author: MR. JUSTICE GULBRANDSON

text:
    LYDIA LaVE, Claimant and Appellant, v. SCHOOL DISTRICT #2, Employer and State Compensation Insurance Fund, Defendant and Respondent.
    No. 85-240.
    Submitted on Briefs Oct. 10, 1985.
    Decided Jan. 28, 1986.
    713 P.2d 546.
    Kelly & Halverson, P.C., Sheehy, Prindle & Finn, Billings, for claimant and appellant.
    Crowley Law Firm, William J. Mattix, Billings, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Lydia LaVe appeals a Workers’ Compensation Court order awarding her permanent total disability benefits based on ten hours of work per week and denying a lump sum payment of her benefits. The issues on appeal are: (1) whether the lower court erred in basing the benefits on appellant’s usual hours of employment rather than her earning capability, and (2) whether the lower court erred in denying appellant a lump sum award. We affirm the order of the Workers’ Compensation Court.

Appellant has worked on and off at various unskilled labor positions since her childhood. Prior to 1977, these jobs generally entailed forty hours of work per week and paid the minimum wage or, in one instance, slightly more than the minimum wage. In 1977, appellant began working for Billings School District No. 2. At this job, appellant worked ten hours per week at $3.20 an hour. In March 1979, appellant was injured while working at her job at a Billings school and as a result, she is permanently, totally disabled, the School District’s insurer, the respondent, accepted liability for wage and medical benefits under the Workers’ Compensation Act. Since June 7, 1979, respondent has paid appellant temporary total disability benefits of $21.33 per week. Appellant has also received lump sum advances totaling $5,100.

In December 1984, appellant filed a petition with the Workers’ Compensation Court requesting increased permanent total disability benefits and a lump sum payment of her benefits. Depositions were taken and a hearing was held on the petition in February 1985.

At the hearing, appellant testified that at the time of her injury she intended to quit her job at the school and find full-time employment. She stated that she was sure she could get a full-time job. Thus, she contends that her benefits should not be based on her part-time position. Appellant testified that she wanted a lump sum payment so she could invest the money. Neither appellant nor her husband had a specific investment in mind, nor had they talked with financial advisors or investment counselors. Both testified that they had outstanding debts and appellant’s husband calculated their debts as at least $4,650.

The Workers’ Compensation Court denied appellant’s request for increased benefits and a lump sum payment. This appeal followed.

The first issue is whether the lower court erred in basing appellant’s permanent total disability benefits on her usual hours of employment rather than her earning capability. Appellant cites 39-71-116(13), MCA, for the proposition that her disability benefits should be based on her earning capability. Section 39-71-116(13), MCA, defines “permanent total disability” as “a condition resulting from injury as defined in this chapter that results in the loss of actual earnings or earning capability . . .” (Emphasis added.) Appellant asserts that she intended to get a job working forty hours a week and could have secured such a position. Therefore, she contends that under Section 39-71-116(13), MCA, her benefits should be based on forty hours of work a week. This argument is without merit.

Notwithstanding the fact that the statutory definition of “permanent total disability” mentions earning capability, benefits for such a disability are based on the usual hours of employment of the worker and not on earning capability. This is clear from the statutes. Appellant worked ten hours a week for the school. Section 37-71-702(1), MCA, directs that,

“Weekly compensation benefits for injury producing total permanent disability shall be 66%% of the wages received at the time of the injury. The maximum weekly compensation benefits shall not exceed the state’s average weekly wage. Total permanent disability benefits shall be paid for the duration of the worker’s total permanent disability.”

Section 39-71-116(20), MCA, defines wages as:

“. . . the average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered . . .” (Emphasis added.)

The Workers’ Compensation Court correctly computed appellant’s benefits based on ten hours a week.

The second issue is whether the lower court erred in denying appellant a lump sum payment of her benefits. Section 39-71-741, MCA, provides that the award of a lump sum payment is within the discretion of the Workers’ Compensation Court. The standard of review is clear:

“Lump sum settlements are granted in exceptional circumstances. Outstanding indebtedness, pressing need, or circumstances in which the best interests of the claimant, his family and the general public are served justify such a settlement. [Citations omitted.] The decision to award or deny a lump sum settlement will not be interfered with on appeal unless there has been an abuse of discretion. The Workers’ Compensation Court will be presumed correct and affirmed if supported by substantial evidence, and reversed only if the evidence clearly preponderates against its findings. [Citations omitted.] Wide discretion will be afforded the Workers’ Compensation Court in its determination. (Citations omitted.)” Hock v. Lienco Cedar Products (Mont. 1981), 634 P.2d 1174, 1178-79, 38 St.Rep. 1598, 1603-04.

In the instant case, appellant advances two principal reasons for requesting a lump sum payment. They are; (1) appellant and her husband have outstanding debts, and (2) appellant and her husband wish to invest the money and receive a return which would be greater than the weekly benefits. Neither appellant nor her husband have proposed a concrete, specific plan of investment. Neither of the two have personally contacted an investment or financial counselor. An investment counselor did testify for appellant on the return that appellant could expect if she was granted, and invested, a lump sum award. In Kent v. Sievert (1971), 158 Mont. 79, 81, 489 P.2d 104, 105, this Court held that where a claimant requested a lump sum payment proposing “to put it ‘on interest,’ ” that proposed use was insufficient to warrant a lump sum payment. Kent is still the law and appellant’s desired investment is not reason, by itself, to award her a lump sum payment. Otherwise, any claimant desiring a lump sum award could secure one by proposing to invest it. This would defeat the statutory intent of Montana’s Workers’ Compensation scheme, as lump sum awards are to be the exception. Section 39-71-741, MCA.

Here, appellant also desires to pay off her family’s outstanding debts. However, we note that appellant has received lump sum advances totaling $5,100. These advances approximate the outstanding debts which appellant and her husband testified their family had.

Given the Kent case and the lump sum advances already made to appellant, we hold that the Workers’ Compensation Court did not abuse its discretion in denying a lump sum payment to appellant.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, MORRISON and HUNT concur.


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. HAROLD EDWIN GLEED, JR., Defendant and Appellant.
    No. 85-330.
    Submitted on Briefs Nov. 6, 1985.
    Decided Jan. 28, 1986.
    713 P.2d 543.

      Theodore P. Cowan, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe Roberts, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Karen Townsend and Robert Slomski, Deputy Co. Attys., Missoula, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Gleed, appeals from his Missoula County District Court jury trial conviction for robbery, aggravated kidnapping, sexual intercourse without consent, and theft, and his sentence of 50 years in the Montana State Prison.

We affirm appellant’s conviction and sentence.

Appellant raises two issues on appeal. First, were the statements he made shortly after apprehension made voluntarily and with knowledge of his rights against self-incrimination? Second, should the District Court judge have disqualified himself from imposition of Gleed’s sentence upon learning of Gleed’s allegations of improper conduct of his trial counsel? In addition, appellant’s current attorney requests permission to withdraw from this case as he believes the appeal is without merit.

In the early morning hours on July 20, 1984, Gleed and three other inmates escaped from the minimum security unit of the Montana State Prison at the Swan River Youth Camp in the state-owned vehicle. They drove to Missoula where Gleed and his codefendant, Allen, separated from the other two escapees.

On Saturday, July 21,1984, at approximately 7:30 a.m., Gleed and Allen entered Joe’s Smoke Ring, a convenience store located on Highway 93 north of Missoula. Three female employees were working at the time. Gleed and Allen assaulted the clerks and robbed the store. They locked two clerks in the store cooler. Then they left the store in an automobile owned by one of the clerks, forcing the clerk to accompany them. Both men engaged in sexual intercourse with the clerk without her consent. They were arrested later that day when the car was forced off Interstate 90 by a roadblock near the Idaho border.

Shortly after being apprehended, Gleed was interviewed at the Mineral County Jail by Detective Tom Woods. This interview became the subject of a suppression hearing in which Gleed alleged that he did not knowingly and voluntarily waive his Fifth and Fourteenth Amendment privileges against self-incrimination.

The testimony elicited from Mineral County Deputy Tom Brady and Missoula County Detective Tom Woods at the suppression hearing established that immediately upon his arrest, shortly before 2:00 p.m., Gleed was advised of his Miranda rights by Deputy Brady. Gleed was then transported to and booked in the Mineral County Jail. Detective Woods took Gleed to a kitchen area in the jail and again advised him of his Miranda rights. This occurred shortly before 3:00 p.m. Gleed said he understood his rights and was willing to speak with Detective Woods but refused to sign anything to that effect. At no time did Gleed state or indicate that he wanted an attorney or that he wished to remain silent. The district judge denied Gleed’s motion to suppress, and his statements were allowed into evidence at trial.

Following Gleed’s trial and conviction, he was interviewed for a presentence report. During the interview, Gleed alleged that the compulsion defense argued at trial was his trial counsel’s idea, and that trial counsel persuaded him to testify to a story that would fit the compulsion defense.

Upon learning of Gleed’s allegations, the Missoula deputy county attorney and the presentence investigator approached the district judge and advised him of Gleed’s allegations, and expressed their concerns about a potential conflict between Gleed and his trial counsel. The district judge allowed trial counsel to withdraw and appointed a new attorney to represent Gleed at sentencing.

Gleed’s first argument on appeal is that he did not knowingly and voluntarily waive his Miranda rights before making statements during questioning by Detective Woods. Therefore, his statements should not have been allowed into evidence.

The voluntariness of a waiver is largely a question of fact left to the sound discretion of the trial court, and the trial court’s determination will not be reversed unless it is clearly against the weight of the evidence. The determination does not depend upon one fact but upon the totality of the facts and circumstances of each case. State v. Grimestad (1979), 183 Mont. 29, 36, 598 P.2d 198, 202. The factors to consider include the background, experience, conduct, age, education, and intelligence of the accused, as well as his capacity to understand the warnings given to him, the nature of his rights, and the consequences of waiving those rights. State v. Blakney (1982), 197 Mont. 131, 138, 641 P.2d 1045, 1051.

Applying the totality of the circumstances test to the present case, it is clear that the District Court was within its discretion in denying Gleed’s motion to suppress. Gleed was 21 years old at the time of his arrest, and was already familiar with the criminal justice system having several previous district court felony convictions. He earned his general equivalency diploma in 1984. According to Detective Woods’ testimony, Gleed was of at least average intelligence and gave no indication of being under the influence of drugs or alcohol. Although Gleed refused to sign a waiver card, he stated that he understood his Miranda warning, and agreed to speak with Detective Woods. Gleed additionally agreed to a body search for hair, saliva and blood samples.

Considering Gleed’s intelligence, age and education, as well as his statements and conduct, it is clear there is sufficient evidence to support the trial court’s determination that he knowingly and voluntarily waived his privilege against self-incrimination. We hold that the District Court properly denied Gleed’s motion to suppress.

Gleed further alleges that the district judge should have disqualified himself from sentencing upon learning of Gleed’s accusations against trial counsel. It is submitted that because of the seriousness of the charges which Gleed presented to the presentence investigator and ultimately to the District Judge concerning his own attorney, this could cause the judge to take a negative view of Gleed in sentencing.

The proper procedure for disqualifying a judge is contained in Section 3-1-802, MCA. A judge must disqualify himself from sitting in any action to which he is a party, or in which he is interested; when he is related to either party, or; when he has been the attorney in the action or the judge whose order is being appealed. None of those circumstances are present in this case.

A judge may be disqualified by a criminal defendant when the defendant makes and files a timely and sufficient affidavit that the judge has a personal bias or prejudice either against him or in favor of an adverse party. The affidavit shall state the facts and reasons for the belief that prejudice or bias exists, and shall be filed not less than twenty days before trial, or good cause shown for failure to file it within such time, and the affidavit must be accompanied by a certificate of good faith. Gleed did not follow this statutory procedure for disqualification. Instead, he raises the issue on appeal in a conclusory fashion, and does not show how he was prejudiced.

Also, Gleed’s statements were made to a presentence investigator during an interview for a presentence report to be used by the judge in sentencing. The information is contained in the presentence report, and would have come to the judge’s attention in any event. Therefore, Gleed cannot now claim that the information was privileged or made outside of the legal process.

Finally, Montana has a sentence review division authorized at Section 46-18-901, et seq., MCA. A criminal defendant may, within sixty days of imposition of sentence, apply for review of his sentence with the sentence review division.

In this case, Gleed did not attempt to disqualify the district judge or have his sentence reviewed. Instead, he raises the issue on appeal and argues in a conclusory fashion that the district judge was biased against him. Gleed does not show how the judge was biased. The statements Gleed made were made during an interview for a presentence report. The explicit purpose of the presentence report is to provide information to the court for purposes of sentencing. The sentence Gleed received was far from the maximum sentence allowed by law. We hold that there is no merit in Gleed’s argument that the judge was biased and should have disqualified himself.

Therefore, appellant’s present counsel is granted permission to withdraw as attorney for defendant, and appellant’s conviction and sentence are affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, WEBER and GULBRANDSON concur.


author: MR. JUSTICE WEBER

text:
    GEORGE L. STEVENS and Gertrude L. Stevens, Plaintiffs and Respondents, v. MICHAEL G. ABBOTT, d/b/a Michael’s Italian Restaurant, and James McQuade, Defendants and Appellants.
    No. 85-362.
    Submitted on Briefs Nov. 14, 1985.
    Decided Jan. 28, 1986.
    712 P.2d 1347.
    H.L. McChesney, Missoula, for defendants and appellants.
    William Baldassin, Missoula, for plaintiffs and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The defendants appeal from an order of the Missoula County District Court which, as a discovery sanction, granted default judgment for plaintiffs on the issue of liability. We hold that an order which grants a default judgment on the issue of liability, reserving determination of the amount of damages, is not appealable.

In 1981, the plaintiffs and Mr. Abbott, one of the defendants, entered an agreement whereby Mr. Abbott would purchase plaintiffs’ restaurant business and related property. Mr. McQuade, the other defendant, guaranteed the obligations of Mr. Abbott. In late 1983, plaintiffs filed a complaint against defendants Abbott and Mc-Quade, seeking damages for fraud and breach of contract. The defendants’ responsive pleading included a counterclaim. As part of considerable discovery by both parties, plaintiffs’ attorney served supplemental discovery requests upon defendants’ attorney in January, 1985. Defendants’ attorney was unable to locate his clients to advise them of the discovery request. After the 30-day period allowed for defendants’ response had expired, the District Court issued an order compelling discovery within an additional 14 days. During this time, defendants’ attorney was apparently still unable to locate Mr. Abbott, and Mr. McQuade was in Europe, with plans to return within a month. When the 14-day period had passed, plaintiffs filed a motion to impose sanctions. Ten days later, at the hearing on that motion, defendants’ attorney asked for more time to respond to the discovery requests. The court refused to extend the deadline, and granted sanctions under Rule 37(b) M.R.Civ.P. The sanctions included entering default judgment against defendants on the issue of liability, assessing two hundred eighty five dollars against defendants for plaintiffs’ attorney fees, and striking defendants’ counterclaim. The court reserved determination of the amount of plaintiffs’ damages for a later hearing before a jury.

The defendants argue that the entry of their default is too severe, and that the District Court abused its discretion in imposing such a harsh sanction. Plaintiffs argue that the sanctions imposed are well within the District Court’s discretion. Plaintiffs also raise the preliminary issue of whether the District Court’s order is appealable, at this stage in the proceedings.

“The right of appeal exists only by statute or rule.” McClurg v. Flathead County Com’rs (1978), 179 Mont. 518, 519, 587 P.2d 415, 416. There is no statute or rule authorizing appeal from an order granting default judgment on the issue of liability. This is not one of the types of orders specifically set out as appealable in Rule 1(b) and (c) M.R.App.Civ.P., and no certification of the order under Rule 54(b) M.R.Civ.P. has been obtained from the District Court.

Rule 1(a) M.R.App.Civ.P. provides that an appeal may be taken from a final judgment entered in an action commenced in a District Court. This Court has held that an order determining liability only, and reserving the issue of damages, is not a final order in a summary judgment, Weston v. Kuntz (1980), 187 Mont. 453, 610 P.2d 172, or after a trial on the merits. Bostwick v. Dept. of Highways (1980), 188 Mont. 313, 613 P.2d 997. The federal appellate courts recognize the general rule that any order which determines liability, but not amount of damages, is not a final, appealable order. Nat. Steel, Etc. v. Dir., Office of W. Comp. Pro. (9th Cir. 1980), 626 F.2d 106. The Supreme Court of Wyoming has specifically held that an order granting a default on the issue of liability, but reserving determination of damages, is not appealable. Dexter v. O’Neal (Wyo. 1982), 649 P.2d 680. We adopt the reasoning of these courts.

We hold that a default judgment entered on the issue of liability alone is not a final, appealable order. We therefore do not consider the issue of whether the District Court abused its discretion by imposing a too-severe sanction.

The appeal is dismissed.

MR. JUSTICES MORRISON, HARRISON, HUNT and GULBRANDSON concur.


author: MR. JUSTICE HARRISON

text:
    ALDO KEBSCHULL, Plaintiff and Appellant, v. HARVEY NOTT, Defendant and Respondent.
    No. 85-363.
    Submitted on Briefs Oct. 10, 1985.
    Decided Jan. 28, 1986.
    Rehearing Denied Feb. 13, 1986.
    714 P.2d 993.
    George T. Radovich, Billings, for plaintiff and appellant.
    Laurence R. Martin, Billings, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a judgment of the District Court of the Thirteenth Judicial District in and for Carbon County, Montana. The Honorable G. Todd Baugh entered a judgment in favor of the plaintiff, but no damages were awarded because of a prior ruling by the Honorable Charles Luedke restricting damages. We affirm.

Plaintiff, Kebschull, owns a 170 acre farm about three miles northeast of Bridger, Montana, on the Clarks Fork of the Yellowstone River. He leased 120 acres of arable land to defendant, Nott, who farmed it. Kebschull lived on the remaining portion, and pastured a few cattle. While Nott was burning brush along a ditch bank to clear it, a strong wind arose, and in spite of Nott’s efforts to contain the fire, it spread from the ditch to Kebschull’s river bottom land adjacent to the ditch, including a bushy, wooded island. The area which was burned is approximately 5.8 acres of natural, improved growth, consisting mainly of underbrush and noncommercial trees, mostly cottonwoods. Nott’s liability for starting the fire is not disputed. There is testimony the fire did not result in any diminution in the fair market value of the burned property.

Kebschull filed an action to recover damages for the destruction of the growing vegetation. Prior to trial the District Court ruled, on motion for summary judgment, that Nott was strictly liable for damages from the fire. On cross-motions in limine the court ruled the proper measure of damages in this case was the difference in market value of the real property before and after the fire. The parties stipulated that Nott set the fire and the fire was the proximate cause of the damage to the vegetation. Only the issue of damages proceeded to trial and the evidence at trial was limited by the court’s prior ruling granting Nott’s motion in limine excluding evidence relative to the replacement value of the destroyed items. No damages were awarded because both Kebschull’s and Nott’s appraisers agreed there was no difference in the market value of the burned property before and after the fire.

Kebschull’s appeal raises only the legal issue of whether the District Court’s ruling on the cross-motions in limine and resulting limitation of evidence at trial is correct as a matter of law.

By granting Nott’s motion in limine the court correctly ruled the proper measure of damages for the injury by fire to growing vegetation on the property is the difference between the market value of the real property before and after the fire.

Kebschull argues he must be allowed restoration costs, citing Spackman v. Ralph M. Parsons Co. (1966), 147 Mont. 500, 414 P.2d 918, and Bos v. Dolajak (1975), 167 Mont. 1, 534 P.2d 1258. Kebschull misinterprets these cases, however. Spackman does not allow restoration costs. In Spackman sewage backed up into the basement of plaintiff’s motel causing considerable damage to various machines and personal property stored there. Plaintiff made a careful list of all damaged items, valuing many of them as though they were new although they were not. The Court said the purpose of awarding damages is to compensate the injured party for actual loss or injury — no more, no less.

“[There are many] ingenious methods, systems and formulas for determining in monetary terms the value of property partially damaged or destroyed . . . Another guide or measure concerns property damaged but not totally destroyed, in which case the generally accepted estimate of damages is the difference in market value at the place before and after injury.” Spackman, 147 Mont. at 506-507, 414 P.2d at 921-922.

Ultimately good sense must be applied, rather than mechanical application of formulas.

This Court is aware that rigid adherence in all cases to the above rule would not always serve the objectives of compensating the injured party for actual loss. In some cases the property might be more valuable after destruction of part of it, and strict application of the rule would penalize the owner and reward the wrongdoer. Nor should a landowner be forced by this method to put his land to a use for which he has no desire because the loss has conditioned the land for a higher use.

Such results can be obviated by ascertaining a value separate from the land of the thing destroyed or damaged, and then compensate the injured party for restoration or replacement costs. This is what the court did in Bos, supra.

Kebschull’s reliance on Bos is likewise misplaced, however. The action in Bos arose out of negligence as well as breach of contract. We upheld a jury award of the market value of a damaged silo at the time of the loss, although the award was greater than the amount paid for the purchase of the used silo. Plaintiffs also were awarded replacement costs and damages they had incurred for loss of use, less an offset for the foundation. The silo in Bos was not a readily replaceable item. Its expected use was integrated into the Bos’ dairy farming operation and destruction of the silo presented serious problems. The rule in Spackman can not be applied in Bos, nor can the rule in Bos be applied in the immediate case. In this case the property is growing vegetation which is part of the real property.

We have not had previous opportunity to apply the general rule of damages to growing vegetation, as have some of our sister states.

The Minnesota court makes a distinction between vegetation which serves a utilitarian purpose, Rector, Etc. v. C. S. McCrossan (1975), 306 Minn. 143, 235 N.W.2d 609, and those which are for the most part ill-formed, unattractive, and of little intrinsic value. Bail lon v. Carl Bolander & Sons Co. (1975), 306 Minn. 155, 235 N.W.2d 613, 615. In Rector where in addition to their natural aesthetic beauty, the trees acted as a sound barrier, the high court allowed the jury to consider cost of replacement and before and after value of the land in order to permit flexibility and achieve a just and reasonable result. 235 N.W.2d at 613. In Baillon, however, the court refused to adopt the replacement rule saying to do so conceivably would involve an expense greatly out of proportion to the actual damage to the real estate. 235 N.W.2d at 615.

The Arkansas court found that some shade trees which were destroyed by fire were part of the freehold and their value was actually the depreciation of the value in the property on which they stood. Because their value depended on their connection with the soil, the measure of damages is the difference in market values before and after the destruction. Cy Carney Appliance Company v. True (1956), 226 Ark. 961, 295 S.W.2d 768. Thus a determining factor is whether the destroyed trees have any value apart from the land where they stood.

We believe the Arkansas holding to be better reasoned. Even if we applied the Minnesota court’s reasoning, however, the measure of damages in this case must be the difference between the value of the property before and after the fire. The replacement cost of the trees would be greater than the actual damage to the real estate regardless of their utility or lack of utility. Appraisers for both Kebschull and Nott testified the market value of the land was not diminished as a result of the fire.

The order of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT, WEBER, SHEEHY, MORRISON and GULBRANDSON concur.


author: MR. JUSTICE MORRISON

text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES TECCA, III, Defendant and Appellant.
    No. 85-483.
    Submitted on Briefs Dec. 18, 1985.
    Decided Jan. 28, 1986.
    713 P.2d 541.
    Knuchel & McGregor, Karl Knuchel, Livingston, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe Roberts, Asst. Atty. Gen., Helena, Robert Jovick, City Atty., Livingston, for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Defendant, Charles Tecca III, appeals the August 13,1985, order of the Sixth Judicial District Court dismissing his appeal to that court and remanding his appeal bond. We reverse.

Defendant was convicted of three traffic offenses in Livingston City Court on July 17, 1985. On July 24, 1985, judgment and sentence were orally pronounced. Defendant’s attorney filed a notice of appeal in City Court on July 29, 1985. That notice specified that the appeal would be “to the Justice Court of the County of Park, State of Montana, before Deanna Egeland, Justice of the Peace.” The appeal should have been to District Court. On August 7, 1985, eleven “working” days after judgment was issued, a correct notice of appeal was filed. Section 46-17-311(2), MCA, requires that a notice of intent to appeal from a judgment of a city or justice court be filed within ten days of the judgment. Therefore, the trial judge dismissed the appeal for failure to file a timely notice of appeal.

We agree with the trial judge that the August 7,1985, notice of appeal was not timely. We have consistently given a strict construction to Section 46-17-311, MCA, and will continue to do so.

Our resolution of this appeal rests on the original notice of appeal. It was timely filed in the proper court. Therefore, the City Court had actual, timely notice of defendant’s intent to appeal. Unfortunately, that notice of appeal was defective in that it specified the wrong court as the court of appeal. In a similar case, Adair v. Lake County Justice Court (Mont. 1984), [213 Mont. 466,] 692 P.2d 13, 41 St.Rep. 2241, the notice of appeal specified that appeal would be to the Montana Supreme Court. Noting that proper appeal should be to the District Court, we granted ten days from the date of remittitur to file a statutorily correct notice of appeal. The same remedy should be afforded defendant in this case.

Accordingly, defendant is granted ten days from the date of remittitur of this Court to file a correct notice of appeal, pursuant to Section 46-17-311, MCA.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GERALD LINCOLN WALKER, Defendant and Appellant.
    No. 85-487.
    Submitted on Briefs Nov. 21, 1985.
    Decided Jan. 28, 1986.
    712 P.2d 1348.

      Brad L. Belke, Butte, for defendant and appellant.
    Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Ted L. Mizner, Co. Atty., Deer Lodge, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Gerald Lincoln Walker, entered a plea of guilty to charges relating to burglary and theft. At his sentencing hearing, he moved to withdraw that plea. The Powell County District Court denied his motion, and defendant appeals. We affirm the District Court’s order.

The issues on appeal are:

(1) Did the District Court abuse its discretion in not allowing defendant to withdraw his guilty plea?

(2) Is defendant’s epilepsy a developmental disability which raises a defense of lack of intent at the time the crimes were committed?

Defendant was arrested in December, 1984 on charges of burglary, attempted burglary, and theft. At his arraignment, the defendant entered a plea of not guilty, and a trial date was set. In April, 1985 he withdrew his plea and, on the basis of a plea negotiation with the Powell County Attorney, entered a plea of guilty. The court ordered a presentence investigation.

Thereafter, a question arose concerning the defendant’s fitness to proceed, and, at his counsel’s request, he was sent to Warm Springs State Hospital for an examination. He was transferred to Galen State Hospital after suffering from seizures. There, he was placed on medication. Approximately five days later he returned to Warm Springs, where he underwent evaluation.

At his sentencing hearing, defendant moved to withdraw his guilty plea on the basis that he was under a disability at the time he entered the plea, and was incompetent to enter a plea. He also contended that the examination at Warm Springs did not address itself to the issue of whether his epilepsy (as distinguished from his I.Q.) caused him to lack the requisite mental state to commit the offenses charged. The State presented testimony by the psychologist who examined the defendant at Warm Springs. He testified that he had spent approximately two hours with defendant, and that he had access to all of defendant’s files, including medical files, at Warm Springs. His conclusion was that defendant was competent and did not suffer from a mental disease or defect. He also testified that, in his opinion, the defendant could assist in his own defense and understood the proceedings against him. Defendant’s motion to withdraw his plea was denied and he was sentenced pursuant to the plea bargain.

I

Did the District Court abuse its discretion in not allowing defendant to withdraw his guilty plea?

We consider three important factors in reviewing a motion to withdraw a guilty plea. They are: (1) the adequacy of the District Court’s interrogation at the time the plea was entered as to the defendant’s understanding of the consequences of his plea; (2) the promptness with which the defendant attempts to withdraw the prior plea; and (3) the fact that the defendant’s plea was the result of a plea bargain. State v. Mesler (Mont. 1984), [210 Mont. 92,] 682 P.2d 714, 717, 41 St.Rep. 939, 942.

As to the first factor, a trial judge’s interrogation of a defendant seeking to enter a guilty plea is sufficient if the judge:

“. . . examines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the facts upon which his guilt is based.” State v. Lewis (1978), 177 Mont. 474, 485, 582 P.2d 346, 352.

At his change of plea hearing, the defendant submitted to the court a written “acknowledgment of waiver of rights by plea of guilty.” That document, signed by the defendant, contained statements that he understood all of the matters listed above in Lewis. It also contained defendant’s handwritten statement of the facts which were the basis for his plea of guilty. Before accepting the guilty plea, the court questioned defendant as to the authenticity and contents of the acknowledgment.

This Court has held, in a similar fact situation, that a written acknowledgment combined with oral questioning of the defendant constituted adequate interrogation under Lewis. State v. Laverdure (Mont. 1984), [212 Mont. 31,] 685 P.2d 375, 41 St.Rep. 1570. We conclude that the District Court here conducted an adequate interrogation of the defendant as to his understanding of the consequences of his plea. We note also that the psychological evaluation of defendant did not support his position that he was incompetent to enter a voluntary guilty plea.

The matters of the promptness of defendant’s motion to change his plea and the fact that his change of plea was a result of plea bargaining are not in dispute. Although the promptness of plaintiffs motion to change his plea weighs in his favor, upon consideration and balancing of all three factors, we hold that the District Court was within its discretion in denying defendant’s motion to withdraw his guilty plea.

II

Is defendant’s epilepsy a developmental disability which raises a defense of lack of intent at the time the crimes were committed?

The defendant did not produce any evidence in support of his contention this his epilepsy affected his ability to form the requisite intent at the time the crimes were committed. In fact, the results of the mental examination tend to disprove this theory. We therefore apply the rule that when a defendant properly pleads guilty, he waives all factual defenses as well as constitutional violations which occurred prior to the plea. State v. Hilton (1979), 183 Mont. 13, 597 P.2d 1171. We do not rule on the issue of whether epilepsy could constitute a developmental disability negating the element of intent, if properly proven.

The order of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT and GULBRANDSON concur.


text:
    BOB BARTHELMESS, Plaintiff and Respondent, v. BRUCE K. BERGERSON, SR., Ted Hirsch and Maurice E. Fleming, as County Commissioners of Custer County, Montana; and Custer County, Montana, a body politic and corporate, Defendants and Appellants, v. TONIA R. STRATFORD, Contestant and Appellant, v. BOB BARTHELMESS, Contestee and Respondent.
    No. 86-035.
    Decided Jan. 30. 1986.
    713 P.2d 990.
    J. Dennis Corbin, Dep. Co. Atty., Miles City, for Bergerson, et al.
    Lucas & Monaghan, James P. Lucas, Miles City, for Barthelmess.
    Brown & Huss, George W. Huss, Miles City, for Stratford.
   ORDER AND OPINION

This Court in an opinion issued on November 6, 1985, Barthelmess v. Bergerson (Mont. 1985), [218 Mont. 398,] 708 P.2d 1010, 42 St.Rep. 1685, ordered the redistricting of Custer County to comply with the criteria set forth in Section 7-4-2102, MCA, noting that the boundary lines approved October 31, 1983, do not comply with the statutory requirements.

We ordered the districts be redrawn to comply with the statute consistent with this opinion. In addition, we directed that both District Judges of the Sixteenth Judicial District must review and approve a plan before it was filed and recorded.

In .our opinion we noted that Mr. Barthelmess did not reside in the commissioner district from which he ran and was elected, and directed the District Court’s conclusions of law as to the boundary lines be modified. Furthermore, we modified conclusion No. 5 of the court’s findings and conclusions “declaring Bob Barthelmess the duly elected commissioner of District #2, to permit him to hold office until the next general election when a candidate would be elected for the remainder of the term involved.” Barthelmess, 708 P.2d at 1014, 42 St.Rep. at 1689.

The Custer County commissioners in good faith attempted to carry out the mandates of the opinion of this Court and immediately upon receiving the decision of this Court, attempted to draw new commissioner districts before December 2, 1985.

The need to meet the December 2, 1985, deadline was noted in our opinion as mandated by Section 7-4-2102, MCA, which states:

“No change in the boundary lines of any commissioner district shall be made within 6 months next preceding a primary election.” The primary election is scheduled to occur in Custer County on June 2, 1986.

A redistricting plan was submitted to Judges Alfred B. Coate and A. B. Martin, November 26, 1985, and an order was issued by the Honorable Alfred B. Coate the same day rejecting the newly proposed commissioner districts that had been created as mandated by the opinion of this Court. On December 3, 1985, the two Judges issued a memorandum expressing concern over the inability to create commissioner districts as required by Section 7-4-2102, MCA, within the time prescribed by statute. In late December, 1985, the commissioners of Custer County submitted a new proposal for the creation of commissioner districts which they believed to be in conformity with Section 7-4-2102, MCA. On January 3, 1986, the two presiding District Judges of the Sixteenth Judicial District reviewed and approved the commissioner’s second redistricting plan as proposed. The District Judges rendered no opinion as to whether these two newly created and approved districts could now be filed, since filing would be in violation of Section 7-4-2102, MCA, which allows no change in commissioner district boundaries within six months before a primary election.

Thereafter, this Court received on January 17, 1986, a stipulation of the contesting parties, Bob Barthelmess and Tonia R. Stratford, through their respective attorneys that they are in agreement as to the facts set forth in the Motion for Clarification or for a Declaratory Judgment or other appropriate relief, and waived time in which to submit reply briefs to this Court.

The purpose of the provision in Section 7-4-2102, MCA, that no change in the boundaries of any commissioner district shall be made within six months next preceding a primary election are to prevent gerrymandering and to provide sufficient time for candidates to file for election to the office of county commissioner. Such provision should not be construed or enforced so as to prevent the formation and filing of county commissioner districts when as here the former districts which had been proposed and approved did not meet the other statutory requirements of compactness and equality of population. Strict enforcement here of the six month provision would serve to prevent the residents not only of District #2, but of the other district whose commissioner must be elected this year, from legally electing their commissioners. The voters of the two districts would be disenfranchised and the transaction of county business impeded. When the reason for the statutory rule ceases, the reason for its enforcement also ceases. We have in this case therefore a proper subject for declaratory relief in the interpretations of statutes.

Accordingly, by way of declaratory relief,

IT IS ORDERED:

1. The county commissioner districts of Custer County, Montana, as proposed by the county commissioners and as approved by the District Judges of the Sixteenth Judicial District on January 3,1986, shall be and constitute the county commissioner districts of said county for all purposes relating to the primary and general election of 1986 and until further redistricting.

2. The county commissioners of said county shall forthwith file in the office of the county clerk and recorder of said county a certificate designating the metes and bounds of the boundary lines and limits of each commissioner district pursuant to the proposal for districts approved by the District Judges of said district on January 3, 1986.

3. The county commissioners shall append to said certificate when filed a certified copy of this order, which shall be in lieu of the requirement in Section 7-4-2103, MCA, that the certificate shall be dated and signed by the District Judges.

4. Any person qualified to be a candidate for county commissioner of said county from District #2, or from any other district for which an election is to be held in said county, as said districts are here ordered and determined, may file for election to such office prior to the closing date of March 20, 1986.

5. This Court retains jurisdiction for such other relief as may be necessary.

6. The Clerk of this Court shall serve by ordinary mail copies of this order to the District Judges of the Sixteenth Judicial District, and to counsel of record for the respective parties, and a certified copy hereof to the county commissioners of Custer County, Montana.

DATED this 30th day of January, 1986.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/Frank B. Morrison, Jr., Justice

s/John C. Sheehy, Justice

s/Fred J. Weber, Justice

s/L.C. Gulbrandson, Justice

s/William E. Hunt, Sr., Justice


text:
    In the Matter of the GUARDIANSHIP AND CONSERVA-TORSHIP OF the Person and ESTATE OF MYRTLE MAE TENNANT, an Incapacitated Person.
    No. 85-132.
    Submitted on Briefs Aug. 22, 1985.
    Decided Feb. 5, 1986.
    Rehearing Denied March 11, 1986.
    714 P.2d 122.

      Mulroney, Delaney & Scott, P. Mars Scott, Missoula, for appellant.
    Baxter, Fletcher & Hanson, Robert Baxter & Robert Fletcher, Thompson Falls, for respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a judgment of the District Court of the Fourth Judicial District, Sanders County, the Honorable Douglas Harkin presiding, finding the will and deed of Mae Tennant to be void and awarding the conservator of her estate a money judgment against Thomas Evans and Raymond Williams. From this judgment Evans and Williams appeal. We affirm.

Myrtle Mae Tennant (Mae) was born on March 21, 1902, and was 79 and 80 years of age, respectively, during the summers of 1981 and 1982 when the facts pertinent to this appeal occurred. During these pertinent years, Mae lived alone in Thompson Falls, Montana, and was a widow without any children, her husband, Earl, having predeceased her in 1961.

In February 1972, Mae executed a will prepared by her longtime attorney, Eugene Mahoney. This will left specific devises to Boys Town, the Community Church in Thompson Falls and the Montana Heart Foundation. The residue of Mae’s estate under this will was to be placed in an athletic scholarship fund for male athletes at Thompson Falls High School.

Commencing sometime in 1975, Mae’s physical and mental health began to deteriorate. The record indicates that Mae began to neglect her personal hygiene, permitted the interior of her home to become an extraordinary mess, and began to drink heavily. In addition, the record shows that Mae’s mental state had deteriorated to the point where she was not capable of handling her own financial affairs. Testimony shows Mae apparently believed she would always have whatever money she needed simply by writing another check. For this reason, her close friends would balance her checkbook, deposit any funds she would receive, and would also pay her bills when she would neglect to pay them. Furthermore, Mae had developed a reputation among her friends and acquaintances as being a “soft touch.” She would apparently give anything of hers to someone if she liked them, and could easily be talked into buying items and services she actually did not need. Mae’s close friends, it appears, recognized her weakened condition and refused to take advantage of the situation.

It was in the above condition that Tom Evans (Evans) and Ray Williams (Williams) found Mae in June of 1981. Evans was the owner of yard and tree service from Missoula, Montana, and he contacted Mae to see if she was in need of his services. Mae immediately hired Evans, and his employee Williams, to care for her yard and trees despite the fact that Evans’ brother, Bill, had done $2,500 worth of work in Mae’s yard the previous summer, and Evans’ brother, Jim, had charged Mae $1,150 for yard work he performed that May. Evans and Williams maintained and landscaped Mae’s yard during the fall and summer of 1981 for which they were handsomely paid. Also during this time-period, Evans and Williams developed a close friendship with Mae. They made numerous trips to Thompson Falls to perform yard work for Mae and just to be with her. It is clear by the end of 1981, Mae regarded her relationship with Evans and Williams to be something much more than that of employer and employee.

In 1982, Evans and Mae again agreed that Evans would do Mae’s yardwork, plus various other odd jobs for her. The record indicates that during 1981-1982, the two years Evans and Williams worked for Mae, they received at least $18,130 from her as payment for their services and also as so-called gifts. Furthermore, during 1982, Mae’s friendship with Evans and Williams deepened. Evans brought members of his family to meet Mae in Thompson Falls and Mae became very attached to them. Evans, Williams and members of Evans’ family made at least fifty trips during 1981 and 1982 to Thompson Falls from Missoula to perform yard work for Mae and just to socialize with her. In Evans’ own words, she (Mae) kept “hiring me just to have me . . . with her.”

Sometime in the spring of 1982, Mae told Evans she wanted him and his family to have her house. Evans gave Mae the name of his attorney in Missoula, Tony Keast, and Mae contacted Mr. Keast to have him take care of the matter. Mr. Keast subsequently prepared a quitclaim deed giving Mae a life-estate in her real property and on her death passing the same to Evans. Mr. Keast also prepared a new will for Mae which left her real property to Evans and her personal property to Williams. The will and the deed were signed by Mae on August 4, 1982, and Mae’s old will was physically destroyed on the same date. The deed was notarized by Mr. Keast and was subsequently recorded by Evans. Also, Mae’s new will was witnessed by Mr. Keast and Evans.

During this period from 1981-1982, Mae’s health and mental state continued to worsen. On October 12, 1982, at the insistence of a close friend, Mae visited Dr. Lulack in Thompson Falls. Dr. Lulack determined that Mae was diabetic, she was suffering from chest pains, dizziness and severe headaches, she had lost control of her bowel movements, and that she was physically unclean. Dr. Lulack was also surprised to discover that Mae’s toenails were seven centimeters in length and that her toenails and feet were in such a condition that she often wore galoshes. Further examination of Mae by other doctors revealed that she also had cancer of the colon. Mae subsequently underwent surgery for her cancer and it was found that her cancer had spread to her liver.

After her surgery, Mae was moved back to her home in Thompson Falls to recover from her illnesses, but it soon became apparent to Dr. Lulack that Mae’s condition would require professional care. Dr. Lulack then contacted the Department of Social and Rehabilitation Services who subsequently petitioned the Sanders County District Court to have Mae declared an incompetent so that a guardian and conservator could be appointed for her. At a hearing held on December 28, 1982, Robert Baxter was appointed temporary conservator of Mae’s estate and Social and Rehabilitation Services was appointed the temporary guardian of Mae. On January 25, 1983, the District Court made the foregoing appointments permanent.

Thereafter, on February 1, 1983, the conservator filed an action in the Sanders County District Court to recover funds from Evans and Williams which they had received from Mae, and also to have set aside the deed and will executed by Mae on August 4, 1982.

Mae subsequently passed away on January 2, 1984, from complications of her illnesses, and shortly thereafter, Williams offered her will for probate in the Sanders County District Court. Williams further petitioned the District Court to terminate Mae’s conservator-ship. The District Court subsequently consolidated the probate and civil actions and ordered that the conservator retain all the assets of Mae’s estate until a personal representative was appointed.

On October 29 and 30, 1984, a trial was held in the Sanders County District Court, before Judge Harkin sitting without a jury, on the appointment of Williams as the personal representative of Mae’s estate, as well as on the complaint filed by the conservator. During trial, Judge Harkin personally viewed the property of Mae’s in question.

Judgment was subsequently entered by the District Court on January 16, 1985, in favor of the conservator, finding the subject will and deed executed by Mae to be void and awarding the conservator a money judgment against Evans in the amount of $12,176.05 and against Williams in the amount of $800.

(1) Was the appointment of the conservator and guardian of Mae Tennant done in accordance with the statutory guidelines and if not, are the conservatorship and guardianship void ab initio?

(2) Was the conservator the real party in interest in pursuing the case once Mae Tennant died, and what are the conservator’s duties upon the death of the protected person?

(3) Did the conservator meet his burden in proving that Mae Tennant did not have capacity to execute a deed and will on August 4, 1982, and to enter into contracts with the appellants?

(4) Did the conservator meet his burden in proving that the appellants exercised undue influence over Mae Tennant to procure her execution of the deed and will on August 4, 1982?

(5) Did the trial court err in making its findings of fact?

The respondent, the conservator, raises this additional issue for review by this Court;

(1) Whether the question of the capacity of standing of the conservator to bring this action while Mae Tennant lived was properly raised in this appeal?

The first issue presented by appellants and the single issue raised by the conservator can be summarily discussed. With regard to their first issue, the appellants claim the District Court did not follow Montana statutory guidelines in appointing the conservator and guardian for Mae and therefore both of these appointments are void ab initio (from the beginning). Specifically, the appellants argue the District Court failed to give Mae any notice of the conservatorship and guardianship proceedings, and thus the appointments made during these proceedings are void and the conservator lacked the capacity to file his present cause of action.

The conservator replies to appellants’ contention by arguing that the issue of notice to Mae concerning the conservatorship and guardianship proceedings was not previously raised or presented to the trial court, and therefore this issue cannot now be properly raised on appeal. We agree. The rule governing the treatment of new issues raised for the first time on appeal is clear in Montana.

“We have repeatedly held that we will not consider questions of claimed err not previously raised or presented to the trial court.” (Citations omitted.) Northern Plains v. Board of Natural Resources (1979), 181 Mont. 500, 521, 594 P.2d 297, 309.

At no time during the trial did appellants raise the issue of lack of notice to Mae concerning the conservatorship and guardianship proceedings. Consequently, appellants’ claim of error under issue No. 1 must be disregarded.

Under their second issue, the appellants argue that upon the death of Mae, her conservatorship should have been terminated by the District Court and therefore the conservator had no standing to pursue his present cause of action on behalf of Mae’s estate. Furthermore, the appellants argue the conservator is not an “interested person” of Mae’s estate, as defined by Montana’s statutory law, and therefore he lacked the right to contest Mae’s will. We disagree with both of these contentions.

First, Section 72-5-429(3), MCA, provides that upon the death of a protected person the conservator must “. . . retain the estate for delivery to a duly appointed personal representative.” This statute simply says that it is the duty of the conservator to continue to protect the ward’s estate until a personal representative is duly appointed by the court. In the instant case, no personal representative has been duly appointed because the District Court refused to appoint Ray Williams, or any other person, to this position. Therefore, until the appointment of a personal representative by the District Court, the conservator must act to protect Mae’s estate which in this case' includes filing a lawsuit against the appellants.

Second, there is no question that the conservator is an “interested person” of Mae’s estate with the right to contest her will. As the appellants correctly point out in their brief, the right to contest a will is purely statutory. In Montana, any party who is an “interested person” of a decedent’s estate has the right to oppose or contest the probate of a will. See, Matter of Estate of Fender (1975), 168 Mont. 200, 541 P.2d 784. The phrase interested person is defined by Section 72-1-103(21), MCA, in pertinent part as follows:

“Interested person includes . . . any others having a property right in or a claim against the estate of a decedent, ward or protected person which may be affected by the proceeding. It also includes persons having priority for appointment as personal representative and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purpose of and matter involved in any proceeding.”

Clearly, under the above statute, the conservator has an interest in Mae’s estate. He not only has a property right in her estate, as discussed above, but the last two sentences of the statute also allow the conservator to be an “interested person” of her estate. Therefore, the conservator has the right to contest Mae’s will.

With regard to issue three, the appellants claim the conservator did not meet his burden in proving that Mae lacked the necessary capacity to execute the subject deed and will on August 4, 1982, and to enter into contracts with the appellants. Once again, we disagree with appellants’ contention.

This Court has previously set out the test for testamentary capacity in In Re Bodin’s Estate (1965), 144 Mont. 555, 560, 398 P.2d 616, 619, as follows:

“[A] testator is competent if he is possessed of the mental capacity to understand the nature of the act, to understand and recollect the nature and situation of his property and his relations to persons having claims on his bounty whose interests are affected by his will. (Citation omitted.) The testator must have sufficient strength and clearness of mind and memory to know, in general, without prompting, the nature and extent of the property of which he is about to dispose, and the nature of the act which he is about to perform, and the names and identity of the persons who are to be the objects of his bounty, and his relation towards them.” (Citations omitted.)

In applying these factors to the instant case, there is little doubt that Mae lacked the necessary testamentary capacity to execute the subject will on August 4, 1982.

First, it must be noted that Mae had drafted an earlier will in 1972. This first will was prepared by a person who had known Mae personally for many years and had served as her attorney. It benefited persons and charities known by Mae’s close friends to be the objects of her affection. This evidence indicates that at the time Mae executed the subject will on August 4, 1982, she was not fully aware of the natural or logical objects of her bounty.

Furthermore, the record strongly suggests Mae did not know the nature and extent of her property at the time she executed the subject will. Numerous witnesses testified that around the time Mae executed the subject will, she believed she had an inexhaustible supply of money. Even Evans testified in his deposition as follows:

“Q. Do you think she relied on the house for security for payment for her expenses in her old age?
“A. She didn’t seem to be concerned about her financial — she acted like she had lot of money.
“Q. Did she ever express concern to you about her financial security?
“A. No, she didn’t. She said she had lots ID’s [sic] or something, that her and Irwin paid in for 30, 40 years. She was financially affected for the rest of her life.
“Q. It’s your opinion, then, that she felt that she was well fixed at that time, exclusive of ownership of the house; is that correct?
“A. Yeah, I think she thought she was well fixed.
“Q. Did she ever discuss specifically with you how much money she had in other investments?
“A. No, she didn’t.”

However, the true facts are that at the time the conservatorship was established, Mae’s cash and cash equivalents totaled only about $4,500.

Also, the record strongly shows that at the time she executed the subject will, Mae did not know the true nature of the act she was performing. Mae’s deposition taken shortly before her death reads as follows:

“Q. Did you discuss the contents of your will before you signed the will?
“A. I don’t remember that either. I don’t think I did.
“Q. Who were the witnesses to your will?
“A. I don’t think I had any. I don’t remember, unless it was Nieva Wood.
“Q. Well, do you remember who was present in the house at the time you signed the will, Mae?
“A. No, not offhand I don’t.
“Q. Mae, did you have a will before you made out this will?
“A. No I didn’t.
“Q. Had Gene Mahoney not made out a will for you?
“A. No.”

The only evidence to support the conclusion that Mae knew the true nature of the act she was performing came from the testimony at trial of Evans, Williams and Tony Keast. This Court submits that the weight given to the testimony of Evans and Williams must be balanced against their personal interest in the outcome of this case. In fact, the District Court made the following special finding of fact: “the testimony of Tom Evans is replete with inconsistencies; he is not a credible witness.” Furthermore, the weight given to the testimony of Tony Keast must also be questioned because of his apparent lack of knowledge of the formalities necessary to draft a valid will in Montana. Section 72-2-305(3), MCA, clearly provides that any beneficial devise in a will to a subscribing witness is void. Mr. Keast permitted Evans, a principal beneficiary under Mae’s will, to be a subscribing witness to her will in obvious violation of this statute.

Finally, it is important to note that substantial evidence exists that Mae’s mental incapacity extended over a long period of time and most certainly included the date on which the subject will and deed were executed. As described in the facts section of this opinion, testimony indicates Mae’s mental incapacity began to surface as early as 1975. Therefore, in light of the above discussion, this Court has little hesitation in concluding that Mae lacked the necessary testamentary capacity to execute the subject will, and the subject will is hereby declared void.

Next, the same facts which lead us to the conclusion that Mae lacked the necessary capacity to execute the subject will, also lead us to the conclusion that Mae lacked the necessary capacity to execute the subject deed. The standard of competence necessary to execute a valid deed is set out by this Court in Silloway v. Jorgenson (1965), 146 Mont. 307, 406 P.2d 167. In Silloway, we held that a grantor’s mental ability to execute a valid deed required sufficient capacity to understand in a reasonable manner the nature and effect of the act undertaken.

Mae’s lack of understanding regarding the execution of. the subject deed is established by her own testimony. When she was questioned about her understanding of the document and was shown the deed physically, these questions and answers were exchanged:

“Q. Mae, I will show you a photocopy of what purports to be a quitclaim deed. Does that look like something you have seen before?
“A. Yes
“Q. Can you identify that?
“A. Yes
“Q. What is it?
“A. Well, it’s — I don’t know if I know the proper name for it, but it’s a deed.
“Q. And who is the deed from? Look up here, Mae.
“A. Thomas J. Evans, Sanders County.
“Q. Well, Mae, you seem to be a bit confused by that document. Are you familiar with deeds at all?
“A. No, I’m not familiar with no deeds.
“Q. Do you understand what deeds are all about?
“A. Well, I’m getting to learn a little bit about it.
“Q. You mean you are getting to now: is that right?
“A. Yes, . . .”

Mae further summarized her understanding of the subject deed and its consequences when she confessed the following in her deposition:

“Somebody has done all kinds of things that I have no knowledge concerning my business and concerning me and my property and everything. I don’t know a thing about what all they are doing. I don’t understand the whole thing.”

It is clear from the above testimony, in addition to the other evidence presented by the record, that Mae was thoroughly confused by the deed and did not understand its nature or effect. Therefore, this Court agrees with the District Court’s finding that Mae did not have the requisite mental capacity to execute the subject deed and it is hereby declared void.

Furthermore, for the same reasons why Mae lacked the capacity to execute the subject deed and will, we hold Mae lacked the necessary capacity to enter into binding contracts with the appellants for yard care services. Consequently, we hold such contracts entered into between the parties to be rescinded and declared void.

The fourth issue presented by the appellants asks this Court to determine if the conservator also met his burden in proving that the appellants exercised undue influence over Mae to procure her execution of the subject deed and will. We hold the conservator met his burden.

The case of In Re Maricich’s Estate (1965), 145 Mont. 146, 400 P.2d 873, is the lead case in Montana for determining the existence of undue influence on a testator. The elements found in Maricich are essentially the same as the statutory elements for undue influence found in Section 28-2-407, MCA. The test in Maricich provides as follows:

“(1) Confidential relationship of the person attempting to influence the testator; (2) The physical condition of the testator as it affects his ability to withstand the influence; (3) The mental condition of the testator as it affects his ability to withstand influence; (4) The unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible to undue influence; (5) The demands and importunities as they may affect particular testator taking into consideration the time, the place, and all the surrounding circumstances.” Maricich, 400 P.2d at 881.

It should also be pointed out that this Court in Patterson v. Halterman (1973), 161 Mont. 278, 505 P.2d 905, held that the tests for undue influence which are pertinent to wills are also pertinent to deeds.

In analyzing the instant case under the elements listed in Maricich, it is clear to this Court that the appellants exercised undue influence over Mae to procure her execution of the subject deed and will. The initial four elements of the Maricich test have already been established in this opinion. A confidential relationship existed between Mae and the appellants; Mae was a person especially susceptible to the exercise of undue influence because of her mental and physical condition; and Mae made an unnatural disposition of her property by the subject deed and will by reasons of her preestablished estate plan of long standing which left her estate to various charities and a scholarship fund. Finally, with regard to the fifth element of the test, the record clearly shows that demands and importunities were made upon Mae by the appellants. This point is well illustrated by the fact that the appellants solicited Mae’s work, when it was obvious that she simply did not need such work done. Bill Evans, Tom’s brother, apparently did $2,500 worth of work for Mae in 1980 and Jim Evans, Tom’s brother, charged Mae $1,150 for work that he did for her in May of 1981, just a month before Tom Evans started working for Mae. It appears Evans and Williams saw a lady who, because of her condition, could not say “no” and they took advantage of the situation.

Therefore, in light of the above discussion, this Court holds that the appellant exercised undue influence over Mae to procure her execution of the subject deed and will, and we once again hold these two documents to be void.

The fifth, and final, issue raised by the appellants is whether the findings of fact and conclusions of law of the District Court are supported by the evidence. In response to this issue, we note this Court will not set aside the trial court’s findings of fact unless shown to be clearly erroneous. Rule 52(a) M.R.Civ.P., states in pertinent part:

“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

Furthermore, findings of fact are not clearly erroneous if supported by substantial credible evidence:

“This Court’s function ... is not to substitute its judgment in place of the trier of facts but rather it is ‘confined to determine whether there is substantial credible evidence to support’ the findings of fact and conclusions of law. (Citations omitted.) Although Conflicts may exist in the evidence presented, it is the duty and function of the of the trial judge to resolve such conflicts. His findings will not be disturbed on appeal where they are based on substantial though conflicting evidence. (Citations omitted.)” Olsen v. Westfork Properties, Inc. (1976), 171 Mont. 154, 157, 557 P.2d 821, 823.

In light of the above standard, we conclude there is substantial credible evidence on the record, as explained in this opinion, to support the findings of fact and conclusions of law of the District Court.

It should also be noted that based on the record, Mae’s original will drafted in 1972 may not be reinstated by this Court under the doctrine of dependent relative revocation. Montana specifically recognizes this doctrine which provides that if a testator revokes or destroys his old will and substitutes another which fails for any reason, a rebuttable presumption arises that he would prefer to have his property distributed pursuant to the earlier will than according to the intestate succession statutes. Matter of Estate of Patten (1978), 179 Mont. 299, 587 P.2d 1307. However, an essential element of this doctrine is that the new will and the old will of the testator must reflect essentially the same dispositive plan. In the instant case, Mae’s new will and old will clearly do not reflect the same dispositive plan. Therefore, this doctrine does not apply to the instant case and Mae’s property must be distributed according to Montana’s intestate succession statutes.

The judgment of the District Court is affirmed.

MR. JUSTICES WEBER, MORRISON, SHEEHY and HUNT concur.


author: MR. JUSTICE SHEEHY

text:
    VERNON WESTLAKE, Personal Representative of the Estate of Harry D.R. Larson, Deceased, Plaintiff and Appellant, v. CHARLES R. OSBORNE and Lois Marie Osborne, husband and wife, and Dennis Hardin, Defendants and Respondents.
    No. 85-338.
    Submitted on Briefs Nov. 29, 1985.
    Decided Feb. 5, 1986.
    713 P.2d 548.

      H.A. Bolinger, Bozeman, for plaintiff and appellant.
    Gregory O. Morgan, Bozeman, for Osborne.
    Corette, Smith, Pohlman, & Allen, Marshal L. Mickelson, Butte, for Hardin.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, Vernon Westlake, personal representative of the Estate of Henry Larson, appeals from the judgment of the District Court, Eighteenth Judicial District, County of Gallatin, entered following the court’s order granting the motions for summary judgment of respondents, Charles and Marie Osborne, and Dennis Hardin. We affirm.

The record of this case, as contained in the depositions on file, shows that Charles Osborne and the deceased, Harry Larson, were friends. The two agreed that they would enter into sale and lease back agreements with regard to real property owned by Larson and used as his residence.

Sometime in the latter part of February 1982, the two men sought the assistance of Dennis Hardin, a licensed real estate broker and investment counselor to assist them in the transaction. Both men had dealt with Hardin in the past. They told Hardin that they had struck a bargain with regard to the sale of the Larson residence. Hardin then elicited the details of the transaction from them and explained that they would need title insurance and proper agreements drafted by an attorney. Hardin then relayed the details of the transaction to Ed Sedivy, the attorney who drafted the agreements. The documents prepared by Sedivy were thoroughly reviewed by Larson and Osborne.

Larson’s title was subject to an unpaid balance of $3,200 on a $6,000 mortgage owning to Larson’s sister, Ella Westlake. Appellant, Vern Westlake, is the son of Ella Westlake and the nephew of Larson.

Due to the existing mortgage on the property, Hardin telephoned Ella Westlake prior to closing the transaction. She told Hardin to consult her son. After learning of the transaction from Hardin, Vern Westlake contacted Larson and Larson told him that he wanted to sell his house to get his financial affairs straightened out and that it wasn’t really any of Westlake’s business.

Prior to closing, Larson, Vern Westlake, Ella Westlake and Hardin met in Hardin’s office. At that time Vern Westlake asked Larson if he was sure he knew what he was doing and explained that if he was in a financial bind Ella Westlake would refinance the note and mortgage she held on the property. Larson told Vern Westlake that all he was really interested in was getting his sister’s mortgage off the property.

The sale and lease back agreements were signed on March 1, 1982. The terms of the sale were as follows:

“1. Purchase Price. Buyer agrees to pay and Seller agrees to accept, as payment in full for the property above referred to, the total sum of $16,650.00 which sum shall be paid as follows:
“A. The sum of $4,050.00, the receipt whereof is hereby acknowledged.
“B. The balance in the sum of $12,600.00 shall be paid at the rate of $350.00 per month for thirty-six (36) months, which shall be satisfied by Seller’s leasing said property and remaining in possession for thirty-six (36) months. A copy of said lease is attached as Exhibit “A.” It is understood that this lease is not assignable by Seller as Tenant, and shall terminate upon death of Tenant. In the event of such termination, if prior to the thirty-six month period, the unpaid balance of this purchase price shall be deemed satisfied.” (Emphasis added.)

The closing of the transaction took place on March 5,1982. At that time, Larson was 78 years old and in poor health, having suffered from heart difficulties since 1979. The closing itself was handled by Teddy Annear of Gallatin Title Company. The day before the closing, Larson asked Annear to conduct the closing in such a manner that the Westlakes would not know about the terms of the sale. Thus, the closing was a bifurcated transaction. First, Ella Westlake was paid the balance of her debt which was secured by Larson’s property and then the actual closing of the transaction took place.

At the closing Annear observed that Larson was alert and aware of what was going on around him, that he did not appear to be confused or upset about the transaction, and that he appeared to understand what he was doing. Hardin was also of the opinion that Larson’s age and health had no effect on his mental state.

Both Ella Westlake and Vern Westlake learned of the transaction prior to Larson’s death on November 9, 1982. After Larson’s funeral Charles Osborne called Vern Westlake and asked when Larson’s personal property would be removed from the residence, as he intended to take possession pursuant to the agreement. Vern Westlake refused Osborne access to the property.

Thereafter, Vern Westlake, as Larson’s personal representative, brought this action to set aside the contract of sale, deed and lease back alleging fraud, undue influence and unconscionability. Following discovery, motions for summary judgment were filed by both the Osbornes and Hardin. Orders granting both motions for summary judgment were granted and a final entry of judgment was entered whereupon Westlake appealed.

Westlake raises two issues on appeal:

1. Whether the District Court erred in granting summary judgment to respondent, Dennis Hardin; and

2. Whether the District Court erred in granting summary judgment to the respondents, Charles and Lois Osborne.

With regard to all the respondents, Westlake claims that summary judgment was improper because of factual issues present in the case. It is true that the party moving for summary judgment has the burden of establishing the absence of any genuine issue of material fact, and the party opposing the motion must supply evidence supporting the existence of a genuine issue of material fact. Pretty on Top v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60. The general purpose of Rule 56, M.R.Civ.P., is to eliminate unnecessary trial, delay and expense. The purpose of the hearing on the motion is not to resolve factual issues, but to determine whether there is any genuine issue of material fact in dispute. The opposing party’s facts must be material and of a substantial nature, not fanciful, frivolous, gauzy nor merely suspicions. Silloway v. Jorgenson (1965), 146 Mont. 307, 310, 406 P.2d 167, 169. Implications based upon what Vern Westlake thought are not enough. Cheyenne Western Bank v. Young (1978), 179 Mont. 492, 497, 587 P.2d 401, 404.

With regard to both the Osbornes and Hardin, Westlake raises no genuine issue of material fact. Vern Westlake’s own deposition removed all doubt as to whether there was a genuine issue of fact. The deposition reveals the following with regard to Hardin:

“Q. Do you have any testimony or any evidence that you can tell me about here or refer me to that lead you to conclude that Mr. Hardin acted in some sort of a conspiracy with the Osbornes to cheat or defraud Harry Larson? A. Honestly I can’t say that I have any more than an opinion derived from reading the agreement, knowing that Mr. Hardin acted as an agent or an arranger for the Osbornes and for Harry to get my mother and I in there to do the final settlement. Now that’s my basis.”

With regard to the Osbornes, Westlake’s deposition contains the following questions and answers:

“Q. So, would it be fair to say that the basis of your complaint against the Osbornes is an opinion derived from reading the agreement. A. Based on the agreement.
“Q. Okay. As I recall your testimony with Mr. Pohlman, and I think I’m quoting it accurately because I wrote it down here. “I’m basing everything on the fact that this is a poor, unethical contract.” Would that be fair? A. That would be fair.”

Aside from Westlake’s “opinion” there is no genuine issue of material fact that appears of record. Westlake, however, does list several factual issues in conclusory fashion in his brief. As stated above, this is not an appropriate means of opposing a motion for summary judgment. We hold that the District Court did not err in granting summary judgment.

Having determined that summary judgment was proper, we must now determine whether the respondents were entitled to judgment as a matter of law.

Westlake first contends that the transaction in this case should be set aside under theories of constructive fraud and undue influence. Montana has codified the common law principles of constructive fraud at Section 28-2-406, MCA, which provides:

Constructive fraud consists in:

“(1) any breach of duty which, without an actual 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.”

What constitutes undue influence is stated at section 28-2-407, MCA, which provides:

Undue influence consists in:

“(1) the use by one in whom a confidence is reposed by another or who holds a real or apparent authority over him of such confidence or authority for the purpose of obtaining an unfair advantage over him;
“(2) taking an unfair advantage of another’s weakness of mind; or
“(3) taking a grossly oppressive and unfair advantage of another’s necessities or distress.”

We hold that both of Westlake’s claims — constructive fraud and undue influence — have no basis in fact in this case as to any of the respondents. See Turley v. Turley (1982), 199 Mont. 265, 274-75, 649 P.2d 434, 438-39.

Westlake next contends that the sales agreement between Larson and the Osbornes was unconscionable. Westlake bases his contention on the language of the agreement, cited above, that cancelled the Osbornes’ monthly installment payments of $350.00 upon the death of Larson.

This Court in the past has looked to the official comment to Section 2-302 of the U.C.C. for the basic test for unconscionability. All State Leasing v. Top Hat Lounge (1982), 198 Mont. 1, 6, 649 P.2d 1250, 1252-53. The official comment to Section 2-302 of the U.C.C. suggest the following test:

“[W]hether, in light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract . . . The principle is one of the prevention of oppression and unfair surprise.”

There is no evidence in this case outside of vern Westlake’s “opinion” that points to any oppression, prejudice, or unfair surprise. It appears that what Westlake is really challenging is the sufficiency of consideration for the cancellation of the Osborne’s indebtedness upon Larson’s death. But insufficient consideration or inadequacy of consideration are not grounds for setting aside or refusing to enforce a contract. Hodgkiss v. Northland Petroleum Consol. (1937), 104 Mont. 328, 334, 67 P.2d 811, 814; Pederson v. Thoeny (1930), 88 Mont. 569, 576, 295 P. 250, 252. Westlake had the burden to raise facts from which reasonable men might conclude that there was oppression, prejudice or unfair surprise. Having failed to do this, summary judgment against Westlake and in favor of respondents was proper on this issue.

Westlake last contends that the District Court considered improper evidence in granting Hardin’s motion for summary judgment. Westlake argues that the District Court relied on improper hearsay testimony of Hardin to conclude that Larson and Osborne had an agreement negotiated and finalized prior to Hardin’s involvement. We find this argument unavailing because, as Hardin points out, there was other testimony by Charles Osborne by which the District Court could have reached the same conclusion. Osborne’s testimony was not subject to a hearsay objection.

We affirm the District Court.

MR. JUSTICES WEBER, GULBRANDSON, MORRISON and HUNT concur.