpose of the Equal Protection Clause is to ensure that citizens are not subject to arbitrary and discriminatory state action. Godfrey v. Montana State Fish & Game Comm’n (1981), 193 Mont. 304, 306, 631 P.2d 1265, 1267. We review state action or legislation subject to an equal protection challenge under one of three levels of scrutiny. See McKamey v. State (1994), 268 Mont. 137, 145-46, 885 P.2d 515, 521. If a fundamental right is infringed or a suspect class is affected, we apply strict scrutiny. McKamey, 885 P.2d at 521. We apply middle-tier scrutiny in limited situations where constitutionally significant interests are implicated by government classification. See Butte Community Union v. Lewis (1986), 219 Mont. 426, 434, 712 P.2d 1309, 1314. In all other situations, we apply the rational basis test; the inquiry under this test is whether the classification is rationally related to a legitimate government objective. McKamey, 885 P.2d at 521.

The Workers’ Compensation Court applied the rational basis test to Zempel’s equal protection challenge to § 39-71-501, MCA (1991). Zempel contends that, pursuant to Lewis, middle-tier scrutiny applies because, like welfare benefits, workers’ compensation benefits are “lodged in” Article XII, Section 3(3) of the Montana Constitution. We disagree that Lewis has application here.

At the time Lewis was decided, Article XII, Section 3(3) of the Montana Constitution provided: “The legislature shall provide such economic assistance and social and rehabilitative services as may be necessary for those inhabitants who, by reason of age, infirmities, or misfortune may have need for the aid of society.” See Lewis, 712 P.2d at 1310 (emphasis added). We determined that this section did not create a fundamental right to welfare benefits because the directive to provide such benefits was not found within the Declaration of Rights and welfare was not a right “ ‘without which other constitutionally guaranteed rights would have little meaning.’ ” See Lewis, 712 P.2d at 1311 (citation omitted). We noted, however, that welfare benefits were sufficiently important to warrant reference in our Constitution and concluded that, by virtue of the directive contained in Article XII, Section 3(3), welfare benefits were ‘lodged in” the Montana Constitution. See Lewis, 712 P.2d at 1311, 1313. On that basis, we held that classifications which abridge welfare benefits are subject to heightened scrutiny, or a middle-tier analysis. Lewis, 712 P.2d at 1311, 1313-14.

Article XII, Section 3(3) of the Montana Constitution was amended in 1988, approximately two years after we decided Lewis. The amended version was in effect at the time of Zempel’s work-related injury.

As amended, Article XII, Section 3(3) provides: “The legislature may provide such economic assistance and social and rehabilitative services for those who, by reason of age, infirmities, or misfortune are determined by the legislature to be in need” (Emphasis added.) Unlike the version of Article XII, Section 3(3) at issue in Lewis, the amended version does not contain a directive that the legislature shall provide welfare benefits. Thus, the constitutional underpinning for our application of heightened scrutiny to a statute abridging welfare benefits in Lewis no longer existed at the time of Zempel’s injury. As a result, Lewis provides no support for Zempel’s argument for application of middle-tier analysis here and it is not necessary to determine whether workers’ compensation benefits are ‘lodged in” Article XII, Section 3(3) of the Montana Constitution.

Moreover, we consistently have applied the rational basis test to equal protection challenges in workers’ compensation cases. See, e.g., Stratemeyer v. Lincoln County (1993), 259 Mont. 147, 151, 855 P.2d 506, 509 (Stratemeyer I); Burris v. Employment Relations Div./Dept. of Labor and Indus. (1992), 252 Mont. 376, 380, 829 P.2d 639, 641; Cottrill v. Cottrill Sodding Serv. (1987), 229 Mont. 40, 43, 744 P.2d 895, 897. In fact, we have expressly rejected use of the middle-tier level of scrutiny in analyzing equal protection arguments in a workers’ compensation case. See Burris,¡829 P.2d at 641 (citation omitted). We conclude, therefore, that the rational basis test applies in determining whether § 39-71-501, MCA (1991), as applied, denies Zempel equal protection of the laws.

Zempel’s equal protection argument is not a model of clarity. He contends that he is advancing an “as applied” challenge, rather than a facial challenge, to the definition of uninsured employer contained in § 39-71-501, MCA (1991), in that application of the definition to his situation precludes his entitlement to the same UEF benefits as “all other workers.” This approach apparently recognizes that a facial equal protection challenge to the definition of uninsured employer contained in § 39-71-501, MCA (1991), is not available because Zempel is excluded from UEF coverage by controlling principles of federal law regarding state jurisdiction over Indian reservations, rather than by the statutory definition itself. On the other hand, Zempel relies on our analysis of a facial equal protection challenge in Arneson v. State, by Dept. of Admin. (1993), 262 Mont. 269, 864 P.2d 1245, in arguing that the statutory definition of uninsured employer is under-inclusive due to the exclusion from UEF coverage of injured workers employed by Indian businesses operating exclusively within the exterior boundaries of the Flathead Reservation.

In considering Zempel’s equal protection challenge, we initially address the Act itself and the underlying purpose of the UEF, which is part of the Act. The Montana legislature enacted the Act to provide employees who experience work-related injuries with guaranteed compensation on a no-fault basis while relieving employers from potential uncapped tort recoveries. See Stratemeyer v. Lincoln County (1996), 276 Mont. 67, 74, 915 P.2d 175, 179 (Stratemeyer IT); see also § 39-71-105(1), MCA (1991). To that end, and with certain statutory exceptions, employers in Montana are subject to the Act and are required to provide workers’ compensation insurance coverage to their employees through enrollment in one of three workers’ compensation insurance plans. See § 39-71-401, MCA (1991). Nothing in the 1991 Act specifically exempts or excludes Indian businesses operated exclusively on an Indian reservation in Montana from being subject to the Act.

The UEF was created as part of the Act to provide an injured employee of an uninsured employer with the same benefits which the employee would have received had the employer been properly enrolled in a workers’ compensation plan. See § 39-71-502, MCA (1991). For UEF purposes, “uninsured employer” is defined as an “employer who has not properly complied” with the Act by enrolling in a workers’ compensation insurance plan, as required by § 39-71-401(1), MCA (1991). See § 39-71-501, MCA(1991). Thus, only injured employees of employers meeting the definition of uninsured employer contained in § 39-71-501, MCA (1991), are entitled to the “substitute” workers’ compensation benefits the UEF was created to provide to injured employees of employers who have failed to “properly complly]” with the Act. See §§ 39-71-501 and 39-71-502, MCA (1991).

The UEF is part of the Act and inseparable from it. The UEF is funded by reimbursed benefits from statutorily-defined “uninsured employers” — employers subject to the Act but who fail to meet its requirements — as well as by penalties assessed against such employers. See § 39-71-504, MCA(1991). As a result, the UEF has no funding mechanism to provide “substitute” workers’ compensation benefits to injured employees of employers not subject to the Act. If the UEF were to provide coverage to employees whose employers are not subject to the Act, such as employees of Indian businesses operating exclusively on Indian reservations, it would be unable to recoup such benefits from the exempt employers. Nor would the UEF have authority to assess penalties against such employers.

Zempel’s equal protection argument essentially asks us to unhook the UEF from the Act of which it is an integral part, but it is the tie between the two — and the viability of the UEF as a direct result of that tie — which is the very purpose for which the UEF was created. The limitation on entitlement to UEF benefits to injured employees of uninsured employers subject to the Act bears a reasonable relationship to that purpose because it is only those employers subject to the Act in the first instance upon whom the State can impose the reimbursement and penalty obligations which provide the source of the UEF benefits.

In this regard, it is critical to recall that equal protection does not require that all persons be treated alike regardless of whether their circumstances are the same; it requires only that all persons be treated alike under like circumstances. See Billings Assoc. Plumbing, Etc. v. State Bd. of Plumbers (1979), 184 Mont. 249, 253, 602 P.2d 597, 600 (citations omitted). Here, Zempel’s circumstances are unlike those of injured employees working for uninsured employers as defined by § 39-71-501, MCA (1991). Statutorily-defined uninsured employers have failed to comply with an Act to which they are subject, but they remain subject to the state’s authority to enforce funding for the UEF through reimbursement and penalties. Schall, on the other hand, has not failed to comply with the Act because he is not subject to it by virtue of federal Indian law; nor is he subject to the state’s authority to fund UEF benefits through imposition of reimbursement and penalty obligations on employers subject to the Act. We conclude, therefore, that because Indian businesses operating exclusively on Indian reservations are not subject to the Act, the exclusion of injured employees of such employers from UEF coverage — via application of the § 39-71-501, MCA (1991), definition of “uninsured employer” — is rationally related to the legitimate government purpose of providing “substitute” workers’ compensation benefits to injured employees of employers subject to — but failing to comply with — the Act.

We note that Zempel relies entirely on Arneson in support of his argument that the § 39-71-501, MCA(1991), definition of “uninsured employer” is under-inclusive and, therefore, violates equal protection as applied to him. As noted above, however, Arneson involved a facial equal protection challenge to a statute. Our analysis there, which involved whether .a rational basis existed for a legislative classification, cannot be superimposed onto Zempel’s “as applied” challenge to § 39-71-501, MCA (1991), in this case, because here it is federal law regarding state jurisdiction over Indian reservations — rather than a legislative classification — which results in the classification excluding Zempel from UEF coverage.

Moreover, we agree with the Workers’ Compensation Court’s observation that, when citizens of Montana avail themselves of jobs on an Indian reservation, they agree to abide by tribal rules. It is no more onerous to exclude a Montana citizen who decides to work on an Indian reservation from the protections of the Act — and the UEF— than to exclude a Montana citizen who decides to work in another state.

Accordingly, we hold that the Workers’ Compensation Court did not err in concluding that § 39-71-501, MCA (1991), as applied, does not deny Zempel equal protection of the laws.

2. Did the Workers’ Compensation Court err in concluding that § 39-71-501, MCA (1991), as applied, does not deny Zempel access to the courts?

Relying on Article II, Section 16 of the Montana Constitution, Zempel argues that the Workers’ Compensation Court erred in concluding that § 39-71-501, MCA (1991), as applied, does not deny him access to the courts. His denial of access to the courts argument is based entirely on his lack of entitlement to the legal remedies afforded injured employees under the Act. Specifically, he points out that he is denied access to the Workers’ Compensation Court because his employer, Schall, is not subject to the Act and that he is precluded from bringing an independent cause of action under § 39-71-515, MCA (1991), because Schall is not an uninsured employer as defined in § 39-71-501, MCA(1991). We observe that the concessions inherent in Zempel’s specifications of denial of access — that Schall is not subject to the Act and is not an “uninsured employer” — constitute an implicit concession that the Act is inapplicable.

Article II, Section 16 of the Montana Constitution provides that “[c]ourts of justice shall be open to every person. . . .” Whatever the parameters of this right of access to the courts may be, Zempel cites to no authority pursuant to which a court action under a purely statutory scheme such as the Act must be permitted even where the Act itself is conceded to be inapplicable to the case at hand.

Furthermore, nothing in § 39-71-501, MCA (1991), as applied to Zempel, precludes the viability of non-workers’ compensation claims or actions under such circumstances and, indeed, an employee of such an employer not subject to the Act is not limited by the exclusive remedy provision contained within the Act. See § 39-71-411, MCA (1991); see also Kleinhesselink v. Chevron, U.S.A. (1996), 277 Mont. 158, 920 P.2d 108, 111; Stratemeyer II, 915 P.2d at 181. Thus, while application of § 39-71-501, MCA (1991), may preclude judicial access and remedies under the Act, it does not prevent Zempel from pursuing non-Act claims against Schall.

It is true that federal law may limit Zempel’s legal recourse against Schall to an action in the Tribal Court, because state courts generally do not have jurisdiction over civil causes of action by a non-Indian against an Indian where the event at issue occurred on an Indian reservation; assumption of jurisdiction by the state in such actions would “undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the rights of Indians to govern themselves.” See Williams v. Lee (1959), 358 U.S. 217, 223, 79 S.Ct. 269, 272, 3 L.Ed.2d 251, 255. However, Zempel has cited to no authority, and this Court has found none, which requires — or even allows — guaranteed access to state courts for an injury where such access is precluded by federal law prohibiting the exercise of state jurisdiction over the claim. Accordingly, we hold that the Workers’ Compensation Court did not err in concluding that § 39-71-501, MCA (1991), as applied, does not deny Zempel access to the courts.

Affirmed.

JUSTICES LEAPHART, HUNT and NELSON concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the result of the majority opinion. However, consistent with my dissenting opinion in Stratemeyer v. MACO Workers’ Compensation Trust (1993), 259 Mont. 147, 155, 855 P.2d 506, 511, I would apply middle-tier scrutiny to any legislative classification which denies workers’ compensation benefits to distinct classes of injured employees.

Nevertheless, applying middle-tier scrutiny to the distinction alleged in this case, I would arrive at the same conclusion that the majority has reached pursuant to the rational basis test.

For these reasons, I specially concur with the majority opinion.


text:
    JAMES HOUDASHELT, LINDA HOUDASHELT, and MTM, INC., a Montana Corporation, Plaintiffs, Respondents, and Cross-Appellants, v. DAVID B. LUTES, Defendant and Appellant.
    No. 96-149.
    Submitted on Briefs March 6, 1997.
    Decided May 15, 1997.
    54 St.Rep. 420.
    282 Mont. 435.
    938 P.2d 665.

      See C.J.S. Vendor and Purchaser § 294.
    For Appellant: Mark A. Bryan, Bozeman.
    For Respondent: Richard A. Ramler, Belgrade; Terry F. Schaplow, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant David B. Lutes (Lutes) contracted to buy and Respondents James and Linda Houdashelt (the Houdashelts) contracted to sell the Houdashelts’ engine rebuilding business (Jim’s Diesel). The Houdashelts later filed suit in the Eighteenth Judicial District Court, Gallatin County, claiming that Lutes had defaulted in his payments and alleging fraud, negligent misrepresentation, breach of contract, unlawful detainer, and conversion. Lutes filed a counterclaim, alleging rescission of the contract. After a bench trial, the District Court found that Lutes had materially breached and defaulted upon the contract. It therefore returned the business to the Houdashelts and awarded them damages consequent to Lutes’ default and misuse of the business. It also concluded that Lutes was not entitled to rescission of the contract. Lutes appeals.

Affirmed.

ISSUES

The Houdashelts’ cross-appeal presents certain arguments as an “alternate basis” for the District Court’s award of damages, should this Court determine that the District Court erred in its reasoning. Since we determine that the decision and award of the District Court were not erroneous, we need not address the cross-appeal.

Lutes presents the following restated issues on appeal:

1. Were the District Court’s findings regarding the water-waste disposal system at Jim’s Diesel clearly erroneous?

2. Did the District Court err in concluding that Lutes was not entitled to rescind the contract?

3. Did the District Court abuse its discretion in awarding damages to the Houdashelts under the contract?

FACTS

The Houdashelts were the owners and operators of Jim’s Diesel, an engine rebuilding business in Belgrade, Montana. Jim Houdashelt ran the business and his wife, Linda, kept the books.

In greatly simplified terms, the process used by Jim’s Diesel to rebuild an engine involved two steps, cleaning and repair. Most of the engine parts were cleaned by a high-pressure water sprayer; some were cleaned in chemical baths and then sprayed off. The run-off from the water sprayer flowed into a “sump” which held approximately 90 gallons of water. The sump was outfitted with a “T” pipe which was in turn connected to a discharge pipe. The “T” prevented the upper level of water from draining directly into the discharge pipe, thereby keeping oil out of the system (because the oil collected on the surface of the water). Heavier particles settled into a sludge at the bottom of the sump, and the water drained out the discharge pipe. The Houdashelts periodically cleaned the sludge out of the sump, drying it in the sun on sheets of plywood and then disposing of it in the dumpster. The Houdashelts were careful to clean out the sump whenever 2 V2 inches of sludge accumulated, because 3 inches of sludge would plug up the discharge pipe. While operating Jim’s Diesel, the Houdashelts worked almost exclusively on engines that had elsewhere been drained of oil and anti-freeze so that they did not have to dispose of large amounts of those fluids.

The sump system at Jim’s Diesel was initially installed in 1979 or 1980 and designed to drain into a perforated underground pipe (the ‘leach line”). In 1983, when problems developed with the leach line, the Houdashelts reconnected the sump to drain through a solid pipe into a separate drainage area known as “Pit 1.”

In 1988, the Houdashelts considered selling Jim’s Diesel and retiring. Lutes, a real estate broker and engineer, became interested in the business and began visiting the shop. After he decided to buy the business, the Houdashelts and Lutes began negotiating the terms of the sale. The Houdashelts agreed to accept a down payment of $50,000 and periodic payments on the balance, as well as to hold the note themselves. They farther agreed to rent the business premises to Lutes on a monthly basis, the real estate not having been included in the sale of the business. The Houdashelts were adamant, however, that the down payment not consist of borrowed money, because the additional debt would make it difficult to operate the business profitably. Unbeknownst to them, Lutes borrowed the entire down payment. The sale was completed in January of 1989.

In accordance with the sale agreement, the Houdashelts remained at Jim’s Diesel for 90 days to assist Lutes in running the business. Jim Houdashelt trained Lutes in customer service and office work, while Linda Houdashelt continued to serve as the business bookkeeper. All the parties were aware that Lutes knew very little about the actual process of engine rebuilding, but no one seemed to believe that would prevent him from running the business successfully. The actual engine rebuilding was done by employees, all of whom agreed to stay on after the sale. After the 90-day training period, the Houdashelts left the business in Lutes’ hands.

By August of 1989, Lutes had been running the business for approximately eight months. At that time, the Houdashelts, as the owners of the real property used by Jim’s Diesel, decided to stop allowing Jim’s Diesel to drain its sump into Pit 1. Instead, they installed a new solid-pipe line to drain the sump into another location, Pit 2. The Houdashelts discontinued the use of Pit 1 and instituted the use of Pit 2 in anticipation that the tenants of another building they owned nearby would also use sump systems. For various reasons, however, no other sump systems were ever hooked up. Therefore, Pit 2 was used solely by Jim’s Diesel and only during the time the business was operated by Lutes.

By the end of 1989, Lutes was behind in his payments to the Houdashelts. His situation did not improve through 1990, and, consequently, the parties met to restructure the sale. On September 28, 1990, the Houdashelts and Lutes signed an addendum to the contract for sale specifying how Lutes would make up the delinquent payments. At the time the addendum was signed, Lutes had been operating the business for approximately twenty-one months.

In April 1991, a neighboring land owner reported to the Montana Department of Health and Environmental Sciences (the State) and to Lutes the existence of a large pool of pollutants near his property line in the area of Pit 2. Upon investigation, the neighbor discovered overflowing 55-gallon drums of sludge with their contents pouring out on to the ground. He also found areas where wheelbarrows full of sludge had been dumped on the ground. He discovered an old pickup bed resting on the ground, full of sludge and leaking, as well as empty containers of chlorinated solvents.

On May 2, 1991, the State conducted an inspection of the Jim’s Diesel premises. It ordered the sump system, which was by then essentially non-functioning, to be capped off to prevent its further use. The capping of the sump on May 15,1991, effectively shut down the business. Testing of the soil around Jim’s Diesel revealed that the vast majority of pollutants were concentrated in Pit 2, the discharge area used while Lutes ran the business. The leach line, which had not been used for over seven years, contained trace amounts of one or two pollutants, but not enough to warrant cleanup. The Pit 1 area was free of pollutants.

Also by the spring of 1991, Lutes was again delinquent on his payments and in default of the contract. The Houdashelts sent him a notice of acceleration of the contract and a notice of termination of the lease. On May 15, 1991, Lutes tendered a notice of rescission of the contract, which the Houdashelts refused. On May 24,1991, Lutes vacated the premises and the Houdashelts repossessed the business.

Upon repossession, the Houdashelts discovered that the cap on the “T” in the sump had been removed, thereby allowing oil and grease to flow directly into the discharge pipe. They also found the sump to be virtually full of sludge, causing the sump itself to overflow. In addition, they discovered that the shop and grounds were a mess; the inventory had been greatly depleted; and the machinery was dirty and in need of servicing. The Houdashelts then filed suit, claiming that Lutes had defaulted in his payments, alleging breach of contract, and asking for repair damages and clean-up costs. Lutes counter-sued for rescission of the contract, asserting that the sump system was an illegal waste-disposal system; that it had never worked in compliance with the applicable state and federal laws; and that the Houdashelts had misrepresented the business and its profit potential.

After a seven day bench trial, the District Court concluded that Lutes had defaulted on the contract by failing to make the payments due. It found Lutes to be responsible for the cost of cleaning and repairing the business and grounds, and awarded the Houdashelts the loss sustained on the business contract, past-due rents, damages, and attorney fees and costs. Lutes was awarded nothing on his counter-claim.

STANDARD OF REVIEW

This Court reviews a district court’s findings of fact to determine whether they are clearly erroneous, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses.-Rule 52(a), M.R.Civ.P.; Rafanelli v. Dale (1996), 278 Mont. 28, _, 924 P.2d 242, 245. In determining whether a court’s findings of fact are clearly erroneous, we first review the record to see if the findings are supported by substantial evidence. If the findings are supported by substantial evidence, we determine if the trial court has misapprehended the effect of evidence. If substantial evidence exists and the effect of the evidence has not been misapprehended, this Court may nevertheless determine that a finding is clearly erroneous if “although there is evidence to support it, a review of the record leaves the [C] ourt with the definite and firm conviction that a mistake has been committed.” Rafanelli, 924 P.2d at 245 (citing Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). Our standard of review relating to conclusions of law is whether the trial judge’s interpretation of the law is correct. Jim’s Excavating Service, Inc. v. HKM Associates (1994), 265 Mont. 494, 501, 878 P.2d 248, 252 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

DISCUSSION

1. Were the District Court’s findings regarding the water-waste disposal system at Jim’s Diesel clearly erroneous?

Lutes takes issue with several of the District Court’s findings of fact regarding the sump system. In particular, the District Court found that the Houdashelts had acquired the necessary permit before constructing the sump system; that the sump was in compliance with environmental regulations while the Houdashelts operated it; and that the sump worked properly until Lutes’ misuse effectively broke it, causing in turn the subsequent pollution. In attacking these findings, Lutes cites the testimony of his expert as well as his own testimony in support of his contention that the sump system was not permitted and was, therefore, illegal since its installation. He also notes that his expert found contaminants in the leach line, which was used years before Lutes assumed the business. This, Lutes contends, proves that the sump system was pollutive and never worked correctly.

a. The sump system permit.

Lutes devotes considerable attention to his argument that the sump system did not have a proper permit and was, therefore, illegal. While admitting that the Houdashelts had obtained a general septic permit from the county when installing the system, Lutes claims that such a permit was not sufficient for industrial discharge. He argues that the District Court’s finding to the contrary is clearly erroneous. In response, the Houdashelts assert that the question of whether the sump system had the proper permit is largely beside the point. We agree.

We have stated that “[Relevant evidence is evidence having any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence.” Peschke v. Carroll College (1996), [280 Mont. 331], 929 P.2d 874, 881 (citing Rule 61, M.R.Civ.R; Hansen v. Hansen (1992), 254 Mont. 152, 835 P.2d 748). We have also held that “[fjor error to be the basis for a new trial, it must be so significant as to materially affect the substantial rights of the complaining party.” Zeke’s Distributing Co. v. Brown-Forman Corp. (1989), 239 Mont. 272, 278, 779 P.2d 908, 912 (citing Rule 61, M.R.Civ.P.; Giles v. Flint Valley Forest Products (1979), 179 Mont. 382, 588 P.2d 535). Common sense dictates that if an error is made in a finding of fact which only addresses some minor point largely irrelevant to the disposition of the case, that error cannot materially affect the substantial rights of the complaining party. It will not, therefore, be the basis for reversal of the district court’s decision.

In this case, the Houdashelts asserted that Lutes had breached and defaulted on the contract for sale. They further asserted that Lutes was responsible for damages consequent to his misuse and damage of the sump system, including the pollution damage which the Houdashelts claimed occurred once the sump system ceased to function. In denying their claims, Lutes argued that the Houdashelts should be held responsible for the pollution damage because the sump system had never worked correctly. Given these issues, the District Court properly concerned itself with the questions of whether the sump had in fact worked correctly and, if so, when it ceased to function, and why. The establishment of the existence or nonexistence of a permit for the sump does not serve to answer any of these questions. Provided the sump worked correctly (as the District Court found it did), the absence of a permit would not make the Houdashelts responsible for the damages caused by Lutes’ misuse of the system. Therefore, we need not determine whether the District Court’s finding of fact regarding the sump permit was erroneous; even if it were, such error would be harmless.

b. State and Federal regulations.

Similarly, Lutes argues that the District Court erred in concluding that the sump system complied with all the relevant State and Federal environmental regulations. In making this argument, Lutes does not assert any specific violations of any particular regulation in order to prove that the Houdashelts were responsible for the pollution at Jim’s Diesel. Rather, he contends that the environmental regulations in effect at the time indicate that a specific permit (other than a general septic permit) was required to operate a sump system such as the one in use at Jim’s Diesel. Since the Houdashelts did not have the proper permit, Lutes argues, they were automatically in violation of the regulations which required one. Lutes argues that the District Court erred in finding to the contrary.

We decline to address the specifics of this allegation of error for the same reasons given in subsection “a,” above. Even if the sump violated some un-named governmental regulation by failing to have the proper permit, such violation would not excuse Lutes’ damage of the business by misusing the sump system and causing the subsequent pollution problem. The permit issue is largely irrelevant, as the District Court itself noted when determining it was “much ado about nothing.” The findings and conclusions regarding the permit, even if erroneous, are harmless and would not serve as a basis for a new trial. This Court therefore need not review them,

c. The environmental contamination.

While the District Court properly determined that the permit issue was largely beside the point, the issues of the extent of and responsibility for the pollution at Jim’s Diesel were central to the resolution of this case. Lutes disputed the District Court’s finding that he alone was responsible for the malfunction of the sump system and the consequent pollution, as well as the court’s finding that the sump system had worked properly and without contamination throughout the time the Houdashelts owned the business.

In disputing these findings, Lutes points out that his expert discovered trace amounts of a single contaminant in the abandoned leach line, which the Houdashelts had used to empty the sump until 1983. He argues that this testimony indicated that the sump system was pollutive long before he took over the business and that the pollution clean up, therefore, should be the responsibility of the Houdashelts.

The Houdashelts, however, presented testimony from an expert whom they hired to determine the extent and location of the contamination. Their expert testified that the only significantly contaminated area, and the only area requiring environmental cleanup, was Pit 2, which was used solely by Lutes. The Houdashelts’ expert further testified that the tests performed indicated that the leach line area required no remediation. In addition, the Houdashelts argued that the leach line could not possibly be a source of the extensive and recent contamination because it had not been used in over eight years. In identifying the source of the pollutants, the Houdashelts’ expert testified:

[I]t was apparent that the waste produced by the engine rebuilding process used at the shop generated little or no hazardous wastes and the illegal discharge of waste material into the floor drain was the cause of the contamination of the sump area. [I]f the system was operated properly, wastes generated at the site would be non-hazardous or the volume would be below regulated limits.

The expert therefore concluded that it was Lutes’ practice of dumping any and all liquid industrial waste down the sump which was the sole cause of the pollution. Lutes’ expert contested this conclusion.

It is well established that issues of evidentiary weight and witness credibility are within the province of the trial court, and that this Court will not substitute its judgment for that of the district court. In re Marriage of Abrahamson (1996), 278 Mont. 336, _, 924 P.2d 1334, 1338 (citing In re Adoption of J.M.G. (1987), 226 Mont. 525, 528, 736 P.2d 967, 969). If the evidence presented at trial conflicts, it is the function of the District Court to resolve such conflicts. Abrahamson, 924 P.2d at 1338 (quoting In re Marriage of Penning (1989), 238 Mont. 75, 78, 776 P.2d 1214, 1216). See also Rafanelli, 278 Mont. 28, 924 P.2d 242.

While the testimony presented was not undisputed, the Houdashelts presented extensive evidence to show that the pollution problem was concentrated solely in Pit 2, which was used by Lutes alone. The Houdashelts called numerous witnesses who testified to Lutes’ practice of indiscriminantly disposing of all waste into the sump, as well as his failure to clean the sump out or maintain it during his possession of the business. The Houdashelts also presented photographs showing the condition of the sump when they repossessed the business, and testified to the extensive effort they expended in cleaning and repairing the system. All this testimony was reflected in the District Court’s finding that it was Lutes’ misuse of the sump system which caused the pollution problem, as well as its findings that the sump worked correctly and without contamination prior to the sale of the business to Lutes. Upon review, we determine that these findings were not clearly erroneous.

2. Did the District Court err in concluding that Lutes was not entitled to rescind the contract?

Lutes next argues that the District Court erred in not allowing him to rescind the contract. He offers three alternative theories in contending that rescission would have been proper. He asserts, in the alternative, that his consent to the contract was obtained by fraud; his consent was given by mistake; or the consideration underlying the contract failed.

Section 28-2-1711, MCA, provides that a party to a contract may rescind only:

(1) if the consent of the party rescinding or of any party jointly contracting with him was given by mistake or obtained through duress, menace, fraud, or undue influence exercised by or with the connivance of the party as to whom he rescinds or of any other party to the contract jointly interested with such party;
(2) if, through the fault of the party as to whom he rescinds, the consideration for his obligation fails in whole or in part;
(3) if such consideration becomes entirely void from any cause;
(4) if such consideration, before it is rendered to him, fails in a material respect from any cause; or
(5) if all the other parties consent.

Here, Lutes asserts that his consent to the contract was obtained either through fraud or by mistake, and further asserts that the consideration underlying the contract failed.

In making these arguments, Lutes cites no authority but instead concentrates on the alleged illegality and failure of the sump system. Lutes contends that the Houdashelts fraudulently failed to disclose that the sump system was not permitted. Lutes contends that, had he known this, he would never have entered into the contract. In the alternative, Lutes argues that he believed the sump system was permitted and in compliance with state and federal regulations, but he was mistaken. This mistake, Lutes argues, should allow him to rescind the contract. We determine that the District Court did not err in concluding that, under the circumstances of this case, Lutes was not entitled to rescind the contract.

Lutes cannot rescind the contract based upon his asserted mistaken belief that the sump system was permitted because § 28-2-1715, MCA, provides that “[Rescission cannot be adjudged for mere mistake unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made.” In this case, allowing Lutes to rescind the contract on the basis of mistake would not serve to restore the Houdashelts to the position they enjoyed before the contract was signed. The Houdashelts sold to Lutes a profitable business with a sump system which worked efficiently regardless of whether or not it had the proper permit. They sold him a business which had never encountered environmental difficulties or run afoul of the State for its waste disposal practices. Upon repossession, the Houdashelts received back from Lutes a business which was losing money. They received from him a business without a waste disposal system (because the State had ordered the sump shut down), but with a large pollution problem and a dwindling customer base. Allowing rescission based on Lutes’ alleged mistake regarding whether the sump was permitted would not restore the Houdashelts to their pre-contract position and, therefore, is not allowed. Section 28-2-1715, MCA.

Similarly, Lutes cannot rescind the contract based upon the Houdashelts’ alleged fraudulent misrepresentation that the sump system was a legal and permitted system. In advancing this argument, Lutes contends that the Houdashelts’ failure to disclose the fact that the sump system was not permitted amounted to constructive fraud.

Constructive fraud consists in:

(1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under him; or
(2) any such act or omission as the law especially declares to be fraudulent, without respect to actual fraud.

Section 28-2-406, MCA. This Court has held that constructive fraud requires the breach of a duty. Woodahl v. Matthews (1982), 196 Mont. 445, 451, 639 P.2d 1165, 1169. Further, if a party is unaware of a defect at the time of sale, he or she is under no duty to disclose it. Woodahl, 639 P.2d at 1169 (citing Moschelle v. Hulse (1980), 190 Mont. 532, 622 P.2d 155).

Here, the District Court determined that the Houdashelts believed the sump system was legal and covered by an appropriate permit at the time of sale. Therefore, assuming arguendo that the lack of a permit was a defect which should have been disclosed, the Houdashelts were nevertheless excused from disclosing it because of their own ignorance. Therefore, no constructive fraud existed in this case, and Lutes cannot rescind the contract on that basis.

Lutes also asserts a failure of consideration, once more premising his argument solely on the alleged lack of a proper permit for the sump system. He asserts that the consideration (the sump system) was unlawful, and, therefore, in violation of § 28-2-803, MCA, which provides in part that “[t]he consideration of a contact must be lawful.”

Aside from relying yet again on a hypothetical finding that the sump system was illegal (a finding the District Court specifically rejected, instead finding to the contrary that the sump was legal), Lutes’ argument shows a fundamental misunderstanding of contract law.

Montana law provides that “any benefit conferred or agreed to be conferred upon the promisor by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor is a good consideration for a promise.” Baker v. Berger (1994), 265 Mont. 21, 30, 873 P.2d 940, 945 (citing § 28-2-801, MCA). In this case, the benefit received by the Houdashelts was the payment of the agreed-upon purchase price according to the schedule set up between the parties. The benefit received by Lutes was the tender of the business and its equipment. The contract, therefore, was for the simple sale of a business, and the consideration offered by each party to the other was not illegal.

3. Did the District Court abuse its discretion in awarding damages to the Houdashelts under the contract?

Lastly, Lutes argues that the Houdashelts were not entitled to the monetary damages awarded to them for past-due payments and clean-up costs. In so contending, Lutes makes numerous arguments based on a wide variety of broad contractual theories. He asserts that the contract violated public policy; the object of the contract was unlawful; and the contract was void. In making these arguments, Lutes cites to no relevant authority except the Montana statutes setting forth the cited theories. Again, his arguments are based exclusively upon the presumption that the sump system was illegal and that the asserted illegality somehow excused his mismanagement of the business. Suffice it to say that this Court has reviewed the District Court’s factual findings and legal conclusions in detail, and finds no error therein.

Affirmed.

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