author: MR. JUSTICE WEBER MR. JUSTICE SHEEHY,

text:
    LARRY E. EVANS and E. Jean Evans, husband and wife, Plaintiffs and Appellants, v. TEAKETTLE REALTY, a Montana corporation, Defendant and Respondent.
    No. 86-284.
    Submitted March 19, 1987.
    Decided April 10, 1987.
    736 P.2d 472.

      McGarvey, Lence & Heberling; Jon L. Heberling argued, Kalispell, for plaintiffs and appellants.
    Murray, Kaufman, Vidal & Gordon; Daniel W. Hileman argued, Kalispell, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs Mr. ánd Mrs. Evans obtained a jury verdict in Flathead County District Court against defendant Teakettle Realty (Teakettle) for negligencé and violation of the Consumer Protection Act. The Evans appeal the District Court’s reduction of their recovery by 50% for their own negligence, and the court’s denial of costs and attorney fees. We affirm in part, reverse in part, and remand to the District Court.

The issues are:

1. Did the District Court err in applying the comparative negligence statute, Section 27-1-702, MCA, to reduce the Evans’ recovery under the Montana Consumer Protection Act?

2. Did the District Court err in denying costs to the Evans?

3. Did the District Court err in denying attorney fees to the Evans?

No transcript was provided on this appeal. The facts set forth here are from the pleadings and other documents in the District Court file. The Evans purchased their home in August 1982, through Teakettle. In this action, the Evans alleged that they noticed a strong odor in the house in January 1984 and then discovered that the septic tank was illegally located under a trap door in the floor of the utility room. They further alleged that the septic tank had overflowed, that the ground under the house was saturated with wastes, and that the resulting odor and methane gas rendered the house uninhabitable. They complained that Teakettle negligently and in violation of the Montana Consumer Protection Act (Sections 30-14-101 through 142, MCA) failed to inform them of the dangerous and illegal location of the septic tank.

This matter was tried by jury. In answer to special interrogatories, the jury found that Teakettle and the Evans were each negligent in causing the Evans’ damages. The jury also found that Teakettle violated the Consumer Protection Act. It set the Evans’ damages at $28,000 and apportioned the negligence 50% to the Evans and 50% to Teakettle.

The Evans filed post-trial motions for costs and for attorney fees under the Consumer Protection Act. The District Court denied the Evans’ motions for costs and fees, and reduced their recovery by 50% for their own negligence under the comparative negligence law. The Evans appeal these post-trial determinations.

I

Did the District Court err in applying the comparative negligence statute, Section 27-1-702, MCA, to reduce the Evans’ recovery under the Montana Consumer Protection Act?

The jury’s answers to special interrogatories do not establish whether the $28,000 in damages awarded to the Evans were for Teakettle’s negligence or for its violation of the Consumer Protection Act. The District Court ruled:

“In the special verdict presented to the jury in this case, damages attributable to negligence were not separated from damages attributable to a violation of the Consumer Protection Act. Thus, there is no method by which this Court may reduce the negligence portion of the award, but spare the Consumer Protection Act portion of the award.
“It is axiomatic that negligence awards are reduced by any negligence of the plaintiff. It is additionally clear that in this case, Plaintiffs were equally responsible for the damages suffered. A full award, unreduced by Plaintiffs negligence, would be clearly contrary to statute, and fly in the face of accepted negligence theories.”

The Evans do not dispute application of the comparative negligence statute to the jury’s finding that Teakettle was negligent. But they argue that their own simple negligence cannot be weighed against violation of the Consumer Protection Act, which they assert requires a greater level of wrongdoing. They contend that therefore the damages should not be reduced.

The instructions given to the jury do not distinguish acts which constitute negligence from those which violate the Consumer Protection Act. Instruction No. 27 labels the realtor’s failure to ascertain facts about the property and to disclose such facts to the potential buyers as a violation of the Consumer Protection Act. Instructions No. 24 and 25 define the same failures to ascertain and disclose as negligence. Yet the instructions set the damages for violation of the Consumer Protection Act differently than the damages for negligence. Instruction No. 15 applies the principles of comparative negligence. Instruction No. 27 states that if Teakettle has violated the Consumer Protection Act, the Evans are “entitled to all actual damages caused thereby.” Neither the Evans nor Teakettle has requested a new trial to remedy this apparent contradiction. It is not the Evans’ hope to get a new trial, but to increase the damage award.

The jury found violations of the Act as well as negligence on the part of Teakettle. The law as stated in the instructions does not allow us to separate Teakettle’s actions in violation of the Consumer Protection Act from its actions which were negligent. We affirm the District Court’s reduction of damages based on Instruction No. 15.

II

Did the District Court err in denying costs to the Evans?

The Evans argue that they are entitled to recover their costs under Section 25-10-101(3), MCA:

“Costs are allowed, of course, to the plaintiff upon a judgment in his favor in the following cases:
“(3) in an action for the recovery of money or damages, exclusive of interest, when plaintiff recovers over $50;

Although its judgment for the Evans was in the amount of $14,000, the District Court originally denied their motion for costs. On the Evans’ motion for reconsideration, however, the court acknowledged that it should have awarded costs. The Evans raise this matter on appeal only because the motion for reconsideration was decided after the notice of appeal was filed. We reverse the District Court’s original judgment as to costs, and order that allowable costs under Section 25-10-201, MCA, be awarded to the Evans.

III

Did the District Court err in denying attorney fees to the Evans?

The Consumer Protection Act allows for attorney fees at Section 30-14-133(3), MCA:

“In any action brought under this section, the court may award the prevailing party reasonable attorney fees incurred in prosecuting or defending the action.”

Under the verdict form used here, it is not possible to apportion the damages between the negligence count and the Consumer Protection Act count. The District Court reasoned that “[p]lainti£fs were equally negligent in the events leading to their action, and it would be patently unfair to award them attorney fees in that situation.” In the absence of a record on appeal, we cannot evaluate the District Court’s basis for denying attorney fees. Under these circumstances, we will not interfere with the District Court’s discretion in denying attorney fees to the Evans.

Affirmed in part, reversed in part, and remanded to District Court for a determination of the costs to which the Evans are entitled.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON and M. JAMES SORTE, District Judge concur.

MR. JUSTICE SHEEHY,

dissenting:

I dissent. In my opinion, the instructions given to the jury, as interpreted by the special verdict, are so confusing that it cannot be determined on what theory of recovery the jury based its verdict of damages. In that situation, a new trial is required.

I.

It cannot be determined from the instructions on the special verdict whether the jury intended that its verdict of $28,000 be reduced under comparative negligence, or whether it intended that figure to be the full compensation to the plaintiffs for a violation by Teakettle of the Montana Consumer Protection Act.

Court’s instruction No. 15 to the jury provided in pertinent part:

“If you find from all the evidence that the negligence of the plaintiffs was greater than that of a defendant or that of the combined negligence of all the defendants, then you are instructed that the plaintiffs are not entitled to recover damages for the injuries, and you shall return a verdict on the cause of action based on negligence for the defendants.
“If you find that the plaintiffs as well as one or more defendants were negligent and that the negligence of the defendant(s) was equal to or greater than the negligence of the plaintiff, then the plaintiffs will be allowed to recover.
“If the plaintiffs are allowed to recover, the damages will be reduced by the court by the percentage of plaintiffs’ negligence, if any.”

The duty of the real estate agent in selling realty to a buyer was described by the court in court’s instruction No. 21:

“The duty of a real estate agent, representing the seller, to disclose facts, includes the affirmative duty to conduct a reasonably competent and diligent inspection of the residential property listed for sale and to disclose to prospective purchasers all facts materially affected or value or desirability of the property that such an investigation would reveal.”

And in court’s instruction No. 25, the court said in part:

“A realtor has a duty ‘to disclose to a buyer a material fact regarding the condition of a parcel of real estate of which a license (realtor) has knowledge’. . .”

But, in instruction No. 27, the court definitely gave the impression to the jury that if they found a violation under the Montana Consumer Protection Act then the plaintiffs would recover the full amount of their damages. In pertinent part, the instruction said:

“. . . If you find that defendant Teakettle Realty failed to endeavor to ascertain all pertinent facts concerning the property, then this is a violation of public policy and an unfair act and practice under the Montana Consumer Protection Act, and the Evans’ are entitled to all actual damages caused thereby.
“If you find that defendant Teakettle Realty failed to disclose to the Evans any material fact concerning the condition of the subject property, of which Teakettle Realty had knowledge, then this is a violation of public policy and an unfair act or practice under the Montana Consumer Protection Act, and the Evans’ are entitled to all actual damages caused thereby.”

The readers’ attention is invited now to the portion of the special verdict applying to Teakettle which was returned by the jury in the light of the foregoing instructions:

“Question 5: Was Teakettle negligent?
Yes X
“If your answer is ‘yes’ now answer question 6 . . .
“Question 6: Was defendant Teakettle’s negligence a legal cause of the damages to the plaintiffs? Yes X
“Did defendant Teakettle violate the Consumer Protection Act? Yes X
“Question 8: If so was the violation a legal cause of damages for the plaintiffs? Yes X
“Question 9: Were the plaintiffs or either of them negligent? Yes X
“If your answer is ‘yes’ answer question 10 . . .
“Question 10: Was the negligence of the plaintiffs a legal cause of damage to them? Yes X
“Now answer question 11.
“Question 11: What was the full amount of damages sustained by the plaintiffs? $28,000.00 (Twenty-Eight Thousand Dollars)
“Question 12: Considering the negligence of the plaintiffs, if any, and the negligence of the defendants as totaling 100%, what percentage attributable to . . .
“Defendant Teakettle 50%
“Plaintiffs 50% ”

Thus, under the instructions and the special verdict which were submitted to the jurors, they found that the defendant Teakettle was liable to the Evans upon two theories of recovery, one for negligence, and the second for a violation of the Consumer Protection Act.

What cannot be determined from the answers in the special verdict is whether the jury intended that the damages be apportioned under negligence, or not apportioned as the court instructed under the Consumer Protection Act.

We are in no better a position than the District Court to determine what the jury meant in this case. On the other hand, the District Court is in no better position than we to determine their meaning. For that reason, I would require a new trial before a properly instructed jury.

II.

The majority opinion does not address the principal issue in this case, which is when the jury finds a violation of the Montana Consumer Protection Act, which violation is a legal cause of damages to the plaintiffs, are those damages subject to reduction on the theory of comparative negligence? This important question should be met by us in this case.

After the jury verdict in this case, plaintiffs moved for treble damages for a violation of Montana Consumer Protection Act under Section 30-14-133, MCA. The District Court denied the motion for treble damages, and decided to reduce the damages found by the percentage of plaintiff’s negligence saying:

“The jury determined that plaintiffs suffered damages in the amount of $28,000.00. The jury was also instructed that any negligence of the plaintiffs must be determined and will offset or reduce a damage award. In 1980, the Montana Supreme Court addressed a similar situation in Kopischke v. First Continental Corporation, 187 Mont. 471, 610 P.2d 668 (1980), wherein plaintiff’s damage award for injuries was reduced by plaintiff’s negligence. In that action, the plaintiff alleged that defendant violated the Consumer Protection Act. The Supreme Court held that it was a jury question whether a violation occurred. The Supreme Court affirmed the trial court on jury verdict, and upheld the reduction of damage award by plaintiff’s negligence.
“In the case at bar, the jury determined that plaintiffs were 50% negligent. Under Montana’s comparative negligent statute, Section 27-1-702, MCA, the award must be reduced by 50%. See Schwartz, Comparative Negligence, Section 3.5(B) (1978 Supp.). Kopischke is controlling.”

The District Court misconstrued our holding in Kopischke but in fairness to the court, its decision in this case seems to have been grounded on the presence of negligence on all sides:

“An award of treble damages is at the discretion of the court, and normally imposed to reward a party, or to serve as a punishment or warning to others. In this case, negligence existed in all sides; plaintiffs were not without fault. The case at bar does not appear to be appropriate for treble damages. Plaintiffs’ motion is denied.”

It is necessary for us to say, however, that the question whether damages found under a violation of the Consumer Protection Act can be reduced by comparative negligence has not been decided by this Court. In Kopischke, a violation of the Consumer Protection Act was not alleged in the plaintiff’s complaint. See Kopischke, 610 P.2d 687. The question of the reduction of plaintiff’s damages in Kopischke was not decided by this Court because the issue had not been preserved for appeal. We did not decide the issue, saying:

“Plaintiff raises as an issue on cross-appeal whether the jury’s reduction of damages from $650,000 to $422,500 should be sustained. It appears that plaintiff made no objection at trial on this issue. Generally, we will not consider issues raised for the first time on appeal (citing a case).”

Kopischke, 610 P.2d at 689.

It is therefore a matter of first impression to be decided by us in this case what should be the effect of negligence on the part of the consumer on the damages the consumer suffers through a violation of the Consumer Protection Act. I have an opinion as to how that question should be answered, and would answer it if this case were going back for retrial. In view of the affirmance of the judgment in the District Court by the majority in this case, I will refrain from useless discussion.

MR. JUSTICES HARRISON and HUNT concur in the foregoing dissent of MR. JUSTICE SHEEHY.


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    CLAYTON E. DEVOE, Petitioner and Appellant, v. MISSOULA COUNTY; Fern Hart; the Missoula County Treasurer; and the Department of Revenue of the State of Montana, Respondents and Respondents.
    No. 86-382.
    Submitted on Briefs Nov. 25, 1986.
    Decided April 14, 1987.
    735 P.2d 1115.

      David Rodli, Missoula, for petitioner and appellant.
    Robert L. Deschamps, III, Co. Atty., Missoula, Michael Sehestedt, Deputy Co. Atty., Larry G. Schuster, Dept, of Revenue, Helena, for respondents and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Clayton Devoe appeals a Missoula County District Court order granting the defendant Department of Revenue’s (DOR) motion to dismiss Devoe’s complaint. The dispositive issue on appeal is whether the District Court correctly ruled that appellant must exhaust his administrative remedies prior to initiating suit in district court. We affirm.

In January 1986, appellant filed a complaint in Missoula County District Court contesting the 1985 state property tax appraisal of two parcels of real property. Appellant also attacked the valuation method as discriminatory and unconstitutional. At the time he filed that complaint, Devoe was also the appellant in another property tax appeal pending before the Missoula County District Court. That appeal sought judicial review of a State Tax Appeal Board decision regarding property valuations on the same two properties for the tax years 1980, 1981, 1982 and 1984. Devoe properly exhausted his administrative remedies for the tax years 1980, 1981, 1982 and 1984. He concedes that he did not appeal his 1985 property tax appraisal to the appropriate administrative boards prior to filing the instant complaint in district court. Appellant argues that because he exhausted his administrative remedies for 1980, 1981, 1982 and 1984 and because he attacks the 1985 tax assessment on the same grounds as he attacks the other assessments, that he has, in effect, exhausted his administrative remedies for 1985.

In February 1986, the respondent DOR filed a motion to dismiss arguing that appellant had failed to exhaust his administration remedies for the year 1985. In April 1986, appellant moved to consolidate the instant case with his action involving the years 1980, 1981, 1982 and 1984. In June 1986, the Missoula County District Court issued its order granting the DOR’s motion to dismiss the complaint. The dismissal was based upon appellant’s failure to exhaust his administrative remedies for 1985. This appeal followed.

The standard of review is clear.

“In reviewing the propriety of an order granting a motion to dismiss, we repeat the oft-quoted rule that ‘. . . the allegations of the complaint must be viewed in a light most favorable to plaintiffs, admitting and accepting as true all facts well-pleaded.’

U.S. Nat. Bank of Red Lodge v. Mont. Dept. of Rev. (1977), 175 Mont. 205, 207, 573 P.2d 188, 190, quoting Board of Equalization v. Farmers Union Grain Terminal Assoc. (1962), 140 Mont. 523, 531, 374 P.2d 231, 236.

We first address a preliminary assertion of appellant. He asserts that he could not properly invoke the administrative process under Section 15-15-102, MCA, to attack the 1985 tax appraisal because he did not receive a notice of that appraisal. Section 15-15-102, MCA, provides in part:

“No reduction may be made in the valuation of property unless the party affected or his agent makes and files with the county tax appeal board on or before the first Monday in June or 15 days after receiving a notice of classification and appraisal from the department of revenue, whichever is later, a written application therefor. (Emphasis added.)”

Appellant claims that because he did not receive a 1985 notice of appraisal, he could never reach the Section 15-15-102, MCA, deadline for filing an application. Appellant theorizes that the DOR did not send him a 1985 notice because Section 15-7-102(1), MCA, allows the DOR to not send a notice of appraisal if, since the previous year, the land’s status has not changed with respect to certain criteria, including ownership, classification and valuation.

Appellant’s allegations as to a lack of notice are not properly before this Court. Appellant’s complaint makes no mention of a lack of notice and the record does not show that the District Court was ever aware of appellant’s allegation on this point. The court made no finding of fact relating to á lack of notice. Indeed, appellant’s reply brief admits that he did not realize that he had not received a notice until after he had filed the notice of this appeal. Thus, we do not consider this allegation nor what effect, if any, the allegation, if true, would have in this case.

Appellant’s complaint (1) alleged that he had paid his 1985 property taxes under protest; (2) requested a refund of those taxes; and (3) requested that the appraised value of his real property be set at a specific, lower value. Section 15-1-402, MCA, allows a taxpayer to pay his taxes under protest and recover the amount protested if his challenge is successful. That statute allows a taxpayer to file an action in court to recover taxes paid under protest after the taxpayer has exhausted the administrative appeals available under Title 15, chapters 2 and 15. The complaint does not allege that appellant exhausted his administrative appeals available under Title 15, chapters 2 and 15. Therefore, the District Court properly granted respondent’s motion to dismiss. We note that under Section 15-1-406, MCA, appellant could have filed a declaratory judgment action directly in District Court to challenge the legality of the tax. Apparently, he chose not to do so.

Appellant contends that by exhausting his administrative remedies for the years 1980, 1981, 1982 and 1984 he had effectively exhausted his administrative appeal for 1985. He argues that this is so because the basis of his appeal is the same for all five years. In Eagle Communications v. Treas. of Flathead Cty. (Mont. 1984), [211 Mont. 195, ] 685 P.2d 912, 41 St.Rep. 1303, this Court stated that a taxpayer must follow the conditions contained in the refund statute for every year for which he seeks a refund. The refund statute involved in Eagle Communications is the predecessor statute to the refund statute, Section 15-1-402, MCA, involved here. The rule cited in Eagle Communications, 685 P.2d at 917, still applies:

“Where a right of action and the conditions for bringing the action are contained within the same statute, compliance with those conditions is a condition precedent which must be fulfilled to preserve the right. (Citation omitted.)”

Appellant did not comply with the Section 15-1-402, MCA, statutory conditions for bringing suit and, therefore, the motion to dismiss was properly granted.

Appellant, citing Larson v. State (1975), 166 Mont. 449, 534 P.2d 854, argues that his complaint comes within an exception to the exhaustion of remedies rule. Addressing the exhaustion of administrative remedies in a tax appeal case, the Larson court quoted Belknap Realty Co. v. Simineo (1923), 67 Mont. 359, 365, 215 P. 659, 662:

“The statutes having made ample provision whereby a taxpayer may have any alleged excessive or erroneous assessment or valuation of his properly reviewed by the county and state boards of equalization, this remedy is exclusive except in cases where fraud or the adoption of a fundamentally wrong principle of assessment is shown.”

Larson, 534 P.2d at 858. Appellant argues that his complaint alleges a fundamentally wrong principle of assessment so as to come within the exception. The complaint does allege that the method of assessment was discriminatory, illegal and unconstitutional. However, it is clear that the principal thrust of the complaint is aimed at the amount of valuation and not the method of valuation. In such a case,

“[t]ax appeal boards are particularly suited for settling disputes over the appropriate valuation of a given piece of property or a particular improvement, and the judiciary cannot properly interfere with that function.”

Larson, 534 P.2d at 858. Therefore, we hold that the complaint does not come within the exception to the exhaustion of remedies general rule.

Affirmed.

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


author: MR. JUSTICE HUNT MR. JUSTICE GULBRANDSON,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BENJAMIN EUGENE COLE, a/k/a Geno Cole, Defendant and Appellant.
    No. 86-301.
    Submitted on Briefs Jan. 15, 1987.
    Decided April 16, 1987.
    Rehearing Denied Nov. 10, 1987.
    744 P.2d 526.

      O’Brien & Conrad, Barbara J. Conrad, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Defendant, Benjamin Eugene Cole, a/k/a/ “Geno” Cole, appeals from a conviction of receiving stolen property from the Fourth Judicial District, Missoula County, Missoula, Montana. From this conviction, Cole appeals.

We reverse and remand with instructions.

The only issue raised by defendant on appeal which needs to be discussed is: Whether there is sufficient evidence to conclude beyond a reasonable doubt that the defendant was guilty of receiving stolen property as charged under Section 45-6-301(3), MCA, and if lacking such evidence, can defendant be retried under the general theft statute, Section 45-6-301(1), MCA?

In a jury trial, the defendant was found guilty of felony theft as charged under Section 45-6-301(3), MCA. He was sentenced to ten years in the Montana State Prison with five suspended. He was required to pay restitution and costs.

The jury found that defendant and three co-participants stole five engines from a Missoula construction company’s warehouse in March of 1985. The four young men tried to sell the engines to the proprietor of a secondhand store, were unsuccessful, and abandoned the engines along a rural road.

The proprietor testified as to the attempt to sell the engines to his business and his consequent suspicions as to the legality of their possession of the engines.

An off-duty police officer happened to be in the secondhand store at the time of the attempted sale. He testified as to the defendant’s identity and his observations at the store. Two other police officers testified as to the defendant’s identity and their participation in the investigations. The owner of the engines testified as to the break in, theft, and value and use of the engines in question.

The three co-participants in the theft testified against defendant Cole, implicating him in the theft, attempted sale and abandonment of the engines.

The defendant was charged, prosecuted and found guilty under Section 45-6-301(3), MCA which states:

“A person commits the offense of theft when he purposely or knowingly obtains control over stolen property knowing the property to have been stolen by another. (Emphasis added.)”

A decisive case on this issue is State v. Hernandez (Mont. 1984), [213 Mont. 221,] 689 P.2d 1261, 41 St.Rep. 2063. In Hernandez, the defendant previously plead guilty to burglary and theft of coins under subsection (1) of Section 45-6-301. After being sentenced to probation he attempted to sell some of the coins which he had previously stolen. The State charged him a second time for theft of the coins under subsection three of Section 45-6-301. Defendant’s conviction was reversed on the grounds of double jeopardy and statutory grounds. We stated:

“This statute, adopted from Illinois, requires proof that the property must have been stolen by someone other than the receiver. Here the charge essentially was that defendant received the stolen property from himself.”

689 P.2d at 1262-1263. Due to the fact that the Montana Criminal Code is modeled after the Illinois Criminal Code, this Court agreed with the Illinois court’s requirement that the property must be shown to be stolen by a person other than the one charged with receiving the property.

The State successfully proved all the elements of theft required in Section 45-6-301(1), MCA. Unfortunately for the State, Cole was not charged under this statute. For the reasons cited above we hold that the State failed to prove, beyond a reasonable doubt, all the elements of the theft charged under Section 45-6-301(3). Defendant Cole is acquitted and the charges are dismissed.

In its argument, the State concedes to prosecutorial error on the charging document. On appeal the State requests permission to retry defendant Cole, contending that there will be no double jeopardy bar to the new trial if Cole is charged with theft under Section 45-6-301(1). To avoid wasted energy and expense to the parties, we have considered the double jeopardy issue and hold that double jeopardy would attach upon any attempt by the State to retry defendant Cole for the offense at issue.

The double jeopardy clause of the Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This clause is enforceable in Montana through the Fourteenth Amendment. Benton v. Maryland (1969), 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 716. The Montana Constitution, Art. II, Section 25 provides for a similar protection against double jeopardy. The constitutional prohibition of double jeopardy has been held to consist of separate guarantees including protection against a second prosecution for the same offense after acquittal. North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 665. Jeopardy attached in Cole’s theft trial at the time of the empaneling and swearing of the jury. Crist v. Bretz (1978), 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24, 33.

In the present case, double jeopardy is predicated on whether the offense of theft defined under Section 45-6-301(1), MCA, is the “same offense” as the theft which defendant was charged and convicted under: Section 45-6-301(3), MCA.

Section 46-11-502, MCA, provides that

“When the same transaction may establish the commission of more than one offense, a person charged with such conduct may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
“1) one offense is included in the other; ... 4) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct ...”

All of the elements of subsection (1) of Section 45-6-301 are included in subsection (3). Further, subsection (1) is defined to prohibit the general conduct of theft and subsection (3) is to prohibit a specific instance of receiving stolen property.

In People v. Beauchemin (1979), 71 Ill.App.3d 102, 107, 27 Ill.Dec. 516, 520, 389 N.E.2d 580, 584, the Illinois Supreme Court stated that their comparable subsection (1) theft statute is a lesser included offense of their comparable subsection (3) theft statute but the reverse is not the case. If it is determined that one offense is a lesser included offense of another, then they are deemed to be the “same offense.” Brown v. Ohio (1977), 432 U.S. 161, 168-169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187, 196. Cole cannot be retried for committing the same offense as that which he is acquitted of.

The State cites State v. Lamere (1983), 202 Mont. 313, 658 P.2d 376 as determinative in this case. In Lamere, this Court did state that subsections (3) and (1) of Section 45-6-301 are “statutorily distinct crimes.” 658 P.2d at 379. However, in a more recent decision this Court clarified the Lamere language and stated:

“The issue in Lamere was whether one who had received stolen property could give uncorroborated testimony against one who was charged with stealing that property. We held it permissible because theft of goods by one defendant and receipt of those stolen goods from another defendant are separate crimes. For purposes of the double jeopardy provision of our own constitution, the offenses as charged here were clearly for the same offense. (Emphasis added.)” State v. Hernandez, (Mont. 1984,) [213 Mont. 221,] 689 P.2d 1261, 1262, 41 St.Rep. 2063, 2065.

As we held in State v. Hall (Mont. 1986), [224 Mont. 187,] 728 P.2d 1339, 1341, 43 St.Rep. 2120, 2124, “double jeopardy in a second trial exists if the acts identified in the second information were admissible as evidence in the first trial and would have sustained a conviction under the first information.”

If so charged, the defendant could have been convicted of theft under subsection (1) of Section 45-6-301. However, due to prosecutorial error the defendant was found guilty of violating subsection (3). The evidence was insufficient to support such a conviction. A retrial would violate the double jeopardy clauses of the U.S. and Montana Constitutions.

Reversed and remanded to the District Court to dismiss the charges against the defendant.

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

MR. JUSTICE GULBRANDSON,

concurring and dissenting:

I concur that the conviction of the defendant for possession of stolen property should be set aside, but I do not agree that the defendant cannot be tried under the general theft statute, Section 45-6-301(1), MCA.

The majority opinion states that the decisive case on this issue is State v. Hernandez (Mont. 1984), [213 Mont. 221,] 689 P.2d 1261, 41 St.Rep. 2063. I disagree. There the defendant pleaded guilty and was sentenced for theft, Section 45-6-301. He was then charged and convicted a second time for theft, Section 45-6-301(3), receiving stolen property, the same property he had already pleaded guilty to stealing, and this Court reversed the second conviction. Here the conviction for theft, receiving stolen property, is to be set aside and the only remaining issue is whether he can be charged and tried for theft. It appears in this case that the witnesses called by the State proved to the satisfaction of the jury that the defendant not only exercised control of known stolen property but in fact carried the property from the premises of the owner. State v. Lamere (1983), 202 Mont. 313, 658 P.2d 376, in my opinion, is still authority for the proposition that Subsections (1) and (3) of Section 45-6-301, MCA, define “statutorily distinct crimes.”

In addition, the majority opinion has quoted from State v. Hall (Mont. 1986), [224 Mont. 187,] 728 P.2d 1339, 43 St.Rep. 2120, “double jeopardy in a second trial exists if the acts identified in the second information were admissible as evidence in the first trial and would have sustained a conviction under the first information.” (Emphasis added.) The majority opinion and this opinion both now hold that the acts proposed to be charged against the defendant would not sustain a conviction under the first information, that of receiving stolen property.

I would not hold that a retrial would violate the double jeopardy clauses of the United States and Montana Constitutions. See Lowery v. Estelle (1983), 696 F.2d 333; Illinois v. Vitale (1980), 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228; and Garrett v. United States (1985), 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764.

MR. CHIEF JUSTICE TURNAGE concurs in the foregoing opinion of MR. JUSTICE GULBRANDSON.


text:
    In re the MARRIAGE OF ARLIE HANCOCK, Petitioner and Appellant, and WATSON LEROY HANCOCK, Respondent and Respondent.
    No. 86-339.
    Submitted on Briefs Feb. 5, 1987.
    Decided April 16, 1987.
    Rehearing Denied May 21, 1987.
    736 P.2d 101.
    Tipp, Hoven, Skjelset & Frizzell; Douglas G. Skjelset, Missoula, for petitioner and appellant.
    Edward A. Cummings, Missoula, for respondent and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Arlie Hancock (the wife) appeals a Missoula County District Court order which divides the main marital asset (a ranch) between the parties in this dissolution of marriage action. The single issue on appeal is whether in dividing the ranch the lower court abused its discretion by requiring the respondent, Mr. Watson Hancock, to divide the ranch into two parts and allowing Mrs. Hancock the choice of which part she wanted. We affirm.

This appeal is the culmination of ten years of bitter dispute over the division of the ranch. In March 1977, Mrs. Hancock filed a petition for dissolution of marriage. In February 1978, the District Court entered a decree dissolving the marriage. In September 1978, the court entered judgment dividing most of the marital assets between the parties and providing for the division of the ranch. That judgment (1) ordered the parties to obtain a survey and a plat partitioning the ranch into two parcels; (2) provided that Mrs. Hancock could choose whichever parcel she desired for her own; and (3) ordered the ranch sold within 120 days of the judgment if the parties could not agree on how to partition the ranch nor, apparently, on an asking price for the ranch. Thus, for years the parties made no progress in either dividing or selling the ranch. In September 1985, after a number of hearings, the Missoula County District Court issued an order which stated that (1) the parties had insufficient funds to pay a surveyor to divide the ranch into two tracts of equal value; (2) a judicial sale might bring in less than fair market value or might permit one party to purchase the ranch at a low cost; and (3) an equitable means of partitioning the ranch would be for Mrs. Hancock to divide the land into two parts and for Mr. Hancock to choose the parcel he desired. The court gave the parties an opportunity to comment on the proposed procedure. In response, Mrs. Hancock’s counsel proposed that each of the parties should recommend a dividing line for the property. The court could then select the plan of one of the parties and the other party would choose one of the two parcels. Mrs. Hancock’s counsel also objected to the court’s proposed plan by. pointing out that the September 1978 judgment provided that she (rather than Mr. Hancock) would get her choice of the parcels. Counsel complained that the court had taken this right away from Mrs. Hancock. In January 1986, the court modified its September 1985 order by providing that Mr. Hancock would propose a division of the property and Mrs. Hancock would choose whichever parcel she wanted.

On January 31, 1986, the parties appeared in court. Mr. Hancock drew a line on a map dividing the ranch into two parcels. The court recessed and, after approximately one hour and 45 minutes of contemplation, Mrs. Hancock chose one of the parcels. Several days later, Mrs. Hancock filed a pro se motion to reconsider, stating that she made a mistake in selecting her half of the ranch. The court denied her motion and filed an order dividing the ranch in accordance with the choice Mrs. Hancock made on January 31, 1986. This appeal followed.

“[A] District Court has far-reaching discretion in resolving property divisions and its judgment will not be altered unless a clear abuse of discretion is shown. (Citation omitted.) The test for reviewing a District Court’s discretion is: Did the District Court, in the exercise of its discretion act arbitrarily without employment of conscientious judgment, or exceed the bounds of reason in view of all the circumstances? (Citation omitted.)”

Buxbaum v. Buxbaum (Mont. 1984), [214 Mont. 1,] 692 P.2d 411, 414, 41 St.Rep. 2243, 2246-2247. Under the peculiar circumstances of this case, we hold that the District Court did not abuse its discretion in dividing the ranch between the parties. The District Court found that neither party could afford to pay a surveyor to divide the ranch into two equal parcels. Mrs. Hancock does not attack this finding. Moreover, prior to the partition, Mrs. Hancock did not complain of the basic plan proposed by the court. Rather, Mrs. Hancock’s objection was that in September 1985 the court ordered her to draw the dividing line with Mr. Hancock having his choice instead of vice versa. She did not object to the method but rather to who got the choice of land. Accordingly, the court ordered Mr. Hancock to draw the line with Mrs. Hancock having her choice. The court allowed her ample time to choose her half of the ranch and she was advised by counsel, her daughter and a friend. Further, we agree with the lower court that there was no evidence that Mrs. Hancock’s mental status was impaired at the time of her choice. We also agree with the lower court that simply ordering the ranch sold at auction could result in a substantial loss for the parties. Lastly, it is apparent from the record that the parties were completely finable to agree on how they could divide the ranch between themselves.

The method employed by the lower court will generally result in an equal division. The party drawing the dividing line is essentially forced to make an equal partition. Otherwise, he risks receiving the smaller parcel left after the other party chooses. The ranch in this case was fairly small (265 acres) and was familiar to both parties. The line drawn was relatively straight and does not demonstrate an attempt to confuse Mrs. Hancock. Mrs. Hancock’s choice was simple. We find no abuse of discretion.

Affirmed.

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


author: MR. JUSTICE SHEEHY MR. JUSTICE HARRISON,

text:
    MARGARET MILLS, Appellant and Respondent v. COMMISSIONER OF INSURANCE, Andrea Bennett, Respondent and Appellant.
    No. 86-390.
    Submitted on Briefs Jan. 15, 1987.
    Decided April 16, 1987.
    736 P.2d 102.
    Kathy M. Irigoin, Auditor’s Office and Commissioner of Ins., Helena, for respondent and appellant.
    Emmons & Coder; H. William Coder, Great Falls, for appellant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

State Auditor Andrea Bennett, ex-officio, Commissioner of Insurance for the State of Montana appeals the order of the District Court, First Judicial District, County of Lewis and Clark, which reversed and remanded the Commissioner’s order to revoke the license of Margaret Mills. We affirm the order of the District Court.

Margaret Mills was licensed as a resident life insurance agent for the sale of life and disability insurance in the State of Montana. In May, 1985, Ms. Mills was convicted by a Cascade County jury of felony theft involving personal property consisting of a snowmobile, two lounge chairs, a small hand washer and a wedge. In July, 1985, the Hon. Joel G. Roth ordered Mrs. Mills to pay a fine of $500 and sentenced her to serve three years in the Montana State Prison. However, Judge Roth suspended all but the first 30 days of the sentence and gave credit to Mrs. Mills for the 5 days she had already been incarcerated. He further ordered her to repay Cascade County for court costs in the amount of $1,176.46. Judge Roth noted that while the court was bound by the guilty verdict submitted by the jury, it was noteworthy that Ms. Mills had adamantly contended throughout the proceedings that she was not guilty of felony theft.

In July, 1985, the Commissioner of Insurance sent to Ms. Mills a notice of hearing on the proposed revocation of her life insurance agent license. On November 19, 1985, pursuant to that hearing, the hearings examiner issued his findings of fact, conclusions of law, and order that Ms. Mills’ license be revoked. The order revoking the license was based solely on the ground that Ms. Mills had been convicted of a felony involving moral turpitude, Section 33-17-1001(l)(e), MCA, no other cause having been shown or considered. Ms. Mills’ petition for rehearing was denied December 17, 1985, and she appealed to the District Court of Lewis and Clark County.

The District Court considered the law under Montana Code Annotated, Title 33, Ch. 17, Part 10 (Revocation of Licenses Under the Insurance Code), and Title 37, Ch. 1, Part 2 (Licensure of Criminal Offenders). The court held that the procedure outlined in the latter statutes controlled the licensing of a convicted felon. The court then reversed and remanded the case to the Commissioner.

The sole issue raised by the Commissioner on appeal is whether the District Court erred in holding that the Commissioner of Insurance must conduct an investigation pursuant to Section 37-1-203, MCA, and make written findings pursuant to Section 37-1-204, MCA, before revoking an insurance agent license under Section 33-17-1001(l)(e), MCA?

The Commissioner urges a narrow reading of Section 33-17-1001(1), MCA, which states in relevant part:

“Suspension, revocation, or refusal of license. (1) [T]he commissioner may suspend ... or may revoke or refuse to continue any license issued under this chapter . . . if, after hearing ... he finds that as to the licensee any one or more of the following causes exist:
“(e) conviction, by final judgment, of a felony involving moral turpitude[.]”

The Commissioner argues that by enacting this section, the legislature made conviction of a felony involving moral turpitude an independent ground for the suspension or revocation of an insurance agent license. In other words, the Commissioner should not be required to make a finding that the felony conviction relates to the public health, safety, and welfare as it applies to insurance as an occupation, as suggested under Section 37-1-203, MCA. The Commissioner further contends that Sections 37-1-201 through -205, MCA do not apply since those sections are general legislation pertaining to licensure of criminal offenders, while Section 33-17-1001 is special legislation relating to the duties of the Commissioner of Insurance.

A general rule of statutory construction is that when several statutes may apply to a given situation, a court will attempt to adopt a construction of the statutes as will give effect to all. Schuman v. Bestrom (Mont. 1985), [214 Mont. 410,] 693 P.2d 536, 538, 42 St.Rep. 54, 57. Statutes dealing with general, comprehensive legislation and those dealing with more specific legislation should, if possible, be harmonized, with a view to giving effect to a consistent legislative policy. Id. at 539, 42 St.Rep. at 57.

The role of 'this. Court in construing and applying statutes is to effect the intention of the legislature. Thiel v. Taurus Drilling Ltd. 1980-II (Mont. 1985), [218 Mont. 201,] 710 P.2d 33, 35, 42 St.Rep. 1520, 1522. We first look to the plain meaning of the words of the statutes in question. If the intent cannot be determined from the content of those statutes, we examine the legislative history. Id.

The literal reading of Section 33-17-1001(l)(e) is that the Commissioner may revoke an agent’s license if the agent has been convicted of a felony involving moral turpitude. The statute also requires the agent have a hearing before the license is revoked. Section 37-1-203, MCA, is equally clear: no licensing agency shall refuse to license a person solely on the basis of a previous criminal conviction. Further, Sections 37-1-203 and -204, MCA, require the licensing agency to find the criminal offense relates to the public health, welfare and safety as it applies to the licensed occupation, to investigate whether or not the licensee has been sufficiently rehabilitated to warrant public trust, and to make explicit written reasons for the denial of a license. As noted by the District Court, it is questionable which statute is more particular in regard to the issue in this case. However, it is clear that the statutes governing the procedure for licensing ex-offenders was later, remedial legislation.

Title 33 is the Montana Insurance Code, enacted in 1959. Chapter 17 governs insurance agents, solicitors, adjusters, consultants and administrators. Part 10 provides grounds upon which the Commissioner of Insurance, after a hearing, may revoke a license issued under Chapter 17. Section 33-17-1001 has not been amended (with one exception, not relevant here) since 1959.

Title 37 is the section of the Montana Code which governs professions and occupations. Part 2 of Chapter 1 was enacted in 1979 from H.B. 395, entitled “An act to provide that a person convicted of a criminal offense who has served his sentence and is no longer under State supervision may be granted occupational licensure.” Chapter 490, Laws of Montana (1975). There is a general presumption that the legislature would not pass meaningless legislation. Crist v. Segna (Mont. 1981), 622 P.2d 1028, 1029, 38 St.Rep. 150, 152. The purpose of the Act was to implement Section 28, Art. II of the 1972 Montana Constitution, which states: “Laws for the punishment of crime shall be founded on the principles of prevention and reformation.” The rationale behind the Act was to give ex-offenders the opportunity to rehabilitate themselves after they have paid their debt to society. Hearings on H.B. 395 before the Thirty-third Meeting of the House Judiciary Committee, statement by bill sponsor Representative Mike Meloy (February 17, 1975). One of the problems faced by ex-offenders was that the licensing statutes, such as Section 33-17-1001, automatically barred them from ever engaging in restricted license occupations, even though the offense with which the ex-offender had been charged had no relation to the licensed occupation. Hearings on H.B. 395 before the Senate Judiciary Committee, statement by Robert J. Campbell, Chairman of the Montana Bar Association (March 15, 1987).

The Act, now codified at Section 37-1-203, provides:

“Criminal conviction shall not operate as an automatic bar to being licensed to enter any occupation in the state of Montana. No licensing authority shall refuse to license a person solely on the basis of a previous criminal convictionf.] (Emphasis added.)”

The words of the statute emphasized above indicate the legislature intended to loosen the restrictions barring all opportunities for ex-offenders to find meaningful employment. A licensing agency still has the option of denying a license to an ex-offender, but such denial may only be made after an investigation and finding that the convicted offender has not been sufficiently rehabilitated as to warrant public trust. Section 37-1-203, MCA. When the licensing agency decides not to license an ex-offender, “the agency shall state explicitly in writing the reasons for the decision.” Section 37-1-204, MCA.

The Commissioner of Insurance did not follow this procedure. Ms. Mills’ license was revoked solely on the basis of her conviction of felony theft. No effort was made to ascertain whether Ms. Mills’ conviction related to the public health, welfare, and safety as it applies to selling life and disability insurance. Testimony offered by the administrator of the licensing division indicated that the notice of hearing reciting the sentence and conviction order of Ms. Mills was the only information he had received. He had no other personal knowledge or evidence that Ms. Mills was not competent or trustworthy. The hearings examiner’s proposed findings of fact and conclusions of law stated merely that Ms. Mills was convicted of a felony involving moral turpitude. Such a finding is an insufficient basis upon which to hold that the conviction is related to the public health, welfare, or safety as it relates to the licensed occupation.

The judgment of the District Court is affirmed, and the case is remanded for further proceedings consistent with this Opinion.

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

MR. JUSTICE HARRISON,

dissenting:

I would reverse and remand to the District Court ordering the revocation of the license.

Resolution of this case hinges simply upon whether the statutes quoted by respondent apply to and thereby modify the Commissioner’s powers under Section 33-17-1001, MCA. On their face, these statutes clearly deal only with the licensure of convicted felons. For them to have any bearing on this case, they must be found to be applicable to licensure revocations as well.

To this end, respondent quotes Section 37-1-202, MCA, which states:

“It is the intent of the legislature and the declared policy of the state that occupational licensure be granted or revoked as a police power of the state in its protection of the public health, safety, and welfare.”

However, I feel that application of basic and fundamental rules of statutory construction compels a holding that this statute does not render Section 37-1-201 et seq., MCA, applicable to Section 33-17-1001(1)(e), MCA. I would so hold.

The guiding principle of any rule of statutory construction must be to give effect to the intent of the legislature. Section 1-2-102, MCA; Missoula County v. American Asphalt, Inc. (Mont. 1985), [216 Mont. 423,] 701 P.2d 990, 992, 42 St.Rep. 920, 922. Courts strive to accomplish this by giving to the words of a statute their plain and ordinary meaning and by adhering to the words of the statute. Section 1-2-101, MCA; State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333, Chennault v. Sager (1980), 187 Mont. 455, 461-62, 610 P.2d 173, 176.

I feel Section 33-17-1001(1)(e), MCA, in plain and precise language, authorizes the Commissioner to revoke respondent’s license. The majority’s reasoning to the contrary is unclear. At page 104 of its opinion, the majority correctly notes that the role of this Court when engaged in statutory construction is first to look at the plain meaning of the statute’s words. And one sentence later, the majority concedes that, “[t]he literal reading of Section 33-17-1001(l)(e) is that the Commissioner may revoke an agent’s license if the agent has been convicted of a felony involving moral turpitude.” We should go no farther. Yet the majority then recites in great detail relevant legislative history as if an ambiguity exists. We should not strive to create statutory ambiguities where none exist.

Nothing within the language of Section 37-1-102, MCA, modifies the Commissioner’s authority granted under Section 33-17-1001(l)(e), MCA. Section 37-1-202, MCA, merely illustrates that the legislature intended that the whole of occupational licensing fall within the police power of our state in its protection of the public health, safety and welfare. It is my opinion that nothing therein suggests that the provisions of its neighboring statutes, Section 37-1-201 et seq., MCA, be made applicable to Section 33-17-1001, MCA.

In my opinion, for this Court to hold otherwise in effect creates an implied modification of the Commissioner’s authority under Section 33-17-1001, MCA. Implied modifications, like implied revocations, are disfavored at law. We have long and consistently held that we will not find an implied repeal of a statute absent a clear legislative intent to that effect. See e.g., Holly v. Preuss (1977), 172 Mont. 422, 426, 564 P.2d 1303, 1306. The same must be said of an implied modification.

By enacting Section 33-17-1001(l)(e), MCA, the Montana legislature made conviction, by final judgment, of a felony involving moral turpitude an independent ground for the suspension or revocation of an insurance agent’s license. I find nothing within Section 37-1-201 et seq., MCA, which modifies or affects this authority. I would hold that the District Court erred by requiring the Commissioner to establish that the felony conviction relate to the public health, safety and welfare as it applies to insurance as an occupation.

I would reverse and remand with instructions that the District Court enter an appropriate order.


author: MR. JUSTICE HUNT

text:
    In re the MARRIAGE OF VICKI LYNNE DUNN, Petitioners and Respondent and DOUGLAS REED DUNN, Respondent and Appellant.
    No. 86-428.
    Submitted on Briefs Jan. 22, 1987.
    Decided April 16, 1987.
    735 P.2d 1117.

      Swandal, Douglass Law Firm, William F. Frazier, Jr., Livingston, for respondent and appellant.
    Knuchel & McGregor, Daniel B. McGregor, Livingston, for petitioner and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the Sixth Judicial District by husband, Douglas Reed Dunn, from the findings of fact, conclusions of law and decree of dissolution which relate to child custody and support. We affirm.

The issues raised on appeal are:

1. Whether the court erred in its valuation of the personal property of the parties.

2. Whether the court erred in failing to award joint custody of the children to the parties.

3. Whether the court erred in its determination and award of child support payments.

Appellant, Doug Dunn, and respondent, Vicki Dunn, were married on September 6, 1980. When they married, Vicki and Doug both worked for the Bell Telephone system earning approximately equal salaries. They continued to work until March, 1984, when twin daughters, Colleen and Shelley were born. At that time Vicki quit work to raise the girls. She did not seek employment outside the home until it became clear that she and Doug were going to separate.

Doug admitted to having several extramarital affairs while married to Vicki and openly pursued one relationship. Vicki repeatedly asked that Doug stop seeing the woman, but he refused. Eventually, Vicki felt that she and Doug had to live separately and moved out of the family home due to Doug’s refusal to leave. After Vicki and the girls moved out, Doug’s girlfriend moved into the house with Doug.

On May 31, 1985, Vicki filed a petition for dissolution, custody, support, property settlement, maintenance and attorney fees. Doug filed a counterpetition seeking custody of the girls.

In September, 1985, the court granted temporary custody and support to Vicki. On October 4, 1985, the court issued an order approving its previous temporary order with a modification of the support payments. On the same day, without knowledge of the court order the parties stipulated to support, maintenance and that Vicki could take the children to California where she was seeking employment. Vicki moved five times in less than a year while seeking employment to support herself and the twins. She moved with them to California in October of 1985 and presently lives in Washington where she works as a cable splicer for General Telephone. Vicki and the twins live with a retired gentleman who has been a long-term friend of Vicki’s. She pays him for rent, food and childcare. The living environment in Washington was found to be fit and proper for the girls.

In March, 1986, a hearing was held to resolve the issues of support, custody and property settlement. The District Court entered its findings of fact, conclusions of law and decree of dissolution of marriage in April, 1986.

Doug Dunn filed several post-judgment motions, but due to delays caused by difficulty in obtaining a judge to hear the motions, the deadline for consideration expired.

Doug appeals from the April 21, 1986, judgment.

I.

On appeal, Doug Dunn claims that the trial court erred in its valuation of the personal property of the parties. We hold that the lower court did not err.

In numerous decisions this Court has held that where there are conflicting valuations of property, the court must give an explanation for its determination of value. If no explanation is made, it is an abuse of the court’s discretion. In re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 83, 42 St.Rep. 623, 627; In re Marriage of Wolfe (Mont. 1983), [202 Mont. 454,] 659 P.2d 259, 262, 40 St.Rep. 211, 214.

The District Court heard testimony from both parties concerning the value of personal property which Doug and Vicki Dunn brought into the marriage and acquired during the marriage. No qualified appraiser was called to give an opinion as to the value of this property. The District Court judge is in the best position to judge the credibility of the witnesses and determine the weight to be given their testimony. Rule 52(a), M.R.CÍV.P.

In the present case, the District Court found that:

“The marital estate determination presents great difficulty to the court because of the almost total lack of agreement between the parties as well as great disparity on value, which has been guessed at by each of the parties but unsubstantiated by any qualified appraiser. The court therefore accepts the list of property as submitted by the Petitioner and assumes a depreciation factor of 0.25 on all values.”

In its discretion, the District Court found Vicki’s valuations to be the more credible than those submitted by Doug. The court imposed a depreciation factor of .25 on the values to ensure against an inflated estimation. We find that this is not a clearly erroneous abuse of the court’s discretion and affirm the District Court’s valuation of the parties’ personal property.

The second issue raised on appeal is whether the District Court erred in failing to award joint custody of the children to the parties. We hold that it did not err.

The well established standard of review is that this Court will not disturb a district court’s findings unless there is a “clear preponderance of evidence against such findings.” Cameron v. Cameron (1978), 179 Mont. 219, 227, 587 P.2d 939, 944.

In Rolfe, we stated:

“The trial judge in a divorce proceeding is in a better position than this court to resolve child custody. The district court’s decision is presumed correct and will be upheld unless clear abuse of discretion is shown. The appealing party must show, by clear error (Rule 52(a), M.R.Civ.P.) that the record does not support the judgment of the district court.”

699 P.2d at 82.

In determining the custody of children the court is required to follow Section 40-4-212, MCA, which outlines the “best interest of (the) child.” Although Section 40-4-222, MCA, makes the presumption that joint custody is in the best interests of the child, it allows the court discretion in determining what the “best interests” are in each case. There is no mandate that joint custody must be awarded even if both parents are found to be fit and proper.

In this case, the court made detailed findings that, although both Doug and Vicki are both fit parents, it is in the best interest of the children for Vicki to be the primary custodial parent. Doug’s living situation and the lifestyle do influence the children’s well being and reflect on the home environment which Doug could provide for them. The court’s finding that Doug has a propensity for liaisons with females outside the household was made with respect to the stability of Doug’s home as a healthy environment for the girls. The record and findings show substantial reasons why joint custody would not be in the twin infant girls’ best interest including; the geographical distance between the parties of 750 miles, the inability of the parties to communicate regarding issues involving their children due to the interference of Doug’s present female cohabitant, Doug’s record of indifference with respect to visitation of his children, the mother’s role as primary caretaker for their entire two years of life, and Doug’s difficulties in dealing with young children, namely his daughters, when they are fussy.

This Court will not set aside findings of the District Court unless they are clearly erroneous. Findings are not clearly erroneous if supported by substantial credible evidence. Marriage of Obergfell (Mont. 1985), [218 Mont. 83,] 708 P.2d 561, 563, 42 St.Rep. 1414, 1417-18. There is substantial credible evidence to sustain the custody determination and it is affirmed.

The final issue raised by Doug is whether the District Court erred in its determination and award of child support payments. We hold that it did not err.

Child support awards made by the District Court will not be disturbed on appeal unless there is a clear abuse of discretion resulting in substantial injustice to a party. In re Marriage of Alt (Mont. 1985), [218 Mont. 327,] 708 P.2d 258, 261, 42 St.Rep. 1621, 1626. Although Doug has many financial obligations including debts from the parties’ marriage and child support from a previous marriage, the court found that $200 per month per child was an appropriate support award. The court based this award on the equal salaries of the parties, the needs of the children and Doug’s ability to pay the amount. The record supports the District Court’s decision awarding child support and shows no clear abuse of discretion. The support award is affirmed.

Doug argues further that the court’s finding which requires him to pay a back support payment for the month of February 1986 is in error. The record supports the court’s finding that Doug’s monthly payments were payment for the previous month and that Doug did not pay child support for the month of February 1986. The debt obligation will not be disturbed.

The lower court’s decision is affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    ESTHER P. PETERSON, Plaintiff and Appellant, v. GEORGE TAYLOR and Gewynn Taylor, his wife, the heirs and devisees of Charles T. Howitt, Deceased, and all other persons unknown, claiming or who might claim any right, title, estate or interest in, or lien or encumbrances upon, the real property described in the complaint or any thereof adverse to Plaintiff’s ownership or any cloud upon Plaintiff’s title thereto whether such claim or possible claim be present or contingent, Defendants and Respondents.
    No. 86-455.
    Submitted on Briefs March 5, 1987.
    Decided April 16, 1987.
    Rehearing Denied May 7, 1987.
    735 P.2d 1120.

      Gregory O. Morgan, Bozeman, for plaintiff and appellant.
    Morrow, Sedivy & Bennett; Terry Schaplow, Bozeman, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Plaintiff Esther Peterson appeals the findings of fact, conclusions of law, and order of the District Court, Fifth Judicial District, County of Madison which quieted title to property in Pony, Montana. We affirm the order of the District Court.

The dispute in this case arises over the ownership of a tract of land designated as the “Mill Site” on the 1877 plat map for the townsite of Pony. Plaintiff Mrs. Peterson was born and raised in Pony. Her father, Dave Box, ran the Pony Electric Company, which was located at the southern end of the Mill Site directly behind the family house. The Box family home was located on a 80’ x 100’ parcel also within the Mill Site. Mrs. Peterson apparently was under the impression that her family owned the entire tract of land locally known as the Mallory Mill Site, an area of 4.18 acres.

Defendants George and Gewynn Taylor claim their interest in the Mallory Mill Site as devisees under the will of Charles Howitt. Mr. Howitt had been married to Emily Morris Howitt, niece of Leah Morris Mendenhall, the common grantor of both the Howitts and the Boxes.

The ownership history of the Mallory Mill Site is as follows. William Morris and Henry Elling each received Vi interest in the entire Mill Site by sheriff’s deed dated 1891. After each man’s death, their interests in the Mill Site devolved such that in 1931, Leah Morris Mendenhall owned a 1/6 interest in the Mill Site, and the Elling Estate Company owned a 5/6 interest in the Mill Site. In 1931, Leah Mendenhall and the Elling Estate Company executed a deed in favor of Dave Box which granted to him as follows:

“That certain piece or parcel of land lying, being, situated and contained in the Southeast quarter of the Southwest quarter (SE lA SWí/4) of Section eighteen (18), Township two (2) South of Range two (2) West, Montana Principal Meridian, and comprising all that part or portion thereof lying at and within the southerly end of the tract heretofore known and designated as the Mallory Millsite not platted, dedicated and included in the certain recorded dedication and plat of the Millsite Addition to the Town of Pony, now appearing on file and of record in the office of the County Clerk and Recorder of Madison County, Montana, together with all buildings, improvements and machinery, including water wheel, generators, motors and equipment therefor, held, owned and used for and in connection with the electric lighting and power plant of the grantors and all poles, wires, transformers, meters and other equipment comprising the electric lighting system of the town of Pony, and the so-called Strawberry power line extending between said Pony power plant and the Strawberry-Keystone mine and mill; and also therewith the certain water right and ditch and reservoir right and wooden acqueduct [sic] or pipe line leading to said plant from the ditch and reservoir hereinafter mentioned, and the certain water right, dam, ditch, reservoir, headgate and overflow rights and the use, privileges and rights of way thereof and therefor, comprising and including what is generally known as the Mallory or Elling & Morris water and ditch rights previously, from about 1876 to 1902, used for the Mallory mill and Elling & Morris stone mill on the Elephant Lode Mining Claim, and thereafter to and including the present time used for the operation of the so-called Elling & Morris hydro-electric plant now hereby conveyed; and the good will of the electric lighting business; excepting, however, and hereby recognizing and reserving only from this conveyance the sufficient and necessary use of said ditch and water for irrigation and domestic uses on the southerly 250 feet of said Elephant Lode Mining Claim, known as the W. W. Morris residence tract.”

It is the interpretation of this deed which is the center of controversy in the instant quiet title dispute.

Mrs. Peterson filed her complaint to quiet title to the Mill Site in 1984. A non-jury trial was held July 15 and 16, 1986. On August 5, 1986, the District Court issued findings of fact, conclusions of law, and an order and memorandum stating that both Petersons and Taylors had a vested interest in the Mill Site and that both had paid taxes on a part of the Mill Site. The court then ordered an equitable partition of the property.

Mrs. Peterson specifies four issues on appeal:

1) Whether findings No. 7 and 9 of the District Court order are unsupported by the evidence and clearly erroneous?

2) Whether the 1931 deed to Dave Box is ambiguous?

3) Whether the District Court’s interpretation of the 1931 deed to Dave Box was error of law?

4) Whether Esther Peterson had established title by adverse possession?

A quiet title action is a suit in equity. Dahlberg v. Lannen (1929), 84 Mont. 68, 76, 274 P. 151, 153. Under Section 3-2-204(5), MCA, the duty of this Court in equity cases is to review all questions of fact and law. Where it is alleged that the evidence is insufficient to support the findings of the trial court, we will not set aside those findings unless there is a decided preponderance of the evidence against them. Dahlberg, at 77, 274 P. at 153; Rase v. Castle Mountain Ranch, Inc. (Mont. 1981), 631 P.2d 680, 684, 38 St.Rep. 992, 996. Where issues of fact are close, this Court sitting in equity cases will defer to the findings of the trial court since it is in a better position to make decisions of fact. Rase, at 684, 38 St.Rep. at 996.

Issues No. 1, 2 and 3 all relate to the District Court’s interpretation of the 1931 deed to Dave Box. Mrs. Peterson’s main contention is that under the District Court’s interpretation the deed is void for ambiguity and vagueness of legal description.

The District Court found as follows:

“7. On April 14, 1931, Ellings Estate Company and Leah Mendenhall deeded to Dave Box, Plaintiff’s father, the so-called southerly end of the Millsite. The property was described as follows:
“ ‘. . . comprising all that part or portion thereof lying at and within the southerly end of the tract heretofore known and designated as the Mallory Millsite not platted, dedicated and included in the certain recorded dedication and plat of the Millsite addition to the Town of Pony, now appearing on file and of record in the office of the County Clerk and Recorder of Madison County, Montana, together with all buildings, improvements and machinery, including water wheel, generators, motors and equipment therefor,
“While this description is ambiguous, it is clear that the Grantors intended to convey the portion of the Millsite occupied by the Pony Electric Company, since it referred to improvements, machinery and equipment.
“It is also clear that the deed did not convey any property west of Plaintiff’s westerly fence line, and also there was reserved a remaining interest which was conveyed to Leah Mendenhall in 1955 (Defendant’s Exhibit X).
“9. From the various conveyances, payment of taxes and acts of occupancy, the Court finds generally that:
“Peterson is the owner of the 80 x 100 lot, and an undescribed Southern portion of the Millsite, including that area occupied by the Pony Electric Company. All other portions of the Millsite are owned by the parties as tenants in common, and in an attempt to effect an equitable partition, said remainder shall be divided as hereinafter indicated!.]”

Mrs. Peterson argues that “heretofore known and designated as the Mallory Millsite” modifies “piece or parcel of land” at the beginning of the property description. She contends “the southerly end of the tract” refers to the fact that the entire Mill Site is located in the southern quarter of Section 18.

We find the District Court’s interpretation of the deed as set forth in findings of fact No. 7 and 9 to be the correct one. It is clear by ordinary rules of grammar that the parcel of land granted to Dave Box was comprised of a part or portion of the Mill Site tract, and that portion was located at the south end of the Mill Site. This interpretation is further supported, as noted by the District Court, by the fact that the parcel of land is granted “together with” the buildings and machinery associated with the Pony Electric Company, such buildings and equipment being located directly behind and at the south end of the Mill Site behind the Box-Peterson home. We hold that there is a decided preponderance of the evidence in favor of the District Court’s findings of fact No. 7 and 9.

Mrs. Peterson argues that such an interpretation is void since there are no detailed boundary lines set out by such an interpretation. The general rule is that a deed will be liberally construed so as to give it effect, rather than to render it a nullity. Howe v. Messimer (Mont. 1929), 84 Mont. 304, 312, 275 P. 281, 283. A deed will not be void for uncertainty if the identity of the property can be determined by reference to extrinsic evidence. Shilts v. Young (Alaska 1977), 567 P.2d 769, 773. The property description in the deed is adequate if it contains sufficient information to permit the identification of the property to the exclusion of all others. Id.; followed in Dimond v. Kelly (Alaska 1981), 629 P.2d 533, 540-41; see also Blumenthal v. Concrete Constructors Co. (App.1984), 102 N.M. 125, 692 P.2d 50, 54-55.

The property description describing the buildings, improvements, machinery, water rights to run the generators, and goodwill of the electric lighting business provides adequate information from which to determine the boundary lines of the Pony Electric Company property. It was also clear from a field inspection by the court that the improvements of the Pony Electric Company did not extend past the west fence line of Mrs. Peterson’s property. We hold that the description in the 1931 deed to Dave Box was sufficient to permit the use of extrinsic evidence to determine the boundaries of the property. We find no abuse of discretion in the District Court’s equitable division of the property between the two parties.

The final issue raised by Mrs. Peterson is whether she has established title by adverse possession to the entire Mill Site. We hold that she has not. As correctly stated by the District Court, adverse possession requires the payment of taxes in addition to the requirements, when claim to the property is founded upon an instrument, of Section 70-19-408, MCA. See Section 70-19-411, MCA. The tax assessment for Mrs. Peterson, until 1984, listed the property assessed as the 80’ x 100’ lot upon which her home was located, and “part of Mallory Millsite.” Mrs. Peterson states she thought she was paying taxes on the entire Mill Site. Regardless of her belief, there is no indication that the taxes assessed against property owned by Mrs. Peterson and the Taylors were incorrect. We agree with the District Court that Mrs. Peterson has not sustained her claim of adverse possession.

The judgment of the District Court is affirmed.

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


author: MR. JUSTICE HARRISON MR. JUSTICE GULBRANDSON,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JEFFREY WAYMIRE, Defendant and Appellant. CITY OF BILLINGS, Plaintiff and Respondent, v. CHESTER METCALF, Defendant and Appellant.
    No. 86-502, 86-528.
    Submitted on Briefs Feb. 13, 1987.
    Decided April 16, 1987.
    Rehearing Denied May 21, 1987.
    736 P.2d 106.
    Brad L. Arndorfer, Billings, for defendants and appellants.
    Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Gayle Stewart, Deputy Co. Atty., Billings, for plaintiffs and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Thirteenth Judicial District, Yellowstone County, Montana. The court dismissed an appeal from the Yellowstone justice court and city court of Billings, Montana. Defendants had been driving under the influence of alcohol. We reverse and remand.

Defendant Jeffrey Waymire (Waymire) was arrested March 29, 1986. He was issued a ticket for driving under the influence of alcohol (second offense), and for driving with a suspended or revoked license.

There is a factual question whether he entered a plea of guilty or the plea was entered for him by the justice court. Accepting Way-mire’s version of the fact, he appeared in justice court April 1, 1986, was advised of the charge, the possible penalty, his right to remain silent, his right to an attorney, and his right to a jury or non-jury trial. He alleges he was then asked to enter a plea. He claims he stated to the judge he did not know the plea he wanted to enter and would exercise his right to remain silent. Apparently a ten or fifteen minute argument ensued, and it is Waymire’s contention the justice court entered a guilty plea and sentenced him, although he claims not to have entered a plea. He received a sixty day sentence in the county jail.

Waymire then contacted counsel who moved the justice court to set aside the guilty plea and to allow the plea of not guilty. The justice court refused to set aside the guilty plea.

Waymire appealed the sentence and judgment to the District Court for a trial de novo, two days after his initial appearance in justice court. After several settings of trial, to which he did not object, on September 23,1986, the State successfully moved to dismiss in the District Court for lack of jurisdiction. Thereafter, Waymire moved the District Court to reconsider its order granting the motion to dismiss, and provided a brief in support of the motion. The District Court remanded the matter to justice court for imposition of sentence. From these orders Waymire appeals.

Defendant Chester Metcalf (Metcalf) was arrested for driving under the influence of alcohol (second offense) or driving with a blood alcohol content of .10 or more. He appeared in Billings city court, signed a waiver of rights, and entered a plea of guilty. His sentence was a fine of $500, he was ordered to attend DUI court school, and was sentenced to six months in jail with a portion to be suspended upon completion of the school.

Apparently not satisfied with his sentence, Metcalf attempted to appeal to the District Court for a trial de novo. As in Waymire’s case, the District Court dismissed the appeal for lack of jurisdiction. Metcalf now appeals the District Court’s order and asks for a trial in the District Court.

The issue whether a guilty plea in justice court or city court can be appealed to the District Court for a trial de novo is one of first impression. Authority from other jurisdictions is conflicting. Courts which do not allow an appeal reason that because a guilty plea is tantamount to a confession of judgment, there is nothing from which an appeal may be taken. In those jurisdictions which do not have general statutory or constitutional authority for appeal, courts which have allowed an appeal following a guilty plea do so primarily for policy reasons. Courts in jurisdictions where a trial de novo is permitted base their decision on general statutory authority regarding appeals, on state constitutional authority, or on policy.

“[T]he argument may well be made that it is a travesty upon justice that a defendant who has, with full knowledge of his rights, pleaded guilty and been sentenced in one court may thereafter change his mind and insist on his case being heard in another tribunal.”

Burris v. Davis (1935), 46 Ariz. 127, 46 P.2d 1084, 1086.

There is no constitutional right of appeal in Montana. The pertinent statute in this case is Section 46-17-311, MCA. It does not specifically allow appeal of a guilty plea, however.

Section 46-17-311, MCA, states in pertinent part:

“(1) All cases on appeal from justices’ or city courts must be tried anew in the district court and may be tried before a jury of six selected in the same manner as a trial jury in a civil action, except that the total number of jurors drawn shall be at least six plus the total number of peremptory challenges.
“(2) A party may appeal to the district court by giving written notice of his intention to appeal within 10 days after judgment, except that the state may only appeal in the cases provided for in 46-20-103.”

The legislature made no distinction between a guilty plea and a finding of guilty by the court or jury.

We have held continuously for the last twenty-five years that the District Court and the Supreme Court have no appellate jurisdiction to review orders of the justice court. An appeal to the District Court for a trial de novo is the appellant’s exclusive remedy for an appeal of justice court proceedings. Adair v. Lake County Justice Court (Mont. 1984), [213 Mont. 466,] 692 P.2d 13, 14, 41 St.Rep. 2241, 2242. We adopt the rationale of the Arizona court in Burris, supra, and hold that from the standpoint of reason, justice and public policy, appeals of a guilty plea in justice court or city court may be tried anew in District Court provided they are properly perfected.

The statutory bounds of the District Court are not exceeded by a decision based on sound public policy of avoiding injustice. This holding does not give the District Court original jurisdiction of a DUI case in violation of Section 3-5-302, MCA.

Therefore the judgment of the city court and of the justice court may be heard anew by the District Court.

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

MR. JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent to the holding that “appeals of a guilty plea in justice court or city court may be tried anew in District Court

The majority has adopted the rationale of Burris v. Davis (1935), 46 Ariz. 127, 46 P.2d 1084 “from the standpoint of reason, justice and public policy.”

Article 2, Section 24 of the Constitution of Arizona, states “In criminal prosecutions, the accused shall have . . . the right to appeal in all cases”. (Emphasis added.) Section 5153, R.C. (Arizona) 1928, states: “The defendant in any criminal action may appeal to the superior court. . . “ (emphasis added). The Arizona Supreme Court in Burris, 46 P.2d at 1086, in the year 1935, stated:

“On the other hand, it is a well-known fact that the presiding magistrates in justice and police courts are seldom skilled in the law; that proceedings therein are apt to be summary in their nature; and that although defendants, technically speaking, may have been advised as to their rights in the premises, they are not as a rule fully conversant therewith, so that to deny the right of appeal where a plea of guilty has been entered might in some cases work a grievous injustice.
“After considering the matter from all angles, and in the light of the language of our constitutional and statutory provisions above quoted, we are of the opinion that under the law of Arizona an appeal may be taken from a judgment in a criminal case, notwithstanding the fact that a plea of guilty has been entered by the defendant.
“While a few of our inferior magistrates are men trained in the law, the greater number of them are not and cannot be so prepared. As a result, the proceedings in these inferior tribunals are naturally and necessarily more or less informal in their manner, and frequently conducted without strict observance of the rules of both procedural and substantive law. In the vast majority of judgments of such tribunals the results, although arrived at informally, are probably in conformity with substantial justice. There are, however, at times cases where, with the best intentions upon the part of the presiding magistrate, an injustice has been done.
“For all these reasons, we are of the opinion that the public policy of our state, as indicated by the people in the constitutional provision and by the Legislature in the sections of the Code above quoted, is best carried out by a holding that the right of appeal under circumstances like those appearing in this case does exist. (Emphasis added.)”

I agree with the holding of the Burris court, as of 1935, but I do not agree that the State of Montana has, by constitution or legislative action, a public policy as declared by the majority herein.

What may have been true in Arizona in 1935, regarding untrained inferior magistrates, is certainly not indicative of the quality of training received by Montana Justices of the Peace and city judges in 1987. Under Sections 3-10-202, 3-10-203, and 3-11-204, MCA, those described officers are required to attend annual training sessions, supervised by the Montana Supreme Court, and I therefore believe the adoption of the Burris court rationale to be in error.

The Montana Supreme Court, although not ruling upon the specified issue here, indicated doubt as to the appealability of a judgment entered upon a guilty plea in justice court in State v. La Rowe, 136 Mont. 591, 341 P.2d 906 (1959).

Dissenting Justice Adair noted that a plea of guilty is itself a conviction, and is conclusive, and further noted that a voluntary guilty plea is a waiver of all the defendant’s rights, including the right to a trial at all.

Dissenting Justice Bottomly noted that a voluntary plea of guilty is a conviction but is different from a jury’s verdict and a judgment entered thereon in that there is no statutory provision for an appeal from a judgment entered on a guilty plea, thus leaving the district court with no jurisdiction to entertain the purported appeal.

To now hold that the defendant is entitled to a trial de novo in district court when there has been no trial in justice court, where there is no constitutional or statutory language for an appeal from a judgment based on a guilty plea, and where the declared public policy of Montana is to protect defendants’ rights through a supervised course of training and education of justices of the peace and city judges is to defy “reason, justice and public policy.”

I would affirm the order of the district judge.