March 31 2009
DA 08-0275
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 103
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DANIEL CARL KALAL,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DC 07-35
Honorable E. Wayne Phillips, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Torger Oaas; Oaas Law Office; Lewistown, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg,
Assistant Attorney General; Helena, Montana
Thomas P. Meissner, Fergus County Attorney; Lewistown, Montana
Submitted on Briefs: February 25, 2009
Decided: March 31, 2009
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Daniel Kalal (“Kalal”) was charged with theft of a tractor. Kalal pleaded guilty
and received a two year deferred imposition of sentence. He was ordered to pay
restitution for the value of the tractor and other items of stolen property in the amount of
$23,513.43. Kalal satisfied that restitution obligation.
¶2 The victim of the theft, Jim Petranek, sought additional restitution for loss of
income in the amount of $21,724. After receiving additional briefing on this issue, the
court ordered Kalal to pay additional restitution for loss of income in the amount of
$15,960. Kalal appealed from this order of restitution. We affirm.
BACKGROUND
¶3 Petranek’s claim of lost income is based upon his testimony that he planned on
using the tractor for the following income-generating purposes:
(1) To build a two and one half mile fence between his ranch property and
adjacent BLM land, which would allow his property to be leased for
summer grazing. The ranch property is 75 miles from Petranek’s home.
This resulted in a claim of $5,040 in lost income.
(2) To complete construction of a cabin which could be rented for 60 days
a year for $6,000; further the cabin would facilitate leasing this property for
hunting and fishing for some $5,764.
(3) To seed 120 acres for grass production and farming. This resulted in a
claim of lost income of $4,920.
¶4 Through cross-examination of Petranek, Kalal established that there were other
tractors available to rent; that a reasonable rental price for such a tractor was around $130
to $140 per day. Petranek testified that he would have needed 9 days to complete the
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fencing, 7 to 10 days for the cabin construction, and 20 hours to do the seeding. Kalal
thus contended that Petranek had a duty to mitigate his damages by renting a tractor at a
cost of $3,080 in order to complete his projects in the above time frames.
¶5 Petranek, however, testified that because of the demands of his full-time job as a
city public works specialist for the City of Lewistown, he would not have been free to
complete the projects listed above in one continuous period of time. Rather, he could
only work weekends or long weekends with a day or two off of work. Even then, he was
often on-call and was required to drop everything and respond to emergencies.
¶6 As a result of Petranek’s limited availability to work on projects, the District Court
concluded that there were serious practical impediments to his renting a tractor. The
District Court noted, inter alia, that it would take several hours to rent, load and haul a
rental tractor and that Petranek could not afford to leave a rental tractor on the property
during the week so that it would be available for weekend work. Accordingly, the
District Court concluded that the theft of Petranek’s tractor resulted in a loss of income
for summer grazing and farming/grass production in the amount of $9,960 and a loss of
$6,000 for cabin rental. The District Court rejected Petranek’s claim for an additional
$5,764 for a hunting lease.
STANDARD OF REVIEW
¶7 We review a sentence in a criminal case to determine whether or not it is a legal
sentence. State v. Cesnik, 2005 MT 257, ¶ 13, 329 Mont. 63, 122 P.3d 456. Findings
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regarding the amount of restitution ordered are reviewed to determine whether they are
“clearly erroneous.” State v. Heath, 2004 MT 126, ¶ 13, 321 Mont. 280, 90 P.3d 426.
DISCUSSION
¶8 Section 46-18-241, MCA, provides that a sentencing court shall, as part of a
sentence, require an offender to make full restitution to any victim who has sustained
pecuniary loss. Section 46-18-243(1)(a), MCA, defines pecuniary loss as “all special
damages . . . that a person could recover against the offender in a civil action arising out
of the facts or events constituting the offender’s criminal activities,” including loss of
income.
¶9 The issue of mitigation of damages in the context of restitution for criminal
activity is a question of first impression in this state. Since the statutes requiring
restitution in a criminal sentencing are based upon damages available in a “civil action,”
we look to our precedent in the fields of tort and contract law. The general rule is that an
injured party cannot recover damages for breach of contract that the injured party
reasonably could have avoided. See Bitterroot Intl Sys. v. Western Star Trucks, 2007 MT
48, ¶ 62, 336 Mont. 145, 153 P.3d 627. The duty of an injured party to reduce or mitigate
damages is limited. McPherson v. Kerr, 195 Mont. 454, 459, 636 P.2d 852, 855 (1981)
(quoting Spackman v. Ralph M. Parsons Co., 147 Mont. 500, 505, 414 P.2d 918, 921
(1966)). “The test is: What would an ordinary prudent person be expected to do if
capable, under the circumstances?” McPherson, 195 Mont. at 459, 636 P.2d at 856. An
injured person is not expected to do what is “unreasonable or impracticable.”
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McPherson, 195 Mont. at 460, 636 P.2d at 856. For example, in McPherson, the plaintiff
was not expected “to expend $1,100 which he doesn’t have [in order to remove a
damaged semi-trailer from storage] to mitigate an injury for which he is not responsible.”
195 Mont. at 459-60, 636 P.2d at 856. In Harrington v. Holiday Rambler Corp., 176
Mont. 37, 42, 575 P.2d 578, 579-80 (1978), the plaintiffs were not expected to transport
their defective travel trailer from Great Falls to the factory in Wakarusa, Indiana for
repair, to have it repaired by a third party and risk voiding the warranty, or to buy a new
travel trailer. We hold that the above standard is equally applicable to the duty to
mitigate damages in the context of criminal restitution. Thus we adopt the following test:
What would a reasonable and prudent person be expected to do if capable, under the
circumstances?
¶10 While recognizing the duty to mitigate, the District Court reasoned that no
reasonable man could be expected to spend money (or time) he does not have to mitigate
an injury for which he is not responsible. Applying the reasonableness standard, the
court correctly concluded that, given the impracticability and expense of renting and
transporting a tractor a long distance for short periods of time, an award of $15,960 for
Petranek’s loss of income was reasonable. The findings supporting that conclusion are
not clearly erroneous.
¶11 Affirmed.
/S/ W. WILLIAM LEAPHART
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We concur:
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
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