author: JUSTICE HUNT JUSTICE GRAY,

text:
    CARL LARSON, Petitioner and Appellant, v. CIGNA INSURANCE COMPANY Insurer and Respondent for YELLOWSTONE FORD AND TRUCK SALES, Respondents and Respondents.
    No. 95-439.
    Submitted on Briefs February 8, 1996.
    Decided April 23, 1996.
    53 St.Rep. 394.
    915 P.2d 863.
    276 Mont. 283.

      For Appellant: James G. Edmiston, III, Billings.
    For Respondent: Sara Sexe, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Carl Larson appeals the September 1995 judgment of the Workers’ Compensation Court denying his claim for permanent total disability benefits for his work related hernia condition.

We reverse and remand.

On appeal, Larson raises several issues which we have consolidated and restate as follows:

1. Did substantial evidence exist to support the Workers’ Compensation Court’s finding that Larson had a reasonable prospect for employment within his normal labor market, thus precluding him from receiving permanent total disability benefits?

2. Did the Workers’ Compensation Court err in not applying Brurud v. Judge Moving & Storage (1977), 172 Mont. 249, 563 P.2d 558?

3. Did the Workers’ Compensation Court err by not requiring the insurer to comply with the “Coles” criteria as set forth in Wood v. Consolidated Freightways (1991), 248 Mont. 26, 808 P.2d 502?

STATEMENT OF THE FACTS

Appellant, Carl Larson, was a parts manager for Yellowstone Ford Truck Sales in Billings, Montana, and had been working in the truck-parts business for thirty years prior to 1981. On August 22, 1980, Larson suffered a non-work related heart attack and did not work for several months. Following a series of operations, he returned to work full time in the spring of 1981. In addition to this heart condition, Larson had several other significant health problems including degenerative disc disease and a frozen left shoulder. In 1977, Larson underwent surgery to have portions of his stomach removed due to peptic ulcer disease. Following this surgery he suffered an incisional hernia.

In July 1981, following his return to work after his heart attack, Larson suffered a left inguinal hernia after lifting a heavy truck spring. CIGNA, the insurer for Yellowstone Ford, accepted liability for the injury and paid both medical benefits and temporary total disability benefits. Larson had surgery to repair the hernia in September 1981, and returned to work on October 5, 1981. On October 23, 1981, Larson’s treating physician, Dr. Kobold, noted that he considered Larson’s inguinal hernia “one hundred percent healed.” In December of the same year, Larson was laid off because of his inability to perform his job. Yellowstone Ford’s general manager said Larson’s physical condition made him unable to carry out his assigned duties.

In January 1982, Larson underwent heart surgery to replace a mitral valve. In his deposition, Larson testified that he had planned on working until he was 65, but following his lay off he did not seek employment.

In May 1982, Larson complained to Dr. Kobold of pain in his groin region. Dr. Kobold thought the pain may be related to Larson’s back condition, and referred him to an orthopedic surgeon, Dr. Daniels. After examining Larson, Dr. Daniels wrote Dr. Kobold informing him that he did not think that Larson’s pain was a result of a nerve-root problem. In June 1982, an associate of Dr. Kobold, Dr. McGahan, found a recurrence of the inguinal hernia symptoms and scheduled a follow-up appointment. However, Larson did not return for further treatment until December 1984.

Beginning in 1982, various medical reports and testimony indicate that Larson continued to suffer pain in the groin region. The inguinal hernia was surgically re-repaired in early 1985, again in 1986, and a fourth time in 1987. The medical bills for these subsequent hernia repairs were all paid by CIGNA. In September of 1992, Larson submitted a claim for additional compensation benefits for the hernia.

STATEMENT OF THE CASE

In October 1994, the Workers’ Compensation Court denied Larson’s claim for benefits concluding that Larson’s non-work related heart condition preceded the industrial injury. Because he had been rendered permanently totally disabled prior to suffering the industrial injury, the Workers’ Compensation Court determined he was not entitled to recover permanent total disability benefits. Claimant appealed that decision.

In May 1995, this Court reversed the Workers’ Compensation Court’s decision. Larson v. CIGNA Insurance Co. (1995), 271 Mont. 98, 894 P.2d 327 (Larson I). In Larson I, this Court adopted the rationale set forth in a Washington case and later used in an Alaskan decision. See Shea v. Department of Labor and Industries (Wash. Ct. App. 1974), 529 P.2d 1131; Ensley v. Anglo Alaska Construction (Alaska 1989), 773 P.2d 955. In Shea, the claimant had been rendered disabled as a result of a degenerative vascular disease as early as 1961. Then, in 1964, the claimant had suffered a permanently disabling industrial injury. The Washington Court concluded that although other circumstances may have rendered the claimant disabled, he was not precluded from receiving benefits as a result of his second permanently disabling injury. Shea, 529 P.2d at 1134.

We remanded Larson I for proceedings consistent with that opinion and asked for specific findings and conclusions “as to whether Larson’s subsequent, inguinal hernia constituted an independent, totally disabling work related condition.” Larson I, 894 P.2d at 330-31. In September 1995, the Workers’ Compensation Court reconsidered the case and again found that Larson was not entitled to permanent total disability benefits. Again, Larson appeals.

STANDARD OF REVIEW

The Workers’ Compensation Court’s findings of fact are presumed to be correct and will be affirmed if supported by substantial evidence. Wunderlich v. Lumbermens Mut. Cas. Co. (1995), 270 Mont. 404, 408, 892 P.2d 563, 566; Sullivan v. Aetna Life & Cas. (1995), 271 Mont. 12, 15, 894 P.2d 278, 280.

The statutes in effect on the date of injury must be applied when determining benefits. Buckman v. Montana Deaconess Hosp. (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Larson suffered an industrial injury on July 15, 1981. Therefore, the workers’ compensation laws of 1979 apply. Under these laws, workers’ compensation claims were to be liberally construed in favor of the injured worker. Section 39-71-104, MCA (1979); Stokes v. Delaney & Sons, Inc. (1964), 143 Mont. 516, 519-20, 391 P.2d 698, 700.

ISSUE ONE

Did substantial evidence exist to support the Workers’ Compensation Court’s finding that Larson had a reasonable prospect for employment within his normal labor market, thus precluding him from receiving permanent total disability benefits?

Larson filed for workers’ compensation benefits in 1992, claiming the work related injury he had suffered in 1981 left him permanently disabled. In both its original 1994judgment and again in 1995, the Workers’ Compensation Court decided Larson was not entitled to permanent total disability benefits.

The claimant bears the burden of establishing a right to compensation. DuMont v. Wickens Bros. Constr. Co. (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105. In this case, Larson had the burden of establishing that he was permanently totally disabled within the definition of the statute that reads as follows:

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

Section 39-71-116(13), MCA (1979).

This definition contains both medical and non-medical components. Wood v. Consolidated Freightways (1991), 248 Mont. 26, 29, 808 P.2d 502, 504. The non-medical component of the definition requires that a claimant establish “no reasonable prospect for employment in the normal labor market.” Section 39-71-116(13), MCA (1979). In order to establish that the claimant had no reasonable prospect of employment in a normal labor market he must introduce substantial credible evidence of (1) what jobs constitute his or her normal labor market, and (2) a complete inability to perform the employment and duties because of his or her work related injury. Metzger v. Chemetron Corp. (1984), 212 Mont. 351, 355, 687 P.2d 1033, 1035. Once the claimant has presented evidence affirmatively showing that he cannot return to work in his normal labor market, the burden of proof shifts to the employer to show that suitable work is available. Metzger, 687 P.2d at 1036.

Here, the Workers’ Compensation Court’s 1995 judgment acknowledges the Metzger test. In doing so, the court rejected Larson’s argument that he was an “odd-lot” employee. An “odd-lot” employee is an individual who has suffered total disability to the extent of being unemployable in the labor market. As an odd-lot employee, a claimant is excused from introducing affirmative evidence in satisfaction of the Metzger test, thus shifting the burden to the employer to show suitable employment. See 2 Arthur Larson, Workers’ Compensation Law Desk Ed., § 57.51 at 10-54, 55; Brurud v. Judge Moving & Storage (1977), 172 Mont. 249, 563 P.2d 558.

Having rejected Larson’s odd-lot argument, the Workers’ Compensation Court did not make a finding as to whether Larson carried his burden to show no reasonable prospect of employment under the Metzger test. Instead, the court found that Larson had presented a prima facie case for permanent total disability, not for his work related hernia condition but, for his non-work related heart condition. The court then found that even if Larson was an odd-lot claimant, CIGNAhad established that he was employable despite his industrial accident.

After considering Larson’s work history, in combination with his work related injury, superimposed upon a myriad of pre-existing conditions, we disagree. Substantial credible evidence does not support a finding that Larson had a reasonable prospect for employment following his 1981 injury pursuant to § 39-71-116 (13), MCA (1979).

In this case, two rehabilitation counselors and two physicians offered testimony on Larson’s prospect of finding regular employment in his normal labor market. Only one of them, Ms. Hooper, a rehabilitation counselor, .testified at trial. Both physicians testified by deposition. To the extent a decision is based on medical reports and depositions, this Court sits in as good a position as the Workers’ Compensation Court and we review the evidence de novo. White v. Ford, Bacon & Davis Texas, Inc. (1992), 256 Mont. 9, 13, 843 P.2d 787, 789; McIntyre v. Glen Lake Irrigation Dist. (1991), 249 Mont. 63, 67, 813 P.2d 451, 454.

Initially, there is no question that Larson could not return to a position in the auto-parts industry. Dr. Kobold, Larson’s treating physician, testified that from 1982 on, he would not have allowed Larson to work in any position requiring heavy lifting. The Workers’ Compensation Court found that Larson’s inguinal hernia precluded him from returning to any sort of job in this field.

Outside of heavy labor positions, the court adopted Ms. Hooper’s analysis of what constituted Larson’s “residual labor market.” Ms. Hooper testified that Larson had numerous skills that could be transferred to sedentary or light duty positions. At trial, she testified that Larson could have found a position in sales, specifically in a retail setting such as a hardware store or in real estate or insurance telemarketing. Ms. Hooper also discussed Larson’s avocation as a woodworker. She indicated that there were a few woodworking jobs that fell within Larson’s physical restrictions.

Even with Larson’s transferable skills, however, Ms. Hooper acknowledged that Larson faced significant barriers due to his “light duty” restrictions, in addition to his age (58 yrs). Ms. Hooper testified that without the appropriate assistance, she thought that it would be “real difficult” for Larson to go out and seek employment after going through a medical process that focused on the things that Larson could not do. Ms. Hooper then testified that overcoming this difficulty would necessitate the use of rehabilitative services. Larson did not receive rehabilitative services. Instead, Larson considered himself to be retired following his lay off.

A review of Larson’s work history reveals no telemarketing experience. Ms. Hooper also explained that the majority of the woodworking positions were classified as heavy labor, and that finding an appropriate position would require substantial research and employer contacts. As for the sales positions, Ms. Hooper admitted that she had not done any job analyses or research to determine the availability of these types of jobs. At trial, she stated that she had not identified any “specific” jobs which would have been available to Larson after his lay off.

Ms. Gordon, the other rehabilitative counselor, testified only by deposition. In her report, she identified occupations for which Larson was vocationally qualified, and which were also supported by labor-market data. It was Ms. Gordon’s opinion that Larson had lost 100% of the jobs in his normal labor market.

In reaching her conclusion, Ms. Gordon prepared several job analyses using Larson’s 1993 physical capabilities. These job analyses were then used by counsel for both parties when deposing the testifying physicians. Dr. Kobold approved of only one job analysis, that of general salesperson in a hardware store. The Workers’ Compensation Court referred to this approval in its findings of fact.

One of the physical demands of this position, however, was the ability to lift 26 to 50 pounds. This amount exceeds the physical restrictions placed on Larson by both doctors. When this was pointed out to Dr. Kobold, he qualified his approval and stated that he would still restrict Larson to a 30 pound lifting maximum. The other physician who reviewed Ms. Gordon’s job analyses did not approve of any of the positions, including the general salesperson position.

Factually, we consider this case to be similar to Brewington v. Birkenbuel (1986), 222 Mont. 505, 723 P.2d 938. In that case, the claimant was around the same age as Larson and had also worked in heavy labor his entire life. Also like Larson, the claimant in Brewington did not receive any rehabilitative services. The Workers’ Compensation Court determined that the claimant could have secured a position as a foremen. We concluded, after considering the medical evidence as well as the claimant’s lifetime work history, that the foreman position was not within the claimant’s abilities. We held that the evidence supported the conclusion that the claimant was rendered permanently totally disabled by his industrial accident. Brewington, 723 P.2d at 941.

In the present case, the court’s findings fail to mention Larson’s additional health problems outside of his heart condition and inguinal hernia. As mentioned above, before suffering the hernia, Larson was diagnosed with degenerative disc disease and a frozen left shoulder. Larson also suffered from an unrelated incisional hernia resulting from surgery to have portions of his stomach removed due to peptic ulcer disease.

In the depositions, witnesses were asked to restrict their opinions to a consideration of the inguinal hernia condition, or in the alternative, a consideration of the heart condition and the hernia. Larson’s heart condition was specifically factored out upon remand in Larson I but, as we have previously stated, the employer takes his employee subject to the employee’s physical condition at the time of employment. Bond v. St. Regis Paper Co. (1977), 174 Mont. 417, 420, 571 P.2d 372, 374. It is clear from the evidence that Larson suffered from several physical impairments besides the hernia and the heart condition.

In addition, the medical depositions and records reveal that Larson had a history of pain since 1982. Dr. Kobold testified that he recalled Larson suffered from an “inordinate amount of pain.” Dr. Kobold referred Larson to Dr. Daniels, an orthopedic surgeon, to determine if Larson’s pain was in his back and therefore amenable to a nerve block. Dr. Daniels determined the pain was not related to a nerve-root problem. Dr. Daniels also noted that Larson had an abdominal bulge, which is indicative of a hernia. In June 1982, the first recurrence of the inguinal hernia was diagnosed.

Subsequently, Larson entered a pattern of repair and recovery for his inguinal hernia. He underwent surgery in 1985, 1986 and for a fourth time in 1987. Dr. Kobold stated it would appear that the hernia never healed correctly. In 1988, Larson received a TENS unit (a pain management device). CIGNA paid for this device and the related supplies. CIGNA also paid for all of Larson’s subsequent surgeries, acknowledging that the surgeries were all related to the original industrial injury in 1981.

The Workers’ Compensation Court was unpersuaded that this pain would have deterred him from finding employment. However, in past cases, this Court has considered a substantial degree of continuing pain resulting from an injury when determining permanent total disability. See Robins v. Anaconda Aluminum Co. (1978), 175 Mont. 514, 521, 575 P.2d 67, 71; Cleveland v. Cyprus Indus. Minerals (1981), 196 Mont. 15, 19, 636 P.2d 1386, 1388. We have also held that a claimant’s ability to perform a few odd jobs for a short period of time does not preclude a finding of permanent total disability. Jenson v. Zook Bros. Construction Co. (1978), 178 Mont. 59, 62-63, 582 P.2d 1191, 1193.

In summary, the record offers only qualified approval of the general salesperson position by only one of the testifying physicians. There were no job analyses for any of the other mentioned positions, and the record lacks discussion of Larson’s ability to perform at these positions without the aid of rehabilitative services. At the time of the injury, Larson was a 58 year old man, with a lifetime of experience in heavy labor, and with multiple health problems.

We hold that the Workers’ Compensation Court lacked the substantial evidence necessary to conclude Larson had a reasonable prospect for employment. For this reason, we reverse the Workers’ Compensation Court.

ISSUE 2

Did the Workers’ Compensation Court err in not applying Brurud v. Judge Moving & Storage (1977), 172 Mont. 249, 563 P.2d 558?

Prior to adopting the Metzger test, this Court decided Brurud, 563 P.2d 558. In Brurud, this Court determined that whereas the claimant must show there is no reasonable prospect of employment, this does not translate into the burden of showing a reasonable effort to secure employment. Brurud, 563 P.2d at 560.

In Brurud, the claimant was 58 years old at the time of injury. With a high school education, he had worked his entire adult life doing heavy labor. In concluding that the claimant was permanently disabled for the purpose of receiving benefits, the Division (now the Department of Labor and Industry) found no reasonable prospect of the claimant finding regular employment in the labor market. We affirmed the Workers’ Compensation Court in that case, agreeing that in some situations it would be futile for an employee to make a concerted effort to secure employment.

However, this case is not the same as Brurud. CIGNA has never contested that Larson had made a reasonable effort to find employment. Instead, CIGNA attempted to prove Larson’s “reasonable prospect for employment” in the normal labor market.

We hold that the Workers’ Compensation Court did not err by not applying Brurud in its analysis of this case.

ISSUE 3

Did the Workers’ Compensation Court err by not requiring the insurer to comply with the “Coles” criteria as set forth in Wood v. Consolidated Freightways (1991), 248 Mont. 26, 808 P.2d 502?

The “Coles” criteria originated in a 1984 Workers’ Compensation Court opinion. Coles v. Seven-Eleven Stores (1985), 217 Mont. 343, 704 P.2d 1048. In Coles the insurer had converted a claimant’s benefits from temporary total to permanent partial benefits. At that time, the Workers’ Compensation Court found that insurers are statutorily obligated to determine the “nature and extent of an injured worker’s disability” before such a conversion of a claimant’s benefits. See Lindquist v. Sletten Construction Co., decided January 12, 1984, W.C. Docket No. 1851. The court then concluded that an insurer’s failure to investigate prior to conversion warranted the imposition of a penalty. By way of anticipation, the Workers’ Compensation Court then listed the “minimum information” necessary to discharge the insurer’s duty of investigation as:

(1) a physician’s determination that the claimant is as far restored as the permanent character of his injuries will permit;
(2) a physician’s determination of the claimant’s physical restrictions resulting from an industrial accident;
(3) a physician’s determination, based on his [or her] knowledge of the claimant’s former employment duties, that he can return to work, with or without restrictions, on the job on which he was injured or another job for which he is fitted by, age, education, work experience, and physical condition;
(4) notice to the claimant of receipt of the report attached to a copy of the report.

This list became the Coles criteria. Coles, 704 P.2d 1048.

Claimant argues that the Workers’ Compensation Court erred in not requiring CIGNA to comply with the Coles criteria. He contends compliance is required under Wood, 808 P.2d 502. In Wood, an injured claimant was receiving temporary total disability payments when the insurer terminated these benefits with a letter in 1988. This letter did not include any medical or vocational reports. The Workers’ Compensation Court used the Coles criteria to examine whether the insurer had met the minimum burden necessary to discharge the duty to investigate the nature and extent of the claimant’s injuries.

The facts here are different, however. Larson returned to work. When a claimant returns to work, he or she is no longer experiencing a loss in wages and, therefore, the insurer can rightfully terminate temporary total disability benefits without proceeding with an investigation under § 39-71-609, MCA (1979), which reads as follows:

Denial of claim after payments made or termination of benefits by insurer ... If an insurer determines to deny a claim on which payments have been made ... during a time of further investigation or, after a claim has been accepted, ... it may do so only after 14 days written notice to the claimant ... However, if an insurer has knowledge that the claimant has returned to work, compensation benefits may be terminated as of the time the claimant returned to work.

Since the duty of investigation was statutorily discharged, the Coles criteria do not apply in this case.

We hold that the Workers’ Compensation Court did not err by not applying the Coles criteria to determine the insurer’s burden of proof in Larson’s claim for permanent total disability benefits.

Reversed and remanded with instructions to enter judgment in favor of the claimant and for any further proceedings necessary in accordance with this opinion.

JUSTICES NELSON, TRIEWEILER and LEAPHART concur.

JUSTICE GRAY,

concurring and dissenting.

I concur in the Court’s opinion on issues two and three and respectfully dissent from that opinion on issue one, which is whether substantial credible evidence supports the Workers’ Compensation Court’s finding that Larson had a reasonable prospect for employment within his normal labor market, thus precluding him from receiving permanent total disability benefits. The Court’s conclusion that substantial evidence does not support the finding marks the second time in one month that this Gourt has mouthed the correct standard of review regarding findings by the Workers’ Compensation Court and then proceeded to substitute its judgment for that of the trier of fact with regard to weighing the evidence and determining the credibility of the witnesses. See South v. Transportation Insurance Co. (1996), [275 Mont. _], 913 P.2d 233. I cannot join in this course of action which demeans the careful work and proper role of the Workers’ Compensation Court in order to achieve the result this Court prefers.

Our standards of review are clear and, at least in principle, unwavering. In reviewing findings of the Workers’ Compensation Court, we determine whether those findings are supported by substantial credible evidence. Wilson v. Liberty Mut. Fire Ins. (1995), 273 Mont. 313, _, 903 P.2d 785, 787 (citation omitted). Substantial evidence is more than a mere scintilla of evidence, but it may be less than a preponderance of the evidence. Wilson, 903 P.2d at 787 (citation omitted). We will not substitute our judgment for that of the trier of fact where the issue relates to the weight given to certain evidence or the credibility of the witnesses. Wilson, 903 P.2d at 787 (citations omitted). Our standard is not whether the evidence supports findings different from those made by the Workers’ Compensation Court. Wilson, 903 P.2d at 788 (citations omitted).

Notwithstanding these clear standards, and the Court’s enunciation of them, even a casual reading of the record in this case — including the Workers’ Compensation Court’s findings — establishes that this Court has merely located evidence which supports findings contrary to those it is reviewing, reweighed all the evidence and reached the result it desires. I cannot agree.

This Court concludes that substantial credible evidence does not support a finding that Larson had a reasonable prospect for employment following his 1981 hernia injury. That conclusion is incorrect. The Workers’ Compensation Court relied in part on Dr. Kobold’s testimony. Dr. Kobold specifically testified that, as of 1982, he would have approved Larson working at a general salesperson position with a maximum 20-pound lifting requirement.

The Workers’ Compensation Court also relied extensively on Juanita Hooper’s testimony, which it specifically found to be persuasive and, thus, credible. Ms. Hooper testified that Larson has transferable skills with which he is qualified to perform general retail sales and telemarketing jobs which involve minimal lifting and which are commonly available in the normal job market. She further testified that, with job placement assistance, Larson has had a reasonable prospect for employment since 1982 and, with rehabilitation support services, he has had at least an “average” prospect of employment since that time. Thus, contrary to this Court’s opinion, the record is clear that far more than “substantial” credible evidence supports the Workers’ Compensation Court’s finding that Larson had a reasonable prospect of employment following his 1981 hernia injury.

Nor do I agree with the Court’s statement that the Workers’ Compensation Court did not determine whether Larson carried his burden under the Metzger test. The court observed that Larson based his odd-lot employee argument on his heart condition and that it was necessary to factor that condition out of the disability determination to be made in this case. The court then observed that, in any event, the odd-lot doctrine did not add anything to Larson’s case “since, through testimony of his vocational counselor (JoAnn Gordon) and other evidence, he presented a prima facie case for permanent total disability.” It is my view that this clearly constitutes a determination that Larson carried his burden under Metzger regarding his hernia condition; indeed, Ms. Gordon testified specifically that her conclusions were based solely on Larson’s hernia condition. The Workers’ Compensation Court then properly addressed the employer’s Metzger burden, determining that “Cigna has satisfied its burden of proof both by producing evidence and by persuading me that claimant was employable despite his industrial accident. Juanita Hooper’s and Dr. Kobold’s testimony are persuasive concerning claimant’s ability to work in spite of his hernia.”

This Court concedes that “two rehabilitation counselors and two physicians offered testimony on Larson’s prospect of finding regular employment in his normal labor market.” As set forth above, the Workers’ Compensation Court was persuaded by the testimony of Ms. Hooper, one of the rehabilitation counselors, and Dr. Kobold, one of the physicians, that Larson had a reasonable prospect of securing employment in the positions identified by Ms. Hooper and within the limitations placed by Dr. Kobold. Given such a record, this Court’s determination that substantial credible evidence does not support the Workers’ Compensation Court’s finding about Larson’s reasonable prospects for employment can be explained only by reference to the fact that it changes the result in this case.

Finally, this Court makes several references to the fact that Larson did not receive the rehabilitation services Ms. Hooper testified would significantly increase his prospects for employment. The reason Larson did not receive the services is that he did not seek them. Even this Court observes in passing that Larson did not seek employment after being laid off in December of 1981 — he “considered himself to be retired.” Yet, somehow, the Court places the “blame” for Larson’s perception of himself as in retirement, and his failure to seek either employment or rehabilitative or job placement services, on the employer.

Substantial credible evidence supports the Workers’ Compensation Court’s finding that Larson had a reasonable prospect for employment and its conclusion, on that basis, that he is not entitled to permanent total disability benefits. I would affirm the Workers’ Compensation Court.

CHIEF JUSTICE TURNAGE and JUSTICE ERDMANN, join in the foregoing concurring and dissenting opinion of JUSTICE GRAY.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM JAY ALLEN, Defendant and Appellant.
    No. 95-189.
    Submitted on Briefs April 11, 1996.
    Decided May 3, 1996.
    53 St.Rep. 403.
    916 P.2d 112.
    276 Mont. 298.
    For Appellant: William F. Hooks, Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth Griffing, Ass’t Attorney General, Helena; Kim Christopher, Lake County Attorney, Robert Long, Deputy County Attorney, Poison.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

William Jay Allen (Allen) appeals from a jury verdict in the Twentieth Judicial District Court, Lake County, convicting him of robbery. We affirm.

The following issue is raised on appeal:

Did the District Court abuse its discretion in restricting the cross-examination of a witness on an issue that related to her credibility?

On the evening of July 9,1994, Allen went to the apartment of Tana Bockman (Bockman) in Ronan, Montana, to demand money which he alleged Bockman owed to him. Allen and his then-girlfriend, Marcie Mestith (Mestith), now married to Allen, had stayed at Bockman’s apartment in late May of 1994. While they were staying at the apartment, Bockman borrowed money from both Mestith and Allen. Bockman contended that she did not owe money to Mestith or Allen, rather, that the debt was offset as compensation for the couple’s use of her apartment and for the time she spent babysitting for them.

When Allen arrived at the apartment on the night of July 9,1994, an argument over the alleged debt ensued. During the argument, the telephone rang and Bockman awakened her teenage daughter Kenclena for the call. While Kenclena was speaking on the telephone, Bockman told Kenclena to call the police. Allen, who had earlier removed a gun from the waistband of his pants, began waving it around the room, pointed the gun at Kenclena directing her not to call the police and demanded anything of value in the apartment. He decided to take the television set as payment for the debt. Bockman helped Allen unplug and remove the television. A neighbor, Jerry Beck, testified that he saw Allen leave the apartment carrying a television and that he observed a gun stuck in the belt of Allen’s pants. Allen testified that he did not threaten Bockman and denied having a gun. At trial, several witnesses testified on Allen’s behalf that Bockman had a poor reputation in the community for veracity. In addition, Allen called witnesses who testified that Allen did not have a gun with him earlier in the day or when he returned from Bockman’s apartment that night. The jury returned a verdict of guilty on the charge of robbery. Allen appeals.

Did the District Court abuse its discretion in restricting the cross-examination of a witness on an issue that related to her credibility?

Allen asserts that the District Court abused its discretion in sustaining the State’s objection to Allen’s attempted cross-examination of Bockman on questions relating to her mental health. On appeal, Allen argues that this error was of constitutional magnitude and warrants a new trial. Citing Davis v. Alaska (1974), 415 U.S. 308, 315, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347, 353, Allen asserts that he was denied his Sixth Amendment right to be “confronted with the witnesses against him” and to cross-examine witnesses. Allen argues that he should have had the opportunity to impeach or discredit Bockman. See, e.g., State v. Dahms (1992), 252 Mont. 1, 7, 825 P.2d 1214, 1218. Further, relying on State v. Gommenginger (1990), 242 Mont. 265, 274, 790 P.2d 455, 461, that he should have been afforded wide latitude in cross-examination of the prosecution witness. Allen argues that the mental health or stability of a witness is an appropriate subject for cross-examination in a criminal trial and that foreclosing Allen’s opportunity to cross-examine Bockman prejudiced him and denied him his Sixth Amendment right of confrontation and cross-examination.

The State counters that Allen did not make a proper offer of proof as to what evidence he would have presented through his cross-examination of Bockman. Accordingly, the State asserts, this Court has no basis for review. Rule 103(a)(2), M.R.Evid.; State v. Hall (1979), 183 Mont. 511, 515, 600 P.2d 1180, 1183. The State points out that Bockman’s mental health records were privileged under § 26-1-807, MCA. Further, that the records were not in the State’s possession and that the State did not have the right to obtain such records. State v. Fina (1995), 273 Mont. 171, _, 902 P.2d 30, 36; State v. Reynolds (1990), 243 Mont. 1, 8, 792 P.2d 1111, 1115.

Allen asserts that at the pre-trial hearing the State was “willing to grant that the defendant may likely prove that this witness [Bockman] isn’t competent mentally.” Allen argues that, having conceded this at the hearing, the State may not change its theory on appeal. State v. Henderson (1995), 265 Mont. 454, 458-59, 877 P.2d 1013, 1016. Allen asserts that the District Court was aware of the substance of the information relating to Bockman’s mental instability and that an offer of proof was unnecessary. Further, that an offer of proof was not required because counsel made the substance of the evidence apparent from the context in which the questions were asked. In re Marriage of Johansen (1993), 261 Mont. 451, 456, 863 P.2d 407, 411.

Regardless of whether or not Allen’s cross-examination of Bock-man was unduly restricted or whether an offer of proof was required, independent corroborating evidence supports the conviction. Two witnesses other than Bockman testified that Allen possessed a firearm while in or leaving Bockman’s apartment and that he took the television. Kenclena testified at length regarding the events that occurred on the night of July 9, 1994. The following colloquy illustrates her recollection of the incident:

Q. [Deputy County Attorney Long] ....When he pulled the gun out, was he standing?
A. [Kenclena] Yes.
....
Q. Did you get a good long look at the gun?
A. Yeah.
Q. What did it look like?
A. I think it had [a] brown handle and it was silver and it was long.
Q. Were you surprised to see that gun?
A. Yeah.
Q. Were you literally staring down the barrel of the gun?
A. Yes, I was.

Therefore, Bockman’s alleged mental incompetence or alleged psychiatric problems were not dispositive on the question of whether Allen took the television while brandishing a weapon. Here, the jury heard evidence from Kenclena that Allen flourished a firearm in the apartment and that she was scared and upset by the incident. Thus, Bockman’s testimony was not the only evidence establishing that Allen took the television under threat of a weapon in violation of § 45-5-401(1)(b), MCA. In addition, Jerry Beck testified that he saw Allen carrying the television out of the apartment and saw “the butt of the gun sticking out of his belt where his jacket was pushed away from it."

This Court has held that prejudice is not assumed when error is alleged. State v. Kutnyak (1984), 211 Mont. 155, 165, 685 P.2d 901, 906. If error occurred, then prejudice must be demonstrated. Error will not be presumed nor will a criminal case be reversed for errors or defects appearing in the record which do not affect the substantial rights of the defendant. Section 46-20-701(2), MCA; See also State v. Boe (1963), 143 Mont. 141, 149, 388 P.2d 372, 377.

Here, even assuming that the District Court should have allowed Allen to further examine Bockman as to her mental health, we determine that Allen has not made the requisite showing of prejudice. Other evidence, namely, the testimony of Kenclena and Beck, supports the verdict. Since Bockman’s testimony was cumulative, any alleged error in restricting cross-examination would not be grounds for reversal. Section 46-20-701(2), MCA; Kutnyak, 685 P.2d at 906; Boe, 388 P.2d at 377. Allen’s substantial rights were not prejudiced by the District Court’s limitation of his cross-examination of Bockman.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, ERDMANN, GRAY, HUNT and TRIEWEILER concur.


author: JUSTICE GRAY

text:
    DENNIS O. BEST, SR., Petitioner and Appellant, v. STATE COMPENSATION INSURANCE FUND, Respondent and Insurer for STOCKMAN’S BAR AND CAFE, Employer.
    No. 95-497.
    Submitted on Briefs March 14, 1996.
    Decided May 3, 1996.
    53 St.Rep. 405.
    916 P.2d 108.
    276 Mont. 302.

      For Appellant: Don Edgar Burris, Attorney at Law, Billings.
    For Respondent: Daniel J. Whyte, Legal Counsel, State Compensation Insurance Fund, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Dennis O. Best, Sr. (Best) appeals from the Findings of Fact, Conclusions of Law and Judgment of the Workers’ Compensation Court denying his claim for permanent total disability benefits for a 1993 work-related injury. We affirm.

The dispositive issue on appeal is whether the Workers’ Compensation Court’s finding that Best’s permanent total disability predates his 1993 work-related injury is supported by substantial credible evidence.

Best originally injured his back on September 9, 1986, while employed as a carpenter in Issaquah, Washington. Approximately three days later, Best was examined by Dr. Richard Vande Veegaete, a chiropractor practicing in Billings, Montana. Dr. Vande Veegaete diagnosed Best as having L4-L5, L5-S1 disc degeneration and dysfunctional lumbar disc syndrome with a bilateral sciatic radiation. Best received temporary total disability benefits for his 1986 injury from September 1986 through April of 1991, and settled his claim in August of 1992.

Best exacerbated his back injury several times between 1986 and 1993. In 1988, after Best and a friend moved a sofa, Best developed acute low back pain which caused him to drop to his knees. In 1989, Best experienced reactivated acute low back pain after helping a friend can beets.

In 1988, Best worked as a cook for about one month at the American Legion Post 4 in Billings, Montana. Due to severe back pain which prevented him from performing his work duties, Best quit that job. In 1990, Best worked as a cook for approximately two months at the Argonaut Supper Club in Harlowton, Montana. As was the case with his American Legion job, Best had to quit his job at the Argonaut Supper Club because of severe back pain.

Best applied twice to the United States Department of Health and Human Services, Social Security Administration (SSA) for social security disability benefits. His 1988 application was denied. Best refiled with the SSAin February of 1991. Following a series of denials, the SSA determined in 1993 that Best was disabled and entitled to benefits dating back to September 9, 1986.

In November of 1992, Stockman’s Bar and Cafe (Stockman’s) in Rapelje, Montana, hired Best to cook and tend bar and his wife, Linda Best, to wait tables. Stockman’s paid the couple a total of $1,200 a month and provided them a trailer in which to live as additional compensation. On June 18, 1993, while working at Stockman’s, Best “bumped” his hip on a table and fell to the floor. Dr. Vande Veegaete examined Best approximately one week later and diagnosed him with L5-S1 intervertebral disc syndrome, reoccurring left sciatica and chronic reoccurring low back pain. Best quit his job at Stockman’s on June 30, 1993.

Best filed a workers’ compensation claim in July of 1993. The State Compensation Insurance Fund (State Fund), Stockman’s workers’ compensation insurer, accepted liability for Best’s medical claim but denied liability for permanent total disability benefits. In July of 1994, Best petitioned the Workers’ Compensation Court for permanent total disability benefits. After a hearing on Best’s claim, the Workers’ Compensation Court found that Best has been permanently totally disabled since 1991 and, on that basis, denied Best permanent total disability benefits for his 1993 injury. Best appeals.

Is the Workers’ Compensation Court’s finding that Best’s permanent total disability predates his 1993 work-related injury supported by substantial credible evidence?

The law in effect at the time of a work-related injury governs the determination of workers’ compensation benefits. Buckman v. Montana Deaconess Hosp. (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Section 39-71-116(15), MCA (1991), defines “permanent total disability” as “a condition resulting from injury as defined in this chapter, after a worker reaches maximum healing, in which a worker has no reasonable prospect of physically performing regular employment.” The claimant has the burden of proving by a preponderance of the evidence that he was injured on the job and that a causal connection exists between his work-related injury and his current condition. Walker v. United Parcel Service (1993), 262 Mont. 450, 454, 865 P.2d 1113, 1116 (citations omitted).

After considering the evidence presented at trial, the Workers’ Compensation Court found that Best ‘has been permanently totally disabled and unable to perform even sedentary work since 1991.” On that basis, the court determined that Best was not entitled to permanent total disability benefits for his 1993 work-related injury at Stockman’s.

We review findings of the Workers’ Compensation Court to determine whether they are supported by substantial credible evidence. Wilson v. Liberty Mut. Fire Ins. (1995), 273 Mont. 313, _, 903 P.2d 785, 787 (citing Miller v. Frasure (1991), 248 Mont. 132, 137, 809 P.2d 1257, 1260). Substantial evidence is more than a mere scintilla of evidence but may be less than a preponderance of the evidence. Miller, 809 P.2d at 1261. We will not substitute our judgment for that of the Workers’ Compensation Court where the issue relates to the weight given to certain evidence or the credibility of witnesses. Wilson, 903 P.2d at 787 (citing Burns v. Plum Creek Timber Co. (1994), 268 Mont. 82, 84, 885 P.2d 508, 509).

The parties do not dispute that Best is permanently totally disabled. The State Fund contends that Best became permanently totally disabled prior to his 1993 work-related injury, while Best contends that his permanent total disability resulted from that injury.

Best argues on appeal that the Workers’ Compensation Court disregarded Dr. Vande Veegaete’s opinion that he became totally unable to work after his 1993 work-related injury and replaced it with the court’s own “nonmedical, speculative opinion as to [his] condition after the 6/18/93 [incident at Stockman’s].” The record does not support Best’s argument. Indeed, our review of the record discloses the following evidence, including the opinions of Dr. Vande Veegaete, on which the Workers’ Compensation Court relied in finding that Best has been permanently totally disabled since 1991.

The record reflects that, following chiropractic treatment for Best’s 1986 back injury, Dr. Vande Veegaete released Best to return to “light duty work” in 1987. In 1988, Best attempted to work as a cook at the American Legion Post 4 in Billings. He quit that job within one month, however, due to severe back pain. That same year, Best exacerbated his 1986 back injury while moving a sofa. In 1989, Dr. Vande Veegaete wrote a letter to the SSA in support of Best’s first application for social security disability benefits; he stated therein that Best “has attempted to work at light-duty but even these occupations cause reoccurrences of acute back pain which sidelines him for indefinite periods of time.”

In 1989, Best experienced another exacerbation of his back injury while helping a friend can beets. Dr. Vande Veegaete wrote a letter to Lloyd E. Hartford, the attorney representing Best on his social security disability claim, stating that Best “experienced reactivated acute low back pain.” Dr. Vande Veegaete further stated:

Reactivation of [Best’s] low back symptoms occurs periodically from the most innocent of activities and usually takes from two to three months to stablize [sic] before he can consider routine activities again. His current episode underscores the weakness, degeneration, and limiting effect of his dysfunctional low back. This is a chronic reoccurring problem.

In a mid-1990 letter to the Washington Industrial Insurance State Fund relating to Best’s 1986 injury, Dr. Vande Veegaete opined that Best “has suffered permanent impairment and has a very limited work capacity.” During that same year, Best again attempted to work as a cook; he was employed for approximately two months at the Argonaut Supper Club in Harlowton, Montana. William E. Leuthold, the owner of the Argonaut Supper Club, made special arrangements for Best to accommodate Best’s back problems; he allowed Best to sit down and rest during Best’s shifts and did not require Best to lift objects of any significant weight. Despite these special accommodations, however, Best quit his job at the Argonaut Supper Club due to severe back pain.

In January of 1991, Dr. Vande Veegaete wrote another letter on Best’s behalf in which he reiterated his earlier opinion that Best could do “light duty work.” Dr. Vande Veegaete noted, however, that Best continued to suffer severe reoccurring low back pain despite special arrangements made for him at work. Dr. Vande Veegaete opined that Best “is disabled from all his former work (heavy physical labor).” He also stated:

Given [Best’s] longstanding difficulties and pain when sitting, standing, walking, lifting, carrying, bending, and stooping, I do not feel he is capable of even sedentary work or a sedentary job.
With hindsight and based upon what has happened, I now believe [Best] has been unable to work at any type of employment since September of1986. His condition has progressively deteriorated and continues to do so.

(Emphasis added.) In an attached summary, Dr. Vande Veegaete stated that Best is unable to perform even light-duty work and, further, that “it is not anticipated that [Best] will be able to return to useful work.”

Approximately ten days after his 1993 injury at Stockman’s, Best prepared a letter in support of his social security disability claim for Noel Woodrich (Woodrich), the vice-president of Rapelje Development Corporation d/b/a Stockman’s Bar and Cafe, to sign. The letter set forth the terms of Best’s employment at Stockman’s and various incidents indicating that Best was unable to work due to his back condition. It stated that “if Linda had not been a part of the deal for $1200.00 a month and did 90% or more of the work, the [c]lub would never have permitted [Best] to remain even one month, because he could not do the job and was not worth the [s] alary.” Woodrich did not sign the letter, but he testified that he agreed with its contents except for a portion stating that Best was significantly worse after his 1993 accident at Stockman’s than he was before.

After Best’s 1993 injury at Stockman’s, Dr. Vande Veegaete wrote a letter to the State Fund discussing Best’s condition. Dr. Vande Veegaete’s diagnosis of Best was substantially the same as his diagnosis following Best’s 1986 injury and subsequent exacerbations of that injury.

It is true, as Best argues, that Dr. Vande Veegaete opined during his deposition that, after Best’s 1993 accident at Stockman’s, Best “is now totally unable to workQ [a]nd that seems... to be the demarcation line.” The Workers’ Compensation Court addressed Dr. Vande Veegaete’s opinion in this regard, observing that Dr. Vande Veegaete did not identify any material change in Best’s physical condition following his 1993 injury. Moreover, the court further noted that Dr. Vande Veegaete “confirmed that, in his opinion, [Best] has been unable to work since 1991” during his deposition.

Thus, review of Dr. Vande Veegaete’s opinions alone, as expressed in numerous letters and during his deposition, illustrates the conflicting evidence regarding when Best became permanently totally disabled which was presented to and weighed by the Workers’ Compensation Court. We will not substitute our judgment for that of the Workers’ Compensation Court when the issue relates to the weight given to evidence. Wilson, 903 P.2d at 787 (citing Burns, 885 P.2d at 509). Moreover, our standard of review is not whether evidence supports findings different from those made by the Workers’ Compensation Court, but whether substantial credible evidence supports the court’s findings. Wilson, 903 P.2d at 788 (citing Caekaert v. State Compensation Mutual Ins. Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 498).

Best also argues on appeal that, since he was employed at Stockman’s in 1992 and 1993, he clearly was not permanently totally disabled prior to his 1993 injury. Best testified that he did 60% to 90%, while his wife did 10% to 40%, of their work at Stockman’s. However, Best’s trial testimony was not the only evidence presented on this subject and the Workers’ Compensation Court was entitled to consider inconsistent statements and other evidence which contradicted Best’s testimony in determining his credibility. See Nave v. State Compensation Mutual Ins. Fund (1992), 254 Mont. 54, 59, 835 P.2d 706, 709.

In support of his social security disability claim, Best prepared letters for others to sign in which he represented that his wife did 90% to 95% of the work at Stockman’s. Moreover, Best’s attorney for that claim wrote a letter dated August 14, 1993, which stated in pertinent part:

[I]t is unequivocally clear that Mrs. Best did at least 95% or more of the work. From the evidence, about the only thing [Best] did was open up and then try to survive. He was at home more than he was at work.
....
From the evidence, it is clear that [Best] was not able to work, and, in fact, did not work. Mrs. Best did the work for the Stockman’s as between [Best] and Mrs. Best.

(Emphasis added.)

The Workers’ Compensation Court found Best’s testimony that he performed 60% to 90% of the work at Stockman’s incredible. We will not substitute our judgment for that of the Workers’ Compensation Court in matters of witness credibility. Wilson, 903 P.2d at 787 (citing Burns, 885 P.2d at 509).

We conclude that substantial credible evidence supports the Workers’ Compensation Court’s finding that Best has been permanently totally disabled and unable to perform even sedentary work since 1991.

Affirmed.

JUSTICES NELSON, ERDMANN, HUNT and TRIEWEILER concur.


author: CHIEF JUSTICE TURNAGE

text:
    DAVID F. STUFFT, Plaintiff and Appellant, v. ESTHER M. STUFFT, CARMEN C. STUFFT, CAROL STUFFT LARSON, DORENE STUFFT BADGETT, NEIL E. JOHNSON and STUFFT FARMS, INC., Defendants and Respondents.
    No. 95-522.
    Submitted on Briefs March 28, 1996.
    Decided May 3, 1996.
    53 St.Rep. 409.
    916 P.2d 104.
    276 Mont. 310.

      For Appellant: Jack L. Lewis, Jardine, Stephenson, Blewett & Weaver, Great Falls; David F. Stufft, Cut Bank.
    For Respondent: Selden S. Frisbee, Cut Bank; Darrell T. Peterson, Peterson, Peterson & Shors, Cut Bank; Thane P. Johnson, Werner, Epstein & Johnson, Cut Bank.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

David F. Stufft appeals an order of the Ninth Judicial District Court, Glacier County, which dismissed this action under Rule 12(b)(6), M.R.Civ.P. We affirm.

The dispositive issue is whether, under the facts as alleged in the complaint, Stufft’s preemptive right to purchase Stufft Farms, Inc., stock was violated.

Stufft Farms, Inc., is a Montana corporation whose primary asset is real property located in Glacier County, Montana. The corporation is owned by Esther M. Stufft (17,077 shares), Carmen C. Stufft (17,018 shares), Carol Stufft Larson (20 shares), Dorene Stufft Badgett (20 shares), and David F. Stufft (20 shares). At a December 27, 1994 meeting, the Directors of Stufft Farms, Inc., adopted a resolution to dissolve and liquidate the corporation.

A prospective purchaser, Neil E. Johnson, was located. It was determined that, due to tax considerations, the shareholders would receive a better price for their interests in the corporation through sale of the capital stock rather than sale of corporate assets.

On February 24, 1995, Johnson offered to purchase the capital stock of Stufft Farms, Inc., contingent upon all shares being available to him. All shareholders except plaintiff David F. Stufft agreed to accept the offer.

Thereafter, on March 9, 1995, Stufft attempted to purchase all of the other stockholders’ shares of stock, invoking Article XII of the corporate bylaws. Article XII, entitled Restrictions on Transfer of Shares, reads in relevant part:

No shareholder shall have the right or power to pledge, sell or otherwise dispose of, except by will, any share or shares of this company, without first offering the said share or shares for sale to the company and shareholders at the then book value, in the manner hereinafter set forth.

Stufft argued that the other shareholders’ offer to sell their stock to Johnson triggered this provision, giving him a preemptive right of first refusal to purchase the stock at book value.

The remaining shareholders refused to honor Stufft’s demand to sell their shares to him at book value. They instead responded by a letter offer to sell their stock to Stufft for the amount which had been offered by Johnson. When Stufft did not accept that offer, they elected to retain their shares of stock and pursue the sale of corporate assets and liquidation as set forth in the corporate resolution of December 27, 1994. Corporate officers negotiated with Johnson a custom farming agreement, farm lease, and option to purchase real and personal property, which were approved by the Board of Directors on March 27, 1995.

Thereafter, Stufft filed this action. He alleged that he had become the equitable owner of all stock in Stufft Farms, Inc., because of the above events. He argued, therefore, that he alone was entitled to vote all shares of stock and that the agreements with Johnson should be considered void.

All defendants moved to dismiss the complaint for failure to state a cause of action pursuant to Rule 12(b)(6), M.R.Civ.R The District Court granted that motion.

Under the facts as alleged in the complaint, was Stufft’s preemptive right to purchase Stufft Farms, Inc., stock violated?

The District Court dismissed this action under Rule 12(b)(6), M.R.Civ.P., for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) has the effect of admitting all the well-pled allegations of the complaint. Mogan v. City of Harlem (1987), 227 Mont. 435, 437, 739 P.2d 491, 493. A complaint should not be dismissed for insufficiency unless it appears certain that the plaintiff is entitled to no relief under any set of facts which could be proved in support of the claim. Mogan, 739 P.2d at 492-93. This Court will look only within the four corners of the complaint in making its decision on review of a Rule 12(b)(6) dismissal. Irving v. School District No. 1-1A (1991), 248 Mont. 460, 464, 813 P.2d 417, 419.

Stufft points out that share transfer restrictions are valid and enforceable. Gray v. Harris Land and Cattle Co. (1987), 227 Mont. 51, 737 P.2d 475. He argues that his preemptive right was triggered by the other stockholders’ acceptance of Johnson’s February 24,1995 offer to purchase all of the corporation’s outstanding stock, and again by the March 10, 1995 offer of the majority stockholders to sell their stock to him at the price at which the stock had been offered to Johnson, a price not shown or claimed to be book value. He maintains that preemptive rights are triggered by a willingness, a desire, or an attempt by stockholders to dispose of their stock, citing Weintz v. Bumgarner (1967), 150 Mont. 306, 434 P.2d 712.

A critical distinction between Weintz and the present case is that in Weintz, not only was there a willingness to sell on the part of the property owners, but actual agreements were reached to sell the various interests in the subject property. In the present case, no agreements were reached to sell the stock at issue.

The complaint sets forth Stufft’s information and belief that Johnson’s offer to purchase the stock in Stufft Farms, Inc., was an offer to purchase all of the stock in the corporation. Johnson’s offer was not accepted by shareholder Stufft. Because of the contingent nature of Johnson’s offer, when Stufft elected not to sell, Johnson’s offer to buy was withdrawn. Therefore, no agreement was reached. The corporation did not accept Johnson’s offer.

Similarly, under the facts pled in the complaint, the other shareholders’ March 10 offer to sell stock to Stufft on the same terms as those offered by Johnson was a counteroffer to Stufft’s March 9 offer to purchase the stock at book value. Stufft’s offer was not accepted. The counteroffer was not accepted.

Stufft’s preemptive right to purchase Stufft Farms, Inc., stock was not triggered under the facts pled in the complaint, because the other shareholders did not “pledge, sell or otherwise dispose of’ their shares of stock. Under the facts as pled in the complaint, the other stockholders still own their stock in the corporation. The District Court therefore cannot be said to have erroneously annulled Article XII under equity, as Stufft contends. Nor is Stufft entitled, as he maintains, to bring an action for damages measured by the difference between the book value and the market value of the stock owned by the other stockholders.

Stufft also contends that the other shareholders and Johnson are attempting to circumvent his preemptive rights. The District Court noted:

The Court is very aware of the purpose of corporate restrictive stock transfer bylaws and in particular those of a closely held family corporation. The purpose of such restrictions is to facilitate keeping the corporation closely held and to restrict the transfer of stock beyond family members. Such restrictive agreements and bylaws are specifically allowed under Montana Law pursuant to Section 35-1-628, M.C.A. However, neither the state statute nor the restrictive agreements were intended to prohibit liquidation of a corporation and the sale of its assets. See Section 35-1-822 through Section 35-1-839, M.C.A.
....
The issue before the Court is whether a minority shareholder may rely on a restrictive transfer article of the bylaws to essentially prohibit the liquidation and sale of the corporate assets. It is undisputed that the desire of the Board of Directors and controlling shareholders was originally to dissolve and liquidate the assets of the corporation. That was the substance of the Corporate Resolution passed on December 27, 1994. ... [I]t seems only reasonable that restrictive transfer bylaws never were designed to prohibit the liquidation and sale of the corporate assets as clearly allowed under state statutes.

We agree.

The District Court found persuasive Dobry v. Dobry (Okl. 1953), 262 P.2d 691. That case, like this one, involved a closely held family corporation in which a majority of the stockholders authorized a sale of the corporation’s assets. Plaintiff, a minority shareholder, cited his preemptive rights under corporate bylaws and filed an action to enjoin the sale of corporate assets.

Plaintiff’s position is that the sale of the corporation’s assets as decided upon at the special stockholder’s meeting, above described, would cause an equitable conversion and sale of his stock, thereby arbitrarily converting it into money and preventing him from selling his stock or purchasing defendants’ stock under the terms and provisions of the above-quoted article. ...
....
We think it is plain from the wording of Article X that its provisions do not contemplate nor apply to a sale of the entire corporation or its assets, and that, by its own terms, it is confined to the exchange of stock between stockholders. ... As it is thus our view that Article X does not apply to a sale of the corporation’s assets, it follows that said article affords plaintiff no basis for an injunction against said sale.

Dobry, 262 P.2d at 692-93. The same can be said in the present case. The wording of Article XII does not suggest that it applies to an intended sale of the entire corporation or its assets.

The District Court wrote:

[I]t is this Court’s holding, based on the facts pled in Plaintiff’s Complaint, that the shareholders did not intend to sell their individual shares except if all shareholders agreed pursuant to the offer made to them on February 24, 1995. The fact that those shares were offered with strings attached which could not be removed, negated any intent on their part to be bound by Article XII of the corporate bylaws. To find otherwise would exalt form over substance in particular when it is clear to the Court that the Board of Directors had previously voted to dissolve the corporation and liquidate its assets.

We affirm the holding of the District Court. Under the facts as pled in the complaint, we conclude that Stufft’s preemptive right to purchase Stufft Farms, Inc., stock was not violated.

In its order dismissing this action, the District Court also granted the Rule 12(b)(b), M.R.Civ.P., motion of defendant Johnson to be dismissed on grounds of failure to state a legal theory upon which relief could be granted against him. Stufft argues on appeal that Johnson should not have been dismissed because he is a necessary and proper party to this action, which Stufft characterizes as an action to annul a contract to which Johnson is a party.

Stufft’s complaint presents this not as an action to annul the contract between Stufft Farms, Inc., and Johnson, but instead as an action to enforce a term of the bylaws of Stufft Farms, Inc. Johnson is not a party to the bylaws of Stufft Farms, Inc. Only if Stufft was successful in his claim as to Article XII of the bylaws would he have grounds on which to challenge the contract between Stufft Farms, Inc., and Johnson. At any rate, given our resolution of the dispositive issue discussed above, we conclude that the issue of whether Johnson was a necessary or permissible party defendant is moot, and that we need not address that issue further.

Affirmed.

JUSTICES GRAY, ERDMANN, HUNT and TRIEWEILER concur.


author: JUSTICE GRAY JUSTICE GRAY,

text:
    IN RE THE MARRIAGE OF JULIA KAY (HOOKER) BRYANT, Petitioner and Appellant, and JEFFREY RICHARD BRYANT, Respondent and Cross-Appellant.
    No. 95-265.
    Submitted on Briefs December 14, 1995.
    Decided May 6, 1996.
    53 St.Rep. 412.
    916 P.2d 115.
    276 Mont. 317.

      For Appellant: Michael S. Smartt; Big Sky Law Center, Great Falls.
    For Respondent: K. Dale Schwanke; Jardine, Stephenson, Blewett & Weaver, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

Julia Kay Bryant (Julia) appeals from the deemed denial by the Eighth Judicial District Court, Cascade County, of her motion to set aside its order granting Jeffrey Richard Bryant’s (Jeffrey) Rule 59, M.R.Civ.P., motion and its subsequent order nunc pro tunc. Jeffrey cross-appeals from the District Court’s findings, conclusions and order of August 30, 1994, the order on his Rule 59 motion and the order nunc pro tunc. We affirm.

We restate the issues on appeal and cross-appeal as follows:

1. Is Julia’s appeal properly before us?
2. Did the District Court err in denying Julia’s motion to set aside?
3. Did the District Court err in denying Jeffrey’s request for reimbursement of visitation-related transportation expenses?

The marriage of Julia and Jeffrey was dissolved by the District Court’s final decree entered October 23, 1991. The decree approved and incorporated the parties’ written Dissolution Agreement (Agreement) in which, among other things, Julia and Jeffrey agreed that they would have joint custody of their minor children and that Julia would be designated the children’s primary physical custodian with liberal visitation rights in Jeffrey. The Agreement also established child support and provided that Julia and Jeffrey would share equally in the costs of transportation for visitation.

Julia subsequently moved to modify child support and other provisions of the decree relating to the children’s medical expenses and day care costs; in addition, she sought to make Jeffrey solely responsible for transportation expenses related to his visitations with the children. Jeffrey also moved to modify child support and requested the District Court to determine the amount of transportation cost reimbursement owed by Julia pursuant to the decree. On August 30, 1994, after a hearing on the motions, the court entered its findings, conclusions and order increasing Jeffrey’s child support obligation, determining that Jeffrey was not entitled to reimbursement for any of the visitation-related transportation costs claimed under the 1991 decree and making Jeffrey solely responsible for future visitation-related costs incurred in transporting the children between Power and Great Falls. Julia served notice of entry on September 2, 1994.

Jeffrey subsequently filed a timely Rule 59(g), M.R.Civ.P, motion to amend the District Court’s findings, conclusions and order relating primarily to child support. On October 31, 1994, the court executed its findings, conclusions and order granting Jeffrey’s motion to amend. The order was filed on November 4, 1994.

Jeffrey then moved the District Court to enter an order nunc pro tunc for the sole purpose of attaching to the October 31 findings, conclusions and order the child support guideline calculations adopted by reference therein. The court entered the order nunc pro tunc on November 14, 1994.

On December 7, 1994, Julia moved the District Court to set aside its findings, conclusions and order on Jeffrey’s Rule 59 motion and its subsequent order nunc pro tunc. She contended that the order dated October 31, 1994, but not filed until November 4, 1994, was void for lack of jurisdiction and, as a result, that the subsequent order nunc pro time also was void. In essence, a grant of Julia’s motion would result in reinstatement of the District Court’s August 30,1994, order. The court did not rule on Julia’s motion to set aside within 45 days and, therefore, the motion was deemed denied on or about January 22, 1995.

On February 15, 1995, Julia filed a notice of appeal. Jeffrey subsequently filed a notice of cross-appeal.

We note at the outset, for clarity, that this case predates our recent amendments to Rules 59 and 60(c), M.R.Civ.P., increasing from 45 to 60 days the period during which a district court must rule on a motion made under those rules.

1. Is Julia’s appeal properly before us?

Julia’s February 15, 1995, notice of appeal states that she appeals from the denial of her motion to set aside the District Court’s order granting Jeffrey’s Rule 59 motion to amend and its related order nunc pro tunc. Her notice also states her intention to appeal directly the court’s orders on Jeffrey’s Rule 59 motion and nunc pro tunc. On appeal, however, Julia argues only the denial of her motion to set aside the earlier orders. Therefore, we do not address either procedurally or substantively her purported direct appeal from the District Court’s earlier orders.

Jeffrey argues that Julia’s appeal is untimely and, on that basis, not properly before us. His argument is premised on his characterization of Julia’s December 7, 1994, motion as a motion to alter or amend which, pursuant to Rule 59(g), M.R.Civ.P., must be served within 10 days after service of notice of entry of the judgment or order at issue. Because Julia’s December 7, 1994, motion was not served within 10 days of service of the notice of entry of the District Court’s order nunc pro time on November 17,1994, Jeffrey contends that Rule 5(a)(1), M.R.App.P., required Julia to file her notice of appeal within 30 days of November 17, 1994. Under Jeffrey’s theory, her failure to do so renders this appeal untimely.

The basis for Jeffrey’s characterization of Julia’s motion as a Rule 59(g), M.R.Civ.P., motion to alter or amend is not readily apparent. Julia clearly denominated her motion a “Motion to Set Aside.” Moreover, she argued therein that the District Court did not timely rule on Jeffrey’s Rule 59(g), M.R.Civ.P., motion to amend and, therefore, that its order granting Jeffrey’s motion must be set aside as void for lack of jurisdiction.

Rule 60(b)(4), M.R.Civ.P., authorizes a motion to set aside an order or judgment on the grounds that the order was void. We repeatedly have held that the time period mandated by Rule 59, M.R.Civ.P., for a district court’s action on a post-trial motion thereunder is jurisdictional and that a court’s failure to act within the mandated period divests the court of jurisdiction. Wallinder v. Lagerquist (1982), 201 Mont. 212, 216-18, 653 P.2d 840, 842-43 (citations omitted); In re Marriage of Sell (1981), 193 Mont. 88, 91, 630 P.2d 222, 224 (citation omitted). An order not within the jurisdictional time limits of Rule 59, M.R.Civ.P., is “a nullity” (Marriage of Sell, 630 P.2d at 224) and such an order “can be assailed on appeal or by motion to set it aside. ..." Evans v. Oregon Short Line R. Co. (1915), 51 Mont. 107, 112, 149 P. 715, 717.

We conclude that Julia’s December 7, 1994, motion was a Rule 60(b)(4), M.R.Civ.P., motion to set aside the District Court’s October 31 and November 14,1994, orders as void for lack of jurisdiction. Her motion was deemed denied on or about January 22, 1995, pursuant to Rules 60(c) and 59, M.R.Civ.P., and her notice of appeal was filed within 30 days thereafter as required by Rule 5, M.R.App.P. We hold, therefore, that Julia’s appeal from the denial of her motion to set aside was timely and that her appeal is properly before us.

2. Did the District Court err in denying Julia’s motion to set aside?

The District Court executed its order granting Jeffrey’s Rule 59(g), M.R.Civ.P., motion to amend on October 31, 1994, the forty-fifth day after the motion was filed. The order was filed four days later. Julia contends, on these facts, that the court did not timely rule on Jeffrey’s motion to amend under Rule 59, M.R.Civ.P., and, therefore, that the court lacked jurisdiction to act thereafter. On that basis, she argues that her motion to set aside both the court’s order and its subsequent, related order nunc pro tunc should have been granted.

Rule 59(g), M.R.Civ.P., requires a district court to “determine” or “rule on” a motion to alter or amend within the 45 days provided in Rule 59(d), M.R.Civ.P., for ruling on a motion for a new trial. The motion is deemed denied if the district court fails to do so. Rule 59(g), M.R.Civ.P. Moreover, as discussed briefly above, our cases are clear that the 45-day period contained in Rule 59 is mandatory; a court’s failure to timely act divests the court of jurisdiction and renders any later order a nullity. See Pierce v. ALSC Architects, P.S. (1993), 259 Mont. 379, 381-82, 856 P.2d 969, 971; Cowles v. Sheeline (1993), 259 Mont. 1, 16, 855 P.2d 93, 102; Marvel Brute Steel Bldg. v. Bass (1980), 189 Mont. 480, 483, 616 P.2d 380, 382.

Rule 59(g), M.R.Civ.P., does not define the terms “determine” and “rule on” contained therein. Both terms, however, are commonly understood — in both the everyday and legal sense — to mean “decide.” In common parlance, “deciding” is synonymous with both “ruling” and “determining.” American Heritage Dictionary (3d ed. 1990). In legal terms, when a judge rules on a matter, it is meant that the judge decided the matter; a court’s “determination” is its decision. Black’s Law Dictionary 450 (6th ed. 1990). Thus, the plain meaning of the words “determine” and “rule on,” as used in Rule 59(g), M.R.Civ.P., encompasses only the court’s decision.

Julia calls our attention, however, to the following additional language in Rule 59(d), M.R.Civ.P.:

The decision on the motion may be entered in the minutes of the court, or may be made in writing in chambers or in any county in the state where the judge may be, and be filed with the clerk of court in the county where the action is pending.

It is clear that this language provides for the manner in which the court’s ruling is to be made of record. It is equally clear, however, that this language does not require the court’s decision to be entered in the minutes or, if made in writing, filed with the clerk of court within the 45-day period provided in Rule 59 for making the decision. Indeed, nothing in Rule 59, M.R.Civ.P., specifically requires that the court’s decision on a Rule 59 motion be made of record within the specified period for acting on the motion. To insert such a requirement where none exists would be an improper exercise of this Court’s function. See § 1-2-101, MCA.

Julia cites to no case in which we have held that a district court’s timely ruling under Rule 59, M.R.Civ.P., includes a requirement that the decision be made of record within the 45-day period, and we have located none. We do observe that both Marvel and Cowles might be read to stand for such a holding and to support Julia’s argument here. Therefore, for purposes of clarity, we address those cases briefly.

In Marvel, we discussed at some length the effect of an order on a Rule 59 motion and the interplay between the timing of such an order and the timeliness of an appeal from that order. Marvel, 616 P.2d at 382-83. Our specific language concluded that the untimely order on a Rule 59 motion was a nullity “because it was issued after the time had expired under Rule 59, within which to rule on a motion for a new trial.” Marvel, 616 P.2d at 382 (emphasis added). In Cowles, we cited to Marvel for the principle that “[a]n order denying a motion is a nullity where it is issued after the time for ruling on the motion has expired.” Cowles, 855 P.2d at 102 (citation omitted) (emphasis added).

Both Marvel and Cowles clearly stand for the well-established principles that the Rule 59, M.R.Civ.P., time limit is mandatory and that a district court’s failure to act on a Rule 59 motion within the specified time limit divests the court of jurisdiction to act on the motion. Neither, however, presented the issue of whether a ruling on a Rule 59 motion must be both executed and made of record to be timely and, therefore, within the court’s jurisdiction, under Rule 59, M.R.Civ.P. Rather, close scrutiny of those opinions indicates that our use of both “ruling” and “issuance” in Marvel and Cowles was inadvertent and arose from the facts of those cases; it was not material to our decisions on the issues squarely presented in those cases. We conclude that Marvel and Cowles constitute neither controlling precedent for Julia’s argument in this case nor persuasive authority for a result which would vary from our plain meaning analysis of Rule 59, M.R.Civ.P.

Here, the District Court determined and ruled on Jeffrey’s Rule 59 motion on October 31, 1994, when it signed its findings, conclusions and order thereon. October 31 was the forty-fifth day after the filing of Jeffrey’s motion. We conclude, therefore, that the District Court timely ruled on Jeffrey’s motion under Rule 59(g), M.R.Civ.P., and, therefore, that the court acted within its jurisdiction. As a result, we hold that Julia’s Rule 60(b), M.R.Civ.P., motion to set aside the court’s order as void for lack of jurisdiction properly was denied.

3. Did the District Court err in denying Jeffrey’s request for reimbursement of visitation-related transportation expenses?

Jeffrey contended that, pursuant to the parties’Agreement and the final decree of dissolution, he was entitled to reimbursement from Julia of $1,248 as her one-half share of transportation expenses incurred in driving to and from Great Falls from his residence in Power, some 20 miles away, to pick up and return the children for visitation. Julia resisted the claim and also sought to make Jeffrey solely responsible for both past and future visitation-related expenses.

The District Court made the following finding:

6. [Jeffrey] has claimed reimbursement for transportation of the children for his visitational purposes. Though [Jeffrey] was able to pick-up [sic] the children, after work (in Great Falls), to take them to his home, and though he was able to return the children from his home in Power when he returned to work in Great Falls, often times, for his own convenience, he’d have his present spouse do the transportation. Such was an unnecessary and unreasonable waste of time and expense. Additionally, the parties did not reasonably contemplate the transportation between Great Falls and Power as a reimbursable expense within their “Dissolution Agreement.” [Emphasis added.]

“Reasonableness” is a question of fact. Reeves v. Liberty Mut. Fire Ins. Co. (1996), [275 Mont. 152], 911 P.2d 839, 842 (citation omitted). We review a district court’s findings of fact to determine whether they are clearly erroneous. In re Marriage of Brownell (1993), 263 Mont. 78, 81, 865 P.2d 307, 309 (citation omitted).

Julia and Jeffrey’s Agreement awarded the parties joint custody of the children, with Julia designated as the children’s primary custodian and liberal visitation rights in Jeffrey. Visitation specifically was provided to Jeffrey “every other weekend and one day per week where he will pick the children up after work and then deliver them to school the following day, if applicable.” Additional minimum visitation of two weeks in the summer and alternating holidays also was specifically provided. With regard to costs, the Agreement provided that Julia and Jeffrey would either meet approximately halfway between the place where visitation was to take place and the children’s residence or share equally in the cost of transportation for visitation. The Agreement was made part of the final decree of dissolution.

At the hearing on the parties’ motions, Julia testified that Jeffrey drives into Great Falls from Power every weekday for work. Both during the week and for weekend visitations, he picks the children up after school and takes them home with him to Power and then returns them to Great Falls when coming in to work the next day or, after weekends, on Monday mornings. She added that Jeffrey’s current wife Robin frequently comes in and picks up the children, rather than having Jeffrey do it, and that Jeffrey had told her that he simply did not want to pick up the children himself because he did not desire to talk to her or go to her house. In Julia’s view, Robin’s trips were unnecessary.

Jeffrey’s testimony was not dissimilar. He testified that, while he usually brought the children into Great Falls with him on school days, Robin most often picked them up when they were to go to Power and then brought them back into town. According to Jeffrey, this transportation arrangement avoided day care, allowed him to avoid going to Julia’s home, and permitted the children to bond with their stepbrother and half-sister. He testified that his claim for reimbursement included mileage charges for the times he picked the children up after work and then returned them to Great Falls upon going to work the next day. Robin also testified that she most often picked up the children in Great Falls and returned them after the visitation.

Jeffrey’s evidence regarding the number of miles upon which he based his claim for reimbursement also was presented through Robin, who kept calendars of the visitations and tracked who did the driving on each occasion. According to the exhibit she had prepared, mileage for one of Jeffrey's round trips with the children was 41.6 miles. When Robin drove into Great Falls to pick the children up and take them to Power, and Jeffrey returned the children to Great Falls, 62.4 miles were charged; when Robin drove into town to get the children, brought them to Power, returned the children to Great Falls and then drove herself back to Power, 83.2 miles were charged. The current IRS-authorized rate for business mileage reimbursement was used to calculate the total of $2,496, reimbursement of one-half of which was sought from Julia.

Thus, the evidence regarding visitation-related transportation costs or expenses is not in substantial conflict. It reflects that, for the most part, Jeffrey could pick up and return the children in conjunction with his own commuting to work in Great Falls. By his own testimony, Julia should not be responsible for his work-related transport. However, he did not deduct the mileage for the trips he actually made with the children from the mileage for which he sought reimbursement from Julia and he offers no explanation for why those “costs” constitute visitation-related transportation expenses.

Nor did Jeffrey deduct mileage for the trips Robin made; indeed, Robin’s trips added significant amounts to the mileage he claimed. The undisputed testimony was that Jeffrey could have made most of the trips himself in conjunction with his work-related commutes to and from Great Falls. Such trips would not involve visitation-related expenses. The fact that he chose not to do so on most occasions, for his own comfort and convenience and to add to the time available for the various children in his and Robin’s household to bond, does not allow him to convert Robin’s trips into a visitation-related expense upon which to base a claim for reimbursement from Julia.

The record before us contains substantial evidence supporting the District Court’s finding that the transportation costs for which reimbursement was sought were unreasonable. The District Court did not misapprehend the effect of the evidence and we are not left with a definite and firm conviction that a mistake has been committed.

We conclude that the District Court’s finding regarding the reimbursement claim is not clearly erroneous. On that basis, we hold that the District Court did not err in denying Jeffrey’s request for reimbursement of visitation-related transportation expenses.

Affirmed.

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

JUSTICE GRAY,

specially concurring.

I undertake the unusual step of specially concurring in the Court’s opinion, which I authored and with which I agree entirely, to bring to the attention of practitioners an issue which arose sua sponte during our consideration of this case. The issue is whether Jeffrey’s cross-appeal was timely, and it arose in such an unusual fashion because it relates to whether the cross-appeal was properly before us. Under well-established principles, if an appeal is not timely, we do not acquire jurisdiction to entertain and determine it. Anderson v. Bashey (1990), 241 Mont. 252, 255, 787 P.2d 304, 306 (citation omitted).

Since this Court has never addressed the precise issue raised by the procedural facts of this case, and because case authority on the issue is nearly nonexistent, we properly decided not to resolve the issue in the context of this case where it might have appeared to disadvantage Jeffrey. I raise it now to alert counsel to the importance of time limits in taking an appeal and to the potential difficulty which could arise in that regard where procedural facts are, as in this case, out of the ordinary.

Jeffrey’s amended notice of cross-appeal states that he appeals from the District Court’s findings, conclusions and order dated August 30, 1994, from its order granting his Rule 59 motion filed November 4, 1994, and from its order nunc pro tunc entered November 14, 1994. The only error he argues on appeal, however, relates to the District Court’s August 30, 1994, determinations regarding visitation-related transportation expenses.

The District Court entered its findings, conclusions and order on Julia and Jeffrey’s motions to modify child support and other provisions of the original decree and for determination of transportation costs owed on August 30, 1994, and notice of entry was served on September 2, 1994. Thereafter, Jeffrey filed a motion to amend pursuant to Rule 59(g), M.R.Civ.P. As discussed in issue two of our opinion, the District Court timely ruled on Jeffrey’s motion and its order was filed November 4, 1994. At Jeffrey’s request, the court subsequently entered an order nunc pro tunc on November 14, 1994.

Jeffrey filed his “Notice of Cross Appeal” and two amended notices on February 23, February 27, and March 1, 1995, respectively. The record is clear that Jeffrey did not file any earlier notice of appeal from the court’s August, October and November of 1994 orders; he waited until after the deemed denial of Julia’s Rule 60(b), M.R.Civ.P., motion and, indeed, until after Julia’s notice of appeal, to file his notice of cross-appeal.

In civil cases, a notice of appeal generally must be filed within 30 days from the date of entry of the judgment or order appealed from or, where service of notice of entry of the judgment or order is required by Rule 77(d), M.R.Civ.P., within 30 days from that service. Rule 5(a)(1), M.R.App.P. Here, service of notice of entry of the District Court’s August 30, 1994, order, from which Jeffrey attempts to appeal, was required by Rule 77(d), M.R.Civ.P., and was timely made on September 2, 1994. Applying Rule 5(a)(1), M.R.App.P., Jeffrey had 30 days thereafter to file a notice of appeal. While he failed to do so, he did file a timely Rule 59(g), M.R.Civ.P., motion to amend.

Rule 5(a)(4), M.R.App.P., separately addresses the running of the 30 days during which an appeal may be taken in instances where a party files a timely Rule 59, M.R.Civ.P., motion to alter or amend. In such a case, the 30-day appeal time runs from the entry of the court’s order granting or denying the motion or, where applicable, from the deemed denial of the motion upon expiration of the 45-day period established by Rule 59(d), M.R.Civ.P. Rule 5(a)(4), M.R.App.P. The effect of Rule 5(a)(4), M.R.App.P., is to suspend the running of the appeal time under Rule 5(a)(1) pending either the district court’s timely determination of a timely filed Rule 59 motion or the denial of such a motion by operation of law. See Marvel, 616 P.2d at 382.

Here, the District Court ruled on Jeffrey’s timely Rule 59(g) motion on October 31 and entered its amending order on November 4, 1994. Applying the 30-day appeal period contained Rule 5(a)(4), M.R.App.P., to that date, the period during which Jeffrey could file a timely notice of appeal would expire on or about December 4, 1994. Jeffrey did not file a notice of appeal within that time period or, indeed, until February 23, 1995. With regard to Jeffrey’s attempt to appeal from the court’s November 14, 1994, order nunc pro tunc, Rule 5(a)(4), M.R.App.P., does not provide a separate time period for appealing from an order nunc pro time entered subsequent to an order on a Rule 59(g), M.R.Civ.P., motion to amend.

Rule 5(a)(3), M.R.App.P., allows a party to file a notice of cross-appeal within 14 days after the date on which the appealing party timely files a notice of appeal. Here, Jeffrey’s notice of cross-appeal was filed within 14 days of Julia’s February 15, 1995, notice of appeal.

We concluded in issue one of our opinion that Julia’s appeal from the deemed denial of her Rule 60(b), M.R.Civ.P., motion to set aside was timely. The issue raised, but not resolved, here is whether that conclusion mandates a corresponding conclusion that Jeffrey’s notice of cross-appeal was timely pursuant to Rule 5(a)(3), M.R.App.P., where Jeffrey’s appeal related not to the denial of Julia’s motion to set aside but to the earlier, and underlying, orders entered by the District Court. Stated differently, where no timely appeal was taken from the earlier orders, and Rule 60(b), M.R.Civ.P., provides that motions thereunder do not affect the finality of a judgment, can a party in Jeffrey’s position “bootstrap” into a timely appeal of the earlier orders by relying on the later appeal date from the denial of another party’s Rule 60(b) motion which is available to that party under Rule 60(c), M.R.Civ.P., and Rule 5, M.R.App.P.?

We do not resolve this question, and properly so. However, counsel should be aware of this potential trap for the unwary in deciding when to file an appeal or cross-appeal in circumstances similar to those presented in this case.