text:
    STATE OF MONTANA, Plaintiff and Appellant, v. THOMAS CHARLES JENNI, Defendant and Respondent.
    No. 96-416.
    Submitted April 22, 1997.
    Decided May 29, 1997.
    54 St.Rep. 472.
    283 Mont. 21.
    938 P.2d 1318.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin (argued), Assistant Attorney General; Helena; Thomas P. Meissner, Fergus County Attorney; Lewistown.
    For Respondent: Torger Oaas (argued); Attorney at Law; Lewistown.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Thomas Charles Jenni, was charged by information, filed in the District Court for the Tenth Judicial District in Fergus County, with the offense of driving while under the influence of alcohol, in violation of § 61-8-401(l)(a), MCA. Based on his three prior convictions for DUI, the information charged him with a felony, pursuant to §§ 61-8-714(4) and -722(4), MCA. He filed a motion to dismiss the felony DUI charge, which the District Court granted. The State of Montana appeals. We affirm the judgment of the District Court.

The sole issue on appeal is whether the District Court erred when it dismissed the felony DUI charge against Thomas Charles Jenni?

FACTUAL BACKGROUND

On February 27, 1996, Thomas Charles Jenni was charged by information with the offense of driving a motor vehicle while under the influence of alcohol. The charge alleged in the information would, if proven, have constituted his fourth DUI offense. He was previously convicted of DUI in Fergus County in 1985, in Yellowstone County in 1990, and in Phillips County in 1992. Based on those three prior convictions, the information charged him with a felony, pursuant to §§ 61-8-714(4) and -722(4), MCA.

Jenni filed a motion to dismiss the felony DUI charge in which he contended that, at the time he pled guilty to the prior DUI charges, he was not, in fact, represented by an attorney, he had not been adequately advised of his constitutional right to an attorney, and he had not waived his right to an attorney. On that basis, he asserted that his prior DUI convictions were entered in derogation of his constitutional rights, and therefore, cannot be used to increase the current DUI charge to a felony.

In support of his motion, he submitted an affidavit which provides, in relevant part, as follows:

1.1 plead [sic] guilty to a D.U.I. charge in June of 1985 in Justice Court, Fergus County. I spent 7 days in jail. I was not represented by an attorney nor was I advised by the Court that a court appointed attorney would be appointed for me, if I could not afford one.
3. I plead [sic] guilty to a D.U.I. charge in December of 1992 in Justice Court, Phillips County. I spent one night in jail. I was not represented by an attorney nor was I advised by the Court that a court appointed attorney would be appointed for me, if I could not afford one.

In response, the State maintained that a presumption of regularity is attached to Jenni’s prior convictions and that his evidence fails to establish that his prior convictions were invalid. The State further contended that the City Court records from Jenni’s prior convictions indicate that he was informed of the charges filed against him and of his rights. Those records, however, do not identify the specific rights of which he was advised.

The District Court granted Jenni’s motion to dismiss the felony DUI charge. In its written order, the District Court concluded that:

[W]here the record is essentially silent as to whether the accused was advised of all of his constitutional rights including the right to be appointed counsel if indigent, the burden is shifted by Affidavit to the State to come forward with substantial evidence that the Defendant was constitutionally advised and his waiver was knowingly entered.

Accordingly, the District Court determined that Jenni’s affidavit shifted the burden of proof to the State. It then made the following findings of fact with regard to Jenni’s 1985 and 1992 DUI convictions:

Though it appears [Jenni] was informed of the charges and of his rights, there is no indication from the citations or the minutes attached thereto that [Jenni] was advised of his right to counsel.

Based on its findings of fact, and the application of its legal conclusions to those facts, the District Court held as follows:

[T]he record is silent and waiver of counsel from such a silent record is impermissible.... The Court having held that the citations ... [regarding Jenni’s 1985 and 1992 DUI convictions] may not be used for enhancement purposes, Count I of the Information charging [Jenni] with Felony DUI must be reduced to a misdemeanor charge ....

DISCUSSION

Did the District Court err when it dismissed the felony DUI charge against Thomas Charles Jenni?

When we review a district court’s conclusions of law, the standard of review is plenary and we must determine whether the district court’s conclusions are correct as a matter of law. State v. Rushton (1994), 264 Mont. 248, 254-55, 870 P.2d 1355, 1359; State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143. When we review a district court’s findings of fact, the standard of review is whether those findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906.

In this case, the State contends, on appeal, that the District Court erred when it dismissed the felony DUI charge against Jenni.

The State asserts the same two arguments in support of its contention that it asserted in State v. Okland (Mont. May 29, 1997), No. 96-362, i.e., that (1) a presumption of regularity attaches to prior convictions and that, (2) even if the District Court did, in fact, recognize the presumption of regularity and assign the respective burdens of proof accordingly, it erred when it determined that the evidence presented by Jenni — his affidavit — effectively rebutted the presumption and shifted the burden of proof to the State.

We conclude, as we did in Okland, that: (1) a rebuttable presumption of regularity does attach to prior convictions; (2) that presumption may be overcome by direct evidence of irregularity; and that (3) once direct evidence of irregularity is offered by the defendant, the burden shifts to the State to prove, by direct evidence, that the prior conviction was not obtained in violation of the defendant’s rights. See Okland, No. 96-362, slip op. at 11-12.

Pursuant to that procedural framework, we must first determine whether Jenni presented direct evidence in support of his claim that his constitutional rights were violated in a prior proceeding. In support of his claim, Jenni submitted an affidavit which states, in relevant part, as follows:

1.1 plead [sic] guilty to a D.U.I. charge in June of 1985 in Justice Court, Fergus County. I spent 7 days in jail. I was not represented by an attorney nor was I advised by the Court that a court appointed attorney would be appointed for me, if I could not afford one.
3. I plead [sic] guilty to a D.U.I. charge in December of 1992 in Justice Court, Phillips County. I spent one night in jail. I was not represented by an attorney nor was I advised by the Court that a court appointed attorney would be appointed for me, if I could not afford one.

Jenni’s affidavit asserts that: (a) he was not advised of his right to a court-appointed attorney in the event that he could not afford one; (b) he was convicted without the assistance of counsel; and (c) he was actually imprisoned as the result of his uncounseled convictions. We therefore conclude that Jenni’s direct evidence of a constitutional infirmity in the prior proceedings is sufficient to rebut the presumption of regularity and to shift the burden of proof to the State.

Next, we must determine whether the State presented direct evidence that Jenni’s prior convictions were not entered in violation of his constitutional rights. The State relies on the City Court records from Jenni’s prior convictions which were submitted into evidence. Although those records indicate, in general terms, that he was informed of the charges filed against him and of his rights, they do not delineate the specific rights of which he was advised. Those records, therefore, do not affirmatively establish that Jenni was advised of his constitutional right to an attorney or that he knowingly and intelligently waived that right. However, the evidence establishes that Jenni was not provided a court-appointed attorney and that he was convicted without the assistance of counsel.

We conclude that, based on Jenni’s direct evidence that he was convicted without the assistance of counsel and that he was not advised of his constitutional right to court-appointed counsel, the burden shifted to the State to present direct evidence that Jenni’s prior convictions were not entered in violation of his right to counsel and that the State failed to meet that burden. Accordingly, we hold that the District Court did not err when it dismissed the felony DUI charge against Thomas Charles Jenni. The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, LEAPHART, NELSON and REGNIER concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. MICHAEL DUANE OLSON, Defendant and Respondent.
    No. 96-449.
    Submitted April 22, 1997.
    Decided May 29, 1997.
    54 St.Rep. 475.
    283 Mont. 27.
    938 P.2d 1321.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin (argued), Assistant Attorney General; Helena; Ed Amestoy; Phillips County Attorney; Dan O’Brien; Deputy County Attorney; Malta.
    For Respondent: Torger Oaas (argued); Attorney at Law; Lewistown.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Michael Duane Olson, was charged by information, filed in the District Court for the Seventeenth Judicial District in Phillips County, with the offense of driving or being in actual physical control of a motor vehicle while under the influence of alcohol, in violation of § 61-8-401(l)(a), MCA. Based on his three prior convictions for DUI, the information charged him with a felony, pursuant to §§ 61-8-714(4) and -722(4), MCA. He filed a motion to dismiss the felony DUI charge, which the District Court granted. The State of Montana appeals. We vacate the judgment of the District Court and remand to that court for further factual findings.

The sole issue on appeal is whether the District Court erred when it dismissed the felony DUI charge against Michael Duane Olson?

FACTUAL BACKGROUND

On December 20,1995, Michael Olson was charged by information with the offense of driving or being in actual physical control of a motor vehicle while under the influence of alcohol. The charge alleged in the information would have, if proven, constituted his fourth DUI offense. He was previously convicted of DUI in Gallatin County in 1987, in Musselshell County in 1989, and in Fergus County in 1992. Based on those three prior convictions, the information charged him with a felony, pursuant to §§ 61-8-714(4) and -722(4), MCA.

Olson filed a motion to dismiss the felony DUI charge in which he contended that, at the time he pled guilty to the 1989 DUI charge, he was not, in fact, represented by an attorney, he had not been adequately advised of his constitutional right to an attorney, and he had not waived his right to an attorney. On that basis, he asserted that his prior DUI conviction was entered in derogation of his constitutional rights, and therefore, cannot be used to increase the current DUI charge to a felony.

In support of his motion, Olson submitted an affidavit which provides, in relevant part, as follows:

5. In August of 1989 I was charged with a D.U.I. in Musselshell County. Again I plead [sic] guilty and was not represented by an attorney because I could not afford to hire one.
6. On this charge I spent seven days in jail.
7. To the best of my recollection I was not advised that I could have a court appointed attorney.

In response, the State maintained that a presumption of regularity is attached to Olson’s prior conviction and that his evidence fails to establish that his prior conviction was invalid. Furthermore, although the records from Olson’s 1989 conviction are silent regarding whether he was represented by an attorney, whether he was informed of his right to counsel, and whether he waived his right to counsel, the State presented the testimony of City Judge Robert E. Mihalovich, the Justice of the Peace who convicted Olson in Musselshell County in 1989.

Judge Mihalovich testified that every time he advises a defendant of his constitutional rights, he reads directly from a standard form which includes the following language: “You have the right to counsel. If you cannot afford to hire your own attorney, one may be appointed for you.” He also stated that he always asks a defendant whether he understands his constitutional rights. Finally, he testified that this has been his standard practice for “many years” and, on that basis, maintained that Olson was advised of his constitutional rights, including his right to counsel.

However, Judge Mihalovich conceded that the records from Olson’s 1989 conviction do not contain a written waiver of rights. He also admitted that his testimony is based upon his “normal practice in the courtroom,” and that he does not specifically remember Olson’s appearance in his court, whether he advised Olson of his right to an attorney, or whether Olson waived his right to an attorney.

The District Court granted Olson’s motion to dismiss the felony DUI charge. In its written order, the District Court made the following findings:

[Olson] has presented sufficient evidence to meet [his] burden. For the August, 1989 DUI misdemeanor conviction, [Olson] states that he does not recall waiving his constitutional right to counsel. There is no written evidence of [Olson’s] waiver and no independent recollection of waiver during this conviction by the Justice of the Peace [Mihalovich]. To counter these facts, the State presented the testimony of the Justice of the Peace as to his usual practice.
The District Court then concluded, as a matter of law, that: Judging waiver of the constitutional right to counsel must entail finding of a knowing and intelligent relinquishment of a known right. State v. Blakney, 197 Mont. 131, 641 P.2d 1045, 1049 (1982). There is absolutely no way of assuring a knowing and intelligent relinquishment of a known right when all you can present is the “usual practice” of the court.

On that basis, the District Court concluded that, because there is nothing in the Musselshell County Court records which affirmatively establishes that Olson waived his right to counsel, “the State’s ‘usual practice’ testimony does not even raise a triable issue of fact.” Accordingly, the District Court held that Olson’s 1989 DUI conviction is invalid and cannot, therefore, be used to increase the current DUI charge to a felony.

DISCUSSION

Did the District Court err when it dismissed the felony DUI charge against Duane Michael Olson?

When we review a district court’s conclusions of law, the standard of review is plenary and we must determine whether the district court’s conclusions are correct as a matter of law. State v. Rushton (1994), 264 Mont. 248, 254-55, 870 P.2d 1355, 1359; State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143. When we review a district court’s findings of fact, the standard of review is whether those findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906.

In this case, the State contends on appeal that the District Court erred when it dismissed the felony DUI charge against Olson.

The State asserts the same two arguments in support of its contention that it asserted in State v. Okland (Mont. May 29, 1997), No. 96-362, i.e., that (1) a presumption of regularity attaches to prior convictions, and that (2) even if the District Court did, in fact, recognize the presumption of regularity and assign the respective burdens of proof accordingly, it erred when it determined that the evidence presented by Olson — his affidavit — effectively rebutted the presumption and shifted the burden of proof to the State.

We conclude, as we did in Okland, that: (1) a rebuttable presumption of regularity does attach to prior convictions; (2) that presumption may be overcome by direct evidence of irregularity; and (3) once direct evidence of irregularity is offered by the defendant, the burden shifts to the State to prove by direct evidence that the prior conviction was not obtained in violation of the defendant’s rights. See Okland, No. 96-362, slip op. at 11-12.

Pursuant to that procedural framework, we must first determine whether Olson presented direct evidence in support of his claim that his constitutional rights were violated in a prior proceeding. In support of his claim, Olson submitted an affidavit which states, in relevant part, as follows:

5. In August of 1989 I was charged with a D.U.I. in Musselshell County. Again I plead [sic] guilty and was not represented by an attorney because I could not afford to hire one.
6. On this charge I spent seven days in jail.
7. To the best of my recollection I was not advised that I could have a court appointed attorney.

Olson’s affidavit asserts that: (a) he could not afford to hire an attorney; (b) he was not advised of his constitutional right to a court-appointed attorney; (c) he was convicted without the assistance of counsel; and (d) he was actually imprisoned as the result of his uncounseled conviction. We, therefore, conclude that Olson’s direct evidence of a constitutional infirmity in the prior proceeding is sufficient to rebut the presumption of regularity and to shift the burden of proof to the State.

Next, we must determine whether the State presented direct evidence which affirmatively proves that Olson’s prior conviction was not entered in violation of his constitutional rights. Although the court records from Olson’s 1989 conviction are silent regarding whether he was represented by an attorney, whether he was informed of his right to counsel, and whether he waived his right to counsel, the State presented the testimony of City Judge Robert E. Mihalovich, the Justice of the Peace who convicted Olson in Musselshell County in 1989.

Judge Mihalovich testified that every time he advises a defendant of his constitutional rights, he reads directly from a standard form which includes the following language: ‘You have the right to counsel. If you cannot afford to hire your own attorney, one may be appointed for you.” He also stated that he always asks a defendant whether he understands his constitutional rights. Finally, he testified that this has been his standard practice for “many years” and, on that basis, maintained that Olson was advised of his constitutional rights, including his right to counsel.

The District Court concluded that Judge Mihalovich’s testimony does not affirmatively establish that Olson knowingly and intelligently waived his right to counsel and that, therefore, “the State’s usual practice testimony does not even raise a triable issue of fact.” On that basis, the District Court granted Olson’s motion to dismiss the felony DUI charge. In essence, therefore, the District Court concluded, as a matter of law, that the State failed to satisfy its burden of proof.

Although Judge Mihalovich testified that he does not specifically remember Olson’s appearance in his court, whether he advised Olson of his right to an attorney, or whether Olson waived his right to an attorney, he also testified that he always asks a defendant whether he understands his constitutional rights and that, every time he advises a defendant of his constitutional rights, he reads directly from a standard form which includes the following language: ‘You have the right to counsel. If you cannot afford to hire your own attorney, one may be appointed for you.” Based on that testimony, it could be inferred that Olson was, in fact, advised of his constitutional right to counsel and that he did, in fact, waive that right.

“Evidence of habit or of routine practice ... is relevant to prove that conduct on a particular occasion was in conformity with the habit or routine practice.” Rule 406, M.R.Evid. We conclude, therefore, that the State’s routine practice testimony constitutes substantive evidence which, in turn, creates a triable issue of fact. The District Court was required to consider that evidence and weigh it against the defendant’s representations before deciding whether the State satisfied its burden of proof.

Accordingly, we hold that the District Court erred when it concluded, as a matter of law, that the State failed to satisfy its burden of proof. We recognize, however, that the weight of the evidence and the credibility of the witnesses are exclusively within the province of the trier of fact; and when the evidence conflicts, the trier of fact is in the best position to make the necessary inferences and determine which shall prevail. State v. Bower (1992), 254 Mont. 1, 8, 833 P.2d 1106, 1111. Therefore, we vacate the judgment of the District Court and remand to that court for a factual determination of whether Olson’s prior conviction was obtained in violation of his constitutional right to counsel.

CHIEF JUSTICE TURNAGE,- JUSTICES GRAY, HUNT, REGNIER, NELSON and LEAPHART concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ELMER DALE PERRY, Defendant and Appellant.
    No. 96-617.
    Submitted on Briefs May 8, 1997.
    Decided May 29, 1997.
    54 St.Rep. 478.
    283 Mont. 34.
    938 P.2d 1325.

      For Appellant: Daniel P. Buckley; Berg, Lilly, Andriolo & Tollefsen; Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General; Helena; Marty Lambert, Gallatin County Attorney; Susan Swimley, Deputy County Attorney; Bozeman.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Elmer Dale Perry, was charged by information, filed in the District Court for the Eighteenth Judicial District in Gallatin County, with the offense of driving under the influence of alcohol, in violation of § 61-8-401(l)(a), MCA. Based on his seven prior convictions for DUI, the information charged him with a felony, pursuant to §§ 61-8-714(4) and -722(4), MCA. He filed a motion in which he objected to the District Court’s consideration of his seven prior DUI’s for purposes of determining whether he is guilty of felony DUI. After a hearing, the District Court denied that motion. He appeals the judgment of the District Court. We affirm.

The sole issue on appeal is whether the District Court erred when it denied Elmer Dale Perry’s motion to dismiss the felony DUI charge against him.

FACTUAL BACKGROUND

On March 13,1996, Elmer Dale Perry was charged by information with the offense of driving a motor vehicle while under the influence of alcohol. The charge alleged in the information, if proven, would have constituted his eighth DUI offense. Based on his prior DUI convictions, the information charged him with a felony, pursuant to §§ 61-8-714(4) and -722(4), MCA.

On August 12, 1996, Perry filed a motion in which he objected to the District Court’s consideration of his seven prior convictions for purposes of determining whether he is guilty of felony DUI. He asserted that before the District Court can consider his prior DUI convictions and, on that basis, increase the current DUI charge to a felony, the State is required to affirmatively establish the constitutional validity of his prior convictions. Specifically, he claimed that “[t]he records of the previous court conviction [s] must affirmatively show that [he] was informed of his rights, including the right to appointed counsel, and that [he] knowingly waived them.”

The State maintained that a presumption of regularity attached to Perry’s prior convictions and that, therefore, the burden of proof is, at least initially, on Perry to establish, by sufficient evidence, that his prior convictions were entered in violation of his constitutional right to counsel. Additionally, the State submitted as evidence a certified copy of Perry’s driving record, as well as the court records from three of his prior convictions.

Perry did not submit any evidence to establish that his rights were violated during the prior proceedings. In fact, he did not even assert that his prior convictions were invalid. Rather, he contended that it is the State’s burden to affirmatively prove the validity of his prior convictions.

At the conclusion of the hearing, the District Court rejected Perry’s contention and, on that basis, denied his motion. In its written order, the District Court held as follows:

There is a presumption of validity which attaches to final judgments, and the burden of proof to overcome the presumption rests with the defendant. Parke v. Raley, 506 U.S. 20, 29-30, 113 S.Ct. 517, 523-24, 121 L.Ed.2d 391, 404 (1992). [Perry] has not met his burden of proof, and his motion is denied.

DISCUSSION

Did the District Court err when it denied Perry’s motion to dismiss the felony DUI charge against him?

When we review a district court’s conclusions of law, the standard of review is plenary and we must determine whether the district court’s conclusions are correct as a matter of law. State v. Rushton (1994), 264 Mont. 248, 254-55, 870 P.2d 1355, 1359; State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143. When we review a district court’s findings of fact, the standard of review is whether those findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906.

On appeal, Perry contends that the District Court erred when it denied his motion and considered his seven prior convictions for purposes of determining whether the current DUI charge can be increased to a felony. He claims that waiver of the right to counsel cannot be presumed from a silent record and that, therefore, the State of Montana is required to affirmatively prove that his prior DUI convictions were constitutionally valid. In essence, he asserts that the District Court erred when it: (a) concluded that there is a presumption of regularity which attaches to prior judgments; (b) did not require the State to affirmatively establish that his prior DUI convictions were constitutionally valid; and, instead, (c) placed the burden of proof on him to establish that his right to counsel was violated in the prior proceedings.

The State, however, maintains that a presumption of regularity attaches to prior convictions and that, therefore, the burden of proof is on a defendant to show that his rights were violated in a prior proceeding. Moreover, the State asserts that, in this case, Perry faded to offer any evidence that his rights were violated during the prior proceedings and that he did not even assert that any such violations occurred.

The State’s position and the District Court’s decision are consistent with our recent decision in State v. Okland (Mont. May 29, 1997), No. 96-362. In that case, we held that:

[W]e conclude that [Parke v.] Raley [(1992), 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391,] is persuasive and that, in Montana, a presumption of regularity attaches to prior convictions during a collateral attack. Therefore, even in the absence of a transcript or record, a prior conviction is presumptively valid and a defendant who challenges the validity ofhis prior conviction during a collateral attack has the burden of producing direct evidence of its invalidity.
We further conclude that the presumption of regularity is a rebuttable presumption. Accordingly, while this presumption does operate, at least initially, to establish the validity of a prior conviction, it can be rebutted by a defendant who produces direct evidence that his constitutional rights were violated in a prior proceeding. Once a defendant has made such a showing, the burden then shifts to the State to produce direct evidence and prove by a preponderance of the evidence that the prior conviction was not entered in violation of the defendant’s rights.

Okland, No. 96-362, slip op. at 11-12.

After a review of the record, we conclude that Perry failed to present any direct evidence to establish that his constitutional rights were violated in a prior proceeding. In fact, he does not even assert, by affidavit or otherwise, that any such violations took place. We conclude, therefore, that he failed to rebut the presumption of regularity and that, for that reason, the State had no further burden of proof regarding the regularity ofhis prior convictions. Accordingly, we hold that the District Court did not err when it denied Elmer Dale Perry’s motion. The judgment of the District Court is affirmed.

JUSTICES REGNIER, GRAY, HUNT and LEAPHART concur.


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT P. GOULET, Defendant and Appellant.
    No. 96-459.
    Submitted on Briefs March 13, 1997.
    Decided May 30, 1997.
    54 St.Rep. 482.
    283 Mont. 38.
    938 P.2d 1330.

      For Appellant: Lawrence A. LaFountain, Great Falls.
    For Respondents: Honorable Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena; Julie Macek, Deputy County Attorney, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Robert Paul Goulet was convicted in a jury trial in the Eighth Judicial District Court, Cascade County, of deliberate homicide, misdemeanor theft, and carrying a concealed weapon. He appeals. We affirm.

The issues are:

1. Did the District Court err in refusing Goulet’s offered jury instructions on mitigated deliberate homicide?

2. Did the court err in refusing Goulet’s offered instructions on negligent homicide?

3. Did the court deny Goulet a fair trial by refusing to instruct the jury in regard to the mental states of “purposely,” “knowingly,” and “negligently”?

During the evening of April 27, 1995, Goulet and two other men, Henry Nelson and Edward Running Crane, visited several Great Falls, Montana bars to drink beer, gamble, and play pool. While they were walking down an alley on their way from one bar to another, Goulet asked Running Crane for a cigarette. Running Crane refused and pushed Goulet away.

Goulet took a butterfly knife from his pocket and “hit” Running Crane with it in the gut, after which he felt “stuff’ on his hand. Goulet stabbed Running Crane again in the chest, and Running Crane fell to the ground. As Running Crane attempted to stand up, Goulet stabbed him in the back and shoulder. Running Crane again fell to the ground and stayed there.

Goulet searched through Running Crane’s pockets, from which he took $25 or $30, some cigarettes, and some post office box keys. Nelson, who had observed the above events from a short distance away, walked up to Goulet and said, “I don’t see what you’re doing that for.” Goulet replied, “I didn’t like the faggot anyway.” Leaving Running Crane lying in the alley, Nelson and Goulet went into a bar for another drink, then purchased cheeseburgers at a fast food restaurant and spent the rest of the night sleeping under a railroad trestle.

Running Crane’s near-lifeless body was discovered in the alley shortly after 10:00 p.m. that night. He was transported to a hospital where he died three hours later, never having regained consciousness.

The fatal stab wound penetrated both ventricles of Running Crane’s heart and the lower lobe of his liver. Another wound penetrated four and one-half inches into his back and then into his right lung. Running Crane also had two more knife wounds in his lower chest and abdomen, with bruising on his abdomen. The pathologist who conducted the autopsy testified at trial that this bruising indicated that the knife “was probably thrust in up to the hilt with considerable force.” Finally, Running Crane had a cut on his eyebrow which penetrated to the bone. The pathologist found no defensive wounds on Running Crane’s body.

Bar employees identified Nelson and Goulet as the last persons seen with Running Crane on the evening of the homicide, as did Running Crane’s cousins, who had given the three men a ride earlier that evening. When Nelson was questioned, he made a detailed statement describing the crimes. He also took police officers to the rooftop where he and Goulet had disposed of the knife, which was then recovered.

Nelson entered a plea agreement and was deposed. Shortly thereafter he fled and was unavailable to testify at trial. His deposition testimony was read into evidence at trial.

Goulet also gave a statement to detectives investigating Running Crane’s death. He admitted stabbing Running Crane “about six times” when Running Crane became “obnoxious” after Goulet asked him for a cigarette. Goulet explained that he was intoxicated and was attempting only to intimidate Running Crane and not to hurt him.

A jury found Goulet guilty of deliberate homicide, misdemeanor theft, and carrying a concealed weapon. He was sentenced to serve seventy-five years in the state prison with twenty-five years suspended, plus concurrent terms of six months for the theft and concealed weapon charges.

Standard of Review

The standard of review for claims of instructional error in a criminal case is whether the jury instructions, reviewed as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737. A district court is given broad discretion in formulating jury instructions. State v. Ross (1995), 269 Mont. 347, 358, 889 P.2d 161, 167. To constitute reversible error, the district court’s ruling on jury instructions must prejudicially affect the defendant’s substantial rights. State v. Bradley (1995), 269 Mont. 392, 395, 889 P.2d 1167, 1168. While a defendant is entitled to have instructions on any theory of the case supported by the record, he is not entitled to an instruction concerning every nuance of his theory or argument. State v. Webb (1992), 252 Mont. 248, 253, 828 P.2d 1351, 1354.

Issue 1

Did the District Court err in refusing Goulet’s offered jury instructions on mitigated deliberate homicide?

A person commits mitigated deliberate homicide if he commits a deliberate homicide “but does so under the influence of extreme mental or emotional distress for which there is reasonable explanation or excuse.” Section 45-5-103(1), MCA. Mitigated deliberate homicide is an affirmative defense to a charge of deliberate homicide and must be proved by the defendant by a preponderance of the evidence. Section 45-5-103(2), MCA.

The District Court refused Goulet’s proposed instructions on mitigated deliberate homicide based upon its determination that there was insufficient evidence in the record to support a jury finding of mitigation. The court stated:

The element that is missing is that there must be evidence of extreme emotional or mental duress, and even though that must be judged by a — from the viewpoint of a reasonable person, the Court concludes there is simply no evidence to support a jury finding that that — that that situation existed.

This Court has held that simply being angry or intoxicated does not support a finding of extreme mental or emotional distress for which there is a reasonable explanation or excuse. State v. Williams (1993), 262 Mont. 530, 541, 866 P.2d 1099, 1106.

We have reviewed the record. Goulet did not present any evidence at trial which could be argued as evidence that he was under mental or emotional distress, other than that he was intoxicated and that he and Running Crane had gotten into an argument over a cigarette. Goulet’s own admissions concerning his conduct before, during, and after the assault provide scant support for a finding of any mental or emotional distress, much less extreme mental or emotional distress. The evidence fully supports the court’s determination that the altercation over a cigarette could not mitigate Goulet’s violent killing of an unarmed man.

Because the record would not support a jury finding of mitigation due to extreme mental or emotional distress, we conclude that the District Court did not abuse its discretion in refusing the offered jury instructions on mitigated deliberate homicide.

Issue 2

Did the court err in refusing Goulet’s offered instructions on negligent homicide?

Goulet contends that because mental state must be inferred and the mental states of negligently, knowingly, and purposely are on a continuum, he was entitled to a jury instruction on the mental state of “negligently.” He argues that he was entitled to a jury instruction on negligent homicide as a lesser included offense of deliberate homicide.

A criminal defendant is entitled to a requested lesser included offense instruction when, based upon the evidence, the jury rationally could be warranted in convicting on the lesser offense and acquitting on the greater offense. See § 46-16-607, MCA. In this case, the only evidence remotely arguable as evidence of negligence was Goulet’s statement that as he repeatedly stabbed Running Crane in the stomach, chest, and back, he was hoping that he was not seriously hurting him. In light of Goulet’s own admissions, Nelson’s testimony, and the evidence of the severity of Running Crane’s injuries, this bare assertion by Goulet deserves little credence. We conclude that the District Court was within its discretion in ruling that the evidence of negligence was insufficient to allow the jury rationally to convict Goulet of the lesser offense and acquit him of the greater.

We hold that the District Court did not abuse its discretion in refusing Goulet’s offered instructions on negligent homicide.

Issue 3

Did the court deny Goulet a fair trial by refusing to instruct the jury in regard to the mental states of “purposely,” “knowingly,” and “negligently”?

Goulet’s statement of this issue is somewhat misleading because the District Court instructed the jury on the mental states of “purposely” and “knowingly.” Goulet argues that the mental states of “purposely,” “knowingly,” and “negligently” are on a continuum and that the jury should therefore have been given instructions on all of them.

Goulet cites Martin v. Ohio (1987), 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267, in support of his contentions that the jury should have been instructed on negligent homicide and that failure to do so deprived him of due process of law. In Martin, the defendant was charged, under Ohio law, with aggravated murder. The issue on appeal was whether the jury was properly instructed that the defendant bore the burden of proving self-defense. The Court held that the Ohio practice of requiring the defendant to prove self-defense was constitutional. Martin, 480 U.S. at 236, 107 S.Ct. at 1103. Due process as discussed in Martin does not require the giving of a lesser included offense instruction which is not supported by the evidence. Martin does not support Goulet’s argument.

Goulet proposed an instruction which stated, “[a] person’s statements can be considered in determining the existence of a person’s mental state which is an element of an offense.” He offered no citation to authority in support of that instruction, nor for another he offered that, “[a] person’s belief that he needs to defend himself can be considered in determining the existence of a person’s mental state which is an element of an offense.”

Goulet also proposed a jury instruction which stated, “[a] person can knowingly use a knife and still be negligent with regard to the results of his actions.” Goulet provided no citation to appropriate authority in support of this instruction. Contrary to his claim, State v. Hubbard (1982), 200 Mont. 106, 649 P.2d 1331, does not stand for the proposition represented in the proposed instruction. In Hubbard, this Court held that, “[a] person can knowingly use a firearm and still be negligent by grossly deviating from the conduct of a reasonable person in a similar situation with regard to the results of his actions.” Hubbard, 649 P.2d at 1334.

The District Court refused Goulet’s proposed instruction on the definition of “negligently” for the same reasons that it refused the proposed instructions on the offense of negligent homicide. Standing apart from instructions on the offense of negligent homicide, an instruction on the definition of “negligently” would have no meaning or significance. The jury need not he instructed on a mental state unless that mental state is an element of an offense which the jury may properly consider. Contrary to Goulet’s assertions, he was not entitled, as a matter of law, to a jury instruction on “negligently.”

For the reasons discussed above, we hold that the District Court did not abuse its discretion in refusing Goulet’s proposed instructions on negligent homicide, including the definition of “negligently.” We further hold that Goulet’s due process rights were not violated by the District Court’s rejection of the above offered instructions.

Affirmed.

JUSTICES GRAY, REGNIER and HUNT concur.

JUSTICE TRIEWEILER

dissenting in part and specially concurring in part.

I dissent from the majority’s conclusion that the District Court did not abuse its discretion when it refused the defendant’s offered instruction on mitigated deliberate homicide.

Section 46-16-607(2), MCA, provides that “[a] lesser included offense instruction must be given when there is a proper request by one of the parties and the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense.”

Section 46-l-202(8)(c), MCA, defines “included offense” as an offense that “differs from the offense charged only in the respect that ... a lesser kind of culpability suffices to establish its commission.”

Mitigated deliberate homicide, as defined in § 45-5-103, MCA, is a lesser included offense of deliberate homicide, as defined at § 45-5-102(l)(a), MCA.

The majority opinion states that Goulet did not present any evidence from which it could be found that he was under mental or emotional distress at the time he stabbed Running Crane. However, Goulet did not need to present evidence to that effect; the State did so, and the majority opinion’s summary of the evidence is incomplete.

Dana Ingersoll, a detective for the City of Great Falls, testified that he interviewed Goulet shortly after Running Crane’s death and learned from him that, after leaving the Sailboat Lounge, Goulet and Running Crane got into a shoving match over a cigarette. Goulet advised the officer that Running Crane first pushed him and then swung at and hit him. He testified that when he swung at Running Crane, he missed him. They apparently both fell to the ground, and he then pulled a knife from his pocket to intimidate Running Crane. Goulet then told the officer that he hit Running Crane with the knife, but that it did not phase him. According to his statement, Running Crane came toward him aggressively again. That is when he first stabbed Running Crane. Goulet also told Officer Ingersoll that he was intoxicated at the time and that his intention, when first hitting Running Crane with the knife, was to get him to leave him alone.

Under these circumstances, I conclude that there was sufficient evidence for a jury to find that Goulet acted under extreme mental stress at the time that he inflicted the injuries on Running Crane which caused Running Crane’s death and, therefore, that the jury should have been given an instruction on mitigated deliberate homicide, as well as the instruction on deliberate homicide, so that it had the appropriate options when considering its verdict.

For these reasons, I dissent from the majority’s conclusion to Issue 1 that the District Court did not abuse its discretion by refusing Goulet’s proffered instruction on mitigated deliberate homicide.

I concur with the remainder of the majority opinion.


author: JUSTICE GRAY

text:
    MALTA PUBLIC SCHOOL DISTRICT A AND 14, Petitioners, v. THE MONTANA SEVENTEENTH JUDICIAL DISTRICT COURT, PHILLIPS COUNTY, MONTANA, JUDGE JOHN WARNER, PRESIDING, Respondent.
    No. 97-214.
    Ordered June 2, 1997.
    54 St.Rep. 486.
    283 Mont. 46.
    938 P.2d 1335.
   OPINION AND ORDER

The Malta Public School District A and 14 (School District), by counsel, has filed its application requesting that this Court issue a writ of supervisory control and order in the underlying case entitled Malta Public School District A and 14, Plaintiff v. United States Fidelity & Guaranty Company, a Maryland corporation, and the Phillips County Insurance, Defendant, Cause No. DV-96-049, requiring the District Court to impanel one jury to hear both portions of the bifurcated case without any delay between trial of the bifurcated parts. The School District’s request for this Court’s intervention results from the District Court’s April 15, 1997 Order denying the School District’s motion to impanel one jury to hear both bifurcated claims, without delay between trial of each claim.

PROCEDURAL BACKGROUND

On December 24, 1995, fire damaged the Junior and Senior High School in Malta, Montana. Having purchased an insurance policy from United States Fidelity & Guaranty Company (USF&G) covering real and personal property, including the Malta Junior and Senior High School, the School District contacted USF&G to receive payment under the policy to finance rebuilding the school. The parties disputed the amounts available under the insurance policy and consequently, in May 1996, the School District filed suit against USF&G alleging breach of insurance contract.

On March 14,1997, the District Court heard oral argument regarding numerous motions raised by the parties. After the hearing, the District Court ruled on these motions in its March 24, 1997 Order. Specifically, the District Court granted the School District leave to file an amended complaint raising a claim under the Montana Unfair Trade Practices Act, § 33-18-242, MCA. Additionally, pursuant to USF&G’s motion, the District Court bifurcated the breach of contract and bad faith claims. On April 15,1997, the District Court denied the School District’s motion to try the bifurcated case before the same jury and to begin the bad faith trial immediately after the breach of contract trial. In response to the April 15, 1997 Order, the School District filed this application for writ of supervisory control.

DISCUSSION

The School District argues that this Court should accept jurisdiction over this application for writ of supervisory control. The School District contends that supervisory control is necessary in this case because the District Court’s April 15,1997 Order “constitutes such a mistake of law so as to cause gross injustice to the Malta School District such that there is no remedy or appeal or relief that can be obtained or granted. ...” USF&G responds that the School District’s application for writ of supervisory control should be denied. USF&G argues that the District Court, in its April 15, 1997 Order, did not make a mistake of law, but rather properly exercised its broad discretion to order that the bifurcated claims be tried at separate times to separate juries.

In Plumb v. Fourth Jud. Dist. Court (1996), [279 Mont. 363], 927 P.2d 1011, we clarified the standard for our exercising supervisory control under Article VII, Section 2(2), of the Montana Constitution and under Rule 17, M.R.App.P. Citing State ex rel. Whiteside v. Dist. Court (1900), 24 Mont. 539, 63 P. 395, we stated that, without trying to define its particular functions, supervisory control enables this Court “to control the course of litigation in the inferior courts where those courts are proceeding within their jurisdiction, but by a mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal, or the remedy by appeal is inadequate.” Plumb, [279 Mont. 363], 927 P.2d at 1014.

Having reviewed the relevant portions of the record and the briefs submitted in support of and in opposition to the School District’s application, we conclude on the facts here that the School District has no adequate remedy by appeal from the District Court’s order. Therefore, supervisory control is proper in this case. Accordingly, we accept jurisdiction to review the substantive issues raised in this case by writ of supervisory control.

While the School District does not challenge the District Court’s March 24,1997 Order bifurcating the breach of contract and bad faith claims, the School District does argue that the District Court, in its April 15, 1997 Order, abused its discretion by denying the School District’s motion to try both bifurcated claims before the same jury and to begin the bad faith trial immediately after the breach of contract trial. Specifically, the School District argues that by impaneling two separate juries and planning to allow approximately sixty days to lapse between the trial of both claims, the District Court has “severely prejudiced” the School District by denying the School District “a speedy remedy, tantamount to a denial of justice.” Furthermore, the School District contends that there is no adequate remedy by appeal from having to try this case twice.

Relying on Martin v. Bell Helicopter Co. (1980), 85 F.R.D. 654, the School District asserts that the breach of contract and bad faith claims are “inextricably intertwined and related factual matters” and should not be separated for consideration by two different juries. Furthermore, the School District contends that “putting the Malta School District through two lengthy trials, with the same witnesses, to two totally separate jury panels, would do great violence to judicial economy, would be totally unfair and prejudicial to the Malta School District, would confuse rather than clarify the issues, and great inconvenience would accrue to Malta Schools....” Rather, the School District suggests that if both issues were tried before one jury, the bad faith claim would only require one to two days to complete, if immediately tried after the conclusion of the breach of contract claim, and would thereby avoid any unfairness or prejudice to the School District.

USF&G responds that the School District’s argument that separate trials before separate juries will be non-economical and inconvenient is unpersuasive. Rather, USF&G argues that interests involving economy and convenience “must yield to the right to a fair and impartial trial to all litigants.” USF&G contends that to require an immediate second trial before the same jury defeats the bifurcation objective to eliminate any prejudice to USF&G. Accordingly, USF&G asserts that the District Court did not abuse its discretion by ordering that each claim be tried at separate times to separate juries. Consequently, USF&G argues that this Court should deny the School District’s application for writ of supervisory control.

In its March 24,1997 Order, the District Court granted the School District’s motion to amend its complaint to raise a claim under the Montana Unfair Trade Practices Act and also granted USF&G’s motion to bifurcate this bad faith claim from the original breach of contract claim as authorized by § 33-18-242, MCA. Subsequently, in its April 15,1997 Order, the District Court denied the School District’s motion to try both bifurcated claims before the same jury and to begin the bad faith trial immediately after the breach of contract trial. Section 33-18-242, MCA states in pertinent part:

(1) An insured or a third-party claimant has an independent cause of action against an insurer for actual damages caused by the insurer’s violation of subsection (1), (4), (5), (6), (9), or (13) of 33-18-201 [prohibiting unfair claim settlement practices].
(6)(a) An insured may file an action under this section, together with any other cause of action the insured has against the insurer.

Actions may be bifurcated for trial where justice so requires. While § 33-18-242(6)(a), MCA, authorizes bifurcation of actions for trial, it provides no guidance as to when bifurcation is proper, nor does the statute address the issue here — i.e. if the actions are bifurcated, should or may the cases be tried to different juries. Consequently, we look to Rule 42(b), M.R.Civ.P., for guidance. See Britton v. Farmers Ins. Group (1986), 221 Mont. 67, 721 P.2d 303. Rule 42(b), M.R.Civ.P, provides:

The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

Under Rule 42(b), M.R.Civ.P., the decision as to whether to bifurcate a trial is a matter left to the “broad discretion” of the district court. State ex rel. McGinnis v. Dist. Court (Mont. 1983), 673 P.2d 1207, 1208. In State ex rel. Fitzgerald v. Dist. Court of Eighth Jud. Dist. (1985), 217 Mont. 106, 703 P.2d 148, we explained that Rule 42(b), M.R.Civ.P, is worded differently than Rule 42(b), Fed.R.Civ.P., because the federal rule includes additional grounds for granting a separate trial and includes a provision for the inviolate right of trial by jury. Fitzgerald, 217 Mont. at 116-17, 703 P.2d at 155. However, we held that despite the lack of a provision for the right of trial by jury in Montana’s rule, “there should be no difference in result under the Montana rule when an order for separate trial is considered [because] Art. II, Section 26, 1972 Montana Constitution provides that ‘the right of trial by jury is secured to all and shall remain inviolate.’ ” Fitzgerald, 217 Mont. at 116, 703 P.2d at 155.

While we have previously addressed the issue of presenting for decision bifurcated issues to one jury seriatim, we have not considered the issue of presenting for decision bifurcated issues to separate juries. See Fitzgerald, 217 Mont. 106, 703 P.2d 148; Britton, 221 Mont. 67, 721 P.2d 303. Consequently, we conclude that it is appropriate that we adopt the rule set forth in Martin concerning bifurcation of issues under one case and presentation of those issues to separate juries:

A decision whether to use the same or separate juries must be made, therefore, on an individual case basis. It must be considered whether the issues are intertwined or are distinct; then (if distinct), the interests of judicial economy, fairness to the parties, clarity of the issues, and convenience must also be weighed.

Martin, 85 F.R.D. at 659-60. Under this analysis, the first factor to be considered is whether the issues in a case are intertwined or distinct. If the issues are intertwined, bifurcation of those issues under Rule 42(b), M.R.Civ.P, whether for decision by one jury seriatim or by separate juries, would result in extended and needless litigation, and, therefore, would constitute an abuse of discretion by the district court. See Fitzgerald, 217 Mont. at 117-18, 703 P.2d at 156; Martin, 85 F.R.D. at 659-60. Consequently, only if the issues are distinct is bifurcation proper under Rule 42(b), M.R.Civ.P. See Fitzgerald, 217 Mont, at 117-18, 703 P.2d at 156. However, to next determine whether presentation of the bifurcated issues to separate juries is proper, the second set of factors set forth in Martin must be weighed — i.e., the interests of judicial economy, fairness to the parties, clarity of the issues, and convenience. See Martin, 85 F.R.D. at 659-60.

Here, it is conceded that bifurcation of the breach of contract and bad faith claims is appropriate. Therefore, we will not address the issue of whether the issues are intertwined or distinct. However, the issue remains whether the District Court abused its discretion by ordering that each bifurcated claim be tried before a separate jury. As discussed above, we must weigh certain factors — the interests of judicial economy, fairness to the parties, clarity of the issues, and convenience — to resolve this issue. See Martin, 85 F.R.D. at 659-60. The School District points out that if one jury hears both bifurcated claims, the bad faith claim should only take one to two days to finish if immediately tried after the conclusion of the breach of contract claim. In contrast, the School District suggests that to try the bad faith claim to a separate jury would require a much longer period of time because the second jury must be educated on the underlying contract claim to understand the bad faith claim. In other words, the parties would have to relitigate the entire case with virtually the same evidence and with virtually the same witnesses who would be put to the inconvenience and hardship of a second trial.

Based upon the particular circumstances of this case, we conclude that the District Court abused its discretion by denying the School District’s motion for the District Court to impanel one jury to hear both portions of the bifurcated case without any delay between trial of the bifurcated parts. Upon consideration of the second set of factors under Martin, we conclude that none of the factors support a decision requiring two separate juries. As the School District points out, only by trying the bad faith claim immediately after the breach of contract claim to the same jury will the parties avoid relitigating the entire matter. Such a result would further the interests of judicial economy, ensure fairness to the parties, maintain clarity of the issues and provide convenience to both the court and the parties.

The Dissent concludes that supervisory control is not proper in this case because the first part of the Plumb two-part test for exercising supervisory control is not met. While we agree with the Dissent that the question before us involves a discretionary ruling rather than a “mistake of law,” we disagree that this ruling will not result in a gross injustice. In Plumb, after concluding that the district court was proceeding based on a mistake of law by allowing the Defendant to blame an unnamed third party for the Plaintiff’s injuries, we concentrated on the inadequacy of any remedy by appeal to explain our exercise of supervisory control. We explained that supervisory control was proper because the district court’s mistake would cause a gross injustice to occur:

[T]he course of discovery will be affected, the cost of preparation and trial will be affected, settlement by the parties will be rendered more difficult, and the value of any verdict will be questionable, meaning additional time and expense for a resolution of the issue by appeal and the inevitable subsequent litigation. Therefore, we conclude that any remedy available to the Plumbs by appeal is inadequate, and that the denial of a speedy remedy by supervisory control would be a denial of justice.

Similarly here, the District Court’s discretionary ruling denying the School District’s motion to try both bifurcated claims to one jury seriatim will result in a gross injustice which cannot be remedied on appeal. That is, by requiring that the bifurcated claims be tried to separate juries at separate times, the District Court is denying the School District a speedy remedy. Plainly, this Court’s refusal to exercise supervisory control would force the School District to appeal this issue after trial of both bifurcated claims — i.e. after prejudice to the School District has occurred and for which no adequate remedy by appeal exists. Consequently, we consider supervisory control proper in this case.

Additionally, we disagree with the Dissent’s assertions that by accepting supervisory control over discretionary rulings, such as the one at issue, “we simply invite a flood of applications for supervisory control over purely discretionary decisions by trial courts.” We have previously exercised supervisory control over cases involving discretionary rulings, such as those discretionary rulings pertaining to discovery issues. See e.g., Burlington Northern v. Dist. Court (1989), 239 Mont. 207, 779 P.2d 885; Kuiper v. Dist. Court (1981), 193 Mont. 452, 632 P.2d 694 (Kuiper I)] Jaap v. Dist. Court (1981), 191 Mont. 319, 623 P.2d 1389. Our exercise of supervisory control over this case, as well as previous cases involving discretionary rulings, in no way obligates us to accept jurisdiction over all cases involving discretionary rulings. Rather, “[i]n matters involving supervisory control, this Court has followed the practice of proceeding on a case-by-case basis though we are careftd not to substitute the power of supervisory control for an appeal. Plumb, [279 Mont. 363], 927 P.2d at 1015 (quoting State ex rel. Deere & Co. v. Dist. Court (1986), 224 Mont. 384, 399, 730 P.2d 396, 406).

Furthermore, despite the Dissent’s assertions to the contrary, our conclusion that the District Court abused its discretion by denying the School District’s motion to try both bifurcated claims before the same jury is based upon our consideration of the totality of the Martin standard. As stated in Martin:

While economy and convenience may properly be considered in the decision to bifurcate, neither is the ultimate objective. “A paramount consideration at all times in the administration of justice is a fair and impartial trial to all litigants. Considerations of economy of time, money and convenience of witnesses must yield thereto.”

Martin, 85 F.R.D. at 658. As the Dissent points out, the District Court decided to try the bifurcated claims at separate times to separate juries based on its “sensitivity to thq potential prejudice faced by the Defendants in trying both components of the case to the same jury. [Emphasis added.]” Yet, the District Court failed to further articulate what prejudice USF&G potentially faces. Rather, in an effort to avoid any potential prejudice against USF&G, the District Court instead created actual prejudice against the School District and thereby abused its discretion.

That is, as discussed previously, to try the bad faith claim to a separate jury would necessarily require educating the second jury about the underlying breach of contract claim. To do this, the School District must relitigate and USF&G must again defend the entire case using essentially the same witnesses and the same evidence. Effectively, the District Court’s decision prejudices both parties. Consequently, only by trying the bad faith claim immediately after the breach of contract claim to the same jury will the parties avoid relitigating the entire case. Furthermore, because the breach of contract and bad faith claims remain bifurcated, USF&G will continue to enjoy protection from any potential prejudice associated with the bad faith claim. Only this course of action will further the interests of judicial economy, ensure fairness to the parties, maintain clarity of the issues and provide convenience to both the court and the parties. And, only this course of action will insure a “fair and impartial trial to all litigants.”

Accordingly, in the underlying case, Malta Public School District A and 14, Plaintiff v. United States Fidelity & Guaranty Company, a Maryland corporation, and the Phillips County Insurance, Defendant, Cause No. DV-96-049, the District Court shall impanel one jury to hear both bifurcated claims seriatim. The trial of the breach of contract claim shall commence as scheduled and the trial of the bad faith claim shall follow immediately thereafter.

DATED this 2nd day of June, 1997.

/S/J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

/S/WILLIAM E. HUNT, SR.

JUSTICE GRAY

dissenting.

I respectfully dissent from the Court’s opinion and order. It is my view that, in accepting supervisory control over the District Court, we are departing from the standard for supervisory control we so recently clarified in Plumb and inappropriately intruding into the District Court’s decisions regarding trial administration, decisions best left to the court nearest to — and most familiar with — the case. In addition, even assuming the propriety of supervisory control here, I would conclude that the District Court did not abuse its discretion in denying the School District’s motion to try the breach of contract and UTPA claims to the same jury seriatim.

As the Court observes, the Plumb standard for supervisory control allows us to step into matters at the trial level where trial courts “by a mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal, or the remedy by appeal is inadequate.” This is clearly a two-part test, requiring that a gross injustice be occurring via a legal mistake or disregard of the law and that there is no — or only an inadequate — remedy by appeal. In my opinion, the question before us does not involve a “mistake of law;” indeed, the Court concedes as much. Nor, in my view, is there a resulting gross injustice. Therefore, the first part of the Plumb test for exercising supervisory control is not met.

No one suggests that the District Court’s decision at issue here is a purely legal question or that the District Court disregarded the law in making its decision to have the case tried to two separate juries. Rather, it is clear that this is a decision within the trial court’s broad discretion in controlling matters relating to trial administration. Since discretionary trial court rulings encompass “ ‘the power of choice among several courses of action, each of which is considered permissible’” (Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04), it is my view that discretionary rulings do not properly come within the Plumb standard.

In addition, even if an abuse of discretion constituted a “mistake of law” of the type envisioned in Plumb, it is simply not the case that every abuse of discretion results in a “gross injustice” requiring immediate review by this Court. It is my view that, in accepting such matters on supervisory control, we are unnecessarily intruding into the trial courts’ domain. Furthermore, in doing so, we simply invite a flood of applications for supervisory control over purely discretionary decisions by trial courts. In fairness to the litigants who are before us in ever-increasing numbers of appeals, and to our ability to manage that appellate caseload well from both timeliness and quality perspectives, we can ill afford to exponentially expand the number of original jurisdiction proceedings requiring our attention.

Moreover, while I do not disagree with the Martin standard, it is my view that, in applying that standard, the Court does not establish an abuse of the District Court’s discretion, but merely substitutes its own discretion for that of the District Court. Martin is clear that considerations of economy of time and convenience of witnesses must yield to the “ ‘paramount consideration ... [of] a fair and impartial trial to all litigants.’ ” Martin, 85 F.R.D. at 658. In this regard, the District Court assessed both parties’ interests and premised its order denying the School District’s motion to try both the breach of contract and UTPA actions to the same jury specifically on its “sensitivity to the potential prejudice faced by the Defendants in trying both components of the case to the same jury.” In other words, the District Court weighed the potential for prejudice to the substance of the defendant’s case against the inconvenience to the School District and exercised its discretion in favor of the defendant. This Court converts the School District’s mere inconvenience into actual prejudice and weighs it more heavily than the defendant’s potential substantive prejudice. The Court then determines that the District Court — the court most familiar with the case — abused its discretion merely because trying the UTPA claim to a different jury would take more time and inconvenience witnesses for the School District. I cannot agree.

In addition, the record reflects that the breach of contract case is scheduled for trial this month and that the UTPA claim, only amended into the School District’s complaint several months ago, is far from ready for trial. In any event, the District Court’s order of April 15,1997, makes it clear that the court’s calendar will not accommodate trial of the UTPA claim immediately following the breach of contract claim. Thus, it appears that the Court’s conclusion that the trial on the UTPA claim must be to the same jury and must follow immediately after the trial on the breach of contract claim will result in a delay in trying the breach of contract claim. The Court does not address these matters and it escapes me how the School District’s interests in resolving its underlying claim and recovering the insurance proceeds for which it bargained — whatever the jury may determine them to be — are advanced by such a result.

In summary, I disagree that this case meets our recently clarified test for accepting a case on supervisory control. That test apparently exists no more. In addition, I disagree that any abuse of discretion has been established under Martin. I would deny the School District’s application for a writ of supervisory control.


author: JUSTICE HUNT

text:
    In the Matter of THE APPOINTMENT OF A GUARDIAN AD LITEM AND CONSERVATOR FOR LAUREN WATSON, JAMES WATSON, HOLLAND WATSON, and DURBIN WATSON, Protected Persons.
    No. 96-695.
    Submitted on Briefs April 3, 1997.
    Decided June 3, 1997.
    54 St.Rep. 492.
    283 Mont. 57.
    939 P.2d 982.

      For Appellant: Micheál F. Lamb, John A. Kutzen, Thueson & Lamb, Helena.
    For Respondent: John C. Hoyt, Hoyt & Blewett, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant James Watson (Watson) appeals the decision of the Eighth Judicial District Court, Cascade County, denying his petition for appointment of himself as conservator and guardian ad litem, and granting the petition of his ex-wife Tañara Martin (Martin) for appointment of herself as conservator and guardian ad litem of the couples’ four minor children (the children). We affirm.

ISSUE

The sole issue presented on appeal is whether the District Court abused its discretion in concluding that Martin was not subject to an inherent conflict of interest between her husband and her children, that would preclude her from serving as the children’s conservator and guardian ad litem.

FACTS

Watson and Martin were divorced in November 1993 and agreed to joint custody of their four children. In September 1994, Martin married her present husband, Tony Martin, who is employed by the Willow Creek Ranch (the ranch) in Belt, Montana, as a ranch manager. Following her marriage, Martin moved with her four children to the ranch. The ranch, as Tbny Martin’s employer, provided housing, utilities, and one-half beef a year to the Martin family.

On December 8,1995, Martin requested that a ranch hand named Brent Wood (Wood) pick up the children from school in Belt and give them a ride back to the ranch. During the trip back, the pickup truck driven by Wood was involved in a one-vehicle accident which resulted in injuries to all the children. The parties agree that Wood was acting within the course and scope of his employment at the time the accident occurred, and further agree that the pickup truck in question was owned and insured by the ranch. The parties also agree that the ranch has approximately $800,000 of available insurance coverage.

The oldest Watson child, Lauren, was most grievously injured in the accident. Her injuries required her to remain in the hospital for over seven weeks and undergo at least nine operations. The medical expenses incurred by her alone have totaled approximately $200,000 thus far, and she may require additional treatment in the future because the accident left her permanently handicapped. Given the nature of Lauren’s injuries alone, the parties agree that the expenses and damages incurred by the four children could exceed the limits of the insurance. While no lawsuit has thus far been filed, the parties do not rule out the possibility that one may be filed in the future. Any such law suit would likely seek to recover damages from the ranch, which directly employs Martin’s husband and provides to him the home in which the family lives.

In March 1996, Watson petitioned the District Court for his own appointment as guardian ad litem and conservator for the children. Martin opposed his petition and cross-petitioned for her own appointment. After a hearing, the District Court concluded that Martin’s status as the wife of the ranch’s manager did not create an untenable conflict of interest which would prohibit her from satisfactorily carrying out her fiduciary duty to the children as their guardian ad litem and conservator. The District Court further found her to be a better candidate for guardianship and conservatorship based upon her long history of involved and loving parenting. It therefore granted her petition and simultaneously denied Watson’s petition. Watson appeals, asserting that Martin’s situation constitutes an inherent conflict of interest which serves, as a matter of law, to preclude her appointment as conservator and guardian ad litem.

STANDARD OF REVIEW

This Court will not set aside a district court’s findings of fact unless the findings are clearly erroneous. Rule 52(a), M.R.Civ.R; Wareing v. Schreckendgust (1996), 280 Mont. 196, 930 P.2d 37, 41, 53 St.Rep. 1362, 1364; Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. This Court will not set aside a district court’s conclusions of law unless the conclusions reflect an incorrect interpretation of the applicable law. Boreen v. Christensen (1996), 280 Mont. 378, 930 P.2d 67; Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 898 P.2d 680. Moreover, we have held that

[s]ubject to statutory restrictions, the selection of the person to be appointed guardian is a matter which is committed largely to the discretion of the appointing court, and an appellate court will interfere with the exercise of this discretion only in case of a clear abuse.

In the Matter of the Guardianship of Nelson (1983), 204 Mont. 90, 94, 663 P.2d 316, 318 (citation omitted). In reviewing the District Court’s determination, we will give paramount consideration to the best interests of the children. Section 72-5-223, MCA.

DISCUSSION

Did the District Court abuse its discretion in concluding that Martin was not subject to an inherent conflict of interest that would preclude her from serving as the children’s conservator and guardian ad litem?

The parties agree that the potential interests of the children should be overseen by a conservator and a guardian ad litem. Section 72-5-410, MCA, lists who may be considered as a conservator to a protected person. Under § 72-5-410(l)(e), MCA, both parents are equally eligible to petition for conservatorship; neither is, by statute, favored over the other. Section 72-1-303, MCA, provides, however, that “orders binding a conservator bind the person whose estate he controls,” but only “[t]o the extent there is no conflict of interest between them or among persons represented [.]” Section 72-1-303(2)(b), MCA. Finally, § 41-5-512, MCA, which provides for the appointment of a guardian ad litem, states in part:

The court at any stage of a proceeding on a petition under this chapter may appoint a guardian ad litem for a youth if the youth has no parent or guardian appearing on his behalf or if their interests conflict with those of the youth.

Upon review, we conclude that the District Court did not err in determining that Martin does not suffer from a conflict of interest that would preclude her from serving as guardian ad litem and conservator to the children. The District Court found that Martin “would fulfill her fiduciary duties to her children tenaciously, considering both their emotional needs as well as their future financial security.” This finding was supported by Martin’s testimony that she would not hesitate to act in her children’s best interests, even to the detriment of her husband. Martin further testified that she recognized that a suit against the ranch likely would be necessary to safeguard the children’s interests.

The evidence presented showed that Martin is an extremely involved and protective mother who dedicates great time, love and attention to her children. The evidence also showed that Watson is much less involved in his children’s lives. By his own admission, the challenges of his career and new marriage have not allowed him to see the children as often as he would like. For these reasons, Watson does not exercise his visitation rights consistently. Martin testified that, at the time of trial, Watson had not had their daughters to his home for an overnight visit in more than a year.

Watson contends that the above evidence is largely irrelevant to the determination of who should be the conservator and guardian ad litem to the children. We cannot agree. An argument that the Court should look solely at Martin’s alleged conflict of interest ignores the District Court’s responsibility to make a determination which serves the best interests of the children.

Watson cites several cases for the proposition that any potential conflict of interest should serve to bar an individual from serving as a guardian ad litem or conservator. See In the Matter of the Estate of Peterson, (1994), 265 Mont. 104, 874 P.2d 1230; In re Marriage of Tesch (1982), 199 Mont. 240, 648 P.2d 293; In the Matter of the Estate of Peter C. (Me. 1985), 488 A.2d 468. We do not find these cases persuasive. None parallel or approximate the admittedly very unique facts presented in the case at bar, and none present situations where, as here, the court must give paramount consideration to the best interests of the children involved. The District Court decided that the children’s best interests would be served by the appointment of their mother as their guardian ad litem and conservator. Upon review, we determine that the District Court did not err.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, LEAPHART and NELSON concur.


author: JUSTICE REGNIER JUSTICE HUNT

text:
    EAGLE RIDGE RANCH LIMITED PARTNERSHIP, a Montana limited partnership, Plaintiff and Respondent, v. PARK COUNTY, a political subdivision of the State of Montana, and all other persons unknown, claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in this Complaint 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 Appellants.
    No. 97-047.
    Submitted on Briefs April 10, 1997.
    Decided June 3, 1997.
    54 St.Rep. 495.
    283 Mont. 62.
    938 P.2d 1342.

      For Appellant: Tara DePuy, Park County Attorney, Livingston.
    For Respondent: Michael J. Lilly; Berg, Lilly, Andriolo & Tollefsen; Bozeman.
   JUSTICE REGNIER

delivered the Opinion of the Court.

Eagle Ridge Ranch filed a complaint for declaratory judgment against Park County requesting that the Sixth Judicial District Court, Park County, order a road on its property be declared a private road. The District Court granted Eagle Ridge Ranch’s motion for summary judgment. Park County appeals from an order of reconsideration of the District Court which denied its request to amend its answers to interrogatories after Eagle Ridge had filed a motion for summary judgment. We affirm.

The issue on appeal is whether the District Court erred by not allowing Park County to amend its answers to interrogatories after Eagle Ridge Ranch had filed a motion for summary judgment in reliance upon the original answers.

FACTUAL BACKGROUND

Eagle Ridge Ranch is a Montana limited partnership, owning sections 25, 26, and 35, Township 4 North, Range 9 East, P.M.M., in Park County, Montana. A road traverses those sections. This road is generally referred to as the South Fork of the Elk Creek Road.

On December 8, 1993, the attorney for Eagle Ridge, Michael J. Lilly, met with the Park County Commissioners to discuss the status of the road which ran across the Eagle Ridge Ranch. During that meeting, the Commissioners maintained that the road was a county road, one having been created by petition. Eagle Ridge maintained that it was a private road.

Following the meeting, Lilly conducted extensive research, both factual and legal, in an effort to assess the validity of the Park County Commissioners’ position. At the conclusion of the research, Lilly wrote a letter to the Commissioners on May 2, 1994, in which he provided a detailed history, including exhibits, to support his argument that the road was not created by petition. Eagle Ridge incurred $7,478.64 in attorney fees and costs in its effort to convince the comity that the road was not a county road created by petition.

On May 20, 1994, the Park County Attorney responded to the letter, maintaining that the road was in fact a county road created by petition. Subsequently, Eagle Ridge Ranch filed a lawsuit on October 5,1994, requesting the District Court’s declaration that the road was a private road, not a county road.

Early in the litigation, Eagle Ridge propounded two interrogatories to Park County. One interrogatory requested the county to indicate whether the road was created by petition. The County’s answer to the interrogatory was in the affirmative. The next interrogatory asked whether the County contends that the road was legally created through a means other than petition. The County replied, “no.” After receiving the answers to the interrogatories, Eagle Ridge filed a motion for summary judgment.

Rather than oppose the motion for summary judgment, Park County sought permission of the District Court to amend its answers to the two interrogatories. At this time, the County was apparently aware that it could not prove that the road was created by petition, and the proposed amendments would allow the County to maintain that the road was created by prescription, which was a new legal theory not previously asserted. The District Court, over Eagle Ridge’s objection, allowed the County to amend its answers.

On April 19,1996, Eagle Ridge filed a motion of reconsideration of the District Court’s order allowing the County to amend its answers to interrogatories on the basis of a newly decided case issued by this Court, Peuse v. Malkuch (1996), 275 Mont. 221, 911 P.2d 1153. The District Court then issued an order of reconsideration denying Park County’s original motion to amend its answers to interrogatories. In the order of reconsideration, the District Court found that Eagle Ridge went to considerable effort and expense before filing its motion for summary judgment, and that it shared its research with the County prior to initiation of this lawsuit in order to convince the County that the road was not a county road created by petition.

Park County consented to the entry of an order granting summary judgment reserving its right to appeal the District Court’s order of reconsideration. The District Court entered summary judgment in favor of Eagle Ridge Ranch declaring the South Fork of Elk Creek Road to be a private road where it traverses the ranch’s property. Park County appeals the District Court’s order of reconsideration.

DISCUSSION

Did the District Court err by not allowing Park County to amend its answers to interrogatories after Eagle Ridge Ranch had filed a motion for summary judgment in reliance upon the original answers?

The issue presented here is one involving a district court’s control of pretrial discovery. Discretionary rulings of a district court include trial administration issues, post-trial motions, and similar rulings. Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125. The standard of review of discretionary trial court rulings is abuse of discretion. May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. This discretion is reposed in the district court because it is in the best position to supervise the day-to-day operations of the pretrial discovery process. In re Marriage of Malquist (1994), 266 Mont. 447, 453, 880 P.2d 1357, 1361.

Park County contends that the District Court’s order of reconsideration should be reversed and that it should be allowed to amend its answers. The County argues that Eagle Ridge will not be prejudiced if the County is given the opportunity to amend its answers to Interrogatories 2 and 3, despite the fact that Eagle Ridge filed a motion for summary judgment.

Eagle Ridge counters that it expended a considerable amount of time and money before litigation was filed in attempting to convince Park County that the road had not been created by petition. It was not until Eagle Ridge filed its motion for summary judgment that the county acknowledged that the road had not been created by petition.

Rule 33, M.R.Civ.R, authorizes use of interrogatories for the purpose of pretrial discovery from an adverse party. This rule is liberally construed to make all relevant facts available to parties in advance of trial, and to reduce the possibilities of surprise and unfair advantage. Wolfe v. Northern Pacific Ry. Co. (1966), 147 Mont. 29, 409 P.2d 528.

In reconsidering its order allowing Park County to amend its answers to interrogatories, the District Court relied on Peuse v. Malkuch (1996), 275 Mont. 221, 911 P.2d 1153. Peuse involved a suit for specific performance of a real estate purchase. The defendants filed their answer to the complaint, setting forth two affirmative defenses. After the plaintiff filed a motion for summary judgment, the defendants raised two questions of fact that had not been raised in their answer. As a result, the defendants filed a motion requesting leave to file an amended answer. This Court affirmed both the District Court’s refusal to grant the defendant’s motion to file an amended answer and the granting of plaintiff’s motion for summary judgment.

In Peuse, 275 Mont. at 227, 911 P.2d at 1156, we discussed the application of Rule 15(a), M.R.Civ.R, and stated that “[a] party may amend its pleading by leave of court and leave shall be freely given when justice so requires. An opportunity to amend a pleading is not appropriate, however, when the party opposing the amendment would incur substantial prejudice as a result of the amendment.” We further stated in Peuse that a court can deny a motion for an amendment for apparent reasons “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by allowance of the amendment, futility of the amendments, etc.” Peuse, 275 Mont. at 227, 911 P.2d at 1156-57. We hold that the legal conclusions in Peuse regarding amendment to pleadings is controlling in this case regarding the amendments to answers to interrogatories.

Park County argues that Eagle Ridge will not be prejudiced if the County is allowed to amend its answers to the interrogatories. It states that Eagle Ridge has failed to establish that the County had any dilatory motive in requesting to amend its answer to requests for discovery. Also, it argues that Eagle Ridge has failed to show that it would be substantially prejudiced by the County’s request to amend its answer to requests for discovery. The County asserts that the mere fact that Eagle Ridge has expended monies for attorneys should not suffice for a showing of prejudice.

Eagle Ridge maintains that it expended a considerable amount of time and money before litigation was filed in an attempt to convince Park County that the road in question had not been created by petition. Its effort was ignored by the County. After Eagle Ridge filed this litigation, the County continued to persist in its position that the road in question had been created by petition. The County finally acknowledged that the road had not been created by petition when Eagle Ridge filed its motion for summary judgment.

The County believes that Peuse is distinguishable from the facts in this litigation because in Peuse the defendants requested to amend their answer two years after the original pleadings were filed. Here, Park County does not ask to amend the original pleadings, but instead, its answer to requests for discovery. The County also asks this Court to consider the fact that it filed its request to amend five months after the original pleadings were filed.

In support of its argument, Park County cites Sikorski v. Olin and Rolin Manufacturing (1977), 174 Mont. 107, 568 P.2d 571, where this Court granted a party’s motion to amend a single interrogatory answer before the start of a trial. However, the facts in Sikorski are distinguishable from the case at bar. In Sikorski, the answer that the party sought to amend did not involve a change of legal theory upon which they sought to proceed. Furthermore, the request for amendment did not follow the filing of a motion for summary judgment but was submitted before the parties went to trial.

Here, Park County has steadily maintained from the beginning that the road in question was a county road created by petition. Despite the fact that the attorney for Eagle Ridge provided the Park County Attorney’s Office with the relevant documents and the applicable law necessary to evaluate Eagle Ridge’s claim that the road had not been created by petition, the County did not change its position. Allowing Park County to amend its answers to the interrogatories would also allow the County to proceed in this litigation under a new legal theory. Thus, all the factual and legal research that Eagle Ridge has conducted up to this point would be rendered irrelevant.

Park County believes that it can prevail on its claim that the road was created by prescription. However, if the County believed that the road was created by prescription and not by petition, it should have asserted this position before the filing of the summary judgment motion. Also, if the County was confused about which legal theory to proceed on, it could have argued both positions in the alternative in its answer to the complaint and in response to the interrogatories.

This Court notes that the length of time that a district court may allow a party to amend pleadings or answers to requests for discovery will vary depending upon the circumstances of each case. As we stated in Peuse, 275 Mont at 227, 911 P.2d at 1156, “[a] party may amend its pleading by leave of court and leave shall be freely given when justice so requires.” Certainly the general rule is to freely allow parties to amend their pleadings and discovery responses as the facts and subsequent legal theories develop during the litigation process. It is always up to the district court’s discretion, however, whether to allow such amendments.

Under the facts presented, it was well within the discretion of the District Court to refuse Park County’s request to amend its interrogatory answers. In this case, Eagle Ridge went through substantial effort and expense to avoid litigation and resolve this matter outside of court. Furthermore, we note that there was sufficient time between the date Eagle Ridge filed its complaint and the date of its motion for summary judgment for the County to investigate its claims and to determine its position in this litigation.

Park County mistakenly relies on Peuse when it asserts that, because its request came a mere five months after the original pleadings were filed, the District Court should have allowed it to amend its answers to the interrogatories. The holding in Peuse was not based on the length of the time period before the party requested to amend its pleadings. In Peuse, 275 Mont. at 228, 911 P.2d at 1157, we stated that “[i]f the amendments were allowed after the motion for summary judgment, [the party opposing the amendment request] would be unduly prejudiced since his [summary judgment] motion was based on the original pleadings which remained unchanged for almost two years.” Park County notified Eagle Ridge and the District Court that it believed that the road was created by petition and maintained that position until the filing of summary judgment. To allow the County to amend its answers to the interrogatories after Eagle Ridge filed for summary judgment would unduly prejudice Eagle Ridge, who spent considerable time and money in factual and legal research that it shared with the County prior to the start of this litigation. This extensive effort and expense would be wasted if the County is allowed to proceed on a new legal theory after Eagle Ridge filed for summary judgment.

Park County believes that this is an extraordinary case and thus, it should be allowed to change its legal theory even though Eagle Ridge has filed for summary judgment. This Court did state in Peuse that litigants should be allowed to change their legal theories after a motion for summary judgment has been filed in extraordinary cases. Peuse, 275 Mont. at 228, 911 P.2d at 1157. However, the only thing that this Court finds extraordinary is that the County persisted in its position that the road was a county road created by petition even when Eagle Ridge provided them with factual and legal information to the contrary before this litigation ensued.

We affirm the District Court’s order of reconsideration and the order granting summary judgment in favor of Eagle Ridge Ranch.

CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART and NELSON concur.

JUSTICE HUNT

dissenting.

The majority declares that Peuse v. Malkuch (1996), 275 Mont. 221, 911 P.2d 1153, should apply to cases involving amendment to interrogatories as well as amendment of pleadings. I do not agree. Peuse involved the application of Rule 15(a), M.R.Civ.R, which by its terms applies only to the amendment of pleadings. To entirely transfer the rationale in Peuse so that it also applies to the amendment of interrogatories elevates the interrogatory to the same status as the pleading. Yet they are not the same thing; the pleading is the cornerstone of a party’s case, while the interrogatory is generally only a small part of discovery. The majority may argue that when, as here, the answer to an interrogatory changes the entire complexion of a case, it is in fact akin to a pleading. The unique facts in this case, however, do not justify the declaration of a far reaching new rule that all proposed amendments to interrogatories should be subject to the same stringent requirements placed upon a proposed amendment to the pleading. For this reason, I consider the reliance of the majority on the Peuse decision to be misplaced.

Even if I were to accept that reliance, however, I do not agree that the Peuse decision supports the District Court’s refusal to allow the amendment of the interrogatories. Peuse stated that granting leave to amend is not proper when the opposing party would be substantially prejudiced if the amendment were granted. Peuse, 911 P.2d at 1156. Peuse further stated that a court may deny a motion to amend for undue delay, the movant’s bad faith or dilatory motive, repeated failure to cure deficiencies, futility, or undue prejudice to the other party. Peuse, 911 P.2d at 1156-57 (quoting Lindeys, Inc. v. Professional Consultants (1990), 244 Mont. 238, 242, 797 P.2d 920, 923). Of this list, the majority focuses on “undue prejudice” as evinced by the time and effort Eagle Ridge Ranch incurred in rebutting the County’s original theory of ownership by petition. Indeed, the majority mentions the effort and expense expended by Eagle Ranch no less than five times. But the undisputed fact is that the vast majority of the time, expense, and research invested by Eagle Ridge Ranch was already incurred before litigation began. Not just before the motion to amend the interrogatories; before the filing of the suit itself. I therefore cannot see how the majority can conclude that the amendment of the interrogatories is somehow to blame for the fact that Eagle Ridge Ranch had expended time and money previously.

Lastly, I note, as did the majority, that “leave [to amend] shall be freely given when justice so requires.” In the absence of prejudice to Eagle Ridge Ranch, justice in this case requires allowing the County to amend its interrogatories to reflect the theory of prescription, which may support its contention that it owns the road in question. By disregarding the merits of the case in favor of disposing of it based on procedure, the District Court gave Eagle Ridge Ranch a road that belonged, not to the attorneys who failed to correctly respond to the interrogatories, but to the people of Park County. For these reasons, I dissent from the opinion of the majority.

JUSTICES GRAY and TRIE WEILER join in the foregoing dissent.