text:
    IN THE MATTER OF THE CUSTODY AND PARENTAL RIGHTS OF F.M., JR., a Youth in Need of Care.
    No. 90-600.
    Submitted on briefs Mar. 22, 1991.
    Decided Apr. 30, 1991.
    248 Mont. 358.
    811 P.2d 1263.
    J. Mayo Ashley, Helena, for appellant.
    MarcRacicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Randi Hood, Public Defender’s Office, Mike McGrath, County Atty., Carolyn Clemens, Deputy County Atty., Helena, for respondent.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

The natural parents of F.M., Jr., appeal from the order of the First Judicial District Court terminating their parental rights and awarding custody and care of F.M. to the Montana Department of Family Services. We affirm.

The issue raised by the parents on appeal is as follows:

Did the District Court abuse its discretion when it terminated the parental rights of the father, F.M.M., and the mother, K.N.M.?

F.M. was bom August 21, 1989. However, the involvement of the Montana Department of Family Services (Department) with F.M.’s family began shortly after they arrived in Montana in 1987. In 1987, F.M.M. and K.N.M., along with their daughter, M.M., moved to Lincoln, Montana, from New Hampshire. Shortly thereafter, the Department began to receive reports that M.M. was being abused by her parents.

On January 26,1988, M.M. was admitted to St. Peter’s Community Hospital with extensive bruises covering her body. These bruises were later determined to be the result of physical abuse.

On June 27, 1988, the District Court found M.M. to be a youth in need of care, granted temporary custody to the Department for six months, and ordered a treatment plan for K.N.M. and F.M.M.

On July 25, 1988, the District Court approved a treatment plan requiring the parents to obtain psychological counseling, attend parenting classes, and maintain visitation with M.M. As part of the treatment plan, the parents began therapy with Dr. Richard J. Emery, a clinical psychologist. In their therapy with Dr. Emery, the parents denied any abuse of their daughter. They explained to Dr. Emery that M.M.’s bruises were caused by the fact that M.M. walked into furniture because of lack of sleep and that she had fallen down some stairs.

Dr. Emery believed that M.M. was physically abused by one or both of her parents, and recommended continued therapy and parenting classes. On February 7, 1989, the District Court approved a second treatment plan requiring continued therapy and increased visitation for the parents.

F.M. was bom August 21, 1989, and M.M. was reunited with the family at approximately the same time. Once again, on November 6, 1989, the District Court granted the Department temporary investigative authority of M.M. The resulting investigation revealed abuse of both M.M. and F.M. Later, on November 15, 1989, the District Court granted the Department emergency temporary custody of both children pending a hearing.

The District Court held hearings on November 22 and December 15, 1989. The Department warned that the same pattern of abuse affecting M.M. was beginning to emerge with respect to F.M.

At the hearing, Mary Lou Nielson, a neighbor, testified that on two or three occasions she observed the mother, K.N.M., pretending to drop a sleeping F.M., jolting him awake. Donna Hale, a clinical social worker, testified that this act by K.N.M. is “a horrifying thing to do to a baby’ and would create a “profound emotional disturbance in an infant.” Kathleen Jury, a pastor, along with Nielson, testified that they had watched K.N.M. sticking her tongue in F.M.’s mouth. At a subsequent hearing, Dr. Emery testified that this behavior constitutes sexual abuse. Both Jury and Nielson also testified that K.N.M. made comments and jokes about F.M.’s genitalia. Furthermore, Nielson testified that K.N.M. told her that “sometimes when she changes him [F.M.], she plays with him so to speak.” Finally, Jury testified that the parents gave F.M. Tylenol and codeine to induce sleep, even though there was no indication, according to Jury, that F.M. was ill.

On January 4, 1990, the District Court entered an order finding F.M. a youth in need of care “because of apparent sexual acts perpetrated against him by his mother, along with other acts to be determined abusive or neglectful.” The District Court also found that M.M. “continues to be a youth in need of care because of continuing abuse of her by her parents.” The District Court removed the children from the home and granted custody of the children to the Lewis and Clark County Department of Family Services. Furthermore, the court approved a treatment plan which required K.N.M. and F.M.M. to obtain psychological counseling, including a sex offender evaluation, if recommended by their therapist, and to maintain regular, supervised visitation with F.M.

On February 9,1990, the District Court entered an order terminating the couple’s parental rights to M.M. The District Comet found that the parents had made no significant progress upon the objectives of their previous treatment plans and that they needed long-term therapy to acquire appropriate parenting skills. The parents did not contest the District Court’s order terminating their parental rights.

Later that spring, on April 12, 1990, the Department filed a petition for termination of the couple’s parental rights regarding F.M. At the termination hearing, the couple’s primary therapist, Dr. Emery, testified that the parents had made no real progress in therapy until April 17, at which time the couple admitted only to abusing their daughter, M.M. Dr. Emery testified that the couple still denied abusing F.M., and concluded his testimony by maintaining that the couple’s therapy had been unproductive in regard to F.M. due to their persistent denials of abuse.

Dr. Dwight Leonard, a psychologist who is Director of Psychology at Shodair Children’s Hospital, also testified about his therapy sessions with K.N.M. and F.M.M. Dr. Leonard believed that the parents had made progress in their therapy and that if they continued to make progress, there was a good possibility F.M. could be returned to the couple. Dr. Leonard estimated that F.M. could be returned to his parents in two to three months if they continued to progress in therapy. Dr. Emery disagreed, and thought it would take perhaps a year of successful therapy before F.M. could be returned to his parents.

On June 21, 1990, the District Court continued the matter for 90 days to provide a further opportunity for the parents to complete the goals of their treatment plan. In addition, the court ordered Dr. Emery to provide the court with progress reports on the parents’ therapy.

The District Court held a final round of hearings on October 2 and 16, 1990, At that time, Dr. Emery testified that the couple made no progress in therapy, a condition which he believed was unlikely to change in the future. Dr. Emery concluded that the parents remained a definite risk to F.M.

After terminating their therapy with Dr. Emery, the parents began seeing Craig Simmons, a licensed clinical social worker. Mr. Simmons, like Dr. Emery, testified that F.M. would not presently be safe with his parents and there remained a “long road” of therapy for F.M.’s parents.

In contrast, Dr. Leonard testified that in his opinion, F.M. could be safely returned to his parents. However, he also testified that he had met only three times with F.M.’s parents since the earlier hearings in May, and that he had not had an opportunity to observe the interaction between F.M. and his parents. Dr. Leonard was also willing to accept F.M.’s parents’ explanation that they did not abuse F.M.

Sue Barton, F.M.’s guardian ad litem, also testified at the termination hearing. Ms. Barton testified that K.N.M. was exhibiting the same kind of enmeshment with F.M. that led to the abuse of M.M. She recommended to the court the termination of the couple’s parental rights and the placement of F.M. in a permanent home.

On October 18, 1990, the District Court terminated the couple’s parental rights of F.M. The court reiterated its earlier conclusion that F.M. “is a youth in need of care because his health, care, and welfare have been harmed or threatened with harm by the acts or omissions of his parents.” The court also found that the treatment plan had been unsuccessful.

The sole issue on appeal is whether the District Court abused its discretion in terminating the parental rights of F.M.M. and K.N.M.

The section of the statute relevant to this termination case is § 41-3-609, MCA, which states in part:

“Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that

it ‡ Hí ‡ &

“(c) the child is an adjudicated youth in need of care and both of the following exist:
“(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
“(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.
“(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making such determinations, the court shall consider but is not limited to the following:
“(a) emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent -unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
“(b) a history of violent behavior by the parent;
“(c) a single incident of life threatening or gravely disabling injury to or disfigurement of the child caused by the parent;
“(d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child;
“(e) present judicially ordered long-term confinement of the parent;
“(f) the injury or death of a sibling due to proven parental abuse or neglect; and
“(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.
“(3) In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child. The court shall review and, if necessary, order an evaluation of the child’s or the parent’s physical, mental, and emotional conditions.”

The state must prove “by clear and convincing evidence” that the statutory criteria under § 41-3-609, MCA, have been met. Matter of R.B. (1990), 242 Mont. 141, 788 P.2d 1361, 1363. Furthermore, “[w]e will not reverse a District Court’s decision regarding findings of fact if those findings are supported by substantial credible evidence.” Matter of R.B., 788 P.2d at 1363.

The fact that F.M. is a youth in need of care is not in dispute. The parents do contend, however, that the District Court abused its discretion in terminating their parental rights because there was insufficient evidence to support either the court’s finding that the treatment plan failed, or the finding that their unfitness was not likely to change in a reasonable length of time. The state disagrees, and contends the record overwhelmingly supports termination of the parents’ rights.

The parents’ treatment plan required psychological counseling, including a sex offender evaluation, if recommended by their therapist, and regular, supervised visitation with F.M. The parents contend they fully complied with the treatment plan. However, as the state correctly notes, mere compliance with the treatment plan is not enough. Section 41-3-609(l)(c)(i), MCA, imposes the additional requirement that the treatment plan be successful. The District Court found, and we agree, that the parents’ treatment plan “has not been successful.”

The District Corut properly weighed the conflicting evidence in determining that the parents failed to successfully complete their treatment plan. The District Court properly based its finding on the testimony of Dr. Emery and Mr. Simmons, the primary therapists of the parents. We conclude that substantial credible evidence exists supporting the District Court’s finding that the parties failed to successfully complete their treatment plan.

Next, the parents contend that the District Court’s conclusion that their unfitness is unlikely to change within a reasonable time was not supported bssssy substantial credible evidence. We disagree. Substantial credible evidence exists to support the District Court’s finding.

Dr. Emery and Mr. Simmons testified that little progress has been made in therapy. Both Dr. Emery and Mr. Simmons saw little chance of the parents changing their conduct within a reasonable time. Ms. Barton, EM.’s guardian ad litem, observed that the parents’ rate of progress in therapy had been “glacial,” and recommended that the court terminate the couple’s parental rights.

In conclusion, the record contains substantial credible evidence to support the District Court’s conclusions that the treatment plan failed and that the parents’ lack of fitness is unlikely to change within a reasonable time. Accordingly, we affirm the District Court’s order terminating the couple’s parental rights.

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


source: Caselaw Access Project

author: JUSTICE WEBER JUSTICE TRIEWEILER,

license: Public Domain

text:
    MELISSA HEDGES, a minor by and through Patricia Hedges, her Guardian Ad Litem, Plaintiff and Appellant, v. SWAN LAKE AND SALMON PRAIRIE SCHOOL DISTRICT NO. 73; Carol Field, and Does 1 and 10, Defendants and Respondents.
    No. 90-182.
    Submitted May 9, 1991.
    Decided May 23, 1991.
    248 Mont. 365.
    812 P.2d 334.

      H. James Oleson argued, Oleson Law Firm, Kalispell, for plaintiff and appellant.
    Todd A. Hammer argued, Warden, Christiansen, Johnson & Berg, Kalispell, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff, Melissa Hedges, was injured on school grounds during school hours. She brought suit against the School District and the teacher who was in charge at the time of the accident. The District Court granted defendants’ motion for summary judgment based on immunity under § 2-9-111, MCA, and held that such immunity could not be waived by the purchase of liability insurance. Plaintiff appeals. We affirm in part and reverse in part.

There are two issues raised on appeal:

I. Whether the School District and the teacher are immune under § 2-9-111, MCA.

2. Whether the purchase of liability insurance by the School District waives immunity under § 2-9-111, MCA.

In 1987 twelve year-old Melissa Hedges (Ms. Hedges) was a student at the Swan Lake Elementary School in Lake County, Montana. Respondent, Carol Field (Ms. Field), a teacher, was supervising the playground and had instructed Ms. Hedges to mark where shot puts landed. Ms. Hedges was marking a previous shot put when she was struck by another shot put which had been thrown by Ms. Field. Ms. Hedges was in clear view of Ms. Field at the time in question. Ms. Hedges was injured and this lawsuit resulted.

Defendants moved for summary judgment on the grounds of immunity under § 2-9-111, MCA. The matter was presented on oral argument to the District Court. The parties also argued the issue of whether immunity had been waived by the defendants’ purchase of liability insurance. The School District had purchased comprehensive liability insurance coverage. The District Court granted defendants’ motion for summary judgment and held the defendants were immune under § 2-9-111, MCA, and that the purchase of liability insurance did not waive immunity. Ms. Hedges appeals that decision.

I

Whether the School District and the teacher are immune under § 2-9-111, MCA.

Section 2-9-111, MCA, provides (in part):

“(1) As used in this section:
“(a) the term ‘governmental entity’ includes ... school districts;
“(b) the term legislative body’ includes ... any local governmental entity given legislative powers by statute, including school boards.
“(2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof.
“(3) A member, officer, or agent of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.”

Ms. Hedges concedes that the School District is a governmental entity as defined in the statute, and that the School Board is the legislative body, of the School District. However, she contends that despite its immunity from suit, the School District remains liable for the torts of Ms. Field, who is not immunized from suit, pursuant to § 2-9-201, et seq., MCA, the Comprehensive State Insurance Plan, which requires joinder of the School District and renders it liable to defend and indemnify Ms. Field for any damages awarded. Ms. Hedges maintains that Ms. Field’s discharge of duties was not “associated with” action of a legislative body as required by the language of § 2-9-111(3), MCA, and thus she is not immune. Ms. Hedges contends there is no connection between Ms. Field’s conduct and any action by the School Board.

Defendants maintain that under this Court’s holdings in State ex rel. Eccleston v. Montana Third Judicial Dist. Ct. (1989), 240 Mont. 44, 783 P.2d 363, [8 Ed.Law 146g] and cases therein cited, the School District and the teacher are immune from liability.

Our decision in Crowell v. School Dist. No. 7 (Mont. 1991), [247 Mont. 38,] 805 P.2d 522, 48 St.Rep. 81, [10 Ed.Law 8,] is controlling. Crowell, also involved a school teacher. Crowell held that the governmental entity, the school district, was immune from suit for an act or omission of its agent, and that the physical education teacher was its agent. As a result Crowell concluded that the school district was immune from suit for the actual omissions of its teacher agent. Crowell further held that the teacher was immune under § 2-9-111, MCA, stating:

‘We conclude that any negligence on the part of [the teacher] was associated with action by the School District in that it was the District which established programs and curriculum, including the specific course of instruction and which offered physical education classes as a part of such instruction. We agree with the conclusion of the District Court that the claim for damages arose from the lawful discharge by Mr. Allen of an official duty associated with actions of the School District and its legislative body. We hold that Mr. Allen, the physical education teacher, is immune from suit under § 2-9-111, MCA.” (Emphasis added).

Crowell, 805 P.2d at 524. We find no factual or legal distinction between Crowell and the present case.

We hold that both the School District and the teacher are immune from suit under § 2-9-111, MCA.

II.

Whether the purchase of liability insurance by the School District waives immunity under § 2-9-111, MCA.

In Crowell we held that the purchase by the school district of liability insurance waives its immunity to the extent of the coverage granted by the pertinent insurance policies. After an extensive review of Montana legislative history and case law, Crowell concluded:

“We emphasize that Montana’s statutory provisions are unique. We conclude that the Montana Legislature has reached the following conclusion: while a school district is granted immunity of various types, a school district still is granted authority to purchase insurance which may have the effect of waiver of immunity to the extent of the insurance proceeds. We do not find it necessary to imply a waiver, as the intention of the Legislature is clear. That intention is reemphasized by its authorization of tax levies sufficient to pay for insurance premiums. That intention is consistent with the legislative theory that a claim against a school district should be paid in a manner similar to payment required of a private party. We conclude that the Legislature has declared its intent to allow a school district to waive immunity to the extent of the insurance proceeds.”

Crowell, 805 P.2d at 533.

We conclude that the Crowell holding cannot be distinguished factually or legally from the present case. We therefore hold that the purchase by the School District of liability insurance waived its immunity to the extent of the coverage granted by pertinent insurance policies.

We remand this case to the District Court for a determination of the applicable insurance coverage and for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and McDonough concur.

JUSTICE TRIEWEILER,

concurring in part and dissenting in part:

This case is an example of how far this Court has come by by blindly following precedent — no matter how tortured and defective the reasoning on which that precedent is based. The statute intended to protect public employees during activities associated with the introduction of legislation or action of the legislative body, now protects teachers who hit students in the head with 12 pound steel balls while supervising track practice. The legislature’s effort to enable local governments to protect themselves against the liability provided for in Art. II, § 18, of the Montana Constitution, is now construed to be a waiver of immunity that the legislature never created in the first place.

This incredible decision is just the most recent example of this Court’s disregard for the Constitution, traditional rules of statutory construction, and the plain language of the statutes which are being construed.

And toward what end is such blatant judicial activism directed?

The result of today’s case, and the precedent, which according to the majority, compels today’s conclusion, is to protect wrongdoers and ignore innocent victims, even when they are 12-year-old children who sustain brain damage by the gross negligence of the adults under whose supervision they have been placed. (Unless, of course, the employer of the wrongdoer chooses to waive this generous protection.)

More significant than the poor legal reasoning which has brought us to this point is the fact that it has been carved into Montana’s common law for a bad social purpose. Hopefully this dark age for Montana jurisprudence which began with Peterson v. Great Falls School Dist. No. 1, 237 Mont. 376, 773 P.2d 316, [8 Ed.Law 61,] (1989), will soon be brought to a merciful end by the intervention of the Montana Legislature.

I concur with the result of the majority opinion. Based upon this Court’s decision in Crowell v. School Dist. No. 7 of Gallatin County, [247 Mont. 38,] 805 P.2d 522, 48 St.Rep. 81, [10 Ed.Law 8,] (1991), I agree that this case should be remanded to the District Court for further proceedings consistent with that opinion. However, I disagree with the reasoning of the Crowell decision. It is clear to me that the legislature did not authorize the waiver of immunity when it authorized local governments to purchase insurance. It authorized local governments to purchase insurance because it never did create the kind of local governmental immunity that has been found to exist by this Court.

I dissent from that part of the majority’s opinion which holds that § 2-9-111, MCA, clearly and unambiguously provides immunity to Carol Field for the acts complained of by the plaintiff.

Senate Bill No. 43, which was introduced in the 45th Legislature in 1977, became what is now § 2-9-111, MCA.

That bill also included amendments to § 2-9-102, MCA, and enacted § 2-9-112, MCA (granting judicial immunity); § 2-9-113, MCA (granting gubernatorial immunity); and § 2-9-114, MCA (granting immunity to local executives). It was entitled:

“AN ACT TO SPECIFICALLY PROVIDE THE STATE, COUNTIES, TOWNS, AND ALL OTHER LOCAL GOVERNMENT ENTITIES AND THE OFFICERS, AGENTS, AND EMPLOYEES OF THOSE ENTITIES IMMUNITY FROM SUIT FOR INJURY TO A PERSON OR PROPERTY IN CERTAIN CASES IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE II, SECTION 18 OF THE CONSTITUTION OF THE STATE OF MONTANA; AMENDING SECTION 82-4310, R.C.M. 1947.” (Emphasis added.)

It is significant that the bill’s title indicated to other legislators that immunity was being granted in only “certain cases,” not in all cases, because Art. V, § 11(3), of the Constitution of Montana, provides:

“Each bill... shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void.”

Furthermore, the title of that bill is important in determining the intent of the legislature when § 2-9-111 was enacted. Section 1-2-102, MCA, requires that the intent of the legislature is to be pursued if possible.

With those requirements in mind, § 2-9-111, MCA, must be considered in the context of the other forms of governmental immunity which were authorized by the same Senate Bill No. 43.

Under § 2-9-112, MCA, a member or an agent of the judiciary is only immune from suit for damages arising from the duties associated with judicial actions.

Under § 2-9-113, MCA, the state and governor are only immune from suit for actions involving vetoing or approving bills or calling the legislature into session.

Under § 2-9-114, MCA, a local government or its executive officers are only immune from suit where activities are associated with vetoing or approving ordinances or other legislative acts or calling the legislative body into session.

It is clear from reading these sections in combination with each other that what the legislature had in mind was to immunize legislators, judges, and executives for activities related to the enactment of laws. To interpret those sections in that fashion would also be consistent with Senate Bill No. 43’s title, which indicated that it was providing for local governmental immunity in “certain cases,” — not in all cases. The legislators who voted for that bill must be shocked by the manner in which it has been applied by this Court.

Section 2-9-111(2), MCA, provides that the governmental entity itself is immune from suit for the acts or omissions of its members, officers, or agents. The immunity provided for in that section appears to be very broad. However, the legislature saw fit to distinguish the circumstances under which immunity could be provided to the members, officers, or agents of the legislative body in their individual capacities. In subsection (3), the legislature provided:

“A member, officer, or agent of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.”

It is obvious from any reasonable interpretation of these two sections that liability of individual governmental employees is granted on a much more limited basis than liability for the government itself. If not, it would have been a simple matter for the legislature to provide in subsection (2) that “a governmental entity and its employees are immune from suit from an act or omission of its legislative body, or a member, officer, or agent thereof.” The legislature chose not to do that. Therefore, this Court should not do so.

In his concurring opinion to Crowell v. School Dist. No. 7, Chief Justice J. A. Tumage correctly points out that:

“ ‘In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.’ Section 1-2-101, MCA. This is the rule of law governing statutory construction, and it is an appropriate and proper rule. There is no place for individual preference or desire to become the rule of law when the Court interprets statutory language.”

I agree with Chief Justice Tumage’s conclusion regarding the proper role of this Court. However, I disagree that this Court has adhered to that rule of statutory construction when interpreting § 2-9- 111, MCA. If it did, it could certainly not have concluded that when a teacher throws a 12 pound steel ball and hits a student under her supervision on the head, that teacher’s act was “the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.”

The result in this decision, furthermore, violates the rule of construction recognized by this Court in B.M. v. State, 200 Mont. 58, 649 P.2d 425, [1 Ed.Law 57,] (1982), where we held that every act of the legislature expanding statutory immuniiy must be clearly expressed.

In discussing § 2-9-111, MCA, this Court, in State ex rel. Eccleston v. Dist. Court, (1989), 240 Mont. 44, 54, 783 P.2d 363, 369, [8 Ed.Law 146g,] stated:

“[W]e are not asserting in this opinion that the statute is unequivocally clear at first glance. Indeed, several interpretations of § 2-9-111, MCA, have been argued in the fine of cases that have come before us since the statute’s adoption.”

I would suggest that if the legislature’s intent to expand governmental immuniiy was not clear at first glance, then according to all appropriate rales of construction, this Court had no business taking a second look. This Court’s recent line of decisions granting total immunity to local governments has not only turned traditional rules of construction upside down, but has had the same impact on the human values that used to be reflected in our law.

I would reverse the District Court by holding that § 2-9-111(3), MCA, does not grant immunity to the defendant, Carol Field, in this case, and to the extent that any previous decision is inconsistentwiththatholding, I would reverse that decision.

JUSTICES HUNT and GRAY concur in the concurrence and dissent of JUSTICE TRIEWEILER.


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH WILLIAM MILINOVICH, Defendant and Appellant.
    No. 90-423.
    Submitted on briefs Mar. 14, 1991.
    Decided May 30, 1991.
    248 Mont. 373.
    812 P.2d 338.

      J. Cort Harrington and Wendy Holton, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, and John T. Flynn, County Atty., Townsend, for plaintiff and respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

Defendant and appellant, Joseph William Milinovich (Milinovich), entered an Alford plea of guilty to the offense of accountability for deliberate homicide, a felony. He subsequently moved to withdraw his guilty plea. The First Judicial District Court, Broadwater County, denied his motion and sentenced him to 60 years in the Montana State Prison. Milinovich appeals from the District Court’s denial of his motion.

We affirm.

The sole issue raised on appeal is whether the District Court erred when it refused to allow Milinovich to withdraw his guilty plea.

The crime to which Milinovich pled guilty occurred in July 1989. A factual proffer filed at the time of the guilty plea states the circumstances of the homicide as follows:

Milinovich was hitchhiking in New Mexico when he met a carload of several men, women, and children traveling as a kind of family. He joined the group, which had a hierarchical structure and a vague, undefined criminal purpose. The group eventually entered Montana and purchased firearms with money acquired through panhandling. Somewhere west of Bozeman they met the victim, Larry Beckwith. Beckwith was traveling to Alaska in his pickup truck; the group decided to follow him and attempt to find work in Alaska.

Near Townsend, Montana, the group decided not to go to Alaska, but to rob Beckwith instead. The pickup truck containing the victim Beckwith, the appellant Milinovich, and one of the other men, Duncan, pulled off of the road. The car containing the group was parked further down the road. Milinovich contends, although the State does not agree, that at this point Duncan forced him at gunpoint to hit the victim and strike him with a rock. Duncan then shot the victim five times in the head with a .22 caliber pistol.

The group continued on in the car and truck until the truck apparently quit running, at which time it was set afire. They went on to Las Vegas and checked into a motel. Milinovich and Duncan went out to a nightclub.

Milinovich, Duncan, and one of the women went out the next day ostensibly to panhandle money. Instead they traveled to Texas, where Duncan was arrested and jailed for driving while intoxicated. At the time of Duncan’s arrest, Milinovich gave a false name to the authorities. He and the woman traveled to Missouri where he spent a few days, and he then proceeded without her to Baltimore, Maryland, where he was apprehended and returned to Montana.

Milinovich initially pled not guilty to one charge of robbery and two charges of deliberate homicide, charged alternatively. Pursuant to a written plea agreement, Milinovich changed his plea of not guilty to an Alford guilty plea to deliberate homicide by accountability, a felony. The charge of robbery and the alternative charge of deliberate homicide were dismissed. A statutory notice of the defense of compulsion was filed at the same time. Also at this time, the court ordered a pre-sentence investigation of Milinovich.

At sentencing, Milinovich moved the court for permission to withdraw his guilty plea. His two grounds for the motion were that the State had violated the plea agreement through a recommendation in the pre-sentence investigation, and that potential exculpatory evidence had surfaced through the pre-sentence investigation. The court denied the motion.

Did the District Court err when it refused to allow Milinovich to withdraw his guilty plea?

Section 46-16-105(2), MCA, controls withdrawal of a plea:

“At any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.”

Milinovich maintains that “good cause” in this case is evidenced by the State’s violation of the plea agreement, and by the discovery of potentially exculpatory evidence that would support his defense of compulsion. We disagree.

The pertinent part of the plea agreement entered into by Milinovich and the county attorney states that the “prosecutor shall, at the time of sentencing, make no recommendation to the Court relative to a term of years to be served ...” The presentence investigation prepared by the probation/parole officer recommended that Milinovich be sentenced to 100 years in the Montana State Prison and be designated a Dangerous Offender for purposes of parole eligibility. Milinovich contends that the parole officer’s recommendation is equivalent to a recommendation by the prosecutor, and therefore is a violation of the plea agreement.

The pre-sentence investigation prepared by the parole/probation officer is authorized by § 46-18-111, MCA, and its contents are spelled out in § 46-18-112, MCA. Section 46-18-112, MCA, states:

“Whenever an investigation is required, the probation officer shall promptly inquire into the characteristics, circumstances, needs, and potentialities of the defendant; his criminal record and social history; the circumstances of the offense; the time the defendant has been in detention; and the harm to the victim, his immediate family, and the community ... The investigation shall include a physical and mental examination of the defendant when it is desirable in the opinion of the court.”

A sentencing recommendation is merely a factor that may or may not be considered by the judge, as § 46-18-103, MCA, makes sentencing the exclusive province of the judge. “All sentences under this chapter shall be imposed exclusively by the judge of the court.” Section 46-18-103, MCA.

The first basis of Milinovich’s claim is without foundation because the recommendation was a part of the statutorily authorized pre-sentence investigation, not a breach of the prosecutor’s agreement.

Next, Milinovich asserts that when he entered his plea he was under the impression that he knew all of the statements that had been made by his co-defendants. His pre-sentence investigation, ordered after he entered his plea of guilty, referred to statements by a co- defendant made to the parole officer. Further investigation of those statements led Milinovich to believe that those statements had potential exculpatory value, and would support his defense of compulsion. Specifically, the co-defendant implied that Milinovich had not been present when the decision to rob the victim was made. Milinovich promptly moved to withdraw his plea when he discovered this statement.

This Court recently stated in State v. Miller, [248 Mont. 194,] 810 P.2d 308, 48 St. Rep. 389, 390, (1991):

“The fundamental purpose of allowing a defendant to withdraw a guilty plea is to prevent the possibility of convicting an innocent man. Accordingly, a plea of guilty will be deemed involuntary where it appears that the defendant was laboring under such a strong inducement, fundamental mistake, or serious mental condition that the possibility exists he may have pled guilty to a crime of which he is innocent.” (Citations omitted.)

While Milinovich may not have been present at the specific moment the robbery was mentioned, his actions prior and subsequent to the crime far outweigh any exculpatory value the co-defendant’s statement might have. Although the following statement by the court refers to the reasons for Milinovich’s sentence, it is instructive as to the reason the single statement by the co-defendant is not sufficient to support a compulsion defense, and concomitant withdrawal of the guilty plea:

‘You knew of the plans to rob Mr. Beckwith. Despite your indication of your words, the evidence points to it, and there is no doubt in my mind that you were aware of it. Mazurkiewicz and you had a discussion about a tire caddy... You struck Beckwith not only with your fist, but with a rock. You were riding in the truck with Beckwith ... You may not have intended to have anything to do with the murder of Mr. Beckwith, but you were certainly involved in the robbery...
“It’s a tragic situation. And you were a part of that, and you have to pay for it.”

The statement by the court, coupled with the fact that Milinovich did nothing to warn the victim of potential trouble, or to notify the police after the crime had been committed, far outweighs any evidence supporting a defense of compulsion. We hold that the District Court did not abuse its discretion in denying Milinovich’s motion to withdraw his plea of guilty.

Affirmed.

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


author: JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. FRANK BELMAREZ, Defendant and Appellant.
    No. 90-489.
    Submitted on briefs April 11, 1991.
    Decided May 30, 1991.
    248 Mont. 378.
    812 P.2d 341.

      Arthur J. Thompson, Thompson & Sessions, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth Griffing, Asst. Atty. Gen., Helena, Dennis Paxinos, Yellowstone County Atty. and Brent Brooks, Deputy Yellowstone County Atty., Billings, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The defendant Frank Belmarez appeals the judgment and commitment of the Montana Thirteenth Judicial District Court, Yellowstone County, sentencing him to forty-five years in the Montana State Prison and designating him a dangerous offender. The sole issue to be determined is whether the District Court erred in designating the defendant a dangerous offender. We remand the case for further findings.

The defendant was charged by information for stabbing to death his wife, Vicki Espinoza, and for assaulting his sister, Jolene Belmarez, with the same weapon. At the sentencing hearing the defendant described the fight. He had left his wife a few days before the attack. The day of the incident, he returned to her apartment to get some clothes and tried to talk with his children. Vicki became angry and asked him to leave. He left and went to a bar. She followed him to the bar, arriving a few minutes later. The couple went outside the bar and began to argue and then to wrestle. Jolene intervened to help Vicki. At some point in the altercation the defendant stabbed both Vicki and Jolene.

On May 10, 1990, the defendant plead guilty to mitigated deliberate homicide, aggravated assault, and escape. On June 27, 1990, the District Court sentenced Belmarez on Count I to a term of thirty-five years for mitigated deliberate homicide, plus an additional ten years for the use of a weapon; on Count II, the aggravated assault, to a term of fifteen years, plus an additional ten years for the use of a weapon; and on Count III, the escape, to a term of ten years, said sentences to run concurrently with each other. The District Court also found that the defendant did not qualify to be treated as a non-dangerous offender pursuant to § 46-18-404(3), MCA, and ordered that the defendant be designated a dangerous offender.

The sentencing court’s designation of an offender as either non-dangerous or dangerous is an important factor in determining parole eligibility. See § 46-23-201(2), MCA. Designation as a nondangerous offender is governed by § 46-18-404(3). The statute provides in pertinent part:

“(1) ... the sentencing court shall designate an offender a non-dangerous offender for purposes of eligibility for parole under part 2 of chapter 23 if:
“(a) during the 5 years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; and
“(b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society.
“(3) If the court determines that an offender is a dangerous offender, it shall make that determination a part of the sentence imposed and shall state the determination in the judgment. ... [I]f the sentence and judgment do not contain a determination that the offender is a dangerous offender, the offender is considered to have been designated as a nondangerous offender for purposes of eligibility for parole.”

Section 46-18-404, MCA. (Emphasis added.)

In its Judgment and Commitment, the District Court gave the following reasons for the sentence imposed:

1. The Court has considered the contents of the presentence report.
2. The Corut has considered the plea-agreement entered into.
3. The Corut has considered the fact that Defendant has no prior felony convictions.
4. The Court feels that the defendant is sincerely remorseful for this crime.
5. The Court has taken into consideration the victims of this matter.
6. The Court feels that the defendant is a danger to society.

At the sentencing hearing, the District Court also discussed its determination that the defendant be designated as dangerous:

<cYou are hereby designated as a dangerous offender because I believe you to be a danger. I recognize that you have no prior record, but in taking into account both the mother-in-law and the sister’s statements I do make that designation.”

According to this statement, the apparent bases for the designation were the statements of the defendant’s mother-in-law and sister in letters included in the presentence report. The court noted the content of these letters:

‘Your sister says that she feels bad about what happened. ‘I feel like it is mostly my fault. It hurts me to know my sister-in-law will never come back, and it also hurts to know that my brother will be in jail a long time. At first I was angry with him, but I got to accept what happened and that it wasn’t my fault. I still love my brother though.’
“... Now the Espinoza letter is much different. She was the mother of Vicki, and she worries, fears, and she doesn’t express any sorrow for you.”

Under § 46-18-404, MCA, “an individual may be designated a dangerous offender, if, in the discretion of the sentencing court, he is determined to represent a substantial danger to other persons or society; however, more than a mere recital of the statutory language is required. The sentencing court must articulate its reasons underlying its determination.” State v. Ford (1985), 218 Mont. 215, 221, 707 P.2d 16,20; Matter of McFadden (1980), 185 Mont. 220, 222, 605 P.2d 599, 600; see also State v. Camitsch (1981), 192 Mont. 124, 140, 626 P.2d 1250, 1258-9. Our review of the record here indicates that the District Court failed to articulate its reasons for the dangerous offender designation. The court set forth its reasons for the sentence imposed in its Judgment and Commitment Order and then concluded that “[t]he Court feels that the defendant is a danger to society.” Among the reasons for the sentence, the court did state that it “has taken into consideration the victims of this matter.” This alone is insufficient to conclude that the defendant is a danger to society. Absent an articulated reason for the designation, the reasons given by the District Court as a whole might as easily support a non-dangerous designation.

The defendant argues that there is no substantial credible evidence in the record to support a dangerous offender designation and that this Court should reverse and order that the defendant be designated a nondangerous offender. We disagree. Where the record below reveals substantial evidence to support a sentencing court’s determination that an offender is dangerous, this Court has remanded the cause to the district judge for findings to support such a conclusion. Ford, 707 P.2d at 20; Camitsch, 626 P.2d at 1259. Without such findings, this Court cannot determine if there is an abuse of discretion. Ford, 707 P.2d at 20. Here, the letter from the victim’s mother in the presentence report indicates that she is afraid the defendant will harm her family or the defendant’s and victim’s children:

“If Frank should go free, I know we will never feel safe again. We will be worrying if he will try and get one of us and take the kids away, to do harm. We fear for the safety of our lives and the safety of the kids.”

Also, this Court has held that the serious and vicious nature of a crime may be sufficient reason for designating a person a dangerous offender. See, e.g, State v. Mazurkiewicz (Mont. 1990), [245 Mont. 172,] 799 P.2d 1066, 1069, 47 St.Rep. 1962, 1965-6; State v. Bell (1987), 225 Mont. 83, 95, 731 P.2d 336, 343-4. Thus, while there is substantial evidence on the record in this case, because the court failed to articulate its reasons in the judgment, we cannot determine whether the District Court abused its discretion in designating the defendant a dangerous offender. See Ford, 707 P.2d at 20. Accordingly, we remand this case to the District Court for further proceedings consistent with this opinion.

REMANDED for further proceedings.

JUSTICES HARRISON, HUNT, GRAY and TRIEWEILER concur.


author: JUSTICE HARRISON

text:
    DOLORES JAENISH, Claimant and Appellant, v. SUPER 8 MOTEL, Employer, and EBI/ORION GROUP, Defendant, Respondent and Cross-Appellant.
    No. 90-518.
    Submitted on briefs April 4, 1991.
    Decided May 30, 1991.
    Rehearing Denied Aug. 1, 1991.
    248 Mont. 383.
    812 P.2d 1241.

      Dolores Jaenish, pro se.
    Steven S. Carey, Garlington, Lohn & Robinson, Missoula, for defendant, respondent and cross-appellant.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Dolores Jaenish and EBI/Orion Group appeal from a July 20,1990, judgment of the Montana Workers’ Compensation Court ordering EBI/Orion Group to pay Jaenish 300 weeks of permanent partial disability benefits. We affirm.

The parties present the following issues:

1. Was the court’s determination of Jaenish’s permanent partial disability entitlement supported by substantial credible evidence?
2. Did the Workers’ Compensation Court err in denying Jaenish’s request to impose a twenty per cent penalty on EBI/Orion Group pursuant to § 39-71-2907, MCA?
3. Did the Workers’ Compensation Court abuse its discretion in reversing its assessment of costs and attorney’s fees related to the continuation of the first trial after stipulation by the parties?

Dolores Jaenish strained her back on January 24, 1985, while working as a maid and housekeeper for Super 8 Motel in Bozeman, Montana. She experienced severe back pain between her shoulder blades. Jaenish had received a back injury in an automobile accident in 1976 which aggravated a childhood arthritic condition.

Jaenish testified that since her injury in 1985 she had not worked and continued to experience chronic back pain and headaches related to her back condition. She took medications for pain, for stomach discomfort, and to help her sleep. Jaenish said that she had difficulty sleeping because the back pain would cause her to wake up during the night. Jaenish also testified that because of back pain she had trouble doing certain household chores, such as laundry and vacuuming, and could not sit for long periods of time.

Testimony was received from several physicians. Apanel of doctors concluded that Jaenish had upper back pain of a muscular ligamentous nature. The physicians reported minimmn findings of degenerative changes in Jaenish’s thoracic spine and determined that Jaenish had reached maximum medical healing from the episode of January 24, 1985. The panel also concluded that Jaenish had a zero impairment rating based on the guidelines of the American Medical Association.

EBI/Orion Group accepted liability for Jaenish’s injury and paid medical benefits and permanent partial disability benefits. Prior to the hearings, Jaenish had also received lump sum advances totaling $6,500. Jaenish claimed that EBI/Orion should be penalized for unreasonable delay in acting on her requests for lump sum advances.

Ahearing was held September 19,1988, with Jaenish representing herself. At Jaenish’s request, the trial was continued in order for Jaenish to obtain counsel. The court advised Jaenish that if a continuance were granted, “the Court is going to consider imposition [on Jaenish] of the costs of the defendant and his witness being here today

A second hearing was held on September 5, 1989, with Jaenish represented by counsel. The hearing examiner heard testimony from Jaenish and from a vocational consultant and evaluator who had been retained by EBI/Orion.

Based on the evidence, the Workers’ Compensation Court concluded that Jaenish was 60 per cent permanently partially disabled, and had reached maximum healing. The court ordered the insurer to pay 300 weeks of permanent partial benefits at the stipulated rate of $101.14 per week. The court awarded attorney’s fees to Jaenish for the amount recovered above the insurer’s settlement offer of $25,285. The court also concluded that Jaenish was not entitled to a penalty since EBI/Orion’s delay in paying advances to Jaenish was reasonable.

From the judgment of the Workers’ Compensation Court, both parties appeal.

I.

Was the court’s determination of Jaenish’s permanent partial disability entitlement supported by substantial credible evidence?

Jaenish contends that the evidence supports a determination that she is permanently totally disabled, rather than permanently partially disabled. Jaenish also disputes the court’s finding that she had reached maximum healing. EBI/Orion agrees with the court’s conclusion that Jaenish is permanently partially disabled, but argues that the evidence was insufficient to support the court’s finding of 60 per cent disability.

The standard of review in workers’ compensation cases is whether the court’s findings and conclusions are supported by substantial, credible evidence. Gaumer v. Montana Department of Highways (1990), 243 Mont. 414, 418, 795 P.2d 77, 79. We cannot substitute our judgment for that of the Workers’ Compensation Court concerning the weight of the evidence on questions of fact. When substantial evidence supports the findings of the Workers’ Compensation Court, the decision cannot be overturned. Wood v. Consolidated Freightways, Inc. (Mont. 1991), [248 Mont. 26,] 808 P.2d 502, 504, 48 St.Rep. 306, 306-07.

As a preliminary matter, we note that no dispute exists about the sufficiency of the evidence supporting the court’s finding that Jaenish is “as far restored as the permanent character of her injuries will permit,” since at the second hearing her counsel stipulated to maximum healing having been reached. Maximum healing triggers a reevaluation of the claimant’s disability status as either permanently totally disabled or permanently partially disabled. Wood, 808 P.2d at 504, 48 St.Rep. at 307.

Jaenish contends the evidence supported a determination that she is permanently totally disabled, rather than permanently partially disabled. Permanent total disability is defined as:

“[A] condition resulting from injury as defined in this chapter that results in the loss of actual earnings or earning capability that exists after the injured worker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labor market.”

Section 39-71-116(13), MCA (1983). To establish “no reasonable prospect of finding regular employment of any kind in the normal labor market” the claimant must “ ‘introduce substantial credible evidence of (1) what jobs constitute his normal labor market, and (2) a complete inability to perform the employment and duties associated with those jobs because of his work-related injury.’ ” Metzger v. Chemetron Corporation (1984), 212 Mont. 351, 355, 687 P.2d 1033, 1035 (quoting Spooner v. Action Sales, Inc. (1983) III Workers’ Compensation Court Decisions No. 85). Once a claimant presents evidence demonstrating that no reasonable prospect of employment in his normal labor market exists, the burden of proof shifts to the insurer to show that suitable work is available. Wood, 808 P.2d at 504, 48 St.Rep. at 307.

Jaenish failed to introduce evidence of her normal labor market and evidence of a complete inability to perform the duties of employment constituting her labor market. Although the burden did not shift to the insurer to show the availability of suitable work, EBI/Orion presented testimony of a vocational expert who established that Jaenish was capable of performing several jobs in the Bozeman area. Substantial credible evidence supported the conclusion of the court that Jaenish was capable of performing work in her labor market and had not demonstrated a complete inability to return to gainful employment as a result of her work-related injury.

EBI/Orion agrees with the court’s finding that Jaenish was permanently partially disabled, but claims that the evidence was insufficient to support Jaenish’s disability rating of 60 per cent.

Jaenish elected to proceed under §§ 39-71-705 to -708, MCA (1983), which provided that the indemnity benefits granted “shall be proportionate to loss or loss of use.” Factors to consider in determining disability are the claimant’s age, education, work experience, pain, and disability. Flake v. Aetna Life and Casualty Co. (1977), 175 Mont. 127, 129, 572 P.2d 907, 909.

EBI/Orion contends that the evidence does not support the extent of disability determined by the court because Jaenish, at 38, had a substantial number of years left for gainful employment. Testimony of the vocational expert established that Jaenish’s condition allowed her to return to work in positions paying approximately the same as she was receiving at the time of her injury. According to EBI/Orion, the medical evidence did not support Jaenish’s claims of the extent of her pain. EBI/Orion also points to Jaenish’s zero impairment rating.

Our examination of the record reveals that the court specifically considered each of the required factors in reaching its determination that Jaenish was 60 per cent permanently partially disabled. The court cited Jaenish’s testimony about the pain she experiences, and her limited activity, education, and work experience to support its 60 per cent permanent partial disability determination.

We will not disturb the findings and conclusions of the Workers’ Compensation Court if the conclusions are supported by substantial evidence, even though conflicting evidence was presented. Gaumer, 243 Mont. at 418, 795 P.2d at 79. We hold that the Workers’ Compensation Court relied on substantial, credible evidence in determining that Jaenish was 60 per cent permanently partially disabled and entitled to 300 weeks of permanent partial disability payments at the stipulated rate.

II.

Did the Workers’ Compensation Court err in denying Jaenish’s request to impose a twenty per cent penalty on EBI/Orion pursuant to § 39-71-2907, MCA?

The Workers’ Compensation Court may impose a twenty per cent penalty for the insurer’s refusal or delay in providing benefits:

“When payment of compensation has been unreasonably delayed or refused by an insurer ... the full amount of the compensation benefits due a claimant, between the time compensation benefits were delayed or refused and the date of the order granting a claimant compensation benefits, may be increased by the workers’ compensation judge by 20%. The question of unreasonable delay or refusal shall be determined by the workers’ compensation judge ....”

Section 39-71-2907, MCA (1983). Jaenish claimed that EBI/Orion unreasonably delayed in paying her needed lump sum advances.

The Workers’ Compensation Court refused to assess a twenty per cent penalty “since a bona fide dispute existed and the defendant’s payment of a $7,000.00 advance was not unreasonable under Section 39-71-2907, MCA.” As mandated by the statute, the issue of “unreasonable delay or refusal” is a question of fact to be determined by the Workers’ Compensation Court. Handlos v. Cyprus Industrial Minerals (1990), 243 Mont. 314, 317, 794 P.2d 702, 704. The decision whether or not to exact a penalty pursuant to § 39-71-2907, MCA, will not be overturned if based upon substantial, credible evidence. Sharkey v. Atlantic Richfield Co. (1989), 238 Mont. 159, 168, 777 P.2d 870, 876.

After reviewing the record, we hold that substantial, credible evidence supported the decision of the Workers’ Compensation Court refusing to impose a twenty per cent penalty on EBI/Orion.

III.

Did the Workers’ Compensation Court abuse its discretion in reversing its assessment of costs and attorney’s fees related to the continuation of the first trial after stipulation by the parties?

In the early stages of this case, Jaenish was repeatedly advised to retain counsel. At the first hearing, when the Workers’ Compensation Court considered Jaenish’s request for a continuance in order for her to obtain counsel, the court reminded Jaenish of the costs to EBI/Orion of appearing at the first hearing and warned her that the court might impose those costs on Jaenish. This exchange followed:

“JAENISH: I spoke with my lawyer on Friday and told him of the situation and he suggested the continuance. He’s willing and said he will pick up the case.
“HEARING EXAMINER: And the costs?
“JAENISH: Yes, he will pick up the costs.
“HEARING EXAMINER: The $1500 to Mr. Carey [EBI/Orion’s counsel]?
“JAENISH: I think so.”

EBI/Orion protests the award of attorney’s fees to Jaenish on the ground that Jaenish, during the first hearing, agreed to pay EBI/Orion’s costs, including attorney’s fees, incurred at the first hearing. EBI/Orion requested that those costs of the first hearing be deducted from Jaenish’s entitlement and later moved for reclarification of this issue. The Workers’ Compensation Court denied both motions.

We do not agree that Jaenish stipulated to paying attorney’s fees and costs as EBI/Orion asserts. At the first hearing the hearing examiner, after the exchange quoted above, cautioned Jaenish that “the Court is going to consider imposition [on Jaenish] of the costs of the defendant and his witness being here today and proceeding this far in the trial...” The hearing examiner stated in his ruling at the conclusion of the hearing:

“The question of costs of Mr. Carey and his witness and attorney fees will be presented to the Court for a separate consideration.” Thus, the question of whether Jaenish would pay EBI/Orion’s costs was not agreed upon or settled at the first hearing. As we read the record, Jaenish’s agreement to pay EBI/Orion’s costs was only valid if so ordered by the Workers’ Compensation Court.

The Workers’ Compensation Court concluded that Jaenish’s offer to pay costs of the first hearing was unenforceable because an insurer is not entitled to attorney’s fees and costs under the Workers’ Compensation Act. See North American Van Lines v. Evans Transfer & Storage (1988), 234 Mont. 209, 766 P.2d 220. In North American Van Lines we stated that the purpose of awarding attorney’s fees to the claimant is to ensure that the injured worker receives the fullest recovery possible. North American Van Lines, 234 Mont. at 213, 766 P.2d at 223.

The decision of the Workers’ Compensation Court refusing to award costs and fees of the first hearing to EBI/Orion is consistent with the policy of providing the injured worker with the full amount of compensation benefits available. We hold that the Workers’ Compensation Court did not abuse its discretion in refusing to award EBI/Orion the costs and attorney’s fees incurred at the first hearing.

Affirmed.

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


author: JUSTICE WEBER

text:
    ROWLAND THROSSELL, Petitioner and Appellant, v. BOARD OF TRUSTEES OF GALLATIN COUNTY SCHOOL DISTRICT NO. 7, BOZEMAN, MONTANA, Defendant and Respondent.
    No. 91-048.
    Submitted on briefs April 18, 1991.
    Decided May 30, 1991.
    248 Mont. 392.
    812 P.2d 767.

      Gregory O. Morgan, Bozeman, for appellant.
    Donald E. White, White & Seel, Bozeman, for respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

A retired school administrator brought this action claiming that he was entitled to benefits under the Bozeman Public Schools’ Voluntary Career Option Plan, offering retirement benefits identical to those afforded teachers. The District Court for the Eighteenth Judicial District, Gallatin County, denied the administrator such benefits and he now appeals. We affirm.

The sole issue on appeal is whether the District Court erred in holding that Mr. Throssell, as an administrator, was not entitled to Option Plan benefits under his contract?

School District No. 7 of Gallatin County hired Mr. Throssell in 1976 as Senior High Vice Principal. His contract provided that he receive fringe benefits the same as “all other benefits equal to those offered to other certified employees of the District ... unless otherwise addressed in this contract”.

In 1983, Mr. Throssell gave notice of his intent to retire at the end of the 1984 academic year. In April 1984, the School District adopted the Bozeman Public School’s Voluntary Career Option Plan (Option Plan). The Option Plan speaks of “out-of-district”, “in-district”, and “district credited” service. The controversy here involves “district-credited” service. The Option Plan provides in part:

“For the purpose of this program, the term teacher shall be as defined in the collective Bargaining Agreement between School Dist. #7 and the Bozeman Education System.
“The amounts of payment involved are strictly dependent upon the number of years of district-credited service. (Emphasis added).”

The Collective Bargaining Agreement defines “teacher” as follows:

“Unless otherwise indicated the terms ‘teacher’ or ‘teachers,’ when used in this agreement, refer[s] to ...
“all employees who are certified in Class 1, 2, 4, or 5 as provided in Section 20-4-106, MCA, whose positions require certification and all other employees who are required to be licensed to perform educational services of a professional nature but shall exclude all supervisory employees, e.g., the superintendent, assistant superintendent, principals and assistant principals, ... (Emphasis added).”

Prior to retiring, Mr. Throssell applied for benefits under the Option Plan. The School District trustees denied his application for benefits under the Option Plan upon two grounds: (1) As an administrator in the School District he was specifically excluded from the benefits of the Option Plan; and (2) he would not be entitled to compensation under the Option Plan as he had only eight years of in-district credit with the School District. Thirteen years of district-credited service are needed to qualify for the Option Plan.

Mr. Throssell appealed the case to the Gallatin County Superintendent of Schools. The County Superintendent found that the Option Plan would be a benefit included in Mr. Throssell’s last contract in 1983 but that it was necessary to have at least thirteen years of district-credited service for a teacher to qualify under the Option Plan. She further found that the provisions of the school’s collective bargaining agreement allowing a maximum number of seven years of district-credited service applies only to “teachers” hired during the term of the collective bargaining agreement dated July 1, 1983, through June 30, 1984. She concluded that Mr. Throssell had eight years of in-district service but that neither his 1976 nor his 1983 contracts contained any provision granting him credit for any out-of-district service. Thus, his claim was again denied.

Mr. Throssell appealed to the State Superintendent of Public Instruction (State Superintendent) who held that Mr. Throssell was entitled to benefits if he were qualified. The State Superintendent affirmed the County Superintendent’s decision, [see 9 Ed.Law 44,] Subsequently, Mr. Throssell appealed the decision to the District Court pursuant to § 2-4-702, MCA.

The District Court found that the County Superintendent and the State Superintendent committed an error of law by considering only part of the definition of the term “teacher” as used in the Option Plan, and failing to consider specific language in the definition:

“[The Option Plan]... shall exclude all supervisory employees, e.g., the Superintendent, Assistant Superintendent, Principals and Assistant Principals, ...”

Thus, the District Court held that as an Assistant Principal, Mr. Throssell was not eligible to receive Option Plan benefits because he was specifically excluded by the language of the Option Plan. Mr. Throssell appeals the District Court’s decision.

Did the District Court err in holding that Mr. Throssell, as an administrator, was not entitled to Option Plan benefits under his contract?

Two factors must be met before Mr. Throssell can receive benefits. First, he must be an employee “eligible” under the Option Plan to receive such benefits. Second, if he is eligible, he must meet a minimum requirement of thirteen years of district-credited service so that he may actually receive the benefits.

The District Court concluded that Mr. Throssell was not eligible for coverage. We disagree. Mr. Throssell’s contract provided that he receive the following fringe benefits (in part):

“A. Full family health, dental and vision Insurance. AJ1 other benefits equal to those offered to other certified employees of the District which includes but is not limited to Maternity Leave, Emergency Leave, Leave for Civic Duties, Personal Leave and Leaves of Absence, unless otherwise addressed in this contract. (Emphasis added).

Nowhere does the contract otherwise provide that Mr. Throssell should not receive benefits equal to those offered to other certified employees. The District Court’s reference to the Collective Bargaining Agreement’s definition of teacher was correct. However, it must also consider Mr. Throssell’s individual contract which allows “all other equal benefits”. We therefore reverse the District Court’s conclusion that Mr. Throssell is not entitled to benefits under the Career Option Plan.

Mr. Throssell’s record of service card showed the number “11” in the “out” column. Throssell contends that the School District credited him with eleven years of out-of-district service on the permanent record card and thus, he is entitled to benefits under the Option Plan.

The State Superintendent addressed that argument as follows:

“The maximum number of years out-of-district service a ‘new teacher’ could be credited is seven years. A decision on the actual number of years of out-of-district service credited to a new teacher is made by the District at the time of hire. The new teacher’s placement on the salary matrix requires the District to decide how many years of out-of-district service it will credit to a new teacher. The term ‘district-credited’ requires action on the part of the District. The District may credit a new teacher with zero through seven years of out-of-district service.” [9 Ed.Law 44]

As the County Superintendent concluded, Mr. Throssell was not a “new teacher” when he entered into his final contract in 1983. The 1983 contract does not contain a provision granting credit to Mr. Throssell for any out-of-district service. Therefore, district-credited service for new teachers under the 1983-1984 Collective Bargaining Agreement is not a benefit to which Mr. Throssell would be entitled under his 1983 contract because he was not a “new teacher” in 1983. For this reason, the County Superintendent and the State Superintendent concluded that Mr. Throssell did not meet the requirement for a minimum of thirteen years of district-credited service to qualify for the Option Plan. The scope of review of administrative decisions is somewhat limited. See § 2-4-704(2), MCA.

“Our function as an appellate court reviewing an administrative decision is not to substitute our judgment for that of the County [or State] Superintendent but rather to review the whole record to determine if the administrative findings are clearly erroneous or if the County Superintendent’s [or State Superintendent’s) conclusions of law constitute an abuse of discretion.”

Harris v. Cascade County School Dist. No. 6 and F (1990), 241 Mont. 274, 277, 786 P.2d 1164, 1166, [9 Ed.Law 34], After reviewing the record, we conclude that the County and State Superintendents’ findings are not clearly erroneous nor were the conclusions of law an abuse of discretion, and affirm their conclusion that Mr. Throssell did not meet the thirteen year minimum requirement.

While we affirm the final holding of the District Court that Mr. Throssell will not receive Option Plan benefits, we disagree with the basis for its decision. As previously stated, Mr. Throssell’s contract specifically provided that he receive “all other equal benefits” equal to those offered to other certified employees of the District. Thus, we hold that in this case, under Mr. Throssell’s contract he was eligible to receive Option Plan benefits if he satisfied the thirteen year minimum requirement of district-credited service. We agree that the record supports the conclusions of the Superintendents that he did not.

We affirm the District Court’s denial of benefits to the plaintiff.

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


text:
    WILD RIVER ADVENTURES, INC., Plaintiff and Appellant, v. BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 8 OF FLATHEAD COUNTY, Defendant and Respondent.
    No. 91-001.
    Submitted on briefs March 22, 1991.
    Decided May 30, 1991.
    248 Mont. 397.
    812 P.2d 344.

      Scott C. Wurster, Law Offices of Ambrose G. Measure, Kalispell, for plaintiff and appellant.
    M. Dean Jellison, Kalispell, for defendant and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a grant of summary judgment to the defendant in a quiet title action. The plaintiff Wild River Adventures, Inc. (Wild River) appeals the order of the Eleventh Judicial District Court, Flathead County, granting summary judgment to the defendant, Flathead County School District No. 8 on the grounds that School District’s predecessors in interest did not create an easement in plaintiff’s favor across the School District’s land. We affirm.

The sole issue on appeal is whether the District Court erred in denying the plaintiff’s motion for summary judgment and granting the defendant’s motion for summary judgment.

The uncontested facts in this case are as follows. Prior to February 20, 1986, the United States Forest Service owned the property that is the subject of this dispute. The suit involves several conveyances of the property as part of a unified complex land swap accomplished over a period of months involving School District No. 8 and its predecessors in interest: School District No. 6, the Thompsons, Sloan et. al., and the United States Forest Service (USFS).

On February 20,1986, the property was conveyed by deed from the USFS to Sloan et al. The deed was recorded on June 9,1986. Prior to this conveyance, a certificate of survey (COS) was prepared in conjunction with the transfer. The COS shows two distinct roads, the West Glacier School Road and a forty foot private road easement. The COS contains the language “[sjubject to and together with a 40 foot public road known as the West Glacier School Road; [sjubject to and together with a 40 foot private road easement as shown hereon ...” The COS was prepared for the Thompsons, in anticipation of the land swap.

On June 1, 1986, Sloan conveyed the property by warranty deed to the Thompsons. The grant used the same property description as contained in the COS: “[sjubject to and together with a 40 foot private road easement”. In their affidavit, Sloan et al. alleged that it was their intention to convey title to the property as they received it from the USFS and they did not intend to reserve any easement across the property in making the conveyance.

On June 3,1986, Thompson conveyed by Gift Deed the property to School District No. 6 for school purposes. On March 5, 1987, School District No. 6 conveyed the property to School District No. 8, the defendant here, to complete the land swap. The property descriptions in both conveyances again contained the language “[s]ubject to and together with a 40 foot private road easement.” By affidavit, the Thompsons allege that they intended to retain the “40 foot private road easement” when they conveyed the property to the School District; they allege that this intent is further evidenced by their later conveyance of the easement to Wild River in a separate instrument. Despite this allegation, the record indicates that neither Sloan nor Thompson owned or had any interest in dominant property which could be served by the claimed easement at the time of the conveyances.

Wild River operates a raft guide service on property leased from the Burlington Northern Railroad. The business is accessible by the West Glacier School Road and by the claimed “40 foot private road easement.” In an instrument entitled “Easement,” recorded on May 16, 1989, Thompson purports to have granted use of this easement to Wild River and its customers for business purposes. The defendant School District No. 8 subsequently erected two chain link fences with a gate blocking the “easement.”

Wild River filed this quiet title action on June 22, 1989, to obtain a judicial determination that it had a valid right of way across the School District’s property. Respondent answered and counterclaimed for a decree determining that it owned the property in fee simple subject only to the public easement, the West Glacier School Road, and a possibility of reverter should the property no longer be used for school purposes. The parties stipulated to allow Wild River access while litigation of the matter was pending. Each party moved for summary judgment on its claims. The court issued its order on August 6,1990, denying Wild River’s motion and granting the School District’s motion. Wild River now appeals.

The standard of review of summary judgment is the same as that used by the trial court granting the judgment. In order for summary judgment to issue, the movant must show that there is no genuine issue as to all facts that are material in light of the substantive principles entitling the movant to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Frigon v. Morrison-Maierle, Inc., (1988), 233 Mont. 113, 117, 760 P.2d 57, 60, Cerek v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511.

Wild River alleged in its motion for summary judgment the absence of a genuine issue of material fact. It alleged that the record before the court on the motion clearly showed that the Thompsons intended to reserve an easement for themselves and then later conveyed that easement to Wild River. Alternatively, if the trial court were to reject this argument, Wild River alleged that a genuine disputed material fact issue regarding the grantors’intent precluded the court from granting the School District’s motion for summary judgment.

Wild River relies on the rule that “[a] grant is to be interpreted in favor of the grantee, except that a reservation in any grant... is to be interpreted in favor of the grantor.” Section 70-1-516, MCA. See also City of Missoula v. Mix (1950), 123 Mont. 365, 372, 214 P.2d 212, 215-16. Thus, Wild River argues that the language, “subject to and together with a 40 foot private road easement,” in the Thompson to School District No. 6 deed reserved an easement in the Thompsons’ favor and such easement was later conveyed to Wild River. It further argues that the Thompsons’ intent to create this easement is clearly shown in their affidavit. The School District, on the other hand, argues that while the deed noted that the property was “subject to” the above language neither the Thompsons nor any of their predecessors had ever reserved an easement and thus no easement was ever created.

“An easement is an interest in land that cannot be created, granted or transferred except by operation of law, by an instrument in writing, or by prescription.” Prentice v. McKay (1909), 38 Mont. 114, 118, 98 P. 1081, 1083. In this case we have a purported easement alleged to have been created by language in a deed as follows: “subject to and together with a 40 foot private road easement.” Thus, we are faced with the question of whether the language “subject to” constitutes an exception or reservation sufficient to create an easement. The modern trend is to avoid overly technical interpretations of words in favor of ascertaining the actual intent of the parties:

“In the older English conveyancing, the term ‘exception’ denoted some physical part of the conveyor’s land which was excluded from the conveyance; while the term ‘reservation’ denoted a retained tenurial right issuing from the granted land, as for example rents or services. Thus, neither of these technical terms fitted a retained easement with respect to the granted land. Since no man can have an easement in his own land, a conveyor could not technically claim to have withheld an easement at the time of conveyance. In short, he could not withhold something which did not exist...

“In the United States a less technical attitude has helped to simplify the law and to effectuate better the real intent of the parties. A conveyor who, in terms, ‘excepts’ or ‘reserves’ an easement, is permitted to have the rights thereby intended to be enjoyed by him ... A reservation has been differentiated from an exception on the ground that a reservation connotes an implied regrant, while an exception operates as an exclusion of a right existent in the conveyor ...” 3 Powell on Real Property, § 407, pp. 34-39 to 34-42.

In City of Missoula v. Mix, supra, this Court stated:

“The modem conception of conveyancing, however, seeks to ascertain the intent of the grantor from a consideration of the entire instrument, without regard to the position of the several clauses, and, in order to give effect to such intent when ascertained, an exception will be construed as a reservation, and visa versa.”

Mix, 214 P.2d at 215, quoting Marias River Syndicate v. Big West Oil Co. (1934), 98 Mont. 254, 264, 38 P.2d 599, 601. Thus, when the intent of the parties is properly ascertained, an easement may be created by an exception as well as a reservation. See Kuhlman v. Rivera (1985), 216 Mont. 353, 359, 701 P.2d 982, 985.

Normally, however, the words “subject to” do not create an easement. See generally, 23 Am.Jur. Deeds, § 293 (1983). The words “subject to” used in their ordinary sense, mean subordinate to, subservient to or limited by. There is nothing in the use of the words “subject to”, in their ordinary use, which would even hint at the creation of affirmative rights or connote a reservation or retention of property rights. Shell Oil Co., Inc. v. Manley Oil Corp., (7 Cir. 1941), 124 F.2d 714, 716; Englestein v. Mintz (1931), 345 Ill. 48, 177 N.E. 746, 752. See also Procacci v. Zacco (Fla. 1975), 324 So.2d 180. “Subject to” wording is commonly used in a deed to refer to existing easements, liens, and real covenants that the grantor wishes to exclude from warranties of title. Bruce and Ely, The Law of Easements and Licenses in Land, § 3.05[3], p. 3-13; accord Medhus v. Dutter (1979), 184 Mont. 437, 444, 603 P.2d 669, 673; Wilson v. Chestnut (1974), 164 Mont. 484, 492, 525 P.2d 24, 28; see also, 23 Am.Jur. Deeds, § 293 (1983). Use of the words “subject to” in a conveyance is a qualification and rarely requires a court to look to the intent of the parties.

Moreover, the parties’ intent is immaterial in this case, because regardless of their intent the Thompsons could not have created the easement in question. In their affidavit dated March 1, 1990, the Thompsons alleged that “to ensure access, at such a time as our right of reverter might arise, we reserved the disputed easement unto ourselves to serve the entire property.” The District Court correctly noted that the reasoning that is the basis of the Thompsons’ alleged intent is misguided. If the property did in fact revert to the Thompsons, there would be no reason for the Thompsons to have an easement across their own property. As the District Court noted, it is fundamental that no man can have an easement in his own land; the easement and the fee title would necessarily merge. Thus, we conclude that the wording “subject to” here does not create an easement.

Finally, we note that the trial court requested the parties to submit proposed findings of fact and conclusions of law supporting their positions and then issued its judgment in the form of proposed findings of fact and conclusions of law. Technically, this procedure is incorrect, for the trial court is precluded from determining material fact issues on a motion for summary judgment. See Rule 56(c), M.R.Civ.P. While we do not condone this practice, we find no reversible error in this case. The facts set out in the District Court’s order are virtually uncontested, and any fact issue regarding intent is immaterial in this case.

We hold that there is no material fact issue in this case regarding the Thompsons’ intent to create an easement. Viewing the plaintiff’s factual allegations regarding the Thompsons’ intent in the light most favorable to the plaintiff, the Thompsons could not have reserved an easement, and thus they had no easement to grant. Accordingly, the District Court did not err in granting the defendant’s motion for summary judgment. The order of the District Court is

AFFIRMED.

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