TILLETT v LIPPERT
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No. 95-187 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995 LLOYD S. TILLETT and ABBIE TILLETT, husband and wife; WILLIAM E. TILLETT; and JOHN P. TILLETT; and LATAHNA ENTEL, Plaintiffs and Respondents, v. NIKKI A. LIPPERT AND ROBERT R. TILLETT, as CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF ROYCE E. TILLETT; MARIAN J. TILLETT; NIKKI A. LIPPERT AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KENNETH LIPPERT; NIKKI A. LIPPERT; et al., Defendants APPEAL FROM: ai ::i:p!<EI ;lE &lW'nl <::" : ?,:: ids ;,,. C.-t li: ::::.yc ~~~~~~~~~~ i. and Appellants. District Court of the Thirteenth Judicial District, In and for the County of Carbon, The Honorable G. Todd Baugh, Judge presiding. COUNSEL OF RECORD: For Appellants: Karl Knuchel Montana For (argued), Attorney Law, Livingston, Respondents: Leonard Crowley, Billings, H. Smith Haughey, Montana (argued), Hanson, Bruce A. Fredrickson; Toole & Dietrich, Submitted: Filed: at Decided: November January 21, 8, 1995 1996 Justice W. William Defendants Leaphart appeal delivered from the the Opinion Findings of Fact, Law and Judgment of the Montana Thirteenth Carbon County, and punitive partitioning real damages against Judicial property the of the Court. Conclusions District and awarding estate of of Court, compensatory Kenneth Lippert. We affirm. We restate 1. Did recommendation 2. punitive Lippert? the issues raised on appeal the District Court of the referee? err in as follows: modifying part it ion the Did the District Court err in awarding compensatory and damages for assault against the Estate of Kenneth BACKGROUND This branches case arises out of the Tillett of an acrimonious The parties family. members of the extended Tillett approximately in 240 acres dispute family to this between action and were all Carbon County, two are all cotenants Montana, of known as the "home place." On February 27, vehicle along Lippert brandished, rifle 1991, plaintiff established at Latahna Kenneth's actions emotional roads pointed on the Entel a "home place." Kenneth discharged a loaded and eventually place," caused her a complaint, title, to obtain assault arising At apprehension filed to quiet damages for her vehicle. was driving distress. Plaintiffs hitting Latahna seeking injunctive trial, of claimed bodily injury and to partition the "home relief, out of the February 2 Latahna and to recover 27, 1991 incident. On June 19, 1991, Conclusions District Court of Law and a Preliminary Injunction restrained restricting from the the parties in "construction additional area." The District existted] nature between the two family During the pendency of Injunction was effect, respondents from portions Preliminary outside that it was "very of the relationship involved To assist that in this the Warren "the final Court." of of the District . . . action." The order report of the in to respondents proposed the exclude of the the shall referee not appointed a proposed He did not submit agreed with the the partition action that on the Certificate Certificate accordingly, of stated be binding court. by Warren, the to recommend the partition appellants nor dividing the court In December 1992, Warren submitted Survey to equitably appointing referee Preliminary in violation of the parties, referee the continued "home place" Court as the single "home place." and while appellants and by stipulation property, Dennis the action, the Injunction. in this noted from the Lipperts activities factions Fact, each other, U and prohibited Court of The Preliminary from harassing construction much aware of the volatile Findings Injunction. access to the "home place, engaging entered a report. Neither of Survey proceeded to trial. Following the premises physical partition a bench trial, the district to be partitioned. partition because proposed the judge personally The district by proposed 3 Warren partition judge was not did found an not toured that the equitable provide respondents access to their "home place." to Accordingly, provide Court northern boundary Certificate a and be made to conduct District directed the further After judge district partition to filed the modified for the the proposed directed that of that Kenneth a the The appellants denied in modifying access motion. the partition the property, the partition was divide northern that a proposed Warren's the filed appeal. and touring to equitably Lippert's and awarded malice, Court err respondents give actual the instant evidence concluded judge that and the District In order inequitable. the descriptions damages. the District Court of the referee? hearing district found and punitive the appellants 1. Did recommendation also legal and done with a new trial Thereafter, on and land, line line The court of the of property. was outrageous for lease partition the north the property federal that accurate Court compensatory partition equitable more obtain parcels The motion to of Survey be changed. partitioned both access found lease land located to equitably respondents District survey federal the "home place," boundary to of the adjoining the proposed federal lease land. In reviewing partition findings Mont. Mont. action a 448, 244, 453, court's the applicable are clearly 240, district findings of standard of review is whether Troglia v. Bartoletti erroneous. 879 P.2d 1169, 691 P.2d 1171; 1373, 4 Kravik 1375. v. Lewis A finding fact in a the (1994), 266 (1984), 213 is clearly erroneous Of when, although the record conviction there leaves that is evidence the a mistake court to support with the it, a review definite has been committed. and Troslia, firm 879 P.2d at 1171. Appellants argue that it was not within modify the boundaries discretion to Appellants rely on DeHaan v. Mont. 308, 820 P.2d 423, 304, report of the referee justify the reversal cited Ivins (Ivins 11) for 134 Mont. (1959) III, P. of a jury's (1950), 513, 518, We note their holding reasons re Lunke that to § 70-29-212, MCA. change, from the statute, the report Pursuant modify, the district Ivins would court 217 P.2d 204, 206 v. Hardy (1958), 359 U.S. cases, as should be report the with attorney discipline. 56 Mont. 226, Ivins III, court of the referee. 537, 261 126). they These apply and DeHaan, are contrary MCA, the court the report." has discretion Accordingly, 5 a Ivins 80 Mont. nor did of MCA. to § 70-29-212, or set aside reversal 182 P. actions, 1001 as well justify In re McCue (1927), II, that would at § 70-29-212, in Ivins reasons denied, the referee's cases were not partition Our holdings Ivins cert. both that (1919), now codified for In DeHaan, this 475, from cases dealing disciplinary adopting only 333 P.2d 471, 333 P.2d at 475 (citing "confirm, the See also -- for verdict the statute that III). only In 250 verdict. that referee. the proposition for 123 Mont. the (1991), 454, (Ivins 341; 426, by judge's Ranch proposition. DeHaan, borrow jury's Gallatin-Madison this 445, rejected suggested is to be rejected v. Hardy the district As is may clear in reviewing we overrule or Ivins II, Ivins report III, is that to be rejected would In to and DeHaan insofar justify the court requires case, referees that a referee's only for of a jury's referee as envisioned hold court by the district the reversal the present as they by reasons verdict. Warren did not § 70-29-211, submit MCA. a report This statute to: make a report of their proceedings, specifying therein the manner in which they executed their trust and describing the property divided and the shares allotted to each party with a particular description of each share. Rather, Thus, it is clear District is he submitted Court for in in Here, stated Then, Frame the that after referee's property proposed before advantage the District 227 Mont. the the testimony partition, his The goal of so as to be fair whether relief 443, referee, the there for the 740 P.2d the 655, report of judge the referee. and reviewing Conclusions Fact, toured action is to and to confer 6 clearly erroneous the the of Law divide the no unfair Frame, 740 P.2d at 658. are not 658. district of and equitable was parties. judge a partition it has great district Findings the Accordingly, of the parties on any of the cotenants. findings for in which the court 439, Survey. report. not be bound by the issuing Court's determine action of was no report a referee's appointing he would and Judgment. property order there appropriate (1987), hearing to to support fashioning that Certificate adopt or reject. Court is an equitable flexibility Frame v. affirm, this evidence Partition a proposed from the record to either unnecessary substantial only Here, and there is substantial Court's well evidence partition within modified its discretion, Kenneth Lippert's testified pointed the tires. He then that told District was acting MCA, when it damages for of fact, compensatory to was "outrageous Accordingly, it at out her the of a district 258 Mont. is wheels the support that The court as compensatory findings erroneous. 417, District and Latahna, court's 414, clear vehicle, there, as well they are clearly a there Columbia 852 P.2d is 676, substantial Court's award of damages. In addition, discourage approached hell Court and shooting her out of the vehicle. (1993), record, evidence be the and and outrageous. seven shots In reviewing whether Cereck From the credible pointing Lippert "get the District irresponsible and fired the assault. v. in the damage to the vehicle we determine Int'l were Kenneth her of Law Re: Assault of Property, now" and ordered awarded money for should Court to § 70-29-212, actions Entel gun at her had it 678. the partition. Destruction Latahna Latahna Grain support of Fact and Conclusions and Malicious gun at you've to The District pursuant proposed Findings that loaded record Did the District Court err in awarding compensatory and damages for assault against the Estate of Kenneth In its found the of the property. the referee's 2. punitive Lippert? Battery in the court found and done with punished others the and an actual example from engaging District that Kenneth malice awarded 7 and that made thereof in similar Court Lippert's conduct punitive his in conduct conduct order to in the future. damages in the amount of Lippert $5,000 estate against contends reversed since punitive purpose punitive that Estate of Kenneth the punitive will question against the impression that Lippert Lippert. The damage award should court We note this forth decisions policy is against not served he can no longer (citing as of Parker Jaramillo v. Artery of Montana's we reject punitive At survival the damages against abated upon the death Action (citations of those a cause of since, of a party. against 1984), M. omitted). 707, 710-U that public damages Co. However, of deceased (N.M. in light damage statute, have disallowed tortfeasors. assault that have 889 P.2d 520, Ins. which for 679 Zitter, damages no longer In Montana, 8 first once he is dead, Washington action of of punitive courts the estates awarded as Survivinq held act and dual purpose punitive reasoning common law, Jay (Wyo. 1995), Providence v. also and "punitive with of the various 30 A.L.R.4th of a deceased tortfeasor effect." analysis recovery no of the states (Tex. of Wyoming recently be punished one that, Damages in Tort by permitting be have decided see Wronsed, thus, estate can Lavender 1984); Punitive 871 P.2d 1343, 1351) 1994), v. a comprehensive or Person the estate 525 See Hofer The Supreme Court the desired his is the majority issue, and, damages of Montana. Tortfeasor (1984). trial tortfeasor Claim for of punitive a deceased S.W.2d 470 (setting Death assessing whether such damages. Annotation, by of have addressed state the the State in awarding before served be of estate died be damages. The Mr. the and battery common law rule has, however, been abrogated provides a cause of action that of the death by his of a party. action, action. the 986. of White cause Kenneth Lippert. punitive the action the policy 220 Mont. for addition no then to of the State 14, 19-20, not question assault The question damages in does is because in Montana defendant there MCA, and may be maintained recognized (1986), of 27-l-501(1), does not abate survives is well Accordingly, plaintiff's it death Simonson v. 983, with It Section or defense Rather, representatives. a tort by statute. the 713 P.2d that the the death of was the becomes: compensatory in abate but survived that award of damages consistent of Montana as expressed in statutory and case law? It is clear damages serve from a dual the statutory purpose authorization in Montana. that Section punitive 27-l-220, MCA, provides: Punitive Damages -- when allowed. (1) Except as otherwise expressly provided by statute, a judge or jury may award, in addition to compensatory damages, punitive damages for the sake of example and for the purpose of punishing a defendant. The plain serve language two purposes: The wrongdoer. conclusion to of the statute set that an indicates (1) to set decisions punitive example an example, of this and Court punitive the Fitzgerald v. Western Fire P.2d 790, 793; P.2d 126, 132-33. v. Punitive public Ins. for Co. (1984), Watkins (1982), damages should 9 damages (2) to punish further support damages serve not only to punish, to Miller that purposes of 209 Mont. 200 Mont. the the but also deterrence. 213, 215, 679 455, 469, not be in excess 653 of the "amount necessary an example adequately to it (1993), and other.~.~~ 260 Mont. Co. v. Ellinghouse (emphasis Court. 431, 448, the defendant Dees v. 861 P.2d 141, (1986), 223 Mont. as is Lippert far now beyond That fact, of a punitive to respond as meting however, 255, as Fire Ins. Safeco Ins. 725 P.2d 217, the jurisdiction In requiring damages, of firearms and discharging that, in Montana, and to set an example. that 227 damages cannot be assessed against Whether appropriate to assess it is of a deceased tortfeasor is a question Affirmed. for the trier for of fact of concerned, this temporal function Kenneth Lippert's Court will through the argument the estate purposes to the not be tolerated. damages serve punitive estate has chosen intimidation punitive We reject is the exemplary the District brandishing We hold punishment does not obviate damage award. in punitive out at large estate Nat'1 151 (citing 239, send a message to the public punish American and serve added)) Obviously, Kenneth to punish that both to punitive of a deceased party. damages against of setting to weigh in its the an example deliberations. Justice Charles I concur with dissent Court from did under minority--four 329, Kenneth Lippert The majority in that punitive 2d 845, conduct general deterrent (Texas 1984), survival act Montana from punitive suggestion and dual those damages is have disallowed inappropriate such punitive impose L. Rev. through laws Court punitive which estate given that 1988), is J., v. Lavender dissenting), suggests that damage statute do not of 522 So. not punished, Hofer Montana's distinguish allow an award of a many of the This tortfeasor. damages have survival 11 by an award of (Fla. the tortfeasor death. from engaging not be deterred this an a very has made an example of diminished. jurisdictions against of it Lohr v. Byrd is purpose estate. escape punishment death decision, of issue, See 98 Dick. 679 S.W.Zd 470, 478 (Spears, In the majority this reasoning by our criminal effect conduct, jurisdictions--to proclaims estate. the Estate a tortfeasor's the I the District examined against would likewise When through 847. have estate. one cannot damages on his 2 that MCA, and the rationale thirty-one one who is not deterred in outrageous the of However, Mr. Lippert's follow damages on a tortfeasor's 333 (1994). Surely out to 1. damages against which has chosen Issue Issue of § 27-l-220, damages are not awardable punitive in punitive jurisdictions The majority narrow in However reprehensible language of holding holding in awarding Lippert. majority Court's the majority's the plain punitive the not err of Kenneth a Erdmann dissenting. E. courts acts which and dual purposes state behind statutes example allow its survive the of The majority decision Parker Wyoming court estate. behind act punitive which Artery does not Even impose have a statute for court denied injury action against served by permitting estate of that to at exist . recovery of person from the the repeating reason death for of damages punitive damages the Stat. damages court to punish the the wrongful awarding a personal is not against the recognized tortfeasor act punitive tortfeasor." and § l-4-101. policy Wyoming is in an a survival to person "[plublic The of punitive with in the damages Parker, 889 525. Florida . because tortfeasor." [therefore], ceases P.2d the a deceased deter future; an estate where purposes have Wyo. punitive 525, on injuries a wrongdoer. Court's the does of action causes 520, stating state Wyoming and do not damages the the purpose 562 P.2d Supreme punitive of II[t]he of Stat. damage claims to death that punitive 889 P.2d the so, "sake 1977), to the Wyoming however, that survive (Nev. 1995), not damages, property that for Nev . Rev. (Wyo. chose provides defendant." specifically v. Wyoming damages v. Anderson held Nevada's a tortfeasor. cites in as well. punitive the in Allen Court damages of punishing Supreme death punitive an award Nevertheless, 489, the of for and by way of § 42.010. 407, an award also . action shall has a survival die with statute the person." 12 which Fla. provides Stat. that ch. ('[nlo 46-021. The Florida punitive Supreme Court, however, damages on a decedent's rejected estate the stating imposition of that [sleparation of the "punitive" and "exemplary" aspects of [an award for punitive damages] is unjustified because general deterrence logically depends upon the perception of punishment suffered by the wrongdoer. When the punishment is difJied and unjustly inflicted upon the innocent, through a doctrine analogous to attainder, the deterrent effect is jiwstiated. It is unrealistic to suppose that such awards deter other prospective tortfeasors, especially if the criminal laws fail to do so. Lohr, 522 So. 2d at 846 (quoting 1986), 488 So. 2d 138, Alaska's survival of action (Alaska 753 on the similar P.2d notice provided a defendant's The court, § 09.55.570). concluded against 1988), damages based took which explicitly survive (Fla. Dist. Ct. App. 139). Supreme Court statute Byrd v. Lohr 144 denied behind its state's plaintiff's estate. (referring however, purposes that of causes Doe v. Colligan to Alaska an award of such an award. stat. punitive The court that [tlhe concomitant goal of general deterrence significantly upon the punishment function of an punitive damages. Since the deceased tortfeasor be punished, the general deterrent effect speculative at best and thus, in our view, falls furnishing a justifiable ground for an award of damages against the tortfeasor's estate. depends award of cannot becomes short of punitive Doe, 753 P.2d at 146 New Mexico's provided defendant state's that Legislature punitive as well supreme a jury damages are awarded as the court adopted deterrence declared of that 13 for others. the instruction which punishment of the Regardless, deterrent effect the of punitive of damages on others the tortfeasor. follows that Auto. Ins. The "If there those 1991), the v. Maidment tort-feasor have spite purposes. deterrence." district court damages are awarded to punish does not damages against to the punish deter In this distinguish the jurisdictions Hofer for a sufficient jurisdictions See Hofer, decision case, its reasoning cites reasoning reason to that to refusing 679 S.W.2d this the Texas of 475. from impose punitive on case law which 14 that punitive it "would not serve the at attempt to majority of the holding in damages is majority of damages on an estate. The Hofer provides in its for punitive itself at court 759 F. Supp. Supreme Court's to from issue. a dual purpose distinguish of and would has failed while others when Fehrenbacher, have considered that the an award of the wrongdoer and (Kan. 1988), the ultimate and deter wrongdoer the majority rationale v. Hart permit of (D. Kan. Nevertheless, a tortfeasors." which The majority of the heirs potential 1521-22. estate purpose specifically the wrongdoer, wrongs. Kansas law that dual acknowledged to restrain similar of concluded vicariously damages is 449. Quackenbush Wisker punitive commission v. it Farm Mut. 761 P.2d 446, language 168), the State no statutory 1521 (citing punishment be punished, the 766 P.2d of punitive cannot In Fehrenbacher a federal to the acknowledged of 759 F. Supp. 1516, purpose tied (N.M. App. 1988), courts damages in stating inextricably can be no general Kansas punitive is court punitive predicates its damages have a purpose other than recognizes losses remote 679 S.W.Zd to the at 520, costs 474. therefore guise that determined a not in 1323, of of Court, the and of appropriate is linked as is purpose (1986), award attorney damages this not the Lawson even though award was proper. to damage for Hofer, v. punitive plaintiff compensation refused punitive the fees. defendant Reintsma 1326, Texas and attorney such the deterrence. to compensate as inconvenience punishment 727 P.2d under damages The purpose This 525, punishment such exemplary deterrence. of of punitive an award for that Court to follow the of 223 Mont. fees the and Court It is reasoning in Hofer. Moreover, punitive the damage conjunctive damages for sake "and" requirements must Sutherland of is all Stat. for act punishment judge of example is used be fulfilled the jury for Even dual of the the met. 15 of . with simply § 27-l-220, a The the The purpose is the punishing added). tortfeasor the . punitive is majority of of intent damages Lippert requirements (emphasis to comply punitive Kenneth of ed). of use purpose legislative (5th if language . the in order punishment plain may award MCA § 21.14 an award as a deterrent, and the or & the legislature's when the by example. that the 27-l-220, Const. both others determination will "[Al ignored and Section conjunctive has statute "and." defendant." award majority that all statute. of such an and deterrence is correct against beyond in its an estate temporal MCA, cannot be While under unnecessary to MCA, a review preclude plain of that legislative history award HB 363, language to the resort the discussing the of punitive which being such defendant." 49th Exh. A-pg this 4 (exhibit was later § 27-l-220, to estates. of acknowledged In § 27-l-220, that do not and submitted is intent against H. R. Jud. it "[plunitive usually survive Comm. (Feb. by Rep. 121, John Cobb). amended, the language pertinent to case was not changed. Furthermore, punitive guilty the of the predecessor (19851, prepared the statute Although history to the defendant, Cong. statute the legislature's Committee personal the damages enacted MCA, the House Judiciary damages, reflects of a plain damages of actual defendant Certainly, punitive dead. an estate If to be awarded against In this opinion, improperly holding the innocent § 27-1-221, is a legitimate it is estates, purpose found is dead and found guilty of MCA, punitive are an award of of and no court can punish the that punitive have easily the role of the change. punished 16 for punishment they could a major policy heirs is the court's had intended we have usurped legislated not was to is the deterrence the legislature "defendant that would be inappropriate. Nevertheless, which MCA, provides the tortfeasor estate according deterrence the tortfeasor case, The the estate. damages. when the In this Therefore, damages against of § 27-l-220, appropriate malice. is any malice. are reading for damages were so specified. legislature and Under the majority's the behavior of the deceased tortfeasor. awarding punitive I would reverse damages for assault the District against Court's the Estate holding of Kenneth Lippert. Justice Chief Justice J. A. Turnage and Justice foregoing dissenting opinion.. M. Gray join Chief 17 Karla Justice in the
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