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Denied Original Proceeding Habeas Corpus

Denied Original Proceeding Supervisory Control

Affirmed Dist. 19 (Lincoln)

Affirmed Dist. 8 (Cascade)

Denied Original Proceeding Habeas Corpus

JUSTICE COTTER delivered the Opinion of the Court. ¶1 In Tidyman’s Management Services v. Davis (Tidyman’s I), 2014 MT 205, 376 Mont. 80, 330 P.3d 1139, we affirmed the District Court’s finding that National Union Fire Insurance (NUFI) breached its duty to defend its insureds, Davis and Maxwell, but we reversed the District Court’s approval of a stipulated settlement between Davis and Maxwell and Plaintiffs for $29 million. We remanded for a hearing on the reasonableness of the settlement amount. The District Court conducted a reasonableness hearing, and again approved the stipulated settlement. NUFI appeals. We remand for a second reasonableness hearing. ISSUES ¶2 We restate the issues on appeal as follows: ¶3 Did the District Court err in using a “reliable evidence” test to assess the reasonableness of the stipulated judgment? ¶4 Did the District Court err by not deducting from the $29 million judgment the amount paid out to ESOP participants following Tidyman’s merger with SuperValu? ¶5 Did the District Court err in awarding prejudgment interest from January 4,2013? FACTUAL AND PROCEDURAL BACKGROUND ¶6 This is the second time this case has come before us. We set forth the underlying facts in Tidyman’s I, and we will not repeat them here. In Tidyman’s I, we affirmed the District Court’s finding that NUFI unjustifiably refused to defend its insured, Davis and Maxwell, and was therefore estopped from denying coverage. Tidyman’s I, ¶ 33. However, we reversed the District Court’s entry of summary judgment to the extent it approved a stipulated judgment of $29 million, and remanded for the District Court to hold a hearing to assess the reasonableness of the settlement amount. Tidyman’s I, ¶ 44. On remand, we deferred to the District Court to set the parameters of the reasonableness hearing, and to determine whether and to what extent further discovery was warranted. Tidyman’s I, ¶ 44. We also instructed that the burden of establishing the unreasonableness of the stipulated judgment would rest with NUFI. Tidyman’s I, ¶ 44. ¶7 The District Court determined that additional but limited discovery was necessary prior to a hearing on reasonableness, so it opened discovery for the narrow purpose of obtaining information regarding the reasonableness of the under lying judgment. The District Court then held a reasonableness hearing on January 28-30, 2015. F oil owing the hearing, the District Court concluded that “Maxwell and Davis were justified in settling for the amount of $29 million based [on] their knowledge of Plaintiffs’ claims and their exposure to financial ruin created by NUFI’s failure to defend.” The District Court therefore found that NUFI had not borne its burden to prove the stipulated judgment was unreasonable, and entered judgment against NUFI for $29 million. NUFI appeals. STANDARD OF REVIEW ¶8 This Court reviews de novo issues of law, including a district court’s decision about which legal standard to apply in assessing the reasonableness of a stipulated judgment. Tidyman’s I, ¶ 13; see e.g. Seltzer v. Morton, 2007 MT 62, ¶ 152, 336 Mont. 225, 154 P.3d 561 (holding that we review de novo a district court’s application of certain “guideposts” in assessing whether a jury’s punitive damages verdict is “grossly excessive”). The decision to grant or deny prejudgment interest is also reviewed de novo. Tidyman’s I, ¶ 13. DISCUSSION ¶9 Did the District Court err in using a “reliable evidence” test to assess the reasonableness of the stipulated judgment ? ¶10 In Tidyman’s I, we concluded that “further consideration is necessary to determine whether the 29 million dollar stipulated settlement is reasonable, in light of the questions NUFI has raised.” Tidyman’s I, ¶ 44. Among the questions raised by NUFI were whether the $29 million figure was unreasonable “because it was based only on unsworn opinions of experts whom plaintiffs retained and paid and who have never been cross-examined by [NUFI’s] counsel” (internal quotations omitted); because “no buyer had been identified at the price TMSI’s financial advisor, Zachary Scott, suggested the corporation might bring if sold to another chain—the figure on which the 29 million dollars is based”; because “the settlement amount is magnitudes greater than the amount for which the plaintiffs had settled with other directors and the amount the plaintiffs had offered Davis himself in settlement”; and because “the plaintiffs’ own numbers reveal that Zachary Scott opined that the value of the corporation as a standalone entity was 11 million dollars.” Tidyman’s I, ¶ 42. With these questions in mind, we reversed the District Court’s entry of summary judgment to the extent it approved of the $29 million sum, and remanded for a hearing focused on the reasonableness of the settlement amount. Tidyman’s I, ¶ 44. ¶11 On remand, the District Court articulated its own subjective standard for assessing the reasonableness of the settlement amount: To determine whether the stipulated settlement is within the range of reasonableness, the Court has considered reasonableness from the perspective of the insured at the time of the stipulation, whether the information relied upon possessed sufficient indicia of reliability and whether the damages represented might naturally have been expected to result from the breach of the duty to defend. Over the course of a three day hearing, the District Court received evidence and testimony from Plaintiffs and NUFI. Although the District Court allowed testimony from NUFI’s expert that the stipulated settlement was not reasonable because it exceeded his assessment of the value of the company prior to the insurer’s breach of the duty to defend, the District Court found that this perspective “fail led I to account for the measure of damages for the breach of the duty to defend.” The District Court, citing State Farm Mut. Auto. Ins. Co. v. Freyer, 2013 MT 301, ¶ 35, 372 Mont. 191, 312 P.3d 403, concluded that “[wlhere an insurer has left its insured on its own to challenge liability, the insurer should not be able to reach back and interject itself in a controversy it has sidestepped to void a deal the insured has entered into to eliminate personal liability.” Reasoning that NUFI had lost the right to litigate the merits of the underlying case, the court therefore largely precluded the parties from conducting discovery or introducing evidence on matters related to the merits of the case. ¶12 However, as NUFI argues on appeal, by failing to consider the merits and value of the underlying case in assessing the reasonableness of the settlement amount, the District Court failed to comply with our instructions on remand. Instead of considering the challenges to reasonableness raised by NUFI and highlighted in our opinion in Tidyman’s I, the District Court based its conclusion that the settlement was reasonable on its assessment that “[t]he materials relied up[on] by Plaintiffs and Maxwell and Davis possess sufficient indicia of reliability.” We have previously stated that “[t]he insurer, even when in breach of its obligations to its insured, is entitled to have the district court make a determination of the reasonableness of a settlement entered by the insured.” Abbey /Land LLC v. Interstate Mechanical, Inc., 2015 MT 77, ¶ 12, 378 Mont. 372, 345 P.3d 1032 (citing Tidyman’s I, ¶ 41). The District Court did not actually assess the reasonableness of the settlement in this case, but rather sought to determine whether the $29 million amount had some grounding in reliable evidence from the perspective of Davis and Maxwell. We therefore remand this case for a second hearing on the reasonableness of the stipulated settlement. On remand, the District Court shall assess reasonableness using the standard set forth below. ¶13 NUFI and amicus curiae Montana Defense Trial Lawyers urge this Court to announce a requirement that “the settlement amount be analyzed from the perspective of the objective merits of the case and not from the subjective perspective of whether the insured was justified in accepting a release of liability in exchange for whatever the plaintiff requested” (emphasis in original). In support of this approach, NUFI cites cases from several of our sister states that analyze the merits of the underlying case, the plaintiff s theory of liability and damages, the strength of available defenses, and the risks and expenses to both parties of continued litigation in order to determine the reasonableness of a stipulated settlement amount. See e.g. Bird v. Best Plumbing Grp., LLC, 287 P.3d 551, 556 (Wash. 2012); Great Divide Ins. Co. v. Carpenter, 79 P.3d 599, 613 (Alaska 2003); Himes v. Safeway Ins. Co., 66 P.3d 74, 85 (Ariz. Ct. App. 2003); Associated Wholesale Grocers v. Americold Corp., 934 P.2d 65, 87 (Kan. 1997). However, none of the cases cited by NUFI involved an insurer’s breach of the duty to defend its insured. NUFI is untroubled by this dissimilarity; according to NUFI, the fact that an insurer breached its duty to defend its insured is not relevant to an assessment of the value of the underlying case. ¶14 All parties agree that a reasonableness hearing should be conducted objectively from the point of view of a prudent person in the position of the insured defendant. See e.g. Miller v. Shugart, 316 N.W.2d 729, 735 (Minn. 1982). But as Plaintiffs and amicus curiae Montana Trial Lawyers Association point out, in a case in which there has been a breach of the duty to defend, such a defendant is no longer an insured defendant and is faced with personal responsibility for a potentially very large sum. We agree with Plaintiffs that a breach of the duty to defend is a factor that a prudent person in the position of the defendant would consider when determining what settlement amount is acceptable to him or her. In other words, an objective standard of reasonableness should account for a prudent assessment of the merits and value of the plaintiffs case, but also for the position in which the defendant has been left following an insurer’s breach of the duty to defend. No prudent defendant would fail to consider the latter circumstance. On the other hand, it should not be the court’s objective to further punish the insurer for its failure to defend its insured. The insurer has already suffered the consequences of its failure to defend by having lost the right to invoke insurance contract defenses as well as the right to assert its policy limits. ¶15 On remand, the District Court shall employ an objective standard for assessing reasonableness. We borrow the Minnesota Supreme Court’s articulation of such a standard—“The test as to whether the settlement is reasonable and prudent is what a reasonably prudent person in the position of the defendant would have settled for on the merits of plaintiff s claim. This involves a consideration of the facts bearing on the liability and damage aspects of plaintiff s claim, as well as the risks of going to trial.” Miller, 316 N.W.2d at 735—but we note that in cases such as the one before us, a “reasonably prudent person in the position of the defendant” does not have the benefit of insurance coverage. Therefore, in assessing the reasonableness of a stipulated settlement when there has been a breach of the insurer’s duty to defend, a district court should objectively consider both the merits of the underlying case and the value to a prudent uninsured defendant of confessing judgment in exchange for a covenant not to execute. If after applying this objective standard the District Court finds $29 million to be a reasonable settlement amount, it shall enter findings of fact establishing the reasonableness and judgment in favor of Plaintiffs for $29 million. If the District Court finds $29 million to be an unreasonable amount, it shall enter findings of fact and conclusions of law to that effect and reject the settlement. ¶16 On a final note, although the District Court retains discretion to determine what evidence to admit or refuse in a reasonableness hearing, it cannot refuse to consider material and relevant evidence. Cartwright v. Equitable Life Assurance Soc’y of the United States, 276 Mont. 1, 19, 914 P.2d 976, 987-88 (1996) (citing M. R. Evid. 401, 402). We determined in Tidyman’s I that the questions NUFI raised about the valuation of the corporation are relevant to an assessment of the reasonableness of the stipulated settlement, so the District Court should allow additional discovery on and consider such evidence during the second reasonableness hearing. Tidyman’s I, ¶¶ 42, 44. ¶17 In his Dissent, Justice Wheat argues that remand for another reasonableness hearing is not necessary because the court listened to extensive testimony on the valuation of the company during the reasonableness hearing. It is true that NUFI presented such testimony, but the court rejected the valuation testimony offered by its witnesses because it “fail[ed] to account for the measure of damages for the breach of duty to defend.” Because we previously found that NUFI was estopped from denying coverage for unjustifiably refusing to defend its insureds, any measure of damages for breach of the duty to defend has no place in an ensuing reasonableness analysis. The court said it would consider reasonableness “from the perspective of the insured at the time of the stipulation,” and indeed, it was only such evidence to which the court gave credence. As noted in ¶ 11 but sidestepped by both Dissents, the District Court concluded that NUFI had lost the right to litigate the merits of the underlying case. What we are directing the court to do on remand is determine value based both on an objective determination of where the stipulated settlement is within a reasonable range of what an arms’-length negotiation would have produced and the value to a prudent uninsured defendant of confessing judgment. The court erred as a matter of law in subjectively considering valuation solely from the perspective of the uninsured defendants. ¶18 Did the District Court err by not deducting from the $29 million judgment the amount paid out to ESOP participants following Tidyman’s merger with SuperValu? ¶19 NUFI argues that the $29 million judgment is “based on impermissible double counting.” Some retirees who retired after Tidyman’s 1998 merger with SuperValu received payouts from the employee stock ownership plan (ESOP), and some of those retirees are now plaintiffs in this case. NUFI alleges that these retirees are “double counting” damages by accepting the ESOP payments and seeking damages in this case. NUFI argues that the $29 million judgment should be reduced by at least $7 million, the minimum amount paid out to ESOP participants after the merger. Plaintiffs counter that NUFI’s argument is based upon a “mischaracterization of the relationships between the parties and the different Tidyman’s entities.” According to Plaintiffs, $29 million is the amount of damage done by Davis and Maxwell to TMSI (the entity formed in the merger), and whether retirees are entitled to any of that money as employee owners of the company is a wholly separate issue governed by the terms of the ESOP and federal ERISA law. We agree with Plaintiffs. ¶20 By definition, a stipulated or consent judgment is not a court’s or a jury’s calculation of actual damages to which individual plaintiffs are entitled, but rather the amount for which two parties have freely agreed to settle a claim. As we have said before, “[a] consent judgment is ‘a judgment, the provision and terms of which are settled and agreed to by the parties to the action.’ A judgment by consent or stipulation of the parties is construed as a contract between them embodying the terms of the judgment. It operates to end all controversy between the parties, within the scope of the judgment.”First Bank, (N.A.) v. District Court for Fourth Judicial Dist., 226 Mont. 515, 523, 737 P.2d 1132, 1137 (1987) (quoting Black’s Law Dictionary (5th ed.) at 436); see also Linder v. Missoula County, 251 Mont. 292, 296, 824 P.2d 1004, 1004 (1992). Indeed, this reality is one of the reasons courts conduct a reasonableness hearing in the case of a stipulated settlement: “in these types of negotiations ... there is no assurance that the settlement represents a proper calculation of actual damages.” Tidyman’s I, ¶ 40. ¶21 The $29 million judgment in this case is a stipulated judgment, freely agreed to by Davis and Maxwell and Plaintiffs, and approved by the District Court. While the stipulated judgment is subject to an overall reasonableness assessment, it was not the result of a precise damages calculation performed by the District Court, so it does not account for deductions, credits, or offsets claimed by the insurer but not stipulated to by both parties. The question is simply “whether the settlement amount stipulated to is reasonable.” Tidyman’s I, ¶ 40. On remand, and after considering the valuation evidence presented, the District Court may decide to take into account the ESOP payouts in assessing the reasonableness of the settlement amount. However, because we are addressing a settlement here and not a trial recovery subject to statutory offsets, we conclude that the District Court did not err in declining to engage in the reductions and collateral source offsets urged by NUFI that are typical of post-trial adjustments in tort recovery actions. ¶22 Did the District Court err in awarding prejudgment interest from January 4, 2013? ¶23 We said in Tidyman’s I that “the District Court correctly determined the plaintiffs were entitled to pre-judgment interest beginning on January 4,2013, when the court approved the stipulated settlement agreements and entered judgment in the plaintiffs’ favor.” Tidyman’s I, ¶ 53. Following our remand and the first reasonableness hearing, the District Court complied with our instructions and granted the Plaintiffs prejudgment interestfrom January 4,2013. However, we reached the conclusion that Plaintiffs were entitled to prejudgment interest from the day the $29 million stipulated settlement was approved even though we reversed the judgment approving the settlement amount and remanded the case for a reasonableness hearing. Tidyman’s I, ¶ 50. This was in error. Plaintiffs would have been entitled to postjudgment interest, not prejudgment interest, from the day the District Court approved the settlement, but only if we had affirmed the amount of the judgment. Section 25-9-205, MCA; M. R. App. P. 19(4); Tipp v. Skjelset, 1998 MT 263, ¶¶ 16-19, 291 Mont. 288, 967 P.2d 787. ¶24 We take this opportunity to clarify that Plaintiffs are not entitled to prejudgment interest from January 4, 2013, because interest accruing after that date—the date of the court’s judgment—would by definition be postjudgment and not prejudgment interest. Rather, Plaintiffs may be entitled to postjudgment interest according to the instructions below. ¶25 The Montana Rules of Appellate Procedure provide that “[i]f a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was rendered or made in the district court,” but if, as is the case here, “a judgment is modified or reversed with a direction that a judgment for money be entered in the district court, the mandate shall contain instructions with respect to allowance of interest.” M. R. App. P. 19(4). We have instructed before that In those cases in which a money judgment rendered in the district court is reversed, modified, or vacated on appeal, with the consequence that the district court is directed to enter an entirely new judgment no portion of which is discreetly identifiable from the original verdict or judgment, then interest on the new judgment shall begin to accrue only from the date the new judgment is entered on remand pursuant to this Court’s direction. Woods v. Burlington N. & Santa Fe Ry. Co., 2004 MT 384, ¶ 10, 325 Mont. 106, 104 P.3d 1045. Therefore, if following our remand and a second reasonableness hearing the District Court approves the stipulated settlement, Plaintiffs will be entitled to postjudgment interest from the day of the new judgment, but not from the days on which the District Court approved the settlement the first and second times. Plaintiffs are not entitled to prejudgment interest, and we and the District Court erred in so holding. CONCLUSION ¶26 For the foregoing reasons, we remand the case to the District Court for a second hearing to determine the reasonableness of Davis and Maxwell’s decision to settle with the Plaintiffs for $29 million in exchange for a covenant not to execute. CHIEF JUSTICE McGRATH, JUSTICES McKINNON, BAKER and RICE concur.

JUSTICE COTTER delivered the Opinion of the Court. ¶1 The parties own real property in Echo Chalet Village on a peninsula in Echo Lake in Bigfork, Flathead County, Montana. Kenneth and Kathleen Reick own the parcel on the southern end of the peninsula through which the sole vehicular road granting access to the northern lots owned by Plaintiffs/Appellants lies. The Reicks purchased the property in 1983 under a warranty deed and subject to a long-term 20-foot existing easement allowing Appellants access to their respective properties. The access road runs parallel to Echo Lake and consists of various low-elevation sections subject to flooding. In 1992, the parties entered into a road maintenance agreement (Maintenance Agreement) which set forth how, when, and at whose expense maintenance of the access road would occur. F ollowing a flood and a dispute over repair and maintenance of the road, Appellants filed a complaint in November 2012, seeking declaratory judgment that the Maintenance Agreement was valid and enforceable. Seeking specific performance and damages, they alleged that the Reicks breached the Maintenance Agreement. The Reicks counterclaimed and both sides sought summary judgment. The Eleventh Judicial District Court granted partial summary judgment to the Reicks and subsequently conducted a bench trial on the remaining issues. The court then entered judgment in favor of the Reicks. Appellants appeal the District Court’s ruling on summary judgment and its post-trial findings, conclusions, orders and judgments. We affirm in part and reverse in part. ISSUES ¶2 A restatement of the issues on appeal is: ¶3 Did the District Court err by ruling that the Reicks’ lot is encumbered by a single easement, which is the existing road, measured 10 feet from each side of the road’s centerline? ¶4 Did the District Court err by rejecting Appellants’ claim of authority to sign and submit an application for a lakeshore improvement permit? ¶5 Did the District Court err by concluding the Maintenance Agreement is unenforceable against the Reicks for lack of consideration? ¶6 Did the District Court err by ruling that the Reicks did not breach the Maintenance Agreement? ¶7 Did the District Court err by concluding that Appellants breached the Road Detour Agreement, and awarding damages to the Reicks? ¶8 Did the District Court err by concluding that the Reicks did not convert the Appellants’ fill material? ¶9 Did the District Court err by ordering Appellants to pay Reicks’ counterclaim-related attorney’s fees and costs? FACTUAL AND PROCEDURAL BACKGROUND ¶10 Echo Chalet Village in Bigfork, Montana, consists of 21 lots numbered 24-44 and is located on a peninsula that extends northward into Echo Lake. The parties to this case own the majority of these lots but some lot owners have been dismissed and are not parties to this action. ¶11 Testimony established that in the early 1950s, prior to creation of the subdivision, a road was established to service a single home on the north end of the peninsula. This road was referenced in a 1968 land survey. In 1974, the two families who owned the peninsula at that time, Masons and Mastoliers, executed a subdivision plat of Echo Chalet Village which included a 20-foot wide road easement which ran in part along the west boundary of Lot 24. Mason owned Lots 24 and 25. Lot 24 is located on the southern end of the peninsula through which all northern lot owners must pass to access their properties. ¶12 The Reicks purchased Lot 24 from Mason in 1983 under a warranty deed and subject to a long-term existing easement establishing the access road to Lots 25-44 (the Easement Road). The Reicks occasionally use the Easement Road but it is generally not necessary to their use of their property. The Easement Road runs parallel to Echo Lake and consists of various low-elevation sections subject to occasional flooding. ¶13 In 1992, the parties (or their predecessors) entered into the Maintenance Agreement which provided: 1. Expenses and/or labor will be shared equally among the respective parties in maintaining the access. 2. Repairs or maintenance on the access shall be required when a decision is reached by a majority of the owners of these properties. Repairs and maintenance shall then proceed on a schedule and in a manner agreed upon by the majority. 3. This agreement shall be deemed and is intended to run with the land and shall be binding upon the undersigned, their heirs, personal representatives, successors, and assigns until such a time as said roadway/access shall be dedicated to and accepted for use as a public roadway by a governmental entity. ¶14 Subsequently, Echo Lake topped its banks on two occasions—1997-98 and 2011-12. The earlier flood did not render the Easement Road totally impassable as the northern property owners could access their properties by driving slowly through the flooded areas. The 2011 flood, however, rendered low elevation portions of the Easement Road impassable. In June 2011, Appellants and the Reicks entered into a Road Detour Agreement (Detour Agreement) in which the parties agreed to bring in gravel and construct an elevated “spur road” utilizing the Reicks’ private driveway and contiguous property. The spur road tied back into the access road at a higher-elevation northerly location. The County approved the construction of the spur road. The Detour Agreement provided that the materials creating the spur road would be removed when the flood waters subsided and the Reicks’ property would be restored to its pre-spur-road condition by the northern property owners. In addition to building the spur road, the parties utilized purchased fill material to elevate low sections of the Easement Road. The Reicks enabled this by submitting a signed application for an emergency lakeshore improvement permit to allow the temporary elevation of the Easement Road. The parties used the spur road throughout 2011 as well as in the spring of 2012 when Echo Lake’s waters rose again but not as dramatically. ¶15 Subsequently, the Reicks posted a sign prohibiting use of the spur road by heavy construction vehicles but allowed northern property owners in their personal vehicles to continue using the detour road. In late summer 2012, the flood waters receded and the County and the Reicks demanded the fill material be removed. Appellants requested that the Reicks obtain a lakeshore permit to allow them to take the fill material from the spur road and use it to elevate the Easement Road. For multiple reasons, the Reicks refused. Appellants thereafter refused Reicks’ demands to remove the fill material. ¶16 In November 2012, the Plaintiffs (now Appellants) filed this action in the Eleventh Judicial District Court seeking declaratory judgment that the 1992 Maintenance Agreement was valid and enforceable and authorized them to elevate the Easement Road. Seeking specific performance and damages, they alleged that the Reicks breached the Maintenance Agreement. ¶17 In late summer 2013, the Reicks again demanded that Appellants remove the spur road fill and restore their property pursuant to the Detour Agreement. Appellants refused. Thereafter the Reicks spent $5,300 restoring their property to its June 2011 condition. Because the Reicks unilaterally removed and disposed of the fill material, Appellants amended their Complaint to add a count for conversion. The Reicks counterclaimed for breach of the Detour Agreement, quantum meruit seeking to recover the value of providing the spur road and the later costs of removing it, and breach of the implied covenant of good faith. ¶18 In February 2014, Appellants moved for summary judgment claiming they had multiple easement rights over Reicks’ property, the combination of which would allow them to unilaterally re-construct the Easement Road at a higher elevation. They further asserted that under the Maintenance Agreement, they did not require Reicks’ signatures to submit applications for lakeshore permits for the purpose of improving the Easement Road. Appellants also sought summary judgment on their conversion allegations. Reicks responded and filed a cross-motion for partial summary judgment. ¶19 In May 2014, the District Court denied Appellants’ summary judgment motion, and granted summary judgment to the Reicks on two issues. The court concluded that: (1) a single easement exists over Lot 24, not multiple easements; (2) Appellants are not authorized to submit lakeshore permit applications without the Reicks’ participation; and (3) the Reicks did not breach the Detour Agreement. ¶20 In February 2015, the District Court conducted a non-jury trial with respect to the remaining issues. In September 2015, the court issued its Findings of Fact, Conclusions of Law and Order awarding judgment to the Reicks. The court reiterated its rulings on summary judgment and further concluded that: (1) Appellants breached the Detour Agreement and were liable for the Reicks’ fees and costs associated with this issue; (2) the Maintenance Agreement is unenforceable against the Reicks for want of consideration; (3) the Reicks did not commit conversion by removing and disposing of the spur road fill material; and (4) Appellants must pay the costs incurred by the Reicks to remove the fill material and restore their property along with prejudgment interest. ¶21 Appellants appeal the District Court’s ruling on summary judgment and its post-trial findings, conclusions, orders and judgments. We affirm in part and reverse in part. STANDARD OF REVIEW ¶22 We will affirm the factual findings of a district court sitting without a jury unless those findings are clearly erroneous. A district court’s findings are clearly erroneous if they are not supported by substantial evidence, if the district court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. To determine whether substantial credible evidence supports the district court’s findings, we review the evidence in the light most favorable to the prevailing party. We review a district court’s conclusions of law for correctness. Jacobson v. Bayview Loan Servicing, LLC, 2016 MT 101, ¶ 19, 383 Mont. 257, 371 P.3d 397 (internal citations omitted). ¶23 We review a district court’s entry of summary judgment de novo. Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Mont. Immigrant Justice Alliance v. Bullock, 2016 MT 104, ¶ 14, 383 Mont. 318, 371 P.3d 430 (internal citations omitted). ¶24 We review a district court’s conclusion regarding the existence of legal authority to award attorney fees for correctness. If legal authority exists, we review a district court’s order granting or denying attorney fees for abuse of discretion. Mont. Immigrant Justice Alliance, ¶ 15. DISCUSSION ¶25 Did the District Court err by ruling that the Reicks’ lot is encumbered by a single easement, which is the existing road, measured 10 feet from each side of the road’s centerline ? ¶26 Appellants claim that Lot 24 is encumbered by co-existing express, implied, prescriptive, and implied by necessity easements. Appellants assert that by combining these easements, they have adequate property and authority to elevate the Easement Road as much as needed—five to seven feet—to ensure it is usable in flood years. It is undisputed that such an elevation would require a subjacent and lateral support slope extending well beyond the 20-foot express easement. Appellants argue that with the combined easements, they enjoy a second 20-foot easement running parallel and contiguous with the original express easement which would allow for reconstruction of the Easement Road at a higher elevation. The District Court disagreed, holding that Appellants have a 20-foot-wide express easement which is the Easement Road, but no other easement rights. The court granted summary judgment to Reicks on this issue. ¶27 It is well-established that “[t]he breadth and scope of an easement are determined by the actual terms of the grant.” Section 70-17-106, MCA, provides “The extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired.” Numerous historic documents presented to the District Court establish that a 20-foot easement was expressly granted to Appellants. Moreover, the record indicates that Appellants have “enjoyed” a defined and constructed 20-foot road over Lot 24 for more than fifty years and previously have never alleged the existence of multiple easements. The location of the Easement Road, as well as its width, is well-established, historical, and accurately documented on a 1968 Certificate of Survey. See Anderson v. Stokes, 2007 MT 166, ¶ 43, 338 Mont. 118, 163 P.3d 1273 (An easement is limited to its historical location and size.). Claims of a subsequently-granted parallel express easement are not supported by the record. ¶28 Additionally, Appellants have not established the existence of a prescriptive easement. They claim a prescriptive easement based upon their use of extra footage along the Easement Road for snow plowing and their repeated utilization of a paved turnaround location near the Reicks’ garage when needed. The District Court was unpersuaded by these claims. It found that Appellants’ typical use of the turnaround area would not have taken them outside of their allotted 20-foot express easement. ¶29 The court further held that Appellants did not have an implied easement by necessity. In granting summary judgment to the Reicks on this issue, the court correctly determined that the elements required to establish an easement by necessity were not satisfied. An easement by necessity arises when there is unity of ownership and strict necessity. Ashby v. Maechling, 2010 MT 80, ¶ 19, 356 Mont. 68, 229 P.3d 1210. Strict necessity is defined as “a lack of practical access to a public road for ingress or egress.” Additionally, strict necessity must exist at the time of severance to create an easement by necessity. Kelly v. Burlington N. R.R., 279 Mont. 238, 243, 927 P.2d 4, 7 (1996). The record shows that at the time of severance Appellants had an existing roadway, an established route for ingress and egress, and a granted easement; consequently, there was no easement by necessity as a matter of law. ¶30 Lastly, Appellants claim they acquired an implied easement by pre-existing use before the subdivision was created and the tracts were severed from common ownership. They assert that when the original two families subdivided the property for residential development in 1974, these owners intended the implied easement by pre-existing use to continue after severance. Appellants’ argument is unpersuasive and unsupported. As established above, Appellants have a written, express easement that clearly identifies the easement granted by the original grantor. This written easement gives Appellants access via the Easement Road to their property. Moreover, a claim to an implied easement by pre-existing use does not provide Appellants with additional rights or property beyond those granted by the express easement. The express easement is the controlling easement. ¶31 The scope of the easement to which Appellants are entitled includes maintenance or reconstruction of the Easement Road as much as practicable within the 20-foot easement corridor, providing such construction complies with applicable regulations and does not unduly burden the servient estate. The court’s order of summary judgment on this issue was correct as a matter of law. ¶32 Did the District Court err by rejecting Appellants’ claim of authority to sign and submit an application for a lakeshore improvement permit? ¶33 Appellants argue that the scope of their easement includes the right to improve the road in any manner required to stay above floodwaters and that they should be authorized to sign for lakeshore improvement permits to accomplish such improvements. They claim the District Court erred when it denied their request for summary judgment on this issue. The District Court observed that Appellants presented no specific plan for raising the road; rather, they simply requested declaratory judgment that their easement authorized them to repair and maintain the Easement Road and they should be allowed to obtain permits necessary to do so. The court noted that the right to obtain lakeshore improvement permits normally rests with the landowner. Additionally, Appellants had no right under their easement to “unreasonably interfere with [Reicks’] reasonably convenient enjoyment of the servitude” or do unnecessary injury to the Reicks’ property. Consequently, the District Court did “not find it appropriate to entirely remove [Reicks] from decision making regarding changes to the road that affect the [sic] both the lakeshore and [Reicks’] property.” The District Court held Appellants were “not entitled to a Court order permitting them to apply for lakeshore improvement permits” without Reicks’ approval. ¶34 Appellants present no legal authority supporting their claim of a right to sign for permits authorizing improvements to land they do not own. Appellants have a right to repair and maintain their single express easement providing such repairs and maintenance can take place within the 20-foot easement property, are in compliance with applicable regulations, and do not unreasonably interfere with Reicks’ enjoyment of their property. Earl v. Pavex, 2013 MT 343, ¶ 44, 372 Mont. 343, 313 P.3d 154. The District Court did not err in denying Appellants’ motion for summary judgment as to this issue. ¶35 Did the District Court err by concluding the Maintenance Agreement is unenforceable against the Reicks for lack of consideration? ¶36 As noted above, the Reicks and Appellants entered into the 1992 Maintenance Agreement which set forth that a majority of signatories could determine what repairs and maintenance to the Easement Road were needed and when these repairs would take place. The Maintenance Agreement provided that all signatories would share the costs of such repairs or maintenance. Appellants allege that the Reicks breached the Maintenance Agreement by refusing to defer to the majority’s desired repairs and refusing to share in the costs of such repairs. The District Court held that the 1992 Maintenance Agreement was unenforceable against the Reicks for want of consideration, stating the Reicks gained nothing by signing the 1992 agreement and Appellants gave up nothing. ¶37 The essential elements of a contract are: (1) identifiable parties capable of contracting; (2) the consent of these parties; (3) a lawful object; and (4) consideration. Section 28-2-102, MCA. Consideration consists, in part, of any “benefit conferred or agreed to be conferred upon the promisor by any other person ....” Section 28-2-801, MCA. It is undisputed that the Reicks share the use of the Easement Road. Upon entering into the 1992 Agreement, they received the benefit of a cost-sharing arrangement for road maintenance and repair. Such mutual benefit constitutes consideration rendering the Maintenance Agreement enforceable against the Reicks. The District Court erred in holding that the Maintenance Agreement was unenforceable against them; however, as discussed below, the error is harmless and does not warrant remand. ¶38 Did the District Court err by ruling that the Reicks did not breach the Maintenance Agreement? ¶39 Appellants claim that the Reicks breached the Maintenance Agreement by refusing (1) to comply with the majority of the homeowners’ decision to improve the Easement Road; (2) to allow the spur road gravel to be placed on the Easement Road; and (3) to share in the cost of the spur road fill materials. They posit that the District Court erred by denying their motion for summary judgment on the Reicks’ breach, and by entering judgment against them on this issue following trial. ¶40 While the majority of the Appellants signing the Maintenance Agreement did determine repairs to the Easement Road were required, the proposed repairs—a five to seven foot elevation of the Easement Road—could not be achieved within the Appellants’ easement. Because the purpose of the Maintenance Agreement was to preserve the usability of the easement, it must be interpreted within the confines and restrictions of the easement. There is no evidence that the Maintenance Agreement was prepared and executed with the intent to expand the size of the easement or grant greater rights to Appellants under the easement. Had Appellants proposed repairs to the Easement Road that could have been attained within the easement boundaries, the Reicks would have been obligated under the Maintenance Agreement to agree to the repairs and share in the costs. As Appellants have not yet proposed such repairs or maintenance, the Reicks have not breached the Maintenance Agreement. ¶41 As the Reicks have not breached the Maintenance Agreement, the District Court’s erroneous holding that the agreement was unenforceable for lack of consideration is harmless. ¶42 Did the District Court err by concluding that Appellants breached the Detour Agreement, and awarding damages to the Reicks ? ¶43 Appellants argue that the Reicks prevented them from performing their obligations under the Detour Agreement by refusing to allow them to remove the spur road gravel and apply it to the Easement Road. Additionally, they claim the Detour Agreement did not require that they restore Reicks’ property “as soon as the water receded”; rather, that was a County requirement. They assert that the majority of the gravel used for the spur road was located on their easement and should not have been removed. Lastly, they assert the Reicks are not entitled to equitable relief as the Reicks have “unclean hands.” ¶44 The District Court determined that the Reicks did nothing to prevent Appellants from performing under the terms of the Detour Agreement, and that Appellants breached the contract by refusing to remove the fill material and restore the Reicks’ property in a timely manner. The court entered judgment for the Reicks on their counterclaim in the sum of $5,300, representing the costs incurred by the Reicks to remove the fill material and return their property to its original condition, together with prejudgment interest. ¶45 The record does not support Appellants’ allegations. It is undisputed that the floodwaters receded in the summer of 2012 and the Reicks and the County demanded removal of the spur road. Appellants refused. One year later, Reicks demanded removal and restoration again and the Appellants refused again. The terms of the Detour Agreement were simple and unequivocal. Reicks would allow the spur road to be constructed and used by Appellants and Appellants would remove it and restore Reicks’ property when the water receded. The Detour Agreement was a binding agreement and the Reicks performed as required. The Reicks did nothing to prevent Appellants from performing under the agreement. The District Court did not err in granting summary judgment to the Reicks on this issue. ¶46 Did the District Court err by concluding the Reicks did not convert the Appellants’ fill material ? ¶47 Appellants claimed the Reicks committed conversion of property by removing and disposing of the gravel fill material Appellants had purchased and used to construct the spur road and repair portions of the Easement Road. Appellants argued they intended to remove the material from the spur road and reuse it for further repairs to the Easement Road. They claimed damages in the amount of $5,564, i.e., the price of the gravel. Reicks countered that Appellants contracted to remove the fill and breached the contract by refusing to do so; consequently, Appellants waived their right to possession of it. Furthermore, Reicks assert they were forced to provide free storage for 640 tons of fill material after the floodwaters receded and the fill was no longer needed. The District Court denied Appellants’ claim for conversion. ¶48 Conversion requires ownership of property; a right of possession; unauthorized dominion over that property by another; and resulting damages. Eatinger v. Johnson, 269 Mont. 99, 104, 887 P.2d 231, 234 (1994). In the case before us, Appellants suffered no damages. Under the Detour Agreement, Appellants were under a contractual obligation to pay the costs of removing the fill material and restoring Reicks’ property to its pre-flood condition. Additionally, testimony by County officials established that the fill material used to construct the spur road and temporarily repair the Easement Road during the flood period did not meet County standards and would not be sanctioned for Easement Road repairs. As a result, Appellants would have had to remove and dispose of the fill material in any event. As Appellants refused to do so, the Reicks undertook the removal and restoration of the property. Consequently, Appellants suffered no damage from Reicks’ removal of the unwanted and unusable fill material and the District Court did not err in denying Appellants’ claim for conversion. ¶49 Did the District Court err by ordering Appellants to pay Reicks’ counterclaim-related attorney’s fees and costs? ¶50 As noted above, the Reicks counterclaimed against Appellants for breach of the Detour Agreement, quantum meruit, and breach of the implied covenant of good faith. Following the District Court’s ruling that the Reicks prevailed on their counterclaim, and relying upon § 25-7-105(1) and (3), MCA, the court awarded Reicks the attorney’s fees and costs pertaining to the counterclaim. Appellants claim this was error and that Appellants are entitled to their fees and costs. ¶51 Section 25-7-105, MCA, provides, in relevant part: (1) At any time more than 60 days after service of the complaint and more than 30 days before the trial begins, any party may serve upon the adverse party a written offer to settle a claim for the money or property or to the effect specified in the offer. If within 10 days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service of the offer and notice of acceptance with the clerk of court and the court shall enter judgment. An offer not accepted is considered withdrawn and evidence of the offer is not admissible except in a proceeding to determine costs. If the final judgment is less favorable to the offeree than the offer, the offeree shall pay the costs incurred by the offeror after the offer was made. The fact that an offer is made but not accepted does not preclude a subsequent offer. (3) For the purposes of this section, costs include reasonable attorney fees. ¶52 The Reicks presented their offer of settlement of the counterclaim on December 31, 2013, seeking $5,250 from Appellants. The Reicks also notified Appellants of their potential liability for attorney’s fees and costs under § 25-7-105, MCA. Appellants submitted their counter-offer of settlement of the counterclaim on April 15, 2014, seeking $5,564. As the Reicks prevailed on their counterclaim and the final judgment of $5,300 was less favorable to the Appellants than their settlement offer, the District Court awarded the Reicks attorney’s fees and costs. The District Court’s interpretation and application of the statute was not error. CONCLUSION ¶53 For the foregoing reasons, we affirm the District Court’s rulings with the exception of its conclusion that the Maintenance Agreement was unenforceable against the Reicks for want of consideration. While this was error, it was harmless error as the Reicks did not breach the Maintenance Agreement. CHIEF JUSTICE McGRATH, JUSTICES BAKER, McKINNON and SHEA concur.

JUSTICE SHEA delivered the Opinion of the Court. ¶1 Carl Algee appeals an order of the Eighth Judicial District Court, Cascade County, granting partial summary judgment to Steven and Janet Hren. The summary judgment order dismissed all of Algee’s claims, while leaving some of the Hrens’ claims for further adjudication. The District Court certified the order as final pursuant to M. R. Civ. P. 54(b) to determine whether it correctly invoked the doctrine of laches to dismiss most of Algee’s claims. We address the following issue on appeal: Whether the District Court properly applied the doctrine of laches to bar all of Algee’s claims not already barred by statutes of limitation. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Algee and the Hrens own adjoining properties. The Hrens’ property holds an easement that runs through Algee’s land, including along a creek embankment. In August of 2010, the Hrens began to build a road on their easement to access their property. On August 30, 2010, Algee filed a complaint with the Cascade Conservation District (CCD) regarding the Hrens’ easement road project. The CCD issued a Stop Work Order. The Hrens ceased construction, altered their plans, and submitted them to the CCD. The CCD further modified the plans before issuing the necessary permit (310 Permit) to continue road construction. On September 21,2010, Algee received a letter informing him of the approved plan and the issued 310 Permit. The Hrens completed the road along their easement in October 2010, at a cost of approximately $40,000. ¶4 On August 21, 2013, Algee sued the Hrens over the easement. Algee’s Complaint alleged, in part, that the Hrens destroyed an access trail when constructing the easement road in 2010. On the same date, Algee also filed a Notice of Lis Pendens. The Lis Pendens prevented the Hrens from closing on the sale of their property, which was scheduled for August 26, 2013. On October 11, 2013, the Hrens filed their Answer, Counterclaim, and a Request for a Permanent Injunction. On April 9,2015, the Hrens filed Defendants’ Motion for Partial Summary Judgment on Plaintiffs Claims. On April 20, 2015, the Hrens filed an Amended Answer and Counterclaim through an unopposed M. R. Civ. P. 15(a)(2) motion. The Amended Answer included a Doctrine of Laches affirmative defense. ¶5 On July 28, 2015, the District Court entered its Order Regarding Defendants’ Motion for Summary Judgment and Plaintiffs Cross-Motion for Partial Summary Judgment on Attorney’s Fees Issue. The District Court held that Algee’s Trespass and Negligence claims were barred by the statutes of limitation, and Algee’s remaining claims were barred by laches. Algee does not appeal from the District Court’s order applying the statutes of limitation, but does challenge the Court’s ruling with respect to laches. Algee appeals. STANDARD OF REVIEW ¶6 The parties dispute the applicable standard of review. Algee argues that the District Court’s order should be reviewed de novo because the appeal is taken from a grant of summary judgment. The Hrens argue that the standard is whether the District Court abused its discretion, relying on Williard v. Campbell Oil Co., 77 Mont. 30, 248 P. 219, 224 (1926). Regarding the appropriate standard of review to apply in this case, Williard is inapposite because it dealt with an appeal from a bench trial. Williard, 77 Mont. at 33, 248 P. at 220. We have consistently held that an order on summary judgment is reviewed de novo, applying the same criteria as the district court. Denturist Ass’n of Mont. v. State, 2016 MT 119, ¶ 7, 383 Mont. 391, 372 P.3d 466 (citing Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 36, 345 Mont. 12, 192 P.3d 186). Under M. R. Civ. P. 56(c), summary judgment is appropriate where there is a complete absence of genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Lorang, ¶ 37. DISCUSSION ¶7 Whether the District Court properly applied the doctrine of laches to bar all of Algee’s claims not already barred by statutes of limitation. ¶8 The doctrine of laches is an equitable remedy—asserted as an affirmative defense under M. R. Civ. P. 8(c)(1)—“by which a court denies relief to a claimant who has unreasonably delayed or been negligent in asserting a claim, when the delay or negligence has prejudiced the party against whom relief is sought.” Anderson v. Stokes, 2007 MT 166, ¶ 19, 338 Mont. 118, 163 P.3d 1273 (citing Montanans for Justice v. State ex rel. McGrath, 2006 MT 277, ¶ 23, 334 Mont. 237, 146 P.3d 759, and Cole v. State ex rel. Brown, 2002 MT 32, ¶ 24, 308 Mont. 265, 42 P.3d 760). To determine whether laches applies, a court must find: (1) the party against whom the defense is asserted lacked diligence in asserting a claim; and (2) that lack of diligence resulted in prejudice to the party asserting the defense. Wicklund v. Sundheim, 2016 MT 62, ¶ 40, 383 Mont. 1, 367 P.3d 403 (citations omitted). The doctrine of laches’ purpose is to “discourage stale demands by the court refusing to interfere where there has been gross laches in prosecuting rights, or where long acquiescence in assertion of adverse rights has occurred.” Montanans for Justice, ¶ 25 (quoting Castillo v. Franks, 213 Mont. 232, 241, 690 P.2d 425, 429 (1984)). Although time is a factor when determining laches’ elements, “[Haches is not a mere matter of elapsed time, but rather, it is principally a question of the inequity of permitting a claim to be enforced.” Cole, ¶ 25 (citations omitted). ¶9 One way by which a lack of diligence may be demonstrated is when a claimant contemporaneously believes another is violating his or her right, yet the claimant allows the alleged unlawful act to finalize before objecting to such action. See Cole, ¶¶ 27-30; Wagner v. Woodward, 2012 MT 19, ¶¶ 29, 33, 363 Mont. 403, 270 P.3d 21. In Cole, we held that laches barred plaintiffs from challenging the process by which voters approved an initiative that imposed term limits on ten state and federal offices. Cole, ¶¶ 1, 42. The plaintiffs filed suit more than nine years after the challenged election. Cole, ¶ 17. We found that the plaintiffs contemporaneously knew of the election’s alleged deficiencies and rejected the argument that the plaintiffs’ injury was only realized nine years later when the public officials who were subject to the term limits could not stand for reelection. Cole, ¶¶ 27-30. ¶10 In Wagner, we held that laches applied when the plaintiffs failed to raise their claim before or during the defendant’s construction of a deck and fences on a lot adjacent to the plaintiffs’ land because the plaintiffs knew, or should have known, during construction that the defendant was violating the lot’s restrictive covenants. Wagner, ¶¶ 29, 33. After the defendant completed construction, the plaintiffs sued for a declaratory judgment and injunctive relief because the defendant’s eaves—which were constructed ten years earlier—deck, and fences allegedly violated the lot’s covenants. Wagner, ¶ 8. Although the plaintiffs brought suit only three months after the deck’s construction, the plaintiffs failed to claim the eaves violated the covenants for ten years. Wagner, ¶ 8. More importantly, the plaintiffs knew the construction would not conform to the covenants while the construction was taking place. Wagner, ¶ 28. We found: IN loth ingin the record ... indicated] that [the plaintiffs] were not aware of [the defendant’s] construction projects. The deck extension occurred in June, the west fence in July and the east fence in August. Nothing in the record indicates that [the plaintiffs] notified [the defendant] that they believed his projects violated the covenants; rather, they waited until the projects were completed before bringing this action. Wagner, ¶ 29. Although the plaintiffs waited 10 years to bring their claim regarding the eaves, our analysis focused on their silence during the construction project that they knew violated the covenants. ¶11 In this case, Algee knew or should have known the Hrens were allegedly destroying his access trail while constructing the road easement. He knew where the trail was located because the trail was a selling point when he purchased the property in 2008, and he admitted in his summary judgment brief that the trail’s alleged destruction was “primarily why [he] filed suit.” Algee knew the Hrens were constructing a road along their easement because Algee was the one who informed the CCD of the construction. Algee then received notice from the CCD that it approved the Hrens’ updated plans and allowed them to continue construction. Algee did not notify the Hrens, the CCD, or a district court of his access trail before or during the road easement construction. Algee then waited almost three years before bringing his claim alleging the Hrens destroyed his access trail. As in Cole and Wagner, Algee lacked diligence in bringing his claim by remaining silent while knowingly allowing the Hrens to allegedly destroy his access trail through road construction. The District Court correctly concluded that Algee’s delay in bringing his claim constituted an unexplainable delay of such character as to render enforcement of his asserted right inequitable because Algee allowed the Hrens to complete their road construction and put their property on the market before pointing out the alleged access trail destruction. We therefore next consider whether Algee’s lack of diligence prejudiced the Hrens. ¶12 In some instances, the prejudice element can be satisfied if permitting a claim to be enforced would cause inequity. See Cole, ¶ 32. In Cole, we held that the plaintiffs’ unreasonable delay in bringing their claims would prejudice others if successful because “[a]t least some of the executive officers and a large number of state legislators left office in 2000 based upon [the initiative’s] presumptive validity.” Cole, ¶ 32. We stated: “laches is not a mere matter of elapsed time, but rather, it is principally a question of the inequity of permitting a claim to be enforced.” Cole, ¶ 32 (citation omitted). ¶13 By contrast, in Anderson, we upheld a district court’s rejection of a laches defense because the party asserting the defense only used conclusory statements to support the laches prejudice element. Anderson, ¶¶ 20-21. In Anderson, the defendant asserting laches claimed he would be prejudiced if the plaintiffs claim was enforced because it would “destroy his radio station.” Anderson, ¶ 20. The defendant presented no evidence explaining how enforcing the claim would destroy his radio station, and we therefore affirmed the District Court’s rejection of the defendant’s laches defense. Anderson, ¶ 21. ¶14 The record in this case evinces the following undisputed facts relevant to the Hrens’ claims of prejudice: (1) Algee knew of his alleged access trail before the Hrens began the easement road construction; (2) Algee did not inform the Hrens of the access trail before or during the process in which the Hrens applied for and received the necessary 310 Permit to build the easement road; (3) the Hrens spent approximately $40,000 to complete the easement road; (4) Algee waited almost three years to sue the Hrens regarding the easement road, which was the first time Algee informed the Hrens about the access trail; (5) several days before Algee filed the lawsuit and the Lis Pendens, the Hrens moved their furniture to a new home in anticipation of closing on a buy/sell agreement; (6) Algee’s suit encumbered the Hrens’ property five days before the buy/sell agreement’s closing date; and (7) the Hrens’ property sale did not close. Although Algee labels the facts regarding the Hrens’ property sale as “self-serving,” he did not dispute them below; he only asserted that he lacked knowledge of the buy/sell agreement when filing the Lis Pendens. Algee may not dispute these facts for the first time on appeal. See Eitel v. Ryan, 231 Mont. 174, 178, 751 P.2d 682, 684 (1988) (holding that this Court will not fault a district court’s consideration of affidavits not objected to below). ¶15 The undisputed facts demonstrate that Algee’s lack of diligence in bringing his claim prejudiced the Hrens. His lack of diligence will also prejudice the Hrens if the claim is enforced because they will have to redo a portion of the easement road or compensate Algee for the access trail, even though the issue could have been avoided or addressed before the road’s completion had Algee acted timely. Therefore, the Hrens have satisfied the second element. ¶16 Algee contends that the District Court resolved disputed material facts, therefore goingbeyond summary judgment’s scope. Algee argues the District Court incorrectly relied on three assertions of past prejudice the Hrens suffered: (1) having to apply for a 310 permit; (2) spending approximately $40,000 completing the easement road; and (3) losing the ability to sell their home free of the Lis Pendens filed days before closing on their buy/sell agreement. We disagree. ¶17 The District Court did not resolve disputed facts, as Algee contends; it merely evaluated the undisputed facts in its laches analysis and determined that enforcing Algee’s claim would prejudice the Hrens because it would force them to redo a completed road due to Algee’s failure to timely notify them of the alleged access trail. ¶18 Regarding the undisputed fact that the Hrens’ buy/sell agreement fell through because of Algee’s suit, Algee contends he lacked knowledge of the buy/sell agreement and therefore should not suffer from the agreement falling through days after he brought suit. Algee’s knowledge of the buy/sell agreement is beside the point. Algee undisputedly knew of his access trail and its location, knew the easement road would interfere with the trail, kept silent during the 310 Permit acquisition, and kept silent during the easement road construction. ¶19 Algee next contends that the District Court’s conclusions of law pertaining to prejudice are inconsistent with this Court’s lengthy timeframe for finding a delay that may warrant a laches application. We disagree. When analyzing laches, we focus on a claimant’s lack of diligence in bringing a claim, and the prejudicial effect that has on the party asserting laches. Although the length of time is a consideration, it is not a dispositive one. See Wagner, ¶¶ 27-31. ¶20 Finally, Algee argues that a court may not apply laches when a claim’s applicable statute of limitations has not run. This argument has no merit. Laches is an equitable defense focusing on a case’s individual circumstances and “the period of time necessary to invoke laches is not measured by [a] statute of limitations.” Shimsky v. Valley Credit Union, 208 Mont. 186, 192, 676 P.2d 1308, 1311 (1984) (holding that laches barred a claim brought within the applicable statute of limitations because the defendant paid a creditor twenty-seven payments after receiving notice of an increased interest rate which he disputed two years after he should have learned of the increase); Montgomery v. First Nat’l Bank of Dillon, 114 Mont. 395, 136 P.2d 760 (1943). CONCLUSION ¶21 For the foregoing reasons, we hold the District Court did not err by granting summary judgment in favor of the Hrens on all of Algee’s claims not already barred by statutes of limitation. ¶22 Affirmed. CHIEF JUSTICE McGRATH, JUSTICES COTTER, BAKER and McKINNON concur. As an initial matter, we will not address Algee’s M. R. Civ. P. 8(c) argument that the Hrens untimely pleaded their laches affirmative defense because Algee raises this argument for the first time on appeal. We “will not put a district court in error for a ruling or procedure in which the appellant acquiesced, participated, or to which the appellant made no objection.” In re Marriage of Deist, 2003 MT 263, ¶ 31, 317 Mont. 427, 77 P.3d 525 (citation omitted). Algee did not object to the Hrens pleading laches as an affirmative defense in their Amended Answer and we will therefore not review the argument.

Affirmed Dist. 11 (Flathead)

Denied Original Proceeding Habeas Corpus

Denied Original Proceeding Habeas Corpus

Denied Original Proceeding Supervisory Control

Denied Original Proceeding Habeas Corpus

Affirmed Dist. 4 (Missoula) & Dist. 11 (Flathead)

Affirmed Dist. 22 (Carbon)

Affirmed Dist. 8 (Cascade)

Affirmed Dist. 13 (Yellowstone)

Affirmed Dist. 8 (Cascade)

Denied Original Proceeding Supervisory Control

Denied Original Proceeding Habeas Corpus

Affirmed Dist. 11 (Flathead)

Denied Original Proceeding Habeas Corpus

Affirmed Dist. 12 (Liberty)

Affirmed Dist. 1 (Lewis and Clark)

Affirmed Dist. 10 (Fergus)

Denied Original Proceeding Supervisory Control

Affirmed Dist. 8 (Cascade)

Affirmed Dist. 20 (Lake)

Affirmed Dist. 19 (Lincoln)

JUSTICE BAKER delivered the Opinion of the Court. ¶1 The Third Judicial District Court dismissed Powell County escape charges against Roderick Lee Butterfly when the parties agreed to venue in Yellowstone County. After almost seven months, the State refiled the charges in Yellowstone County. The principal dispute in this appeal is whether that time should count in analyzing Butterfly’s speedy trial claim. The District Court ruled that the speedy trial clock did not start running at all until the Yellowstone County charges were filed. Although we count the time somewhat differently, we agree that Butterfly was not denied a speedy trial. We affirm the denial of his motion to dismiss. PROCEDURAL AND FACTUAL BACKGROUND ¶2 On October 10,2013, Butterfly failed to return to the Billings Pre-Release Center as scheduled. He was charged with escape in violation of § 45-7-306, MCA, the following day in Powell County. Butterfly was arrested in Glacier County and was transferred to Montana State Prison (MSP). Butterfly objected to the Powell County venue, asserting that he should have been charged in Yellowstone County where the alleged offense took place. The State stipulated that venue was proper in Yellowstone County. ¶3 The State then moved to dismiss the escape charge without prejudice based on the parties’ stipulation of proper venue. The Powell County District Court granted the State’s motion and dismissed the case without prejudice on February 11, 2014. Nearly seven months later, on September 8, 2014, the State filed the escape charges in Yellowstone County. Butterfly was transferred from MSP to the Yellowstone County Detention Facility for prosecution. Trial was set for February 9, 2015. ¶4 Before trial, Butterfly filed a motion to dismiss the case for lack of speedy trial, arguing that 445 days would have passed by the time he appeared for trial. Butterfly asserted that his right to speedy trial had attached upon his initial appearance on the Powell County charge and continued throughout the charge’s dismissal and its pending refiling in Yellowstone County. Butterfly attributed the excessive delay to the State and claimed that he had suffered prejudice because of it. ¶5 Following an evidentiary hearing, the District Court denied Butterfly’s motion to dismiss. It concluded that Butterfly’s right to a speedy trial had not attached until the charges were re-filed in Yellowstone County—155 days before trial. The court also analyzed the alleged speedy trial violation under the factors articulated in State v. Ariegwe, 2007 MT 204, ¶¶ 106-112, 338 Mont. 442, 167 P.3d 815, and concluded that there was “insufficient prejudice” to Butterfly to constitute a speedy trial violation. Butterfly later pleaded guilty to the escape charge, reserving the right to appeal the speedy trial issue. STANDARD OF REVIEW ¶6 A speedy trial violation presents a question of constitutional law that we review de novo to determine whether the court correctly interpreted and applied the law. State v. Zimmerman, 2014 MT 173, ¶ 11, 375 Mont. 374, 328 P.3d 1132 (citing Ariegwe, ¶ 119). We review the court’s underlying factual findings for clear error. Zimmerman, ¶11. DISCUSSION ¶7 Did the District Court err in denying Butterfly’s motion to dismiss for lack of a speedy trial ? ¶8 The Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24, of the Montana Constitution guarantee every accused person the right to a speedy trial. Zimmerman, ¶ 12. When an accused claims that right has been violated, we consider (1) the length of the delay, (2) the reasons for the delay, (3) the accused’s responses to the delay, and (4) prejudice to the accused as a result of the delay. Zimmerman, ¶ 12. We balance these factors “with any other relevant circumstances to determine whether the right to a speedy trial has been violated.” State v. Stops, 2013 MT 131, ¶ 19, 370 Mont. 226, 301 P.3d 811. “[E]ach factor’s significance will vary from case to case,” and “a given factor may outweigh all of the others in one case but be of little consequence in another.” Ariegwe, ¶ 105. (1) Length of the Delay ¶9 We determine initially whether the length of the delay is at least 200 days, “which is the trigger date for conducting the four-factor balancing test.” Zimmerman, ¶ 13. In the present case, the District Court found that Butterfly “first became an accused on September 8, 2014, the date [he] was charged with Escape in Yellowstone County.” The interval between the Yellowstone County filing and trial was 155 days. The court concluded, “Because the interval between the accusation and the trial is less than 200 days it does not trigger any analysis under the four [Ariegwe] factors or the balancing of those factors.” ¶10 Butterfly argues that the District Court erred in determining that his speedy trial right did not attach until he was charged in Yellowstone County. Butterfly contends that “the length of delay runs from the time of accusation” and “as soon as an individual is subjected to proceedings for an offense.” Butterfly claims that this Court “has not specifically addressed when the speedy trial clock starts running if a charge is filed, dismissed and subsequently re-filed.” He relies on State v. Daniels, 248 Mont. 343, 811 P.2d 1286 (1991), in which we concluded that a defendant’s right to a speedy trial attached upon a petition charging the defendant for burglary in youth court despite the charge being later transferred to district court. Daniels, 248 Mont. at 349, 811 P.2d at 1289. Butterfly argues that, “like Daniels, [he] was subject to criminal proceedings regarding exactly the same charge for exactly the same conduct a full year before the [information] was filed in Yellowstone County.” ¶11 The State agrees that the District Court erred in its determination that the speedy trial right attached only when the charges were filed in Yellowstone County. Relying on United States v. MacDonald, 456 U.S. 1, 102 S. Ct. 1497 (1982), however, the State argues that “the speedy trial clock stops running while the charges are dismissed.” The State maintains that the speedy trial clock started running when the charge was filed in Powell County, stopped when the charge was dismissed, and began running again when the charge was re-filed in Yellowstone County. The State contends that Daniels is distinguishable “because Daniels was continuously subject to charges in either the youth court or the district court.” Here, in contrast, “[t]here was not a charge pending against Butterfly from the time the charge was dismissed in Powell County until he was charged in Yellowstone County.” ¶12 Butterfly attacks the State’s reliance on MacDonald because it dealt with an arrest on a military investigation and “there is a question whether a military investigation constitutes a formal charging for speedy trial issues.” Butterfly points out the MacDonald Court’s acknowledgment that in United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976), the speedy trial clock did not stop between the time charges were dismissed in one district and subsequently re-filed in another district. He contends that the factual scenario in Avalos is more applicable to his case because he was not in the same position he would have been in a pre-filing investigation. Because of the escape charge “hanging over his head,” Butterfly contends that he “was not free to go about discharging his other sentence.” ¶13 The right to a speedy trial is intended to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. MacDonald, 456 U.S. at 8, 102 S. Ct. at 1502. ¶14 In MacDonald, a military physician was accused of committing murder on a military base. The Army charged MacDonald with the murders, but dropped the charges after several months and MacDonald was honorably discharged. MacDonald, 456 U.S. at 4-5, 102 S. Ct at 1500. Four years later, the government obtained an indictment in federal district court charging MacDonald with murder. MacDonald claimed that the delay violated his Sixth Amendment right to a speedy trial and the Fourth Circuit agreed. The United States Supreme Court reversed. MacDonald, 456 U.S. at 11, 102 S. Ct. at 1503. The Court concluded that the speedy trial guarantee did not attach to the time period after dismissal of the military charges and before the civil indictment. MacDonald, 456 U.S. at 7-8, 102 S. Ct. at 1501-02. The Court reasoned that during that time there was no pretrial incarceration, no impairment of liberty associated with being released on bail, and no “disruption of life caused by arrest and the presence of unresolved criminal charges.’’ MacDonald, 456 U.S. at 8, 102 S. Ct. at 1502. The Court stated, “Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.” MacDonald, 456 U.S. at 9, 102 S. Ct. at 1502. ¶15 As Butterfly points out, the MacDonald Court noted that the Fifth Circuit had “reached a seemingly contrary result” in Avalos by counting the time between indictments. MacDonald, 456 U.S. at 7 n.7, 102 S. Ct. at 1501 n.7. The Supreme Court noted the “unusual” circumstances in that case, in which “the Government dismissed charges pending in one district in order to prosecute the defendants on those same charges in another district.” MacDonald, 456 U.S. at 7 n.7, 102 S. Ct. at 1501 n.7. The Avalos court concluded that the defendants became “accused persons” when the government issued the original warrants for their arrest. Avalos, 541 F.2d at 1108. The Fifth Circuit stated, “That [one defendant] was never incarcerated and [the other defendant] was imprisoned for a relatively short period does not expunge the public accusation.” Avalos, 541 F.2d at 1108. The court concluded that because the defendants’ initial arrest “formledl the basis of the conviction under review,” the right to a speedy trial attached on the date of the initial arrests. Avalos, 541 F.2d at 1109. ¶16 Although not cited by either party, this Court has addressed when the speedy trial clock starts running if a charge is filed, dismissed, and subsequently re-filed. Within nine months of the MacDonald decision, this Court decided State v. Bailey, 201 Mont. 473, 655 P.2d 494 (1982). Bailey was arrested and charged with the felony offense of attempted sale of dangerous drugs. The trial court dismissed the charges because the State had not filed the information within thirty days of the defendant’s waiver of a preliminary hearing. Bailey, 201 Mont. at 475, 655 P.2d at 495. See § 46-11-203, MCA. After two unsuccessful attempts, the State later filed a new information charging Bailey with the same offense. Bailey, 201 Mont. at 475, 655 P.2d at 496. We held that the time between dismissal of the first information and filing of the second should be counted in the speedy trial calculation. Bailey, 201 Mont. at 477-78, 655 P.2d at 497. “Being an accused is all that is required for the right to speedy trial to attach.” Bailey, 201 Mont. at 477, 655 P.2d at 497 (citing State v. Larson, 191 Mont. 257, 261, 623 P.2d 954, 957 (1981)). We distinguished MacDonald. Unlike MacDonald, we reasoned, “Despite no formal charges pending, it is clear from the record [Bailey] is an accused, because ... he is in a similar position to an arrested person due to the State’s continued efforts to charge him during the interim between the first and second information.” Bailey, 201 Mont. at 478, 655 P.2d at 497. ¶17 The Ninth Circuit arrived at a very similar conclusion in United States v. Loud Hawk, 741 F.2d 1184 (9th Cir. 1984) (hereafter Loud Hawk I), rev’d by United States v. Loud Hawk, 474 U.S. 302, 106 S. Ct. 648 (1986) (hereafter Loud Hawk II). The Loud Hawk trial court dismissed all charges against the defendants on speedy trial grounds because of a seven-and-one-half year delay in bringing them to trial after the government’s interlocutory appeals of orders dismissing the charges. Loud Hawk I, 741 F.2d at 1187-88. The Ninth Circuit affirmed. Loud Hawk I, 741 F.2d at 1194. The court concluded that MacDonald was distinguishable. It counted the time period between indictments in the speedy trial analysis because “the government’s appeals after dismissal of the indictment bore the indicia and imposed the disabilities of continued, formal public accusation ... [so that] the defendants remained ‘accused’ during the periods when the government was appealing the dismissals of their indictment.” Loud Hawk I, 741 F.2d at 1190. ¶18 On certiorari, the Supreme Court reversed. The Court concluded that the speedy trial clause was inapplicable to the time during which the indictment was dismissed and the defendants were not subject to “actual restraints” on their liberty. Loud Hawk II, 474 U.S. at 312, 106 S. Ct. at 654. With no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, a citizen suffers no restraints on his liberty and is no longer the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Loud Hawk II, 474 U.S. at 311, 106 S. Ct. at 654 (citing MacDonald, 456 U.S. at 9, 102 S. Ct. at 1502) (internal quotation marks omitted). The Court went on to address the defendants’ argument that the speedy trial guarantee should apply to the interim period “because the Government’s desire to prosecute them was a matter of public record.” The Court stated, “Public suspicion ... is not sufficient to justify the delay in favor of a defendant’s speedy trial claim. We find that after the District Court dismissed the indictment against respondents and after respondents were freed without restraint, they were ‘in the same position as any other subject of a criminal investigation.’ ’’Loud Hawk II, 474 U.S. at 311, 106 S. Ct. at 654 (quoting MacDonald, 456 U.S. at 8-9, 102 S. Ct. at 1502). ¶19 Loud Hawk II compels us to revisit our decision in Bailey. Our analysis distinguishing MacDonald in Bailey is, for all intents and purposes, identical to the Ninth Circuit’s analysis distinguishing MacDonald in Loud Hawk I. We said that a person who is subject to “public accusation” absent charge or actual restraint is afforded speedy trial protection. Bailey, 201 Mont. at 477-78, 655 P.2d at 496-97. Loud Hawk II expressly rejected the Ninth Circuit’s identical conclusion in Loud Hawk I. Loud Hawk II, 474 U.S. at 312, 317, 106 S. Ct. at 654, 657. ¶20 MacDonald held that “[o]nce charges are dismissed,” as the State did here, “the speedy trial guarantee is no longer applicable.” MacDonald, 456 U.S. at 8, 102 S. Ct. at 1502. Loud Hawk II reaffirmed that, “when no indictment is outstanding, only the ‘actual restraints imposed by arrest and holding to answer a criminal charge ... engage the particular provisions of the speedy trial provision of the Sixth Amendment.’ ’’ Loud Hawk II, 474 U.S. at 310-11, 106 S. Ct. at 653-54 (quoting United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463 (1971), and citing MacDonald, 456 U.S. at 9, 102 S. Ct. at 1502) (emphasis in original). ¶21 In reversing the Ninth Circuit, Loud Hawk II held that a public accusation absent formal charges or actual restraint does not engage protection of the speedy trial clause. Loud Hawk II, 474 U.S. at 310-11, 106 S. Ct. at 654. “The holding in Loud Hawk [II] is based on drawing a distinguishing line between a citizen against whom charges have been dismissed and one ‘who has been arrested and held to answer.’ ” United States v. Hayden, 860 F.2d 1483, 1486 (9th Cir. 1988) (quoting Loud Hawk II, 474 U.S. at 311, 106 S. Ct. at 654). Butterfly’s assertion that he remained “an accused” after dismissal of the initial charges is directly contrary to Loud Hawk II. After dismissal, Butterfly was “in the same position as any other subject of a criminal investigation.” MacDonald, 456 U.S. at 8-9, 102 S. Ct. at 1502. That it was well-known that the State would eventually re-file charges against Butterfly “is not legally significant” as applied to the speedy trial clause. Hayden, 860 F.2d at 1486 n.3 (citing Loud Hawk II, 474 U.S. at 311, 106 S. Ct at 654). True, Butterfly was incarcerated in MSP during the time between the dismissal and re-filing. But his incarceration was the result of a prior and wholly separate conviction—not of the escape charge. And, while Butterfly contends that he was adversely affected by the “Escape charge hanging over his head,” [t]he Speedy Trial Clause does not purport to protect a defendant from all effects flowing from a delay before trial. The Clause does not, for example, limit the length of a pre-indictment criminal investigation even though the “the [suspect’s] knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life.” Loud Hawk II, 474 U.S. at 311-12, 106 S. Ct. at 654 (quoting MacDonald, 456 U.S. at 9, 102 S. Ct. at 1502). ¶22 The Supreme Court’s unequivocal holding in Loud Hawk II compels us to conclude that Bailey has been abrogated. Bailey’s holding that a speedy trial right attaches during the time period between dismissal and re-filing of subsequent charges when the accused is under no official restraint is overruled. Delay while no charges are pending generally is to be measured by due process standards, similar to pre-indictment delay. MacDonald, 456 U.S. at 8, 102 S. Ct. at 1502. ¶23 We hold that the time period from the dismissal of the charge initially filed against Butterfly in Powell County to the filing of the charge in Yellowstone County is not counted for purposes of determining the length of the delay. We acknowledge that the MacDonald Court distinguished Avalos because of the “unusual” circumstances in that case. We agree with the First Circuit, however, that “[t]hat distinction ... flies in the face of the opinion itself: MacDonald holds that the speedy trial right simply does not attach to one not formally accused.” United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988). “MacDonald was as certain of his continuing and public prosecution as is an individual, such as [Butterfly], who believefd] he [would] be indicted in a different district.” Colombo, 852 F.2d at 24 (internal citations omitted). ¶24 Of note, we have held that the re-filing of charges between justice court and district court restarts the speedy trial clock. In State v. Topp, 2003 MT 209, 317 Mont. 59, 75 P.3d 330, Topp was charged with two misdemeanor offenses in justice court. Those charges were dismissed because the State intended to file charges in district court. Topp, ¶ 3. A week later, the State charged Topp with a felony, along with the two previously-dismissed misdemeanor charges, in district court. On appeal, Topp argued that the district court erred in denying his motion to dismiss the misdemeanor charges because his speedy trial right had been violated. Topp, ¶ 10. We concluded that Topp’s argument was “totally without merit” because “[n]o charges were pending” against him after the justice court charges were dismissed and before the charges were re-filed in district court, and “consequently, no speedy trial ‘clock’ was running.” Topp, ¶ 10. We applied the same principles in State v. Case, 2013 MT 192, 371 Mont. 58, 305 P.3d 812. In Case, the facts presented “the other side of the Topp coin—the charges against Case were dismissed by the District Court and re-filed in Justice Court.” Case, ¶ 13. “When the District Court dismissed Case’s felony [partner or family member assault] charge, there were no charges pending against Case and thus, no speedy trial clock was running.” Case, ¶ 13. ¶25 Notwithstanding our decisions in Topp and Case, the State concedes that the speedy trial clock began running when charges first were filed in Powell County. Consistent with MacDonald, we agree. MacDonald, 456 U.S. at 7, 102 S. Ct. at 1501. The clock ran until the Powell County charge was dismissed, and started again when the State filed charges in Yellowstone County. The total length of the delay was 277 days—123 days for the time between the first charge and dismissal, plus 154 days for the time between the second charge and trial. The District Court therefore erred in calculating the length of the delay. ¶26 A delay of 277 days is sufficient to trigger further analysis under the four Ariegwe factors. Zimmerman, ¶ 13. “[T]he further the delay stretches beyond the trigger date, the stronger the presumption is under Factor Four that the accused has been prejudiced by the delay, and the heavier the State’s burden is under Factor Two to provide valid justifications for the delay.” Zimmerman, ¶ 14 (citing Ariegwe, ¶¶ 49, 61). Based on our case law, we conclude that a 77-day delay beyond the 200-day trigger date does not impose on the State a heavy burden to justify the delay. See Zimmerman, ¶ 14 (concluding that an 89-day delay beyond the trigger date is “not particularly long and, therefore ... the State’s burdens under Factors Two and Four are relatively low”); State v. Charlie, 2010 MT 195, ¶ 50, 357 Mont. 355, 239 P.3d 934 (holding that a 70-day delay beyond the trigger date was not long enough to require the State to “show a particularly compelling justification for the delay”). (2) Reasons for the Delay ¶27 Under Factor Two, a court is required to “identify each period of delay in bringing the accused to trial, attribute each period of delay to either the State or the defendant, and then assign appropriate weight to each period of delay based on specific cause and culpability.” Charlie, ¶ 51 (citations and internal quotation marks omitted). Institutional delay, “caused by circumstances largely beyond the control of the prosecutor and the accused, such as overcrowded court dockets!,] is attributable to the State, but weighs less heavily against it than delay caused by bad faith, negligence or lack of diligence.” State v. Couture, 2010 MT 201, ¶ 72, 357 Mont. 398, 240 P.3d 987 (citing Ariegwe, ¶ 68; State v. Billman, 2008 MT 326, ¶ 20, 346 Mont. 118, 194 P.3d 58). Because Butterfly’s speedy trial right did not attach during the interval between dismissal and re-filing of the charges, we do not identify it as a “period of delay” and will not consider under this factor the State’s alleged lack of diligence in re-filing the charges. ¶28 Despite finding less than 200 days of delay, the District Court considered the remaining factors “for purposes of argument.” The District Court concluded that the delay between Butterfly’s arrest and his assertion of improper venue was institutional delay. The court attributed to Butterfly the delay between the filing of Butterfly’s motion and the court’s decision to dismiss the case, “as it was triggered by his motion to change venue.” The court concluded that the final delay—the time between the charge in Yellowstone County and the day of trial—was institutional delay. The court specifically found that none of those delays were bad faith delays by the State, but were “due to either a lack of diligence by Powell County or simple institutional delay as a result of overcrowded court dockets.” ¶29 Butterfly argues that the court erred in attributing part of the pre-dismissal delay to him on the basis that he objected to venue. Butterfly contends, “That the State filed the charges in the wrong venue should not be attributed to Butterfly in any circumstance.” Although he stipulated to Yellowstone County as the proper venue, Butterfly emphasizes that it was the State that filed the motion to dismiss. ¶30 Taking the position that “[a]ll of the delay in this case was institutional,” the State argues that “some weight should be given to Butterfly because his objection to venue caused a significant amount of delay.” According to the State, had Butterfly not objected to venue in Powell County, he likely “could have been brought to trial much sooner.” ¶31 If an offender serving a state prison sentence or commitment to the Department of Corrections is charged with escape, the law expressly allows the State to file the charge in any county in the state, “without objection from the person charged.” Section 46-3-110(2), MCA. Because Butterfly had been committed to the Department at the time he walked away from the Billings Pre-Release Center, the State properly charged the case in Powell County. Butterfly, in turn, was within his right under the statute to object to the Powell County venue. Given that both parties followed a procedure expressly contemplated by § 46-3-110(2), MCA, we conclude that the objection to venue and re-filing of escape charges do not by themselves weigh against either party, but are “inherent in the criminal justice system.” Zimmerman, ¶ 19. The delay in this case was institutional. As such, it is attributable to the State, “but weighs less heavily against it than delay caused by bad faith, negligence or lack of diligence.” Couture, ¶ 72. (3) The Accused’s Responses to the Delay ¶32 Under Factor Three, we evaluate the accused’s response to the delay, such as his or her acquiescence in or objection to pretrial delay. Couture, ¶ 50. “[T]he issue is not simply the number of times the accused acquiesced or objected!;] [rjather the focus is on the surrounding circumstances.” Zimmerman, ¶ 22. We consider the “totality of the accused’s responses” to ascertain whether the accused “actually wanted” a speedy trial. Zimmerman, ¶ 22. ¶33 The District Court concluded that Butterfly had not waived his constitutional right to a speedy trial at any time during the proceedings. It noted that his objection to venue was “his right” and “in accordance with the Montana statute.” The court concluded further that Butterfly had asserted his speedy trial right by filing his motion to dismiss on December 18, 2014. The record supports the District Court’s conclusion, and we agree. (4) Prejudice to the Accused ¶34 Under Factor Four, we consider whether the delay prejudiced the accused “in light of the interests that the speedy trial right was designed to protect: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern caused by unresolved criminal charges, and (iii) limiting the possibility that the accused’s ability to present an effective defense will be impaired.” Zimmerman, ¶ 28. Whether pretrial incarceration is oppressive depends on the “particular circumstances,” including the duration and conditions of the incarceration. Couture, ¶ 56. In assessing an accused’s anxiety and concern, this Court focuses on “the ways in which the presence of unresolved charges disrupted the accused’s life,” keeping in mind that “[a] certain amount of anxiety and concern is inherent in being accused of a crime.” Couture, ¶ 64. The third interest evaluates issues of evidence, witness reliability, and the accused’s ability to present an effective defense. Ariegwe, ¶ 98. “[I]n the absence of affirmative proof that the delay has impaired the accused’s ability to present an effective defense, impairment must be assessed based on other factors in the analysis.” Ariegwe, ¶ 100. ¶35 The District Court concluded that Butterfly’s pretrial incarceration was not oppressive. The court explained that when Butterfly walked away from the pre-release center, he violated the rules and conditions of his placement there. According to the court, Butterfly’s transfer to MSP following his arrest was “a result of the administrative findings that he had violated the rules and conditions of his transfer to the Pre-Release Center.” The court observed that, during the pretrial delay, Butterfly “was not in a position to have employment outside of the prison setting [and] was only able to provide child support with his earnings within [MSP].” It reasoned, however, that Butterfly was in MSP as a result of felonies for which he had been convicted that were unrelated to the escape charge. “For the same reasons,” it concluded, Butterfly’s anxiety and concern were caused “not by the presence of unresolved criminal charges but by the fact that he continues to be incarcerated at [MSP] for underlying felonies.” The court determined also that Butterfly’s ability to present an effective defense was not impaired by the delay because the allegations in the affidavit and motion for leave to file information are “clear and concise”; Butterfly’s “circumstances and status” as of the date of his arrest “are clear”; and whether he returned to the pre-release center as required “is clear.” In balancing the factors, the court found that there was “insufficient prejudice” to Butterfly under the “totality of the circumstances.” It concluded that his constitutional right to a speedy trial was not violated. ¶36 Butterfly maintains that he was prejudiced because he was incarcerated continuously from the time he was arrested to the time he was sentenced. He argues that he was no longer able to work—as he had in pre-release—towards paying “child support, fines, etc.” He also claims that he “was saddled with paying the costs of assigned counsel and other court surcharges, [which] could have been avoided” had the State filed the charge in Yellowstone County in the first place. ¶37 The State argues that because Butterfly’s pretrial incarceration was not caused by the escape charges, “it does not count as prejudice in the speedy trial analysis.” The State argues also that Butterfly “did not demonstrate that he had anxiety and concern about the escape charge” because, even without that charge, he “would have been incarcerated and unable to work outside of the prison.” ¶38 We agree that Butterfly’s pretrial incarceration was not oppressive. The District Court correctly concluded that Butterfly’s commitment to the Department of Corrections was the result of previous felonies unrelated to the escape charge. When Butterfly failed to return to the pre-release center as required, he violated its rules and conditions. Butterfly’s transfer to MSP was the result of violating the pre-release center’s rules and conditions, not because of the charge itself. Moreover, Butterfly acknowledges that the conditions he experienced while incarcerated at MSP and the Yellowstone County Detention Facility were those “inherent in jail and prison life.” While Butterfly may have experienced increased anxiety and concern during the time between dismissal and re-filing of the escape charge, we reiterate that his right to a speedy trial had not attached at that time, and we do not consider it in our speedy trial analysis. Butterfly has not shown that any concern or anxiety he experienced during the time the speedy trial clock was running was anything more than the “certain amount of anxiety and concern inherent in being accused of a crime.” Zimmerman, ¶ 32. Finally, Butterfly does not argue that the delay inhibited his ability to present an effective defense. “The impairment of the accused’s defense from a speedy trial violation constitutes the most important factor in our prejudice analysis.” State v. Steigelman, 2013 MT 153, ¶ 29, 370 Mont. 352, 302 P.3d 396 (citing Doggett v. United States, 505 U.S. 647, 654, 112 S. Ct. 2686, 2692 (1992)). On this record, and considering the lack of evidence of impairment in light of all other factors, Ariegwe, ¶ 100, we conclude that Butterfly was not prejudiced by the delay. ¶39 We hold that the delay in this case does not establish a constitutional speedy trial violation. Our conclusion comes after balancing the four factors in the analysis. Although the institutional delay under Factor One weighs against the State, the extent to which the delay went beyond the trigger date in Factor Two weighs in favor of the State. While our analysis under Factor Three establishes that Butterfly appropriately asserted his speedy trial right, our analysis under Factor Four decisively confirms that Butterfly did not suffer prejudice sufficient to constitute a violation of that right. CONCLUSION ¶40 We differ with the District Court in calculating the length of the delay. We conclude nonetheless that the District Court properly denied Butterfly’s motion to dismiss for violation of his right to a speedy trial. ¶41 Affirmed. CHIEF JUSTICE McGRATH, JUSTICES WHEAT, COTTER and RICE concur. Although the Supreme Court acknowledged that “delays in bringing the case to trial caused by the Government’s interlocutory appeal [brought in bad faith or for dilatory purpose] may be weighed in determining whether a defendant has suffered a violation of his rights to a speedy trial,” Loud Hawk II, 474 U.S. at 316, 106 S. Ct. at 656, that is not an issue we face here. We do not address the significance, if any, of the distinction between Topp and Case, which involved dismissal and re-filing of charges between justice court and district court, and the speedy trial analysis here.

Denied Original Proceeding Habeas Corpus

Affirmed Dist. 8 (Cascade)

JUSTICE RICE delivered the Opinion of the Court. ¶1 Appellant Kelly Ray Massey, Jr. (Massey) appeals the order of the Fourth Judicial District Court, Missoula County, denying his motion to suppress. We affirm and address the following issue: Did the District Court err by determining there was particularized suspicion for the traffic stop of Massey’s vehicle? FACTUAL AND PROCEDURAL BACKGROUND ¶2 At approximately 1:00 a.m. on June 16, 2014, Trooper Lynwood Bateman observed a sport-utility vehicle with black plastic, logo-style covers on its tail lights, and initiated a traffic stop because the covers appeared to obscure and diminish the visibility of the vehicle’s tail lights. During the traffic stop, Bateman observed signs that Massey was impaired by drugs and asked him to step out of his vehicle. As Massey stepped out, Bateman observed a small, plastic bag with possible drug residue in plain view in the passenger door pocket. Massey stated the bag was not his and declined to consent to a search of the vehicle. Bateman seized the vehicle and released Massey. A subsequent search of the vehicle pursuant to a search warrant revealed drugs, a handgun, drug paraphernalia, and other items leading to the filing of charges against Massey for criminal possession of dangerous drugs with intent to distribute, a felony, and criminal possession of dangerous drugs/opiates, a felony. ¶3 Massey moved to suppress the evidence found in his vehicle on the ground that Bateman lacked particularized suspicion to initiate a traffic stop. At the suppression hearing, Bateman testified that he was approximately 500 feet behind Massey’s vehicle when he noticed the tail light covers, which he stated “were black and covered up the light.” Bateman initiated the traffic stop “because [the tail light covers] were obscuring and diminishing the visibility of the lights to the rear,” and he needed to stop the vehicle to determine if the lights were visible from more than 1,000 feet, the distance required by statute. ¶4 Under cross examination, Bateman testified that the tail light covers functioned as stencils, which “left portions of the red visible, but they obscured it.” The following exchange also took place: Q. Okay. Do you see [these stencil-like covers] fairly often in Missoula in the line of work that you’re in? A. I see them, yeah, I would say fairly often. Q. Okay. Do you stop everybody with those? A. If I’m able to make a traffic stop, yes. Q. Okay. A. And, I mean, but that’s all dependent on the situation, other traffic and, you know, what I have going on that day. Q. And there was no other reason for your stop of the vehicle Kelly Massey was in? A. That’s correct. ¶5 Bateman compared the effect of the tail light covers to placing fingers in front of a flashlight, which “stops some of that light from going through. And, therefore, the visibility is less and the light is diminished.” ¶6 The District Court denied Massey’s motion to suppress. Massey entered into a plea agreement, but reserved his right to appeal the District Court’s ruling. Massey appeals. STANDARD OF REVIEW ¶7 We review a motion to suppress to determine whether a district court’s findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law. State v. Plouffe, 2014 MT 183, ¶ 18, 375 Mont. 429, 329 P.3d 1255 (citing State v. Dawson, 1999 MT 171, ¶ 13, 295 Mont. 212, 983 P.2d 916); State v. Chilinski, 2014 MT 206, ¶ 16, 376 Mont. 122, 330 P.3d 1169. A district court’s findings are clearly erroneous if they are not supported by substantial credible evidence, if the court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made. State v. Ellis, 2009 MT 192, ¶ 20, 351 Mont. 95, 210 P.3d 144 (citing State v. Lewis, 2007 MT 295, ¶ 17, 340 Mont. 10, 171 P.3d 731). DISCUSSION ¶8 Did the District Court err by determining there was particularized suspicion for the traffic stop of Massey’s vehicle? ¶9 The Montana and United States Constitutions prohibit unreasonable searches and seizures, Mont. Const. art. II, § 11; U.S. Const. amend. IV, which includes brief investigatory stops, State v. Ross, 2008 MT 369, ¶ 9, 346 Mont. 460, 197 P.3d 937 (citing State v. Loiselle, 2001 MT 174, ¶ 7, 306 Mont. 166, 30 P.3d 1097); State v. Roy, 2013 MT 51, ¶ 15, 369 Mont. 173, 296 P.3d 1169; City of Missoula v. Moore, 2011 MT 61, ¶ 16, 360 Mont. 22, 251 P.3d 679. Investigatory stops are valid where a law enforcement officer observes a vehicle “in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.” Section 46-5-401(1), MCA. Particularized suspicion requires, in the totality of the circumstances, “(1) objective data from which an officer can make certain inferences, and (2) a resulting particularized suspicion that the occupant of the motor vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.” State v. Flynn, 2011 MT 48, ¶ 7, 359 Mont. 376, 251 P.3d 143; accord Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. The focus of an inquiry into whether particularized suspicion existed is “entirely on what facts were available to the officer.” State v. Duong, 2015 MT 70, ¶ 14, 378 Mont. 345, 343 P.3d 1218; accord State v. Clawson, 2009 MT 228, ¶ 11, 351 Mont. 354, 212 P.3d 1056; Flynn, ¶ 11. ¶10 Section 61-9-204(5), MCA, provides: A person may not operate a motor vehicle on a highway with taillamps that are covered by a lens or a plastic cover or with a tinted or colored material, substance, system, or component placed on or in front of rear lamps, taillamps, license plate lamps, or rear lamp combinations that obscures the taillamps or diminishes the distance of visibility required by this section. The “distance of visibility” stated in this section requires that tail lamps be “plainly visible from a distance of 1,000 feet to the rear of the vehicle.” Section 61-9-204(1), MCA. Thus, there are two ways the statute may be violated: by covering the tail lights in a manner that (1) obscures the tail lamps, or (2) diminishes the tail lamps such that they are not “plainly visible” at 1,000 feet. ¶11 Massey argues that the statutory term “obscures” means “not clearly seen or easily distinguished” and is synonymous with “conceal,” which Bateman’s testimony did not establish. He argues that because his covers allowed light to shine through, they did not “obscure” the tail lights. He interprets Bateman’s testimony as espousing a “zero tolerance policy” for tail light covers that leads to vehicle stops without regard to actual suspicion on the part of the officer that the statutes are being violated. ¶12 “Obscures” is not defined by the statute but generally means, as acknowledged in part by Massey, “to make dark, dim, or indistinct” or which is “not clearly seen or easily distinguished.” Merriam-Webster’s Collegiate Dictionary 856 (Frederick C. Mish ed., 11th ed. 2012). Bateman testified that he stopped Massey because the tail light covers “were obscuring and diminishing the visibility of the lights to the rear.” He also stated that the covers were “black and covered up the light.” Clearly, these observations establish a suspicion that the tail lights were obscured. The District Court credited Bateman’s testimony, finding that “the tail light covers at issue diminished the visibility of the lights by covering the red portion of the tail lights.” Further, Bateman’s observations, initially made from a point approximately 500 feet behind Massey’s vehicle, also raised a suspicion concerning the second way to violate the statute, by not having tail lights “plainly visible” at 1,000 feet. As such, the District Court correctly concluded that Bateman had particularized suspicion of a violation of § 61-9-204(5), MCA, that justified a traffic stop. ¶13 Stopping all vehicles with tail light covers pursuant to a “zero tolerance policy,” regardless of actual suspicion of a statutory violation, would clearly be improper. Tail light covers are not per se prohibited by § 61-9-204(5), MCA. However, covers must comply with the statute and, here, Bateman’s testimony demonstrated that his stop of Massey was supported by a particularized suspicion that Massey’s covers violated § 61-9-204(5), MCA. ¶14 Affirmed. JUSTICES WHEAT, McKINNON, BAKER and SHEA concur.

Affirmed Dist. 11 (Flathead)

JUSTICE RICE delivered the Opinion of the Court. ¶1 Appellant Nicholas Andrew Marino (Marino) appeals the order of the Fifteenth Judicial District Court, Roosevelt County, denying his motion to suppress. We affirm. ¶2 We consider the following issue on appeal: ¶3 Did the District Court err by concluding that law enforcement properly conducted a canine sniff of Marino’s vehicle based upon particularized suspicion? FACTUAL AND PROCEDURAL BACKGROUND ¶4 At approximately 1:30 a.m. on June 2, 2013, Marino drove his vehicle out of the Town Pump gas station in Wolf Point, Montana, without the headlights turned on. Noticing the lack of headlights, Deputy Sheriff Corey Reum (Deputy Reum) initiated a traffic stop of Marino’s car. As Deputy Reum pulled closer to Marino’s vehicle, he noticed the vehicle did not have a rear license plate. When Deputy Reum exited his vehicle and approached Marino’s car on foot, he was unable to see inside Marino’s vehicle with his flashlight because the windows were covered in extremely dark tinting. ¶5 Deputy Reum asked to see Marino’s driver’s license, but Marino was only able to produce a California identification card. Deputy Reum advised Marino that vehicles are required by law to display license plates. Marino replied that his vehicle’s license plates were in the trunk of the car because, as testified to by Deputy Reum, “his girlfriend told him to take them off because they would attract attention to himself.” Marino, with Deputy Reum’s permission, then exited the vehicle to retrieve the plates from the trunk. ¶6 Marino walked to the trunk of the car, opened it, and leaned into the trunk to retrieve the plates. When Marino bent over, Deputy Reum noticed a sheath under Marino’s clothing. Deputy Reum told Marino to place his hands on the trunk for a pat down. Marino began to shake nervously as Deputy Reum began the search. Deputy Reum removed a large knife in a sheath concealed under Marino’s shirt and handed it to another responding officer, Officer Mehin Wehbe (Officer Wehbe), of the Wolf Point Police Department. Deputy Reum continued his pat down and discovered a large lump in Marino’s front pocket which he could not rule out as a weapon. Deputy Reum removed the object, which turned out to be a large roll of cash (later determined to be $2,914) attached to a Visa debit card. Deputy Reum then felt a strap on Marino’s body that ran toward his armpit, and Marino informed him it was a concealed weapon. Deputy Reum ordered Marino to the ground and handcuffed him before safely removing the pistol from the concealed holster. ¶7 Deputy Reum had significant prior experience with narcotics investigations and concluded that indicators for drug trafficking were present. After placing Marino under arrest for carrying an unlicensed, concealed weapon, Deputy Reum brought his canine unit from his vehicle to check Marino’s car for odors. The canine alerted near the rear of the vehicle. Marino’s car was towed to the Roosevelt County Sheriffs Office and sealed with evidence tape. A search warrant was obtained and law enforcement discovered methamphetamine during the search of the vehicle. ¶8 Marino was charged with Criminal Possession of Dangerous Drugs with Intent to Distribute pursuant to § 45-9-103, MCA (2013), with a persistent felony offender designation under § 46-18-502, MCA. Marino moved to suppress the evidence seized in the search of his car, arguing there was no particularized suspicion of wrongdoing involving narcotics sufficient to justify a canine sniff. The District Court denied the motion, concluding there were sufficient facts for Deputy Reum to reasonably believe Marino was engaged drug trafficking. Marino entered a plea agreement, admitting to the charge and to his status as a persistent felony offender, but reserving his right to appeal the District Court’s denial of his motion to suppress. Marino appeals. STANDARD OF REVIEW ¶9 We review a district court’s denial of a motion to suppress to determine whether the findings of fact are clearly erroneous and whether the court’s interpretation and application of the law was correct. State v. Goetz, 2008 MT 296, ¶ 9, 345 Mont. 421, 191 P.3d 489 (citing State v. Copelton, 2006 MT 182, ¶ 8, 333 Mont. 91, 140 P.3d 1074). A district court’s findings are clearly erroneous if they are not supported by substantial credible evidence, if the court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made. State v. Ellis, 2009 MT 192, ¶ 20, 351 Mont. 95, 210 P.3d 144 (citing State v. Lewis, 2007 MT 295, ¶ 17, 340 Mont. 10, 171 P.3d 731). DISCUSSION ¶10 Marino argues that the use of a canine sniff on his vehicle was a warrantless search that must be supported by a warrant exception, and that all such exceptions, including the canine sniff in this case, must be justified by exigent circumstances, citing State v. Hardaway, 2001 MT 252, 307 Mont. 139, 36 P.3d 900. As such, Marino argues the canine sniff of his car was improper because no exigent circumstances remained after Deputy Reum removed any potential threat by arresting and placing Marino in handcuffs. The State argues that our reasoning in State v. Tackitt, 2003 MT 81, 315 Mont. 59, 67 P.3d 295, where we held that canine searches of constitutionally protected areas need only be supported by particularized suspicion, controls the outcome in this case. ¶11 Marino is correct that a canine search of a container in which a person has a reasonable expectation of privacy is a search. That is the essence of the first part of our holding in Tackitt. Tackitt, ¶ 20. However, the State accurately explains the second part of our holding in Tackitt, that law enforcement needs only particularized suspicion to conduct a canine search without a warrant. Tackitt, ¶ 31. Drug-Canine Exception to the Warrant Requirement ¶12 “The threshold question in a search case is whether there is an expectation of privacy which society is prepared to recognize as objectively reasonable.” Tackitt, ¶ 17 ( citing State v. Scheetz, 286 Mont. 41, 46, 950 P.2d 722, 724 (1997)). If there is a reasonable expectation of privacy, the nature of the state’s intrusion must also be reasonable. Tackitt, ¶ 17. Regarding automobiles in particular, “when a person stores something in a concealed area of a vehicle and seeks to preserve their privacy, that privacy has constitutional protections.” Tackitt, ¶ 20; accord State v. Elison, 2000 MT 288, ¶ 51, 302 Mont. 228, 14 P.3d 456. As such, a search—including a canine sniff—of the concealed areas of a vehicle is subject to constitutional protections. Tackitt, ¶ 22; State v. Hart, 2004 MT 51, ¶¶ 20-21, 320 Mont. 154, 85 P.3d 1275; State v. Meza, 2006 MT 210, ¶ 22, 333 Mont. 305, 143 P.3d 422. ¶13 Generally, warrantless searches are per se unreasonable subject to a few, narrowly drawn exceptions. Elison, ¶ 39; State v. Munson, 2007 MT 222, ¶ 50, 339 Mont. 68, 169 P.3d 364. One of those exceptions, as we established in Tackitt, is the use of a drug or narcotic detecting canine where law enforcement has particularized suspicion and the odors from the searched container are exposed in the public. Tackitt, ¶ 29; accord Hart, ¶¶ 20-21; State v. Stoumbaugh, 2007 MT 105, ¶ 18, 337 Mont. 147, 157 P.3d 1137. ¶14 As we noted in Tackitt, government has a significant interest in discouraging illegal drug trafficking. Tackitt, ¶ 29. Discovering illegal drug trafficking is often difficult because it involves activities that usually appear innocent and trafficking, by its nature, is inherently transient. Tackitt, ¶ 29. Canine sniffs are far less intrusive than an actual, physical search of a space because a sniff only examines the odors on the exterior of the container. Tackitt, ¶ 29; Meza, ¶ 22. Further, unlike thermal scans, State v. Siegal, 281 Mont. 250, 274-75, 934 P.2d 176, 190-91 (1997) (noting thermal scans do not differentiate between legal and illegal activities), overruled in part on other grounds, State v. Kuneff, 1998 MT 287, ¶¶ 18-19, 291 Mont. 474, 970 P.2d 556, a canine sniff is both selective and accurate because the canine only alerts on the presence of the contraband it has been trained to detect. Tackitt, ¶ 29. As such, the minimally intrusive and accurate nature of a canine sniff supported by particularized suspicion appropriately balances the enhanced individual privacy interests under the Montana Constitution with governmental interests. Tackitt, ¶ 29. ¶15 Marino argues that an exigency requirement should be implied in all warrantless searches based on our holding in Hardaway. However, Marino appears to confuse the requirements for the drug canine warrant exception with the individual requirements for the search incident to arrest, automobile, exigency, and plain view warrant exceptions. Hardaway held the search incident to arrest exception implied an exigency requirement only for § 46-5-102(4), MCA. Hardaway, ¶ 57. As our case law demonstrates, these warrant exceptions are separate and independent, and each exception has its own requirements. E.g., Elison, ¶ 43 (automobile); State v. Wakeford, 1998 MT 16, ¶¶ 22-24, 287 Mont. 220, 953 P.2d 1065 (exigent circumstances); State v. Bassett, 1999 MT 109, ¶¶ 52-53, 294 Mont. 327, 982 P.2d 410 (plain view). There is no uniform requirement for all warrant exceptions that exigency must always be present. Accordingly, exigent circumstances need not be established before law enforcement may conduct a canine sniff search. Rather, law enforcement may conduct a canine sniff search of a container in which a person has a reasonable expectation of privacy if (1) the officers have particularized suspicion; and (2) the odors from that container are freely exposed to the public. Tackitt, ¶ 31. ¶16 Marino had a reasonable expectation of privacy in the concealed contents of his car and the canine sniff of his car was a warrantless search. However, the odors at question were freely exposed to the public because Marino’s vehicle was on a public road. As such, we must examine whether Deputy Reum had particularized suspicion to conduct the canine sniff of Marino’s car. Particularized Suspicion to Conduct a Drug-Canine Sniff ¶17 Particularized suspicion requires “(1) objective data from which an experienced police officer can make certain inferences; and (2) a resulting suspicion that the person is or has been engaged in wrongdoing.” Stoumbaugh, ¶ 18. “Whether a particularized suspicion exists represents a question of fact determined by examining the totality of circumstances surrounding the investigation stop.” Meza, ¶ 25. “In evaluating the totality of the circumstances, a court should consider the quantity, or content, and quality, or degree of reliability, of the information available to the officer.” State v. Pratt, 286 Mont. 156, 161, 951 P.2d 37, 40 (1997) (citing Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)). ¶18 In Tackitt, we determined that particularized suspicion was lacking because the informant was anonymous and unconfirmed, and police investigation verified only innocent public information and stale prior convictions. Tackitt, ¶¶ 34-41. However, in Hart, we affirmed the district court’s finding of particularized suspicion for a canine search where the officers approached the defendant’s home to serve an arrest warrant for felony criminal sale of dangerous drugs, saw the defendant driving away, and, after pulling him over, observed furtive movements consistent with an individual attempting to either get a weapon or hide something. Hart, ¶ 21. Similarly, in Meza, we upheld the finding of particularized suspicion where the defendant illegally parked in the middle of the street in front of a known narcotics operation, acted nervously when pulled over, and police dispatch informed the officer the defendant had a history of narcotics use. Meza, ¶¶ 24-25. Finally, in Stoumbaugh, we upheld a determination of particularized suspicion to use a canine search of a vehicle where the officers responded to a report of illegal drug use, the defendant’s family disclosed the defendant’s location in their home so the officers could arrest the defendant on pending arrest warrants, the defendant admitted to drug charges in Washington state, the police confirmed the felony drug charges, and the defendant urgently attempted to tow her vehicle away at a cost exceeding the value of the vehicle itself. Stoumbaugh, ¶¶ 21-24. ¶19 Here, the District Court did not err in determining that particularized suspicion existed to support the canine sniff of Marino’s car. Marino was pulled over by Deputy Reum because he was driving without headlights at 1:30 a.m. Marino’s car had extremely dark window tinting and did not have a rear license plate. When informed that his vehicle should have license plates, Marino told Deputy Reum that he had removed them, on the advice of his girlfriend, so he would not attract attention, thus implying he was attempting to avoid detection. Marino did not have a driver’s license even though he was operating a vehicle. While Marino was retrieving the license plates, Deputy Reum noticed a sheath concealed under Marino’s shirt. During the ensuing pat down of Marino, Deputy Reum discovered a concealed knife, a roll of cash in the amount of $2,914, and an unlicensed, concealed weapon. ¶20 As such, Deputy Reum had sufficient, objective information to suspect that Marino was engaged in illegal narcotics trafficking. Whether particularized suspicion exists is a question of fact determined by the totality of the circumstances. Meza, ¶ 25. On these facts, the District Court correctly determined there was particularized suspicion to support the canine search of Marino’s car. ¶21 Affirmed. CHIEF JUSTICE McGRATH, JUSTICES SHEA, BAKER and COTTER concur.

JUSTICE COTTER delivered the Opinion of the Court. ¶1 Appellants appeal the order of the Eighteenth Judicial District Court, Gallatin County, entering judgment on a jury verdict in favor of David Goldan in a breach of contract action. We restate the issues on appeal as follows: 1. Whether the District Court erred by denying Farmer s’motion for judgment as a matter of law because Goldan failed to meet his burden of proving damages for loss of net profits; 2. Whether the District Court erred in denying Farmers’ motion for sanctions based on Goldan’s alleged discovery violations; 3. Whether the District Court erred in concluding that damages should not be limited to the three month notice period allowed in the contract for terminations without cause. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In August 1988, Goldan began working as an independent contractor insurance agent for Farmers. At that time, Farmers and Goldan entered into a standardized Agency Appointment Agreement (Agreement), which defined the parties’ various rights and obligations. ¶4 Under the Agreement, Farmers was obligated to pay Goldan new business and service commissions on each policy he sold and serviced in accordance with Farmers’ commission schedules. In return, Goldan was obligated to provide the facilities necessary to service policyholders and to service policyholders so as to advance their interests and those of Goldan and Farmers. The Agreement could be terminated in three ways: (1) on three months written notice for any reason; (2) on thirty days written notice if any provisions of the Agreement were breached; or (3) immediately for specified causes, including switching insureds to another carrier. If the Agreement was terminated, Farmers was obligated to pay “contract value” to Goldan. ¶5 Over his 21 years with Farmers, Goldan became a successful agent. In the five years immediately preceding his termination, he averaged over $150,000 per year in commission income. Goldan was considered a “career” agent by Farmers, and he planned to continue with Farmers for the rest of his career. For its part, Farmers agreed it almost never terminated an experienced agent without a reason. ¶6 Goldan’s wife, Linda, assisted him with his business and she eventually became a Farmers’ customer service representative. In the early 2000s, Linda started the Bozeman Independent Insurance Agency (Independent Agency) to sell insurance policies that Farmers did not offer. Goldan and the Independent Agency shared office space and other resources. Farmers’ district manager approved the arrangement and Farmers’ audited the operation to make sure Goldan was complying with the Agreement. Goldan and Linda eventually formed Goldan Agency, Inc., for tax purposes on the advice of their accountant. Goldan Agency did not sell insurance; rather, Goldan and Linda would deposit their respective commissions into a jointly owned account held by Goldan Agency and Goldan Agency would pay the various expenses of both Goldan and the Independent Agency. ¶7 In December 2009, Farmers terminated the Agreement immediately, alleging that Goldan was switching policies from Farmers to the Independent Agency’s insurance carriers. Pursuant to the Agreement, Farmers paid Goldan the first installment of contract value it owed him. Prior to paying the second installment of contract value in June 2010, Farmers sued Goldan alleging that Goldan breached his contractual duties and fiduciary responsibilities under the Agreement by soliciting and servicing the insurance business of policyholders within a year of his termination. Farmers sought damages and declaratory relief for the partial contract value it paid Goldan. Goldan counterclaimed for breach of contract, alleging that Farmers terminated him without cause and seeking the remainder of the contract value and other damages for sums he “reasonably anticipated receiving as an agent for” Farmers. ¶8 During pretrial litigation, Farmers moved to compel Goldan’s response to requests for production of financial information. After briefing by the parties and a hearing, the District Court ordered Goldan to produce financial records of Goldan Agency along with his and Linda’s personal tax returns, which he did. In addition, Farmers filed a number of motions in limine regarding the calculation of damages. Farmers moved to bar admission of any evidence relating to gross commissions, arguing that the measure of damages required evidence of Goldan’s expenses in order to calculate net lost profits, and seeking to limit Goldan’s proof to those damages suffered during the three month notice period specified in the Agreement for terminations without cause. The District Court denied both motions reasoning that evidence of gross commissions is relevant to calculating damages, the question of Goldan’s expenses could be subject to cross-examination, and that limiting damages to the three month notice provision as a matter of law would be improper because calculating the amount of damages is a question of fact for the jury to determine. ¶9 A three-day trial was held in April 2015. At the close of evidence, Farmers moved for judgment as a matter of law and to strike Goldan’s damage claims because he had not presented evidence of his expenses. The District Court noted that Farmers chose not to ask Goldan or Linda questions regarding expenses during trial and denied the motion reasoning that “the jury will be able to evaluate” the expenses argument. The jury ruled in favor of Goldan on all issues. It determined that Goldan had not breached the Agreement before or after Farmers’ terminated him. It determined further that Farmers had breached the Agreement by terminating Goldan and awarded him $759,740.45—which amounted to five years of the yearly average commissions Goldan had earned over the three years preceding his termination. ¶10 Farmers moved post-trial for judgment as a matter of law on the same questions on which it had sought judgment preverdict and in its motions in limine. In the alternative, Farmers sought dispositive sanctions as to Goldan’s damages projections because he had not produced documents showing his expenses. The District Court denied the motion on the ground that Farmers had presented “no new legal theories in support of the Motion, but simply request the Court to reverse its prior rulings based on arguments already made.” The District Court entered judgment in Goldan’s favor, which included the $759,740.45 jury award with post-judgment interest and $69,422.41 for the remaining contract value Farmers owed Goldan, plus $32,248.14 in prejudgment interest. Farmers paid the judgment’s contract value portion in partial satisfaction of the judgment and appeals from the jury’s damage award and judgment. STANDARDS OF REVIEW ¶11 Whether judgment as a matter of law should be granted or denied is a question of law that we review de novo. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727. Judgment as a matter of law may be granted only when there is a complete absence of any evidence which would justify submitting an issue to a jury. All such evidence and any legitimate inferences that might be drawn from the evidence must be considered in the light most favorable to the nonmoving party. Johnson, ¶ 13. Courts should exercise the greatest self-restraint in interfering with the constitutionally mandated processes of a jury decision; therefore, judgment as a matter of law is not proper if reasonable persons could differ regarding conclusions that could be drawn from the evidence. Johnson, ¶ 13. ¶12 We review a district court’s ruling on a request for discovery sanctions for an abuse of discretion. Peterman v. Herbalife Int’l, Inc., 2010 MT 142, ¶ 14, 356 Mont. 542, 234 P.3d 898. A district court abuses its discretion when it acts arbitrarily, without the employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice. Menholt v. Dep’t of Revenue, 2009 MT 38, ¶ 6, 349 Mont. 239, 203 P.3d 792. The construction and interpretation of a contract is a question of law that we review for correctness. Fenwick v. State, 2016 MT 80, ¶ 11, 383 Mont. 151, 369 P.3d 1011. DISCUSSION ¶13 Whether the District Court erred by denying Farmers’ motion for judgment as a matter of law because Goldan failed to meet his burden of proving damages for loss of net profits. ¶14 Farmers asserts that breach of contract damages are limited to net profits, not gross income, and that Goldan’s claim for lost commissions amounts to a claim for gross income because it did not account for Goldan’s expenses. Farmers contends that it was Goldan’s burden to establish his net profits and that he did not meet this burden because he presented no evidence demonstrating his expenses. Farmers argues that the record establishes that Goldan had expenses in the five years since his termination. Furthermore, Farmers claims, Goldan was required to incur expenses under the Agreement because he was obligated to provide the facilities necessary to service policyholders. By not establishing his expenses, and therefore not establishing his net profits, Farmers claims that the jury’s damage award puts Goldan in a better position than he would have occupied had there been no breach—a result that is contrary to Montana law. ¶15 Farmers next asserts that Goldan’s argument that he was entitled to recover commissions without incurring expenses is unsupported because in the three years prior to his termination—which were the three years upon which his average commissions figure was based—Goldan’s commissions steadily decreased. As such, Farmers claims, Goldan would have had to sell more policies in order to reach the three year average commissions figure, which would have required Goldan to have operating expenses. Finally, Farmers contends that Goldan’s average commissions figure is speculative because Goldan offered no evidence that his pre-termination commissions would have remained the same had he not been terminated. ¶16 Goldan counters by asserting that there was substantial credible evidence supporting the jury’s damage award. Goldan argues that his proposed average commissions figure represented net commissions because Farmers would deduct Goldan’s expenses from his gross commissions prior to depositing the commissions into Goldan’s account. Goldan would then put his net commissions into the Goldan Agency account, and Goldan Agency would pay all the additional expenses of both Goldan and the Independent Agency. Goldan asserts that Goldan Agency continued paying these expenses following his termination; therefore, “[t]he jury could reasonably infer Goldan did not save on expenses as a result of the [Agreement] being terminated as those expenses continued to be paid by Goldan Agency.” Goldan contends further that the majority of commissions Goldan received were renewal commissions which required no expenses other than those Farmers deducted. Moreover, Goldan asserts, Farmers had the opportunity at trial to dispute Goldan’s calculation of damages and cross-examine him and Linda regarding expenses, but chose not to do so. In fact, Goldan alleges, Farmers argued that there were no damages resulting from their breach. Goldan accordingly claims that “[njearly all of [his] evidence concerning damages and expenses went substantially unrebutted.” ¶17 Goldan next claims that because Farmers’ termination of Goldan was wrongful, under Montana statute Goldan is “entitled to damages that compensate him for all the detriment proximately caused by Farmers’ breach.” Goldan argues that the average commissions figure Goldan presented to the jury represents the amount of damages necessary to put him in the position he would have occupied had the Agreement not been breached, and it therefore reflects the amount necessary to compensate him for the detriment caused by Farmers’ breach. Goldan argues further that he offered evidence explaining why his commissions declined during the three years prior to his termination and that that evidence created an inference that Goldan’s commissions would have increased had Farmers not breached the Agreement. Finally, Goldan asserts that his damages were predictable and quantifiable and therefore not founded on speculation because they were based on renewal commissions that he was entitled to receive on the policies in force at the time of the breach. As such, Goldan contends, his damages were reasonably certain. ¶18 We have long held that “[fluture damages need only be reasonably certain.”E.g., Sletteland v. Roberts, 2000 MT 382, ¶ 36, 304 Mont. 21, 16 P.3d 1062; Martinell v. Montana Power Co., 268 Mont. 292, 324, 886 P.2d 421, 441 (1994); Kerr v. Gibson’s Prods. Co., 226 Mont. 69, 74, 733 P.2d 1292, 1295 (1987). Section 27-1-311, MCA, provides for damages arising from breach of contract and instructs that “the measure of damages ... is the amount which will compensate the party aggrieved for all the detriment which was proximately caused thereby or in the ordinary course of things would be likely to result therefrom.” Section 27-1-303, MCA, however, provides that “[a] person may not recover a greater amount in damages for the breach of an obligation than the person could have gained by the full performance of the obligation on both sides.” As such, contract damages can properly be awarded “for a loss of net profits,” but such damages cannot be awarded “for a loss of anticipated gross income.” Lovely v. Burroughs Corp., 165 Mont. 209, 217, 527 P.2d 557, 562 (1974). ¶19 It is well established “that in order for the damages to be recovered, there must be proof of the extent and amount thereof.” Rigney v. Swingley, 112 Mont. 104, 110, 113 P.2d 344, 347 (1941). In reviewing the sufficiency of the proof of damages, our function “is to determine whether there is substantial credible evidence in the record to support the jury’s verdict.” Murray v. Whitcraft, 2012 MT 298, ¶ 7, 367 Mont. 364, 291 P.3d 587 (quoting Lauman v. Lee, 192 Mont. 84, 88-89, 626 P.2d 830, 833 (1981)) (internal quotations omitted). “Substantial evidence is that which a reasonable mind may find adequate to support a conclusion.” Murray, ¶ 7. In determining whether there is substantial evidence to support the jury’s award of damages, “[w]e must view the evidence in a light most favorable to ... the prevailing party below, and where the record presents conflicting evidence, resolved by the jury, this Court is precluded from disturbing the verdict.” Murray, ¶ 7 (citations and internal quotations omitted). “This rule is particularly applicable when the District Court has passed upon the sufficiency of the evidence on motion ... and has upheld its sufficiency.” Lauman, 192 Mont. at 89, 626 P.2d at 833 (citing Strong v. Williams, 154 Mont. 65, 68-69, 460 P.2d 90, 92 (1969)). ¶20 A review of the jury instructions demonstrates that the jury was properly instructed on the law regarding contract damages. The jury was instructed that damages must be “supported by substantial evidence” and “clearly ascertainable in both their nature and origin.” The jury was instructed further that the measure of contract damages “is the amount which will compensate the party aggrieved for all the detriment which was proximately caused thereby or in the ordinary course of things would be likely to result therefrom.” Furthermore, the jury was instructed that “damages are the amount which will put the nonbreaching party in as good a position as if the contract had been performed.” ¶21 Viewing the evidence in the light most favorable to Goldan, we conclude that substantial evidence supports the jury’s award of damages. Goldan offered proof of the amount and extent of the commissions he had received in the three years prior to his termination and testified that “the vast majority of the commissions were renewal business.” Goldan testified further that other than the expenses deducted by Farmers—for which his evidence regarding his average commissions accounted—he did not have expenses associated with receiving renewal commissions. Farmers did question Goldan briefly regarding his expenses, yet made a seemingly tactical decision not to pursue that line of questioning further. Moreover, Farmers spent little time addressing damages at trial and during its closing argument asserted that Goldan’s “damages are nothing” because the Goldans were “getting along fine.” The evidence presented “is that which a reasonable mind may find adequate to support” the jury’s verdict. Murray, ¶ 7. Moreover, the jury—which was correctly instructed on measuring contract damages—resolved the conflicting damages evidence and this Court is therefore “precluded from disturbing the verdict.” Murray, ¶ 7. ¶22 Accordingly, the District Court did not err by denying Farmers’ motion for judgment as a matter of law on the question of damages. ¶23 Whether the District Court erred in denying Farmers’ motion for sanctions based on Goldan’s alleged discovery violations. ¶24 Farmers claims that it sought discovery regarding Goldan’s post-termination activities and income and that Goldan refused to provide that information. Farmers therefore contends that Goldan should not have been allowed to seek future lost damages. Moreover, Farmers argues, the jury’s damage award should be stricken because Goldan refused to produce evidence during discovery supporting the damages theory upon which he relied at trial—which Farmers claims is that he was unable to find other work after Farmers terminated the Agreement. Farmers therefore maintains that it was deprived of an opportunity to refute Goldan’s damages theory at trial. Finally, Farmers asserts that it was Goldan’s duty to supplement discovery by providing further financial information and that because Goldan did not do so, he should not have been allowed to use the non-disclosed information as evidence of damages at trial. ¶25 Goldan counters that he complied with Farmers’ discovery requests and “produced all information he was required to produce and complied with all Court orders.” The District Court made no finding that he failed to produce information he was required to produce. Goldan next claims that following Farmers’ motion to compel discovery of certain financial information in March 2011, Farmers never again took issue with the information produced by Goldan until weeks before the April 2015 pretrial conference—and even then Farmers did so in “an attempt to limit his damages, not address discovery concerns.” Finally, Goldan argues that “none of the five years’ worth of financial information produced by Goldan was used by Farmers at trial, conceding its irrelevancy.” ¶26 We have declared that discovery “enables courts and parties to determine the truth of a given matter so that cases may be resolved justly.” Peterman, ¶ 17. As such, “when a party fails to obey an order to provide discovery, the district court may impose sanctions, including dismissal of the action.” Peterman, ¶ 18. Although “[w]e have repeatedly articulated a low-tolerance approach toward discovery abuse,” Peterman, ¶ 17, it is well established that “[djistrict courts are better positioned than we are to evaluate the conduct and good faith of parties during discovery, and as such they enjoy considerable leeway in sanctioning discovery abuses.” Peterman, ¶ 23 (citations omitted). ¶27 Farmers filed a motion to compel discovery in March 2011 in which it sought financial records for Goldan Agency from 2005-2010 and Goldan’s personal income tax returns for the same five years. The District Court granted Farmers’ motion at a hearing in December 2011 and compelled Goldan to produce financial records for Goldan Agency, as well as his and Linda’s unredacted income tax statements. In granting the motion to compel, the court reasoned, “That should give enough information to establish the damages being claimed, any defenses to the damages claimed, and what routine business expenses affected the potential for net profits for both Mr. Goldan personally and what he ran through Goldan Agency, Inc. as his umbrella.” Goldan complied with the District Court’s order and produced the requested financial records in January 2012. ¶28 Although various motions regarding other discovery issues were made by both parties during the course of litigation, Farmers did not file any further motions to compel discovery of Goldan’s or Goldan Agency’s financial records in the ensuing four years prior to trial. While Farmers argued in its motion in limine that the court should bar evidence at trial of gross commissions and asserted in its preverdict motion for judgment as a matter of law that Goldan had not cooperated during discovery and failed to produce relevant documents to demonstrate the damages he claimed, it did not request that the court take any action to compel Goldan’s disclosure of those documents. In denying Farmers’ motion in limine regarding gross commissions, the District Court stated: The tax returns [that Goldan had previously provided to Farmers] would provide general business expenses for those years in question and any other costs that have not been provided in any more detail than that can be subject to cross-examination if requested. Or if brought up and not produced, then [Farmers’ counsel], I would expect that you could make an objection to information that hasn’t been produced. ¶29 Prior to trial, Farmers filed an objection to any evidence of lost profit or business damages on the ground that Goldan had not supplemented his or Goldan Agency’s financial records. At trial, the court did not rule on the objection because it concluded that it would not be able to determine whether the financial records were relevant or not “without hearing the testimony.” The court opined further that Farmers’ counsel should “feel free to revisit your objection as needed, but at this point, I don’t know that I can make any kind of ruling contrary to what we’ve already done.” ¶30 During Goldan’s testimony, Farmers did not interpose any objections to Goldan’s evidence or testimony regarding his damages, nor did it object to his testimony about how he had been unable to work in the five years since his termination. Farmers did object when Goldan offered testimony regarding his and Linda’s shared expenses following his termination on the ground that Farmers had not been supplied with any of that financial information, and this objection was sustained. Farmers’ counsel briefly questioned Goldan about Goldan Agency’s income but ultimately concluded that he was “going to reserve those questions for Linda Goldan.” However, Farmers’ counsel never questioned Linda about Goldan Agency’s income. Farmers’ counsel then questioned Goldan further about whether he was “going to provide any information at all on the expenses of the Goldan Agency that it took for [Goldan] to earn the commissions [he] earned during the years [he] was earning commissions,” to which Goldan responded that he would rely on his counsel to make that determination. ¶31 In its post-verdict motion for judgment as a matter of law, Farmers requested that the court sanction Goldan for his alleged discovery abuses by entering judgment in favor of F armers on the issue of damages. In denying Farmers’ motion for judgment as a matter of law, the District Court noted that Farmers raised “the same arguments as those ruled on—and denied—by the Court in [Farmers’] pretrial and trial motions,” and presented “no new legal theories in support of the Motion, but simply request the Court to reverse its prior rulings based on arguments already made.” The District Court concluded that Farmers had “presented nothing which convinces this Court to reassess its prior rulings.” ¶32 The record demonstrates that Goldan produced the financial records the District Court ordered him to produce. The record demonstrates further that each time Goldan’s alleged discovery abuses were brought to the District Court’s attention, the District Court concluded that Farmers could cross-examine Goldan about his and Goldan Agency’s expenses or object if and when such information was brought up. Farmers made a seemingly tactical decision not to do so. Finally, although Farmers brought Goldan’s alleged discovery abuses to the court’s attention throughout the litigation, it never moved to compel Goldan’s disclosure of any specific financial records beyond those that he produced. Goldan therefore did not “fail[ ] to obey an order to provide discovery.” Peterman, ¶ 18. Furthermore, the District Court was “better positioned than we are to evaluate the conduct and good faith of [the] parties during discovery,” and chose not to sanction Goldan—a decision concerning which we give district courts “considerable leeway.” Peterman, ¶ 23. The District Court did not act arbitrarily or otherwise exceed the bounds of reason in denying Farmers’ request for discovery sanctions. ¶33 Similarly, we are unpersuaded by Farmers’ arguments that Goldan failed to fulfill his continuing duty to supplement discovery. M. R. Civ. P. 26(e)(1) concerns supplementing discovery, and provides: (1) In General. A party who has responded to an interrogatory, request for production, or request for admission must supplement or correct its response: (A) in a timely manner if the party learns that in some material respect the response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. In construing M. R. Civ. P. 26(e), we have concluded that “I i Information is ‘incomplete or incorrect’ in ‘some material respect’ if there is an objectively reasonable likelihood that the additional or corrective information could substantially affect or alter the opposing party’s discovery plan or trial preparation.” Wheaton v. Bradford, 2013 MT 121, ¶ 22, 370 Mont. 93, 300 P.3d 1162 (citation and internal quotations omitted). As such, M. R. Civ. P. 26(e) “serves to minimize the element of unfair surprise, thereby encouraging a trial on the merits. Consequently, when no surprise arises from a violation of this rule, this Court has viewed the violation as hyper-technical.” Massman v. Helena, 237 Mont. 234, 241, 773 P.2d 1206, 1210 (1989). ¶34 Although Farmers claims that it was “ambush[ed], plain and simple” when Goldan asked for damages amounting to five years’ worth of commissions, the record demonstrates that F armers could not have been unfairly surprised. Farmers knew from the time Goldan filed his answer and counterclaim in July 2010 that he would be seeking damages for “all the benefits he received and reasonably anticipated receiving as an agent” for Farmers. Farmers’ March 2011 motion to compel and its July 2014 motions in limine demonstrate further that Farmers understood the basis of Goldan’s damage claims—the average amount of commissions he would have received had the Agreement not been wrongly terminated. We therefore conclude that Goldan’s failure to provide additional financial information did not violate his duty to supplement the record because there was not “an objectively reasonable likelihood that the additional or corrective information could substantially affect or alter [Farmers’] discovery plan or trial preparation.” Wheaton, ¶ 22. Moreover, Farmers did not object to Goldan’s testimony regarding his damages at trial—even after the District Court explicitly advised that Farmers could object to any financial information that Goldan had not produced pertaining to his damages. ¶35 For the foregoing reasons, we conclude the District Court did not abuse its discretion in declining to impose discovery sanctions against Goldan. Accordingly, the District Court did not err in denying Farmers’ motion for discovery sanctions based on Goldan’s alleged discovery violations. ¶36 Whether the District Court erred in concluding that damages should not he limited to the three month notice period allowed in the contract for terminations without cause. ¶37 F armers’ final contention is that the jury’s award of damages must be reversed to the extent that it exceeds three months of Goldan’s lost profits. Farmers argues that, as a matter of law, Goldan’s damages were limited by the Agreement’s provision that he could be terminated without cause on three months’ notice. Farmers urges this Court to adopt the rule that when an employment contract may be terminated on specified notice, the term for which the terminated employee is due compensation is the notice period. Farmers claims that because the Agreement could be terminated for any reason on three months’ notice, Goldan could not have reasonably anticipated that his damages could exceed that notice period. ¶38 Farmers correctly asserts that the rule in the majority of jurisdictions is that “[wjhere the employee is only guaranteed a specified time period to work after notice, the unexpired term for which compensation is due is the notice period.” 3 Dan B. Dobbs, Dobbs Law of Remedies: Damages-Equity-Restitution § 12.21(2), 479 (Pract. Treatise Series, 2d. ed., 1993). However, given the manner in which Farmers terminated the Agreement and then pled its case, we decline Farmers’ invitation to apply this rule here. ¶39 As noted above, the Agreement could be terminated in three distinct ways: (1) on 3 months’ written notice for any reason; (2) on thirty days written notice if any of the provisions of the Agreement were breached; or (3) immediately for specified causes, including switching insureds to another carrier. Goldan’s contract was terminated by Farmers immediately for cause, pursuant to (3), after which F armers filed suit against Goldan seeking declaratory relief and damages for Goldan’s alleged breach of contract. This in turn prompted Goldan to file a counter-claim in which he sought damages for Farmers’ wrongful breach of contract. Notably, Farmers did not assert that it was entitled to apply the three months’ provision so as to limit its damages until filing a motion in limine on the subject in July 2014, nearly five years after it terminated the Agreement with Goldan for cause and four years after it sued Goldan for damages. ¶40 Had Farmers initially given Goldan written notice that it was terminating the Agreement pursuant to (1) above, Farmers could have terminated the Agreement after three months and there would have been no breach of the Agreement or any entitlement to damages. We have upheld such a contract termination without cause when the requisite notice was given. Tvedt v. Farmers Ins. Group of Cos., 2004 MT 125, ¶¶ 21, 29, 321 Mont. 263, 91 P.3d 1. Here, however, Farmers gave no such written notice and instead elected to terminate the contract for cause and pursue a claim for damages against Goldan. In Tvedt, we cited with approval our decision in Farris v. Hutchinson, 254 Mont. 334, 339, 838 P.2d 374, 377 (1992), in which we said: “In Prout [Prout v. Sears, Roebuck & Co., 236 Mont. 152, 772 P.2d 288 (1989)], we gave effect to the written agreements and said the employer could fire without cause under the agreements, but that if it asserted the termination was for cause, the employee must have an opportunity to prove that the cause stated was false.” Tvedt, ¶ 29. Because Farmers terminated the Agreement for cause and not on three months’ written notice, Goldan had the right to prove that Farmers’ stated cause was false. Just as Farmers sued him for damages, Goldan also had the right to assert a claim for his damages for breach of the contract, which he successfully did. ¶41 Section 27-1-311, MCA, provides that the measure of damages for a breach of contract is “the amount which will compensate the party aggrieved for all the detriment which was proximately caused thereby or in the ordinary course of things would be likely to result therefrom.” A career agent with twenty-one years of successful employment with Farmers, Goldan established for the jury his understandable expectation that his contract would continue into the future, as well as the detriment caused by Farmers’ breach of contract. We held in Ehly v. Cady, 212 Mont. 82, 97, 687 P.2d 687, 695, that contract damages are those that are reasonably foreseeable or within the contemplation of the parties at the time of entering the contract. At the time the contract was entered, it was reasonable for Goldan to assume that should Farmers give him three months’ written notice of its intention to terminate the contract without cause, he would not be entitled to any damages. Conversely, it was reasonable for him to assume that should Farmers breach the contract by wrongly terminating it for cause, he would be entitled to rebut that cause and recover his full measure of damages resulting from the wrongful breach, as permitted under §27-1-311, MCA. ¶42 The jury here listened to the evidence and concluded that Farmers breached the contract with Goldan, a finding which Farmers does not contest on appeal. The jury awarded damages accordingly, and in an amount supported by the evidence. While the extra-jurisdictional cases cited by the Dissent may indeed stand for the proposition stated, this is not at present the law in Montana, and we decline to adopt it under the circumstances and procedural posture of this case. Because Farmers unilaterally elected to sue Goldan for breach of contract and damages, we decline to limit its damages pursuant to a contract provision it did not invoke when it fired Goldan. We therefore conclude that the District Court did not err in concluding that Goldan’s damages should not be limited to the three months’ notice period set forth in the contract for terminations without cause on written notice. CONCLUSION ¶43 For the foregoing reasons, we affirm the District Court. JUSTICES WHEAT, SHEA and RICE concur. Appellants are affiliated insurance entities, and include: Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company. We refer to Appellants collectively as Farmers.

Denied Original Proceeding Writ of Mandamus

Denied Original Proceeding Supervisory Control

Affirmed Water Court

Denied Original Proceeding Habeas Corpus

Affirmed Dist. 1 (Lewis and Clark)

JUSTICE SANDEFUR delivered the Opinion of the Court. ¶1 John B. Merlette and Gladys A. Merlette (Merlette) appeal an order of the Montana Eleventh Judicial District Court granting summary judgment declaring that Brenda M. Ash (Ash) owns certain disputed land between the high- and low-water marks of a small lake located in Flathead County, Montana. We affirm and address the following issue on appeal: Did the District Court correctly conclude that Ash owns the land bordering her property between the high- and low-water marks of Parker Lake? BACKGROUND ¶2 In 1986, Larry and Serena Streeter (Streeters) acquired approximately 43 acres of property surrounding a small lake in Flathead County known as Parker Lake No. I. In 1991, Streeters subdivided the property by internal boundary line relocation into an approximately 5.66 acre tract (Parcel A) and a 37.17 acre remainder (Tract l). Both tracts included lake frontage on Parker Lake. In 1992, Streeters sold the 37.17 acre remainder to John Bradshaw (Merlette Property) but retained the previously created 5.66 acre tract (Ash Property) for themselves. In 2000, Brenda Ash (formerly Olson) jointly acquired the Ash Property with her then-husband via a mesne conveyance originating from Streeters. ¶3 As created and particularly described by Streeters’ 1991 COS 10404, the 5.66 acre Ash Property included approximately 577 feet of frontage on Parker Lake. COS 10404 described the Ash Property boundary along Parker Lake by a particularized metes and bounds plot running from a referenced starting point on the high-water mark and then “on and along” the high-water mark three specified courses marked by pin locations. Streeters’ subsequent 1992 deed to Bradshaw conveyed the Merlette Property by reference to COS 10120 but expressly excluded the retained Ash Property from the conveyance by reference to COS 10404, which cut the Ash Property out of COS 10120 prior to the Bradshaw conveyance. The 1992 Bradshaw deed expressly excluded the Ash Property by reference to COS 10404 and a redundant metes and bounds description lifted verbatim therefrom. The 2000 Olson-Ash deed (Ash deed) described the Ash Property by reference to COS 10404 and a redundant metes and bounds plot running from a referenced point on the high-water mark “on and along” the high-water mark three specified courses, “577 feet more or less.” ¶4 In 2002, construction workers retained by Merlette excavated fill from Parker Lake to level a site for a new residence on the Merlette Property. Ash complained to the U.S. Army Corps of Engineers that Merlette’s fill excavation violated § 404 of the federal Clean Water Act prohibiting unpermitted dredging in streams, lakes, and wetlands subject to the Act. After a site visit, the Corps issued correspondence, dated January 21, 2003, declaring Parker Lake as a non-navigable intrastate body of water beyond the Corps’ jurisdiction pursuant to Solid Waste Agency v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 S. Ct. 675 (2001) (federal jurisdiction limited to waters susceptible to interstate commerce and immediately adjacent wetlands). ¶5 Later in 2002, Ash placed a boat dock on the Parker Lake shoreline in front of her home. Merlette objected, asserting that he owned all of the land below the high-water mark around the entire lake. He accused Ash of trespass and insisted that she remove the dock immediately. Ash eventually acquiesced and removed the dock. In 2015, Ash again installed a dock on the lake in advance of listing her property for sale. Merlette again protested on the asserted ground that he owned all of the land below the high-water mark around the lake. The dispute escalated when Merlette pounded metal fence posts along the high-water mark bordering Ash’s property and Ash removed and stacked them on Merlette’s driveway. ¶6 After the parties exchanged correspondence through counsel, Ash filed suit on November 12, 2015, asserting claims for declaratory judgment and in tort based on alleged trespass and nuisance. Ash further sought a temporary restraining order and preliminary injunction enjoining Merlette from interfering with her lake access pending final judgment. Merlette counterclaimed in trespass, asserting ownership of all land between the high- and low-water marks on the lake. On November 24, 2015, the District Court granted Ash’s request for a temporary restraining order and, following hearing on December 1, 2015, issued a preliminary injunction enjoining Merlette from interfering with Ash’s lake access. On December 28,2016, Ash filed an amended complaint adding counts of intentional interference with her contractual relationship with her realtors and slander of title based on Merlette’s alleged misrepresentations to third parties regarding his asserted ownership of all lake frontage on Parker Lake. ¶7 In January 2016, the parties filed cross-motions for summary judgment. On the ground that extrinsic evidence was not necessary or proper to construe the clear and unambiguous language in Ash’s deed, the District Court denied Merlette’s M. R. Civ. P. 56(f) motion to stay summary judgment and for further discovery. On November 7, 2016, the District Court granted summary judgment that Ash owned the land between the high- and low-water marks of Parker Lake bordering Ash’s property. On February 22, 2017, the District Court certified its summary judgment order for immediate appeal pursuant to M. R. Civ. P. 54(b). We affirm and remand for further proceedings. STANDARD OF REVIEW ¶8 We review summary judgment rulings de novo for conformance to M. R. Civ. P. 56. Dick Anderson Constr., Inc. v. Monroe Prop. Co., 2011 MT 138, ¶ 16, 361 Mont. 30, 255 P.3d 1257. Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). Whether a genuine issue of material fact exists or whether a party is entitled to judgment as a matter of law are conclusions of law subject to de novo review for correctness. Ereth v. Cascade County, 2003 MT 328, ¶ 11, 318 Mont. 355, 81 P.3d 463. DISCUSSION ¶9 Did the District Court correctly conclude that Ash owns the land bordering her property between the high- and low-water marks of Parker Lake ? ¶10 As matters of federal and federally-derived state sovereignty over beds and banks of navigable waters, conveyances of land bordering navigable waters, as defined by federal law, cannot convey title below the high-water mark unless otherwise authorized by state law. See PPL Montana, LLC v. Montana, 565 U.S. 576, 589-91, 132 S. Ct. 1215, 1227-28 (2012) (riparian ownership acquired by western states on admission under federal “equal footing” doctrine); Montana v. United States, 450 U.S. 544, 551, 101 S. Ct. 1245, 1251 (1981) (ownership of land between the high-water marks of navigable waters generally adhered to the states upon statehood subject only to any retained federal easement and federal constitutional authority to regulate interstate commerce); United States v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 312 U.S. 592, 597, 61 S. Ct. 772, 775 (1941) (federal authority to regulate interstate commerce between high-water marks of navigable waters); § 70-1-202(1), MCA (state owns “all land below” water of navigable lakes and streams). Subject to Montana’s limited public trust easement over state waters for fishing and recreational use between the high-water marks, see Mont. Const. art. IX, § 3; §§ 23-2-302(1), 70-1-202(1), and 87-2-305, MCA; Galt v. State, 225 Mont. 142, 147-48, 731 P.2d 912, 915-16 (1987), parties other than the state may acquire title to the midline of non-navigable waters and to the low-water mark of navigable waters. Section 70-16-201, MCA. Thus, unless the source instrument of conveyance clearly and unequivocally provides otherwise, conveyances of land bordering on non-navigable waters convey title to the underlying land to the midline of the water body, while conveyances of land bordering on navigable waters convey title to the low-water mark. Section 70-16-201, MCA. Since Montana’s public trust easement is not at issue here and a conveyance of land bordering on a water body conveys at least to the low-water mark unless otherwise provided by the conveyance, we need only address whether the District Court correctly construed the pertinent instruments of conveyance without consideration of whether Parker Lake is navigable or non-navigable. ¶11 Other than by operation of law, transfers of real property may occur only by written conveyance expressing the grantor’s intent to convey particularly described property to another. Sections 70-1-501, 70-2-101, and -102, MCA. Except as otherwise provided by law, the language of an instrument of conveyance determines the nature and extent of title conveyed. Anderson v. Stokes, 2007 MT 166, ¶ 32, 338 Mont. 118, 163 P.3d 1273. Conveyance of real property by reference to a certificate of survey, as defined by §§ 76-3-103(1), -302(1), -401, -402, MCA, incorporates the referenced certificate of survey, including all notes, certifications, lines, descriptions, land marks, and depictions therein, into the deed as if set forth on the face of the deed. John Alexander Ethen Trust Agreement v. River Res. Outfitters, LLC, 2011 MT 143, ¶ 27, 361 Mont. 57, 256 P.3d 913; see also § 70-20-201(6), MCA (construction and effect of deed reference to map); Blazer v. Wall, 2008 MT 145, ¶¶ 31-36, 343 Mont. 173, 183 P.3d 84; Halverson v. Turner, 268 Mont. 168, 172-74, 885 P.2d 1285, 1288-89 (1994); Bache v. Owens, 267 Mont. 279, 283-86, 883 P.2d 817, 820-22 (1994). The construction of an instrument of conveyance, including the question of whether its terms are vague or ambiguous, is a question of law. Mularoni v. Bing, 2001 MT 215, ¶ 32, 306 Mont. 405, 34 P.3d 497. ¶12 Here, the parties agree with the District Court that the Ash Property lake frontage descriptions in COS 10404 and the Ash deed are consistent, clear, and unambiguous. They simply disagree about their meaning. Ash agrees with the District Court that she owns the disputed land between the high- and low-water marks of Parker Lake bordering her property based on the presumption of § 70-16-201, MCA, and the meander line methodology for describing riparian borders. Merlette contrarily asserts that the specific metes and bounds description of the Parker Lake boundary line in the source COS 10404 and the resulting Ash deed expressly limit the property to the high-water mark. ¶13 To the extent lawful and reasonably ascertainable, courts must construe instruments of conveyance to give full effect to the intent of the grantor at the time of the conveyance. Anderson, ¶ 33. If the language of an instrument of conveyance is clear and unambiguous, the court must construe the instrument based on its express language and incorporated references without resort to extrinsic evidence. Section 70-20-202(1), MCA; Anderson, ¶ 33; Pilgrim v. Kuipers, 209 Mont. 177, 180, 679 P.2d 787, 789 (1984). Extrinsic evidence is a relevant construction aid only if the language of the instrument of conveyance is vague or ambiguous. Anderson, ¶ 33. The language of a conveyance is ambiguous only if susceptible to two or more conflicting meanings, both of which are objectively reasonable. Mary J. Baker Revocable Trust v. Cenex Harvest States, Co-ops., Inc., 2007 MT 159, ¶ 20, 338 Mont. 41, 164 P.3d 851. Mere disagreement about the meaning of particular terms or provisions does not render otherwise clear and unambiguous language ambiguous. Heggem v. Capitol Indem. Corp., 2007 MT 74, ¶ 30, 336 Mont. 429, 154 P.3d 1189. ¶14 In construing instruments of conveyance, the court may not rely on isolated words or provisions. Anderson, ¶ 36 (citing Rumph v. Dale Edwards, Inc., 183 Mont. 359, 368-69, 600 P.2d 163, 168-69 (1979)). The court must construe an instrument of conveyance in its entirety, giving effect to all within its four corners, and narrowly construing and subordinating any term or provision repugnant to the manifest general intent or purpose of the instrument. Anderson, ¶ 36. The court must liberally construe express reservations in grants of real property in favor of the grantor. Section 70-1-516, MCA. Except as otherwise expressly provided or necessarily implied from the language of the instrument, a conveyance of real property transfers to the grantee all title and interest then held by the grantor. Section 70-1-519, MCA. ¶15 Essential to this case is the well-settled methodology for surveying and describing riparian boundaries. Congressional acts from 1785 into the early 1800s required official government surveys to subdivide all territories acquired by the United States north of the Ohio River and west of the Mississippi River (except Texas) into six-mile square townships, composed of 36 square-mile sections containing 640 acres each. Yellowstone River, LLC v. Meriwether Land Fund I, LLC, 2011 MT 263, ¶ 6, 362 Mont. 273, 264 P.3d 1065 (citing Joyce Palomar, Patton and Palomar on Land Titles vol. 1, § 116 (3d ed. 2003) and Curtis M. Brown, Walter G. Robillard, & Donald A. Wilson, Evidence and Procedures for Boundary Location 179-200 (2ded. 1981)). See also Curtis M. Brown, Walter G. Robillard & Donald A. Wilson, Brown’s Boundary Control and Legal Principles (Brown’s) § 6 (6th ed. 2009) (discussing the development of the Public Land Survey (PLS) system). Where a true section or quarter-section corner would otherwise be located in “a water course,” the PLS system required official government surveyors to run the converging straight section lines from the other “established corners ... to the [edge of the] water course,” thereby establishing “fractional townships” with the water course “designated as the external boundary of the fractional township.” Schurmeir v. St. Paul & P. RR. Co., 10 Minn. 82, 99-100 (Minn. 1865) (emphasis original) (citing 2 Stat. 313, 314 (1805) (construing Land Act of February 11, 1805, in re mode of surveying U.S. public lands). The PLS system thus required “an accurate survey of the meanderings of a water course” serving as external boundary of fractional townships by reference to a “meander line,” i.e., a “line showing the place of the water course and its sinuosities, courses, and distances.” Schurmeir, 10 Minn. at 100. Accord Alan C. Morganfield & Charles Carpenter, The Ins and Outs (and Zigs and Zags) of Legal Descriptions, 102A Rocky Mtn. Min. L. Spec. Inst. 11, 49-51 (1998). Though originally applicable by federal statute only to lands surveyed and conveyed by the federal government, the PLS system meander line methodology became a generally accepted professional standard and practice for surveying and describing public and private lands bounded by water bodies. See Brown’s § 1.2. ¶16 Consistent with this generally accepted standard and practice, a federal and state common law rule soon developed that, unless the language of a conveyance clearly and unequivocally manifests a more limited intent to fix a riparian boundary to the precise course specified in a property description, a riparian boundary specified or depicted in an instrument of conveyance, or incorporated survey or plat map, is merely a meander line, i.e., a mere approximation of the ever-fluctuating and meandering edge of a water body intended as the actual boundary line of the property. Andersen v. Monforton (Monforton), 2005 MT 310, ¶¶ 22-24, 329 Mont. 460, 125 P.3d 614; North Shore v. Wakefield, 530 N.W.2d 297, 302-03 (N.D. 1995); Mitchell v. Smale, 140 U.S. 406, 413, 11 S. Ct. 819, 821-22 (1891) (government land patents identifying lots conveyed by reference to the official government survey plat “have the legal effect of a declaration that they extend to and are bounded by the lake or stream” with all regular “legal consequences of such a boundary in the matter of riparian rights and title to land under water” (internal punctuation omitted)); Hardin v. Jordan, 140 U.S. 371, 380, 11 S. Ct. 808, 811 (1891) (“meander lines are intended for the purpose of bounding and abutting the lands granted upon the waters whose margins are thus meandered” to the effect “that the waters themselves constitute the real boundary”); St. Paul & Pac. R.R. Co. v. Schurmeir, 74 U.S. 272, 286-87 (1868) (“[m]eander-lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction subject to sale, and which is to be paid for by the purchaser”). Except as otherwise clearly provided in the language of conveyance, a meander line merely approximates “the border-line of the stream” and signifies that the water course is the actual boundary rather than “the meander line ... run on the land.” St. Paul & Pac. R.R. Co., 74 U.S. at 287. Accord Faucett v. Dewey Lumber Co., 82 Mont. 250, 257-58, 266 P. 646, 648 (1928) (citing Hardin and St. Paul & Pac. R.R. Co.); North Shore, 530 N.W.2d at 302-03. Consequently, unless otherwise unequivocally provided on the face of the instrument, an instrument of conveyance describing a riparian boundary by reference to a particularized metes and bounds description, i.e., a meander line, conveys title at least to the low-water mark of the body of water rather than the line precisely described by metes and bounds. Monforton, ¶ 22 (synthesizing meander line methodology with § 70-16-201, MCA); Faucett, 82 Mont. at 257, 266 P. at 648. ¶17 In Monforton, a residential developer acquired and subdivided a large ranch property bordering on the Jefferson River in Madison County. Monforton, ¶¶ 7-8. The source 1971 warranty deed to the developer, as well as the subsequent subdivision plat in reference to which the developer conveyed subdivision lots to third parties, described the property boundary along the Jefferson River by reference to a point on the bank of the river and then “meandering the right bank” along a series of specified courses that corresponded to the high-water mark. Monforton, ¶¶ 10, 13. Years later, a subsequent owner, who acquired the undeveloped remainder of the original ranch property from the developer, sued river lot owners for declaratory judgment that the river boundary specified in the developer’s source warranty deed, as carried forward in the subsequent subdivision plat and resulting lot deeds, specifically established the high-water mark as the actual boundary of the subdivision lots contrary to the presumption of § 70-16-201, MCA. Monforton, ¶¶ 9-14. The plaintiff thus asserted that owners of subdivision river lots had no river access because he owned the 11.4-acre strip between the high- and low-water marks along the subdivision boundary. ¶18 After recognizing the long-settled meander line methodology for describing riparian boundaries and the common law presumption codified in § 70-16-201, MCA, we rejected the plaintiff s assertion that the meander line methodology applies only to the official federal government land surveys from which it arose. Monforton, ¶¶ 18-24. Based on the presumption of § 70-16-201, MCA, the nature and purpose of meander lines, and an express reference to the described boundary as “meandering” along the river, we held that the specific metes and bounds description of the riparian boundary, which included references to monumental and non-monumental marks, was insufficient alone to “indicate an intent contrary to” the “low-water line” presumption of § 70-16-201, MCA. Monforton, ¶¶ 26-29. We so held notwithstanding that the metes and bounds description referenced and ran along the high-water mark, the existence of contrary extrinsic evidence, and that the river lot owners had not paid taxes on the adjoining property between the high- and low-water marks. Monforton, ¶¶ 26-29. ¶19 Similarly here, the parties do not dispute that their source common grantor (Streeters) owned at least to the low-water mark of Parker Lake. The parties affirmatively agree that the Ash Property lake frontage descriptions in COS 10404 and the Ash deed are consistent, clear, and unambiguous. Mere disagreement about the meaning of the otherwise clear and unambiguous metes and bounds descriptions in COS 10404 and the Ash deed is insufficient to render those instruments ambiguous. Heggem, ¶ 30. ¶20 While the descriptions in COS 10404 and the Ash deed do not use any form of the term “meander” to describe the property boundary along Parker Lake, express reference or use of the term “meander” in an instrument of conveyance is not talismanic. By nature, water bodies meander and their boundaries are meandering. See, e.g., Faucett, 82 Mont. at 257-58, 266 P. at 648; St. Paul & Pac. R.R. Co., 74 U.S. at 286-87; Brown’s 463 (defining “high-water mark”). With or without express reference to the term “meander,” a metes and bounds description that plots a varying course, using specific measured distances running from precisely referenced points, to plot an otherwise non-uniform edge of a water body is an approximate meander line unless otherwise clearly provided in the instrument of conveyance. Monforton, ¶¶ 20-21. ¶21 Unlike other particularized metes and bounds descriptions intended to establish stationary boundary lines on the ground, the purpose of a particularized metes and bounds description along a water body is to provide a reasonably precise approximation of an ever-varying course along the non-stationary and non-uniform edge of the water body. Monforton, ¶¶ 20-24. The particularized approximation permits a reasonably precise description of the location and quantity of land bought or sold with the understanding that the actual boundary and quantity of the land varies with the fluctuating, meandering water line of the lake or stream. Monforton, ¶¶ 20-24. In turn, the meander line methodology of approximating riparian boundaries is consistent with the default rule of § 70-16-201, MCA, that the party who owns property to the high-water mark of a navigable or non-navigable body of water also owns the adjoining property between the high- and low-water marks unless the source instrument of conveyance provides otherwise. Monforton, ¶ 25. Due to the inherent difficulty in describing a naturally meandering water body by uniform measurements, a conveyance of riparian property by reference to a specific metes and bounds description along the high-water mark is insufficient alone to overcome the presumption of § 70-16-201, MCA, that the grantee takes at least to the low-water mark. Monforton, ¶¶ 26-29. See also § 70-1-519, MCA (conveyance of real property conveys all title held by the grantor in the subject property unless otherwise clearly provided by the instrument of conveyance). ¶22 As in Monforton, the metes and bounds descriptions of the Parker Lake frontage in COS 10404 and the resulting Ash deed are unquestionably meander line descriptions, i.e., particularized metes and bounds plots approximately corresponding to the otherwise non-uniform edge of a meandering water body. Aside from express references to specific metes and bounds courses along the high-water mark, nothing in COS 10404 or the resulting Ash deed indicate any intent of the parties’ common grantors (Streeters) to strip themselves, or successors, of the grantors’ preexisting ownership of the land between the high- and low-water marks of Parker Lake along the Ash Property. Thus, in accordance with the presumption of §§ 70-1-519 and 70-16-201, MCA, Streeters retained ownership of the land between the high- and low-water marks along the Ash Property in COS 10404, which then carried forward to Ash under a successive conveyance referencing COS 10404 without limitation. Merlette never acquired title to the land between the high- and low-water marks along the Ash Property because the source description of the property in COS 10404 was insufficient to separate the adjoining land below the high-water mark and the subsequent deed from Streeters to Bradshaw expressly excluded the Ash Property from the conveyance of the Merlette Property. Bradshaw simply never owned the disputed land below the high-water mark to convey to Merlette even if he had intended to do so. Despite express reference to the high-water mark, the specific metes and bounds description of the riparian boundary of the Ash Property in COS 10404, as carried forward and repeated in substance in the Ash deed, was a meander line establishing the riparian boundary of the Ash Property at least to the low-water mark of Parker Lake pursuant to § 70-16-201, MCA. We hold that the District Court correctly granted summary judgment declaring that the Ash Property includes, and thus Ash owns, the disputed land between the high- and low-water marks of Parker Lake. CONCLUSION ¶23 The specific metes and bounds description of the riparian boundary of the Ash Property in COS 10404, as carried forward and repeated in substance in the Ash deed, was a meander line description establishing the riparian boundary of the Ash Property at least to the low-water mark of Parker Lake. We hold that the District Court correctly granted summary judgment declaring that Ash owns the disputed land between the high- and low-water marks. ¶24 Affirmed and remanded for further proceedings. CHIEF JUSTICE McGRATH, JUSTICES SHEA, WHEAT and RICE concur. See Tract 1 and Parcel A, COS 10120, filed March 1991, Flathead County real property records. Certificate of Survey 10404, filed December 5, 1991, Flathead County real property records. Inter alia, the 1992 Bradshaw deed included language expressly reserving “unto” Streeters “lifetime fishing and boating rights and privileges” to Parker Lake, “including access to exercise said boating rights and privileges.” In 2001, Merlette sold .66 acres of the original 37.17-acre tract to Olson-Ash to resolve a mistaken septic system drain field encroachment. COS 14886, Flathead County real property records. Special Warranty Deed from Pan American Bank, FSB, to Barry L. Olson and Brenda M. Olson, Doc. No. 200006-16450, recorded in the official real property records of the Flathead County Clerk and Recorder on March 6, 2000. 33 U.S.C. § 1334. See also § 23-2-301(9), MCA (definition of “ordinary high-water mark”). However, references and depictions in certificates of survey are sufficient to create a new property interest only to the extent that they adequately describe the interest and clearly manifest the grantor’s intent to do so. Blazer, ¶¶ 38-40. As a secondary fallback position in the event this Court might conclude that the instruments of conveyance of the Ash Property are ambiguous, Merlette alternatively asserts that certain extrinsic evidence precludes judgment as a matter of law and supports factual argument in his favor at trial. Due to rough terrain, bad weather, antiquated instruments, and occasional error, purported 640-acre sections often vary by a few inches to several hundred feet from a precise square mile. David E. Wolley and Lisa D. Herzog, MERS:The Unreported Effects of Lost Chain of Title on Real Property Owners, 8 Hastings Bus. L. J. 365, 366-69 (2012). “Riparian” means “relating to, or located on the bank of a river or stream (or occasionally another body of water, suchas a lake).” Black’s Law Dictionary 1524 (Bryan A. Garner ed., 10th ed. 2014). A “riparian owner” is an owner of land “along, bordering upon, bounded by, fronting upon,” or “abutting or adj acent and contiguous to” a non-tidal body of water. Black’s Law Dictionary 1192 (5th ed. 1979). See Faucett, 82 Mont. at 259, 266 P. at 648 (noting that § 70-16-201, MCA, is a mere codification of the common law rule). See § 70-16-201, MCA (riparian owners generally own at least to the low-water mark depending on navigability). In other words, if a grantor actually intends to limit a riparian boundary to the high-water mark, or other described line, the grantor must expressly reserve or except the land below the high-water mark, or other described line, from the description of the subject tract by expressly declaring, in the subject deed and source COS or subdivision plat, that the described riparian boundary along the high-water mark, or other described upland line, is the actual boundary line rather than an approximate meander line. North Shore, 530 N.W.2d at 302-03. Any such reservation or exception that effects a “division of land,” as defined by § 76-3-103(4), MCA, is of course subject to applicable provisions of the Montana Subdivision and Platting Act. See Title 76, chapter 3, MCA. Despite his concession that the language of the subject instruments of conveyance are clear and unambiguous, Merlette suggests in a secondary fallback argument that Streeters’ reservation of “lifetime fishing and boating privileges, including access to exercise said rights,” in their 1992 conveyance of the Merlette property to Bradshaw evinces Streeters’ awareness that they did not retain any ownership interest around Parker Lake below the high-water mark. Streeters’ rationale for including the reservation of a personal right vis-a-vis Bradshaw is indeed subject to speculation without resort to extrinsic evidence. However, in addition to being consistent with their independent retention of previously acquired appurtenant lakefront access during their continued term of ownership of the Ash Property (Parcel A), the subsequent reservation of a personal right in the Bradshaw deed is insufficient as a matter of law to create ambiguity on the face of the prior source COS from which the Ash Property derived and from which the Merlette Property did not. Merlette has made no such showing or assertion.

Denied Original Proceeding Mandamus

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 Justin Williams (Williams) appeals from an order entered by the Fourth Judicial District Court, Missoula County, affirming the Municipal Court of the City of Missoula’s denial of his motion to suppress blood evidence in a DUI proceeding against him. We affirm. ¶2 Williams presents the following issues for our review: 1. Whether the District Court erred in affirming a telephonic search warrant issued pursuant to § 61-8-402(5), MCA, to draw Williams’s blood. 2. Whether the District Court erred in failing to consider the merits of Williams’s contention that he did not receive the implied consent advisory prior to his blood draw. FACTUAL AND PROCEDURAL BACKGROUND ¶3 On January 24, 2016, at 2:48 a.m., Missoula Police Deputy Jenna Volinkaty (Volinkaty) observed Williams speeding in a rental truck, lose control of the vehicle, collide with a utility pole and tree, and attempt to leave the scene. Using a radar device before the collision, Volinkaty measured Williams traveling between 50 and 55 miles per hour and another officer measured him traveling at 70 miles per hour and accelerating. The speed limit in the area is 30 miles per hour. Volinkaty smelled alcohol on Williams’s breath, saw that his eyes were glassy, watery, and bloodshot, his clothing was soiled, that he could not maintain his balance, and heard Williams slur his words. Volinkaty arrested Williams for suspected DUI. Williams admitted he had consumed alcohol, but refused to take an Intoxilyzer breath test. Volinkaty learned that in 2008, Williams was convicted of an alcohol-related driving offense under Arizona Revised Statute § 28-1381. ¶4 Volinkaty contacted Judge Marie Anderson to obtain a telephonic search warrant to draw Williams’s blood. In her affidavit, Volinkaty described seeing Williams speeding, travelling 50-55 miles per hour, losing control, and crashing into a utility pole at 2:48 a.m.; Williams being taken into custody after he attempted to flee; observing symptoms of his impairment including watery, bloodshot eyes, slurred speech, staggering movements, soiled clothing, and mood swings. Volinkaty also notified Judge Anderson that “the suspect has a prior conviction for DUI or substantially similar offense on 11/20/2008 in Arizona.” Judge Anderson authorized the issuance of the search warrant and Volinkaty executed it by having Williams’s blood drawn. Williams had a blood alcohol content (BAC) of 0.197. ¶5 The City of Missoula (the City) charged Williams with aggravated DUI pursuant to § 61-8-465, MCA; reckless driving pursuant to § 61-8-301, MCA; and refusing to submit to a blood or breath test pursuant to § 10.56.020 of the Missoula Municipal Code. Williams filed a motion to suppress the blood draw evidence arguing it was obtained pursuant to a search warrant that relied on a previous conviction from Arizona that “does not qualify as a ‘similar’ offense under Section 61-8-402(5).” The Municipal Court denied Williams’s motion to suppress “concludlingl that the Arizona DUI conviction could be considered a ‘similar’ offense for purposes of seeking a telephonic search warrant.” In its order, the Municipal Court recognized, however, that under State v. McNally, 2002 MT 160, 310 Mont. 396, 50 P.3d 1080, the Arizona conviction could not be used to enhance Williams’s DUI sentence to a felony. Reserving his right to appeal the adverse determination on his motion to suppress, Williams pleaded no contest to aggravated DUI. The City dismissed the remaining two charges. The Municipal Court sentenced Williams to six months in jail with all but five days suspended and imposed a fine of $1,000. ¶6 Williams appealed the Municipal Court’s order denying his motion to suppress to Montana’s Fourth Judicial District Court, Missoula County, and made an additional argument that “Officer Volinkaty failed to include in her Affidavit of Probable Cause that she had read to [Williams] the Implied Consent Advisory and therefore information about his refusal is called into question.” The District Court affirmed the Municipal Court’s order denying Williams’s motion to suppress on the same grounds as the Municipal Court, concluding that the Arizona statute is “similar” to Montana’s DUI statute “for the purposes of being able to seek a telephonic search warrant under the auspices of Mont. Code Ann. §61-8-402(5).” The District Court declined to address Williams’s additional argument “|b lecause this issue was not previously raised and the municipal court had no opportunity to rule on the issue ....” ¶7 Williams appeals. STANDARDS OF REVIEW ¶8 On appeal from a municipal court, the district court functions as an intermediate appellate court. Sections 3-5-303, 3-6-110, MCA; City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461. When a district court acts as an intermediate appellate court, “[t]he appeal is confined to review of the record and questions of law, subject to the supreme court’s rulemaking and supervisory authority.” Section 3-6-110(1), MCA. Our review of the case is as if the appeal was originally filed in this Court and we examine the record independently of the district court’s decision. Stanley v. Lemire, 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643. This Court reviews a ruling on a motion to suppress evidence to determine whether the court’s findings of fact are clearly erroneous and whether the court’s interpretation and application of the law are correct. State v. Marcial, 2013 MT 242, ¶ 10, 371 Mont. 348, 308 P.3d 69. Although we will review the municipal court record as if the appeal was originally filed in this Court, our disposition pertains to the order of the district court from which the appeal is taken. DISCUSSION ¶9 1. Whether the District Court erred in affirming a telephonic search warrant issued pursuant to § 61-8-402(5), MCA, to draw Williams’s blood. ¶10 Williams challenges the legality of the search warrant application that allowed his blood to be drawn. Williams contends on appeal that, under McNally, Arizona and Montana’s DUI statutes are not “similar” and, without similarity, there was insufficient evidence to authorize a blood draw under § 61-8-402(5), MCA. Therefore, Williams concludes, “the search warrant was illegal and the blood draw results should have been suppressed.” ¶11 The City responds that McNally is distinguishable because it addressed “similarity” for sentencing purposes only, not for obtaining search warrants pursuant to § 61-8-402(5), MCA. The City also contends, based upon the statutory history of § 61-8-402(5), MCA, that Arizona and Montana’s DUI statutes are similar. The City concludes that construing Arizona and Montana’s DUI statutes as not similar would frustrate the Legislature’s intent when it authorized the drawing of a person’s blood pursuant to the provisions of § 61-8-402(5), MCA. ¶12 While we ultimately conclude that McNally is not dispositive of the issue before us, some discussion of McNally and its progeny are necessary to understand the legal inquiry required in assessing the similarity of another state’s statutes with ours and whether such an inquiry is appropriate in deciding if a search warrant should issue. The statute at issue in McNally was a sentencing enhancement statute, § 61-8-734(1)(a), MCA, which elevates a DUI offense to a felony if the offender has three or more prior convictions under certain Montana laws or “a similar statute or regulation in another state.” McNally, ¶ 11 (quoting § 61-8-734(1)(a), MCA). McNally was charged with a fourth or subsequent DUI after having previously received four Driving While Ability Impaired (DWAI) convictions in Colorado. McNally, ¶ 3. Because Colorado law provides a DWAI offense and Montana’s law does not, McNally argued on appeal that his prior convictions for DWAI “did not constitute previous convictions under a similar statute for the purposes of enhancing Count I to Felony DUI under § 61-8-734, MCA,” and he could, therefore, “be sentenced only for a first offense DUI, a misdemeanor.” McNally, ¶ 3. ¶13 This Court conducted a careful review and comparison of the statutory scheme pertaining to alcohol-related offenses for both Colorado and Montana, which required consideration of the elements and degree of impairment for each state’s respective offenses. We agreed with McNally, differentiating between Colorado’s scheme of alcohol-related driving offenses, which provided for three offenses, DUI, DUI per se, and DWAI, and Montana’s, which only provided for two, DUI and DUI per se. McNally, ¶¶ 7-10. Reasoning that the standard of impairment contained in Colorado’s DWAI statute, which required impairment only to the “slightest degree,” was lower than the standard of impairment in Montana’s DUI statute requiring the driver’s ability be “diminished,” we determined “McNally’s prior convictions in Colorado do not constitute ‘convictionfs] for a violation of a similar statute ... in another state,’ as required under § 61-8-734(1)(a),MCA ....’’McNally, ¶¶ 18,22 (quoting § 61-8-734(l)(a), MCA). “[W]e concludefd] it was error to enhance McNally’s DUI conviction to a felony based on his convictions under Colorado’s DWAI statute.” McNally, ¶ 23. In sum, McNally held that Colorado’s DWAI statute is not “similar” to Montana’s DUI statute within the meaning of § 61-8-734(1)(a), MCA. ¶14 The Montana Legislature has also utilized the language, “similar statute,” relative to requirements for obtaining blood or breath tests where probable cause exists to suspect impaired driving. We begin with Montana’s statutory presumption of implied consent that “[a] person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a test or tests of the person’s blood or breath for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person’s body.” Section 61-8-402(1), MCA. However, if an arrested person refuses to supply a BAC sample, the “refused test or tests may not be given.” Section 61-8-402(4), MCA. Section 61-8-402(5), MCA, carves out an exception to this rule: If the arrested person has refused to provide a breath, blood, or urine sample under 61-8-409 or this section in a prior investigation in this state or under a substantially similar statute in another jurisdiction or the arrested person has a prior conviction or pending offense for a violation of45-5-104 [negligent homicide], 45-5-106 [vehicular homicide while under the influence], 45-5-205 [negligent vehicular assault], 61-8-401 [DUI], 61-8-406 [DUI per se], or 61-8-411 [operating a vehicle under the influence of THC] or a similar statute in another jurisdiction, the officer may apply for a search warrant to be issued pursuant to 46-5-224 to collect a sample of the person’s blood for testing. ¶15 The Legislature added § 61-8-402(5), MCA, in 2011. Prior to its inclusion, the statute “did not permit law enforcement to apply for a search warrant in DUI cases if an arrested person refused to submit to BAC testing.” State v. Giacomini, 2014 MT 93, ¶ 10, 374 Mont. 412, 327 P.3d 1054. If an arrested person refused to submit to a blood or breath test “the refused test or tests [could] not be given ....” Section 61-8-402(4), MCA (2009). A blood sample could only be taken pursuant to a search warrant if probable cause existed that an offense other than the underlying DUI had occurred. Giacomini, ¶ 10 (citing Collins v. Dep’t of Justice, Div. of Highway Patrol, 232 Mont. 73, 78, 755 P.2d 1373, 1376 (1988)). The statutory framework was revised in 2011 by the Legislature’s passage of Senate Bill 42, which authorized law enforcement to apply for a search warrant for a blood draw where an arrested person refused to submit to BAC testing and had a prior conviction for any of the listed driving, alcohol-related driving, or drug-related driving offenses “or a similar statute in another jurisdiction.” The amended bill was explained by a proponent: The question is: What do you do with these people who have figured out the game? That is—“If I refuse, they don’t have the evidence.” And you notice that the committee amended the bill for the repeat offenders just for that reason. Because there was a general idea that we shouldn’t do it for the first refusal. And what we got here is a bill to try to compel the person that fits the profile of the repeater to give evidence .... When you tell them “You either give us a breath test or we go to the judge and get a warrant [for your blood,]” they’re going to give you a breath test and that is the object of the exercise. ¶16 This Court addressed a challenge to § 61-8-402(5), MCA, in Giacomini. Giacomini refused to submit to a breath test requested during a traffic stop. Giacomini, ¶ 4. Because Giacomini had refused to provide a BAC test in the past, law enforcement applied for and received a warrant to draw his blood pursuant to § 61-8-402(5), MCA. Giacomini, ¶ 5. On appeal, Giacomini argued that “his prior refusal of a breath test [was] insufficient to establish probable cause to support a search warrant to draw his blood.” Giacomini, ¶ 12. In response, we noted that “[t]he revisions made to § 61-8-402, MCA, by Senate Bill 42 merely removed the statutory prohibition on seeking a search warrant for a blood draw ....” Giacomini, ¶ 13. We explained that an arrested person’s prior refusal does not by itself establish the necessary probable cause for a warrant, “but merely permits police to apply for a warrant” under § 61-8-402(5), MCA. Giacomini, ¶ 13. Aside from his prior refusal, there was a substantial basis to support the judge’s determination that probable cause existed in Giacomini’s case, including that he had driven the wrong way down a one-way street; had watery, bloodshot eyes; smelled like alcohol; swayed and staggered; and performed poorly on standard field sobriety tests. Giacomini, ¶ 13. Section 61-8-402(5), MCA, does not supply probable cause, but allows a mechanism to gather evidence against those who have either refused a test in the past or been charged with or convicted of various, but specifically enumerated offenses. ¶17 Here, Williams contends McNally is not limited to sentencing and asserts that “Itlhere is no meaningful distinction between the sentencing enhancement statute [§ 61-8-734(1), MCA,] and the telephonic search warrant application statute [§ 61-8-402(5), MCA]....” Pointing out that both Arizona and Colorado’s DWAI statutes include a threshold level of impairment described as to the “slightest degree,” Williams argues that Arizona and Colorado’s DWAI statutes are the same and, based on our holding in McNally, neither is similar to Montana’s DUI statute, which requires a driver’s ability to be “diminished.” Williams urges us to expand McNally and hold that because Montana’s DUI statute is not similar to Colorado’s DWAI statute, within the meaning of § 61-8-734(1), MCA, Montana’s DUI statute is also not similar to Arizona’s DWAI statute, within the meaning of § 61-8-402(5), MCA. While it is true that both statutes require convictions for “similar” offenses in order to justify either an enhanced sentence or the taking of a person’s blood, significant to resolving the underlying issue are well-established principles for reviewing the sufficiency of a search warrant application, which remain distinguishable from review of predicate convictions for purposes of sentencing and other aspects of the criminal trial. Hence, when reviewing the issuance of a search warrant pursuant to § 61-8-402(5), MCA, it is unnecessary for this Court to determine whether Arizona and Montana have “similar” DUI statutes as we did in McNally. Such an inquiry, which is entirely a question of law, is beyond review of the “facts” set forth within the four corners of the application and otherwise necessary for a determination of probable cause. ¶18 Probable cause is required for a judge to issue a search warrant. A judge shall issue a search warrant to a person upon application ... made under oath or affirmation, that: (1) states facts sufficient to support probable cause to believe that an offense has been committed; (2) states facts sufficient to support probable cause to believe that evidence, contraband, or persons connected with the offense may be found; (3) particularly describes the place, object, or persons to be searched; and (4) particularly describes who or what is to be seized. Section 46-5-221, MCA. This Court follows the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317 (1983). State v. Reesman, 2000 MT 243, ¶ 24, 301 Mont. 408, 10 P.3d 83; overruled on other grounds by State v. Barnaby, 2006 MT 203, ¶ 42, 333 Mont. 220, 142 P.3d 809. Under this test, to determine if a search warrant should be issued, the judge evaluates the facts asserted within the four corners of the warrant application and makes a practical, common sense determination whether there is a fair probability that incriminating items will be found in the place to which entry is sought. Reesman, ¶ 24 (citations omitted). ¶19 Williams does not dispute that he was convicted under Arizona Revised Statute § 28-1381 or argue that there were insufficient facts to demonstrate probable cause he was driving while impaired. Nor does Williams dispute the validity of Volinkaty’s observations. Williams’s entire argument is based upon Volinkaty’s inclusion in the affidavit of his prior Arizona conviction, which he maintains is not similar to any statute in Montana. Williams thus presents a challenge to the validity of Volinkaty’s affidavit. We adopted the Franks procedure for challenging the validity of a warrant affidavit in State v. Sykes, 194 Mont. 14, 20, 663 P.2d 691, 695 (1983); overruled on other grounds by State v. Long, 216 Mont. 65, 69, 700 P.2d 153, 156 (1985). “[A] warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter.” Franks v. Delaware, 438 U.S. 154, 165, 98 S. Ct. 2674, 2681 (1978). “There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant.” Franks, 438 U.S. at 171, 98 S. Ct. at 2684. A “judge or magistrate is required to evaluate only the facts asserted within the four corners of a search warrant application. If inaccurate or misleading information is included in that application, it must be excised from the application regardless of whether that information was included mistakenly, negligently, or intentionally.” State v. Worrall, 1999 MT 55 ¶ 33, 293 Mont. 439, 976 P.2d 968 (citation omitted); overruled on other grounds by State v. Kasparek, 2016 MT 163, ¶ 12, 384 Mont. 56, 375 P.3d 372. “This Court’s only function is to ensure that the issuing judicial officer had a substantial basis to determine that probable cause existed” and we pay great deference to a magistrate’s determination. State v. Estes, 2017 MT 226, ¶ 24, 388 Mont. 491, 403 P.3d 1249 (citation omitted). “When the issuance of a search warrant is based in part on illegal information, the reviewing court shall excise the illegally obtained information from the application for search warrant and review the remaining information de novo to determine whether probable cause supported the issuance of a search warrant.” Estes, ¶ 24 (citation omitted). Significantly, § 61-8-402(5), MCA, does not alter how search warrants are to be issued and reviewed. ¶20 Our review, and that of the issuing judge, is constrained to the facts within the four corners of the affidavit and we decline to conduct a legal inquiry into the similarity of Montana’s statutes with those of Arizona. At a minimum, such an inquiry would require consideration of information not within the application and beyond the requirements for establishing probable cause. See Reesman, ¶ 24; § 46-5-221, MCA. Williams’s contention is based on a conclusion of law reached after conducting a legal analysis of the alcohol-related statutory schemes in Arizona, Colorado, and Montana, as well as specific statutory elements. The determination of whether two statutes are “similar” is not informed by facts contained within the affidavit which were observed by the officer in the commission of the alcohol-related offense and any inquiry of statutory similarity for purposes of § 61-8-402(5), MCA, which is beyond the affiant’s averment that they are similar, is outside the four corners of the affidavit and unnecessary. Here, Volinkaty represented under oath that Williams had a prior conviction “for a DUI or substantially similar offense on 11/20/2008 in Arizona.” Neither Volinkaty nor Judge Anderson is compelled to conduct an exhaustive legal analysis into “similarity” of the statutes in order to meet the requirements of § 61-8-402(5), MCA, for issuance of a search warrant. ¶21 Finally, we would be remiss if we failed to note that conducting such an analysis would place an impractical or impossible burden on police officers and issuing judges prior to applying for or issuing a search warrant. Such a requirement would be time consuming and DUI investigations are time-sensitive by nature because the evidence of the offense metabolizes out of the driver’s bloodstream simply by the passage of time. We are also confident that if the Legislature is dissatisfied with our interpretation made here, it will exercise its authority and determine otherwise. ¶22 We conclude that conducting a “similarity” analysis of Arizona and Montana DUI statutes—a question purely of law—would go beyond the four corners of the affidavit. In the absence of inaccurate, misleading, or illegally obtained information, it was unnecessary to excise from the affidavit Volinkaty’s representations that Williams had a prior conviction in Arizona for DUI. The District Court did not err in denying Williams’s motion to suppress. ¶23 2. Whether the District Court erred in failing to consider the merits of Williams’s contention that he did not receive the implied consent advisory prior to his blood draw. ¶24 Williams argues generally that the warrant requirements were not met and that the City failed to demonstrate that they were met. Williams more specifically argues that Volinkaty failed to read the implied consent advisory. This failure, Williams argues, is fatal to the search warrant application’s validity. Williams also faults the District Court for failing to address this argument. The City responds that Williams failed to raise this issue in the Municipal Court and that issues raised for the first time on appeal are not addressed. ¶25 Those who operate a motor vehicle in the state of Montana have impliedly consented to submit to a blood or breath test for the purpose of determining the presence or amount of alcohol or drugs in their body. Section 61-8-402(1), MCA. “[D]ue process requires that the arresting officer inform the accused of his or her right to obtain an independent blood test, regardless of whether the accused consents to the test designated by the officer.” State v. Strand, 286 Mont. 122, 126, 951 P.2d 552, 554 (1997); overruled on other grounds by State v. Minkoff, 2002 MT 29, ¶ 14, 308 Mont. 248, 42 P.3d 223. This advisory, derived from principles of fairness and due process, is called the implied consent advisory. ¶26 “The rule is well established that this Court will not address an issue raised for the first time on appeal. The reason for the rule is that it is fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the opportunity to consider.” State v. Gomez, 2007 MT 111, ¶ 21, 337 Mont. 219, 158 P.3d 442 (quotation and citations omitted). When the district court acted as an intermediate appellate court, we review the case as if the appeal was originally filed in this Court, examining the record independently of the district court’s decision. Stanley, ¶ 26. ¶27 Our review of the record reveals the only issue raised in the Municipal Court was whether “the blood evidence obtained pursuant to the search warrant should be suppressed because [Williams’s] previous conviction from Arizona does not qualify as a ‘similar’ offense under Section 61-8-402(5).” It is clear from the briefing in the Municipal Court, that the parties agreed that the implied consent advisory had been given. Both parties referred to Volinkaty providing an implied consent advisory to Williams prior to his refusing to provide a BAC sample. We conclude that whether Volinkaty supplied the implied consent advisory was not at issue in the Municipal Court and the District Court correctly declined to address the matter. For the same reason, we also decline to address Williams’s contention that the search warrant is invalid because Volinkaty failed to give him the implied consent advisory. CONCLUSION ¶28 The decision of the District Court affirming the Municipal Court’s denial of Williams’s motion to suppress is affirmed. CHIEF JUSTICE McGRATH, JUSTICES SHEA and BAKER concur. Authorize Warrants to Obtain Blood or Breath Test in DUI Cases, Second Reading of Senate Bill 42, 62nd Leg., at 1:24:30-1:25:23 (2011) (statement of Sen. Larry Jent), available at https://perma.cc/D3BN-XH3X. Notwithstanding the limitation on the issuing judge to the “four comers’ of the application, search warrants must be supported by probable cause—a different standard from preponderance of the evidence applicable to whether a conviction is valid for purposes of sentencing enhancement. State v. Maine, 2011 MT 90, ¶ 13, 360 Mont. 182, 255 P.3d 64; State v. Krebs, 2016 MT 288, ¶ 12, 385 Mont. 328, 384 P.3d 98. Probable cause, the standard upon which a search warrant may issue, is lower than a preponderance of the evidence, the standard required to establish the existence of prior convictions. Furthermore, probable cause is a less onerous standard than determining whether a prior conviction from a different state was pursuant to a “similar statute” for sentencing enhancement purposes. This Court will review a district court’s determinations of similarity to determine if its conclusions of law were correct as a matter of law. Our review under such circumstances is plenary. McNally, ¶ 5.

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 Robert Pierce appeals from the order entered in the Third Judicial District Court, Anaconda-Deer Lodge County, denying his motions for discovery sanctions and for mistrial. Pierce was convicted by a jury of sexual intercourse without consent and sexual assault involving his step-granddaughter, M.R., who was age nine and eleven at the time of the offenses. We affirm. ¶2 Pierce presents the following issues for review: 1. Whether the District Court abused its discretion when it denied Pierce’s request for continuance. 2. Whether the District Court abused its discretion when it denied Pierce’s motion for mistrial. FACTUAL AND PROCEDURAL BACKGROUND ¶3 M.R.’s father died prior to her birth in 1998 and M.R. was raised by her mother Malissa (Mother). M.R.’s paternal grandmother (Grandmother) and Grandmother’s husband (Pierce) assisted Mother with raising M.R and her siblings. M.R. frequently spent weekends and holidays with Pierce and Grandmother; camped together; hunted together; and did many family activities together. ¶4 On February 5, 2012, when M.R. was fourteen, Mother had a Super Bowl party that Grandmother and Pierce attended. Mother noticed that M.R. was distant and cross towards her. M.R. was on the phone with her boyfriend during the party and was told by her boyfriend that she was a “prude.” The accusation prompted M.R. to respond to her boyfriend that she had been touched by Pierce. Following this disclosure, M.R.’s boyfriend insisted that M.R. tell her mother or, alternatively, that he would tell M.R.’s mother the next day. After everyone left the party, M.R. told Mother about Pierce’s abuse. ¶5 M.R. disclosed to Mother that Pierce first touched her when she was in the third grade while M.R. was visiting at Grandmother’s home. M.R. was alone playing video games when Pierce sat down next to her. Pierce unbuttoned M.R.’s pants, held her down with one hand, slipped his other hand down her pants, and put his fingers inside of her. When M.R. struggled, Pierce held her down and covered her mouth when she tried to scream for Grandmother. Pierce told M.R. not to tell anybody because he would get into a lot of trouble. M.R. described that “it hurt really bad” when Pierce touched her vagina, and she had trouble urinating later “because it burned so bad.” M.R. could feel Pierce’s penis touching her leg through his pants. Afterwards, M.R. ran downstairs and sat with Grandmother, but M.R. did not tell Grandmother what Pierce had done. ¶6 M.R. also disclosed to Mother two other incidents when Pierce abused her. These incidents occurred when the family was traveling. Once, in a Missoula hotel, M.R. was sleeping in bed with Grandmother and Pierce. Grandmother was facing away from M.R. and Pierce began to suck on M.R.’s breasts. M.R. responded by moving to the other side of Grandmother in the bed. The second time was at a hotel in Kalispell. While in bed with Grandmother and Pierce, Pierce touched M.R.’s breasts and placed her hand on his penis. M.R. again moved, but this time M.R. got into a different bed with her brother. ¶7 Following these disclosures, Mother testifiedM.R. satinherarms and they both held each other and cried through the night. That morning, Mother called her friend, Assistant Chief of Police of Anaconda, Bill Sather (Sather), asking for guidance. Mother testified she “had no idea what to do, and [she] knew he would have some options.” Sather informed Mother that he was a mandatory reporter and advised Mother to tell Grandmother of M.R.’s disclosures. ¶8 After speaking with Sather, Mother called her family counselor, Heidi Matlack-Larson (Matlack-Larson), who similarly informed Mother that she was a mandatory reporter. Matlack-Larson advised Mother to tell Grandmother of M.R.’s disclosures. Pierce was in Las Vegas at the time so Mother went over to Grandmother’s home and told her what M.R. had said. Both agreed that they should confront Pierce together, but were unable to reach him on the phone. Later, after Mother had left Grandmother’s home, Grandmother spoke to Pierce and told Pierce of M.R.’s disclosures. Grandmother’s conversation with Pierce occurred before Mother or M.R. had confronted Pierce about M.R.’s disclosures. ¶9 After Mother learned of Grandmother’s conversation with Pierce, Mother called Pierce herself. Pierce said that M.R. was lying and had made up her story because of peer pressure; specifically, that M.R.’s friends were talking about being molested or M.R.’s boyfriend set M.R. up to tell the story. Pierce was calm while talking to Mother and not angry. Mother explained to Pierce that if he admitted to M.R.’s allegations the family would get him help; but if he continued to deny M.R.’s allegations and “make my daughter out to be a liar, you will be prosecuted.” When Pierce learned that Mother had contacted Sather he became very angry. The phone call ended when Mother lost reception. ¶10 M.R. became angry when she learned from Mother that Pierce had said she was lying. Mother and M.R. decided to call Pierce. When Pierce answered, M.R. did not tell him that Mother was also listening in on the phone call. M.R. asked Pierce why he was lying and would not just admit to what he had done to her. Pierce asked M.R. why she was bringing this up now and to whom M.R. had made her disclosures. Pierce told M.R. that this could ruin his career and it was killing Grandmother. Pierce suggested that maybe it was M.R. who had touched him, that he would turn the story around and tell people she had touched him, and that her life would be horrible if she continued to insist her story was true. Pierce threatened M.R. that he was in a tall building and that he might jump from the window. M.R. told Pierce he had a choice to admit that he did this to her, in which case they would get him help and the matter would end. Pierce insisted he did not abuse her. At this point, Mother took the phone from M.R. and accused Pierce of being a pervert, that he was going to die, that he would be prosecuted, and that she was calling the police. Mother hung up the phone. Pierce called back and said he would not admit to anything and “I sign [Sather’s] paychecks.” Mother then yelled at Pierce again and hung up. Soon afterwards, Sather picked up Mother and M.R. and took them to the police station where they provided written statements. ¶11 Sather initiated an investigation of Pierce. However, the case was quickly transferred to the Division of Criminal Investigation (DCI) due to Pierce’s position as Deer Lodge County Commissioner. DCI Agent Phil Matteson (Agent Matteson) was assigned to the case and made a physical copy of the County’s law enforcement file. The Anaconda-Deer Lodge County Department of Law Enforcement (A-DLCDLE) uses a computer system named “Swift” to store investigative reports. After the investigation had begun, Sather produced a report (Sather Report) which was not included in the Swift program and apparently was also not contained within the physical file that Agent Matteson copied. Agent Matteson subsequently retired and the case was taken over by DCI Agent Sullivan. Agent Sullivan first discovered the Sather Report on April 16, 2013, just a few days before the scheduled trial date of April 22, 2013, when he went to retrieve a better copy of a different document from A-DLCDLE. Neither Agent Sullivan nor either party’s counsel had seen the Sather Report prior to April 16, 2013. Upon learning of the Sather Report, the State immediately filed a Notice of Compliance and provided a copy of the Sather Report to the defense. ¶12 In response to disclosure of the Sather Report, Pierce filed a motion for sanctions and requested additional time to locate and interview witnesses identified in the document. The District Court held a hearing on April 18, 2013, during which Agent Sullivan explained the contents of the Sather Report and discussed whether the substance of the information contained within the Sather report had already been provided to the defense. The Sather Report was admitted into evidence. The State could not explain why the Sather Report was not in the Swift program, why it was not part of the original copy of the Swift file, or how it subsequently was placed into the Swift file where Agent Sullivan discovered it. However, Agent Sullivan testified the only new information not previously disclosed to Pierce were alleged comments made by Chief Executive Officer of Anaconda, Becky Guay (Guay), that Pierce was the “real victim” and that people presumed Pierce was “guilty until proven innocent.” Agent Sullivan testified that the information did not suggest that Guay had any personal knowledge about the case, and that it appeared her statements were merely her personal belief. Relying on State v. Golder, 2000 MT 239, 301 Mont. 368, 9 P.3d 635, the court held that the record did not support Pierce’s claim of undue surprise or prejudice and the court, accordingly, denied Pierce’s motion for sanctions. Pierce’s jury trial began on April 22, 2013. ¶13 During opening statements the State described the struggles M.R. had coming forward with her disclosures and how it similarly would be difficult for M.R. to continue to speak of her abuse at trial. The State explained that Mother wanted to keep M.R.’s disclosures within the family and that Mother told Pierce if he would admit to her and M.R. that he had committed the offenses the matter would be kept within the family. Pierce did not object at any time during the State’s opening statement. ¶14 The following morning Pierce moved for a mistrial. Pierce alleged the State’s opening statement improperly sought sympathy for M.R. and that the State sought to “comment, imply or otherwise impress upon the jury that the Defendant is somehow committing another crime, or further victimizing M.R. by not confessing when confronted by M.R. and her mother [ ] and by exercising his right to a trial.” The State argued that it permissibly summarized what actually happened and the evidence that would be presented. The State denied having suggested that Pierce should be punished for invoking his right to trial. The District Court denied Pierce’s motion for mistrial, concluding the State had not acted improperly and had not commented on Pierce’s invocation of a constitutional right. ¶15 Pierce appeals the District Court’s denial of his motion for discovery sanctions, specifically the denial of a continuance, and Pierce’s motion for mistrial. STANDARDS OF REVIEW ¶16 We review a court’s imposition of sanctions and the admission of the material in controversy for an abuse of discretion. See Golder, ¶ 7. When reviewing a district court’s ruling on a motion for a continuance, we apply an abuse of discretion standard as well. State v. Toulouse, 2005 MT 166, ¶ 14, 327 Mont. 467, 115 P.3d 197. When a district court acts arbitrarily, without conscientious judgment or exceeds the bounds of reason it has abused its discretion. State v. Hernandez, 2009 MT 341, ¶ 7, 353 Mont. 111, 220 P.3d 25. A “district court cannot be overturned on appeal in absence of a showing of prejudice to the movant.” State v. Klemann, 194 Mont. 117, 120, 634 P.2d 632, 634, (1981). ¶17 We similarly review a district court’s denial of a motion for a mistrial for abuse of discretion. State v. Moree, 2010 MT 148, ¶ 11, 357 Mont. 24, 235 P.3d 585. We apply a deferential standard to the district court because the trial judge is in the best position to make the determination. Moree, ¶¶ 11, 18. DISCUSSION ¶18 1. Whether the District Court abused its discretion when it denied Pierce’s request for continuance. ¶19 Pursuant to § 46-15-322(1)(a) and (c), MCA, the prosecution is required to provide a defendant with “the names, addresses, and statements of all persons whom the prosecutor may call as witnesses in the case in chief’ and “all written reports or statements of experts who have personally examined the defendant or any evidence in the particular case ....” Failure to comply with discovery requirements subjects the prosecution to the possible imposition of sanctions pursuant to § 46-15-329, MCA. Relevant to Pierce’s request for a continuance, a “court may impose any sanction that it finds just under the circumstances, including but not limited to: ... (2) granting a continuance ....” Section 46-15-329(2), MCA (emphasis added). ¶20 We have continuously recognized that the statutory language “may” in § 46-15-329, MCA, grants the court discretion regarding imposition of sanctions where there has been a failure to comply with a discovery order. Golder, ¶ 11. Such discretion allows the court to consider the reason why disclosure was not made, whether noncompliance was willful, the amount of prejudice to the opposing party, and any other relevant circumstances. Golder, ¶ 11, citing State v. Waters, 228 Mont. 490, 495, 743 P.2d 617, 621 (1987). ¶21 Here, the court noted that it was undisputed that the materials were immediately disclosed to the defense when DCI and the prosecution became aware of them. Further, the evidence presented by the State established that while the Sather Report had not been disclosed prior to April 16, 2013, the information included in the Sather Report, with the exception of one item, had previously been made available to Pierce in a timely manner. The only portion of the Sather Report not previously disclosed were the comments made by Guay. Pierce does not allege how Guay’s comments surprised or unfairly prejudiced him, particularly since the comments did not involve new evidence or investigation about the case and appeared only to express Guay’s opinion or sympathy for Pierce. Furthermore, Pierce has failed to show how his inability to contact Guay has harmed his defense. There was no indication in the Sather Report that Guay might have had personal knowledge or aided the defense in any way. ¶22 Based upon the foregoing, we conclude the District Court did not abuse its discretion when it denied Pierce’s request for a sanction, in the form of a continuance, because the State’s failure to disclose the Sather Report was not willful and Pierce has failed to demonstrate prejudice or surprise. Significantly, the substance of Guay’s statements did not derive from first-hand knowledge and appeared to be merely Guay’s opinion. ¶23 2. Whether the District Court abused its discretion when it denied Defendant’s motion for mistrial. ¶24 When determining whether to grant or deny a motion for mistrial the trial court will look to whether a defendant has been denied a fair and impartial trial. State v. Bollman, 2012 MT 49, ¶ 33, 364 Mont. 265, 272 P.3d 650. We apply a two-step process when determining if the defendant has been denied a fair and impartial jury trial. State v. Lindberg, 2008 MT 389, ¶ 25, 347 Mont. 76, 196 P.3d 1252. First, we consider whether the prosecutor’s comments were improper. Lindberg, ¶ 25. Next, we look to whether the improper comments prejudiced the defendant’s right to a fair trial. Lindberg, ¶ 25. ¶25 Pierce contends that the State made three improper comments or suggestions during opening statements: (1) the State misinformed the jury that the matter would have been kept in the family if Pierce admitted to M.R.’s allegations, (2) the State impermissibly burdened Pierce’s right to a jury trial by commenting that the jury trial was a result of his denial of M.R.’s allegations, and (3) the State was attempting to invoke sympathy for M.R. based on Pierce exercising his right to a jury trial. ¶26 Mother and M.R. testified that they wished to keep the matter within the family and to get Pierce help for his problems. Significantly, the State did not produce testimony that the State would have kept the incident within the family had Pierce not invoked his right to jury trial. The State appropriately allowed Mother and M.R. to testify it was their hope that the matter could be kept within the family. Mother’s testimony also explained why she delayed acting and reporting following M.R.’s disclosures and further explained the confrontation on the phone with Pierce in the presence of M.R. A consistent theme of the defense was to portray M.R. as lying about the allegations because of peer pressure and to avoid being considered a “prude” by her boyfriend. The testimony from M.R. and Mother refuted this attack on M.R.’s credibility by demonstrating M.R. was motivated to avoid exposure of the incidents and further disclosures to the police, in addition to being required to potentially expose the matter to a jury. Pierce had the opportunity to cross-examine Mother and M.R. regarding the truthfulness of their statements and to attempt to undermine each’s credibility. The record establishes the State’s comments during opening statement were borne out by the evidence through the testimony of Mother and M.R.; that is, they both testified they wanted to avoid trial and to keep the matter within the family. The State was entitled to present this evidence as facts relevant to the presentation of its case and it was permissible for the State to provide an opening statement to the jury outlining the evidence it intended to present. ¶27 Pierce does not cite any specific failure of proof regarding the prosecution’s opening statement. While Pierce maintains that Mother could not have intended to “keep the matter within the family” because she had already alerted two mandatory reporters to the allegations, Mother testified at trial that she did not know at the time she spoke to Sather and Matlack-Larson what a mandatory reporter was. The prosecution’s statements about the consequences M.R. suffered as a result of making the allegations were supported by the evidence, to which Pierce did not object when the testimony was being produced. We conclude that Pierce has failed to meet his burden under the first prong of Lindberg—that the prosecution’s statements were improper—and for this reason the District Court did not abuse its discretion in denying Pierce’s motion for mistrial. ¶28 We feel one final matter cannot be ignored. This Court is obliged to review the entirety of the record and, upon doing so here, we were confronted with the following statement delivered by Pierce’s defense counsel during closing argument, “And for you men, I know if you’ve ever tried to undress a woman, if she’s fighting you, you can’t get that done ....” While contained within closing argument and not prejudicial to Pierce’s defense, this statement nonetheless warrants attention. Not only does such a statement minimize sexual assaults, but it assumes men sitting on the jury have similarly committed sexual assaults. We can appreciate the position of the prosecution and the trial judge deciding not to object or comment on the inappropriateness of such a statement in front of the jury in the interest of avoiding a mistrial. However, we are not so constrained and will not allow the silence to be perpetuated and the statement to escape criticism. The trial judge and opposing counsel should never be placed in such a compromising position. Neither should a jury, who are unable to object or otherwise protest, be forced to suffer such an inappropriate suggestion. Dedicated representation does not include making statements minimizing sexual assaults or assuming male jurors have similarly committed sexual and criminal offenses. Nonetheless, we give defense counsel the gift of doubt that, at best, such a statement was carelessly uttered. CONCLUSION ¶29 The District Court did not abuse its discretion in denying Pierce’s request for a discovery sanction in the form of a continuance. The District Court similarly did not abuse its discretion in denying Pierce’s motion for mistrial. ¶30 Affirmed. CHIEF JUSTICE McGRATH, JUSTICES SHEA, BAKER and RICE concur. In the District Court, Pierce also asked for time to investigate the identity of persons in photos that the State had recently provided during discovery. Pierce does not raise any issues regarding these photos on appeal. The State argues that Pierce waived any objection to the prosecution’s opening statement because he did not raise a contemporaneous objection. Here, conversely, the State responded substantively in chambers to Pierce’s motion for mistrial which included discussion of the State’s opening statement. The State may not change its theory on appeal. State v. Anderson, 1999 MT 60, ¶ 25, 293 Mont. 490, 977 P.2d 983 (citation omitted). Accordingly, this Court will not entertain the State’s waiver argument on appeal.

AfFd in part rev. in part, remanded Dist. 11 (Flathead)

OPINION AND ORDER JUSTICE SHEA delivered the Opinion and Order of the Court. ¶1 Derrick Earl Steilman petitions for a writ of habeas corpus. Relying on Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), and Montgomery v. Louisiana, _ U.S. _, 136 S. Ct. 718 (2016), Steilman argues that his sentence of 110 years imprisonment, without the possibility of parole, for deliberate homicide with the use of a weapon, violates his Eighth Amendment rights because Steilman committed the offense when he was seventeen years old and the sentencing court failed to consider the special circumstances of his youth. ¶2 We address the following issues: Issue One: Whether Miller and Montgomery apply to Montana’s discretionary sentencing scheme. Issue Two: Whether Steilman’s sentence qualifies as a de facto life sentence to which Miller and Montgomery apply. ¶3 We hold that Miller and Montgomery apply to discretionary sentences in Montana. Regarding the applicability to de facto life sentences in Montana, the dispositive issue in this case is whether the unique circumstances of Steilman’s Montana sentence, when viewed in light of his eligibility for day-for-day good time credit and the concurrent sentence he is presently serving in Washington, qualifies as a de facto life sentence to which Miller’s substantive rule applies. We conclude that Steilman’s sentence does not qualify as a de facto life sentence, and therefore we do not reach the merits of whether the District Court properly considered the special circumstances of Steilman’s youth in this case as required by Miller. We deny Steilman’s petition. PROCEDURAL AND FACTUAL BACKGROUND ¶4 On the night of September 17-18, 1996, Steilman and his accomplice, Steven Francis, made a pact to kill someone as a show of trust before pursuing a criminal enterprise together that included a planned bank robbery. Steilman and Francis randomly crossed paths with Paul Bischke. Steilman and Francis demanded Bischke’s money, then struck him at least four times in the head, face, and arms with a crow bar, killing him. At the time he committed this murder, Steilman was 17 years and 323 days old, six weeks before his eighteenth birthday. ¶5 Steilman then moved to Tacoma, Washington, where nearly two years later, on or about September 10, 1998, he killed Jack Davis by beating Davis with a baseball bat. Within a week, Steilman and his then-girlfriend Colleen Wood were arrested in Butte in connection with the Washington homicide. Wood reported that Steilman took her to Davis’s apartment to show her Davis’s body. Another former girlfriend of Steilman’s told law enforcement that he admitted to killing someone and acted “as if it was nothing,” but she waited to contact law enforcement because Steilman threatened to kill her. The presentence investigation report provided Steilman dropped out of school before the tenth grade in large part due to drug and alcohol abuse, which started when he was thirteen. The report also provided that Steilman surrounded himself with “friends and acquaintances [who] were almost all using drugs and alcohol and living a criminal lifestyle to support their addictions.” ¶6 On October 5, 1998, the State charged Steilman with deliberate homicide. The prosecution commenced in Youth Court because Steilman was under eighteen when he committed the first murder. The State moved to transfer Steilman’s case to District Court. The Youth Court found: Steilman was seventeen years old when he committed the offense; probable cause existed; the delinquent act constituted deliberate homicide; the gravity of the offense and protection of the community required treatment beyond that afforded by juvenile facilities; the offense was committed in an aggressive and violent manner; and § 41-5-206(3) (1995), MCA, required transfer to the District Court. ¶7 Following the transfer to District Court, Steilman was returned to Washington for prosecution of Davis’s murder. He pled guilty to first degree murder and was sentenced to 260 months of incarceration plus 24 months for the use of a weapon, totaling 23 years, 8 months. As an inmate of the State of Washington, Steilman was returned on a detainer order to be prosecuted in Montana for Bischke’s murder. ¶8 On October 1, 1999, Steilman pled guilty to deliberate homicide. On October 15, 1999, the District Court sentenced Steilman to the Montana State Prison for 100 years for deliberate homicide and 10 years for the use of a weapon, to run consecutively. The District Court reasoned that “the gravity and random nature of the murder ... [,Steilman’s] commission of another homicide, the punishment permitted by law and the possibility, or lack thereof, of rehabilitation” justified the 110-year sentence. The District Court also ordered Steilman ineligible for parole, remarking the “commission of a senseless, brutal, random homicide demonstrates that [Steilman] is not a suitable candidate for parole or other supervised release.” ¶9 Steilman’s Montana sentence is eligible for day-for-day good time allowance, which, contingent upon his behavior in prison, could make him eligible for release in 55 years. Section 53-30-105, MCA (1995); see Wilcock v. State, No. OP 11-0442, 362 Mont. 544, 272 P.3d 125 (table) (Sept. 13, 2011). Also, the District Court ordered Steilman’s 110-year prison term to run concurrent with his 23 years, 8 months Washington sentence. Under Washington law, Steilman is required to serve at least two-thirds of his sentence before he would be eligible for community release. DISCUSSION ¶10 Section 46-22-101, MCA, provides “every person imprisoned or otherwise restrained of liberty within this state may prosecute a writ of habeas corpus to inquire into the cause of imprisonment or restraint and, if illegal, to be delivered from the imprisonment or restraint.” Article II, Section 19 of the Montana Constitution guarantees the writ of habeas corpus shall never be suspended. The writ of habeas corpus is available to challenge the legality of the sentence; however, it is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal. Sections 46-21-101(1), -22-101(2), MCA, Rudolph v. Day, 273 Mont. 309, 311, 902 P.2d 1007, 1008 (1995). The exception for filing habeas petitions to challenge a facially invalid sentence is generally limited to invalidity that “stems from a rule created after time limits for directly appealing or petitioning for postconviction relief have expired.” Beach v. State, 2015 MT 118, ¶ 6, 379 Mont. 74, 348 P.3d 629 (citing Lott v. State, 2006 MT 279, ¶ 22, 334 Mont. 270, 150 P.3d 337). A petitioner who successfully challenges a sentence by way of habeas corpus, but not the underlying conviction, is not entitled to be released, but only to be resentenced. Lott, ¶ 23. If the illegal portion of a sentence “affects the entire sentence” and we are unable to discern what the district court would have done if it had properly applied the law, we remand for resentencing. State v. Heath, 2005 MT 280, ¶ 7, 329 Mont. 226, 123 P.2d 228. ¶11 Issue One: Whether Miller and Montgomery apply to Montana’s discretionary sentencing scheme. ¶12 The State argues that Steilman’s sentence is not facially invalid and habeas relief is not available because the sentencing court had the constitutional authority to impose the sentence. The State contends that Miller’s rules only apply to sentencing schemes mandating life without parole for juvenile offenders, and that the “mandatory sentencing rule has no application in Montana.” See Beach, ¶ 36. The State further contends that Miller merely requires the sentencing court to follow a certain process before imposing a life without parole sentence on a juvenile, and does not “foreclose a sentencer’s ability to make that judgment in homicide cases.” Miller, 567 U.S. at 480, 132 S. Ct. at 2469. According to the State, under Miller a sentencing court retains the constitutional authority to sentence a juvenile to life without parole; therefore, as a matter of law, such a sentence cannot be facially invalid under Lott. See Beach, ¶ 38; Lott, ¶ 22. We disagree, and are satisfied that Steilman sufficiently calls into question the facial validity of his sentence because Montgomery announced that Miller applies retroactively and effectively overruled our holding in Beach. Montgomery, _ U.S. at _, 136 S. Ct. at 734. ¶13 The Eighth Amendment to the United States Constitution and Article II, Section 22 of the Montana Constitution provide: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The U.S. Supreme Court dictates that courts must interpret the Eighth Amendment “according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design” and refer to “ ‘the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual.” Roper v. Simmons, 543 U.S. 551, 560-61, 125 S. Ct. 1183, 1190 (2005) (quoting Trop v. Dulles, 356 U.S. 86, 100-101, 78 S. Ct. 590, 598 (1958) (plurality opinion)). The Eighth Amendment prohibition against cruel and unusual punishment “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned to the offense.’ ’’ Roper, 543 U.S. at 560, 125 S. Ct. at 1190 (quoting Atkins v. Virginia, 536 U.S. 304, 311, 122 S. Ct. 2242 (2002)). “While in practice the concept of proportionality does not affect most sentences, proportionality bears on the harshest types of punishments when an Eighth Amendment challenge is raised.” Beach, ¶ 8 (citing Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179 (2003)) (internal citations omitted). ¶14 Through a series of decisions over the last dozen years, the U.S. Supreme Court has made clear that “children are constitutionally different from adults for purposes of sentencing” under the Eighth Amendment. See Montgomery, _ U.S. _, 136 S. Ct. at 732-733 (holding that Miller’s procedural requirements to consider characteristics of youth when sentencing juvenile offenders provides a substantive rule that applies retroactively); Miller, 567 U.S. at 470-71, 132 S. Ct. at 2463-64 (holding the Eighth Amendment forbids a sentencing scheme that mandates life without the possibility of parole for juvenile offenders); Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 2026 (2010) (holding the Eighth Amendment categorically forbids sentences of life without parole for juveniles convicted of nonhomicide offenses); Roper, 543 U.S. at 575, 125 S. Ct. at 1198 (holding capital punishment unconstitutional for juvenile offenders). ¶15 The U.S. Supreme Court identified three primary differences between adult and juvenile offenders: First, children have a “lack of maturity and an underdeveloped sense of responsibility,” leading to recklessness, impulsivity, and heedless risk-taking. Second, children “are more vulnerable to negative influences and outside pressures,” including from their family and peers; they have limited “control over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child’s character is not as “well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievable depravity.” Montgomery, _ U.S. at _, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at 471, 132 S. Ct. at 2464) (alterations, citations, and some internal quotation marks omitted). “These differences render suspect any conclusion that a juvenile falls among the worst offenders.” Roper, 543 U.S. at 570, 125 S. Ct. at 1195. The Court admitted the difficulty, even for expert psychologists, “to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U.S. at 573, 125 S. Ct. at 1197. The Court acknowledged the inherent “differences [that] result from children’s ‘diminished culpability and greater prospects for reform,’ ” and that “ ‘the distinctive attributes of youth diminish the penological justifications’ for imposing life without parole on juvenile offenders.” Montgomery, _ U.S. _, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at 461, 132 S. Ct. at 2465). The Court reiterated that “youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole.” Miller, 567 U.S. at 473, 132 S. Ct. at 2465. In so doing, Miller barred life without parole for all but the rarest juvenile offenders whose crimes reflect permanent incorrigibility. Montgomery, _ U.S. at _, 136 S. Ct. at 734. ¶16 The Miller Court outlined five factors of mandatory sentencing schemes that “prevent the sentencer from considering youth and from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender.” Miller, 567 U.S. at 461-62, 132 S. Ct. at 2458. Mandatory life without parole for a juvenile [1] precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. [2] It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. [3] It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. [4] Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And [5] finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it. Miller, 567 U.S. at 477-78, 132 S. Ct. at 2468. Even though the Miller Court did not categorically bar sentences of life without parole for juveniles convicted of a homicide offense, the Court required sentencing judges “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 567 U.S. at 480, 132 S. Ct. at 2469. ¶17 Steilman argues that the aspect that is cruel and unusual for juvenile offenders is the sentence of life without parole itself, not whether the scheme under which the sentence is imposed is mandatory. We agree. Discussing its rationale for treating juvenile offenders differently from adult offenders, the U.S. Supreme Court explained that “a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’ ” Montgomery, _ U.S. at _, 136 S. Ct. at 726 (quoting Miller, 567 U.S. at 480, 132 S. Ct. at 2469). The Court further noted, “Miller ... did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’ ” Montgomery, _ U.S. at _, 136 S. Ct. at 734 (quoting Miller, 567 U.S. at 472, 132 S. Ct. at 2465). In the same vein, the Seventh Circuit Court of Appeals appropriately reasoned: “The relevance to sentencing of‘children are different’ also cannot in logic depend on whether the legislature has made the life sentence discretionary or mandatory; even discretionary life sentences must be guided by consideration of age-relevant factors.” McKinley v. Butler, 809 F.3d 908, 911 (7th Cir. 2016). We conclude that Miller’s substantive rule requires Montana’s sentencing judges to adequately consider the mitigating characteristics of youth set forth in the Miller factors when sentencing juvenile offenders to life without the possibility of parole, irrespective of whether the life sentence was discretionary. ¶18 Issue Two: Whether Steilman’s sentence qualifies as a de facto life sentence to which Miller applies. ¶19 The State argues that because Montana law provides a distinction between sentences of life imprisonment, term-of-years, and death, a term-of-years sentence cannot become a de facto life sentence and equate to a de jure life imprisonment under Montana law. See § 45-5-102(2), MCA. The State contends Steilman’s term of 110 years as a sentence is not the same as a life imprisonment sentence, and Miller only applies to life imprisonment. The State further contends no standard exists to determine how long a term-of-years must be before it becomes the equivalent of life imprisonment, and any term-of-years could be equivalent to life without parole if the offender dies while incarcerated. We disagree. ¶20 The same principles that make Miller applicable to Montana’s discretionary scheme similarly apply to a term-of-years sentence that is the practical equivalent of life without parole. A strict application of the State’s argument would mean that a sentence that inarguably would not allow for the offender to ever be released could not be considered a life sentence so long as the sentence is expressed in years. Logically, the requirement to consider how “children are different” cannot be limited to de jure life sentences when a lengthy sentence denominated in a number of years will effectively result in the juvenile offender’s imprisonment for life. See McKinley, 809 F.3d at 911; State v. Zuber, 152 A.3d 197 (N.J. 2017); People v. Nieto, 52 N.E.3d 442 (Ill. App. Ct. 2016); Kelly v. Brown, 851 F.3d 686 (7th Cir. 2017); State v. Ramos, 387 P.3d 650 (Wash. 2017); State v. Cardeilhac, 876 N.W.2d 876 (Neb. 2016); People v. Cervantes, 9 Cal. App. 5th 569 (Cal. Ct. App. 2017); Hayden v. Keller, 134 F.Supp.3d 1000 (E.D.N.C. 2015). ¶21 In Graham, upon which the Miller Court relied heavily, the Court reasoned that sentencing a juvenile non-homicide offender to life without parole violates the Eighth Amendment’s rule against disproportionate sentences because it denies the juvenile offender a chance to demonstrate growth and maturity. Graham, 560 U.S. at 73, 130 S. Ct. at 2029. The Graham Court did not focus on the precise sentence meted out, nor did it require the state to “guarantee the offender eventual release, but if [the state] imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Graham, 560 U.S. at 82, 130 S. Ct. at 2034. Consonantly, the Montgomery Court dictated that children, who are constitutionally different from adults in their level of culpability, must be given the opportunity to show their crime did not reflect irreparable corruption, and if redeemable, their hope of release must be restored. Montgomery, _ U.S. at _, 136 S. Ct. at 736-37. As such, the rule in Montgomery “draws ‘a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption’ and allows for the possibility ‘that life without parole could be a proportionate sentence only for the latter kind of juvenile offender.’ ” Tatum v. Arizona, _ U.S. _, _, 137 S. Ct. 11, 12 (2016) (Sotomayor, J., concurring) (quoting Montgomery, _ U.S. at _, 136 S. Ct. at 734). Montgomery and Graham illustrate the U.S. Supreme Court’s inexorable evolution recognizing that all but the rarest juvenile offenders be given an opportunity for redemption and a hope of release, which a sentence of life without parole cannot provide. As it pertains to the specific sentence imposed on Steilman, however, our analysis cannot end here. ¶22 The dispositive question remaining is whether the sentence imposed on Steilman does, in fact, constitute a de facto life sentence that triggers the Eighth Amendment protections set forth in Montgomery and Miller. We begin with the practical application of Steilman’s sentence. As the State points out, because Steilman is eligible for day-for-day good time credit, his 110-year sentence allows for his release after serving only 55 years, contingent upon his behavior in prison. Section 53-30-105, MCA (1995) (repealed 1997). Let us assume, for the sake of argument, that a sentence imposed upon a twenty-one year old man, which allows for the possibility of release in 55 years, constitutes a de facto life sentence. We nevertheless cannot ignore the reality that Steilman’s Montana sentence was imposed to run concurrent with the Washington sentence he was already serving for the murder he committed as an adult in Washington, thus giving Steilman credit towards his Montana sentence for time served on a wholly unrelated murder in Washington. ¶23 The Eighth Amendment prohibition against cruel and unusual punishment “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned to the offense.’ ’’ Roper, 543 U.S. at 560, 125 S. Ct. at 1190. After factoring in both the day-for-day good time credit to which Steilman is eligible, and the credit he gets towards his Montana sentence while serving his concurrent sentence in Washington, Steilman could potentially serve as little as 31.33 years exclusively attributed towards Bischke’s murder. Had the Montana District Court imposed a sentence that allowed for the possibility of Steilman’s release after serving as little as 31.33 years, but ordered the sentence to run consecutive to his Washington sentence, Steilman would be hard pressed to argue that such a sentence was disproportionate to the horrific crime he committed. In that circumstance, such a sentence would simply reflect a proportionate sentence independently imposed for a crime independently committed. And yet this is precisely the practical effect of the sentence Steilman actually received. Steilman was not entitled to a concurrent sentence in this case. Nevertheless, the District Court, in its discretion, elected to run his Montana sentence concurrent with his Washington sentence, inuring considerably to Steilman’s benefit. If we were to ignore the practical effect of Steilman’s sentence, we would be allowing him to reap that benefit while disregarding it for purposes of assessing the proportionality of his Montana sentence. Determining whether a sentence is cruel and unusual does not require us to ignore reality. CONCLUSION ¶24 The combination of the good-time credit to which Steilman is eligible and the amount of his sentence that will be discharged while serving a sentence on a wholly unrelated crime leads us to conclude that Steilman’s sentence does not trigger Eighth Amendment protections under Montgomery, Miller, and Graham. Therefore, we do not reach the question of whether the District Court failed to adequately consider Steilman’s youth under Miller and Montgomery when sentencing him. ORDER ¶25 The petition for writ of habeas corpus is DENIED. DATED this 13th day of December, 2017. CHIEF JUSTICE McGRATH, JUSTICES BAKER and RICE concur.

CHIEF JUSTICE McGRATH delivered the Opinion of the Court. ¶1 Jamie Michelle Koon appeals from the District Court’s Order on Defendant’s Motion to Dismiss dated April 9, 2015. We affirm and remand for correction of the sentence. ¶2 We restate the issues on appeal as follows: Issue One: Whether the District Court erred in dismissing Koon’s motion to dismiss the petition to revoke her suspended sentence on the ground that there had been a four-year delay in executing the arrest warrant. Issue Two: Whether the District Court’s written judgment should be amended to conform to the oral pronouncement of sentence. FACTUAL AND PROCEDURAL BACKGROUND ¶3 On February 21,2007, Koon pleaded guilty to felony issuing a bad check in violation of §§ 45-6-316 and 45-2-101, MCA. The District Court in Lewis and Clark County sentenced her to four years in prison with all but thirty days suspended. That sentence was to run consecutively to a sentence Koon was then serving in Colorado, and was subject to conditions including supervision by the Montana Department of Corrections and payment of restitution. She was extradited to Colorado. ¶4 On April 13, 2009, the State filed a petition to revoke Koon’s suspended sentence. A supporting affidavit from a probation officer stated that Koon had discharged her Colorado sentence on October 16, 2008, but had not communicated with her supervising probation officer in Montana. Koon’s whereabouts were unknown to Montana authorities, and on April 14, 2009, the District Court issued a “Montana only” warrant for her arrest. ¶5 Koon was convicted of another offense in Colorado in 2009 and spent the next four years dealing with her new sentence there, being paroled and revoked several times. In June 2009 Koon wrote a letter to the Clerk of the District Court in Lewis and Clark County asking to be returned to Montana to serve her 2007 sentence. Nothing occurred as a result of that letter, and Koon discharged her Colorado sentences on April 12, 2013. ¶6 Koon returned to Montana at some point and on November 11, 2013, was stopped for a traffic violation in Fort Benton. She was arrested on the April 2009 “Montana only” warrant. On November 14, 2013, Koon appeared on the April 2009 petition to revoke her Montana 2007 suspended sentence. She was released on her own recognizance and ordered to report to her probation officer. ¶7 Koon moved to dismiss the petition to revoke the 2007 suspended sentence, contending that the State failed to bring her to court without unnecessary delay in violation of her right to due process. ¶8 The District Court denied Koon’s motion to dismiss, holding that the requirement of § 46-18-203(4), MCA, that an arrested offender must be brought before a judge “without unnecessary delay” applies to the offender’s initial appearance after arrest, citing State v. Edmundson, 2014 MT 12, 373 Mont. 338, 317 P.3d 169. The District Court determined that Koon’s appearance in court within three days of her November 2013 arrest satisfied the statute. The District Court further concluded that there is no statutory requirement that an arrest warrant be served without unnecessary delay on an offender who is incarcerated in another state. ¶9 Koon also argued that issuing a “Montana only” arrest warrant while she was incarcerated in Colorado violated her due process rights. She contended that after she served her Colorado sentence she could no longer ask the Montana court to set her sentence in this State to run concurrently with her sentence in Colorado. In addition, she alleged that she had a “failing memory,” making it difficult for her to recall past events. The District Court applied State v. West, 2008 MT 338, 346 Mont. 244, 194 P.3d 683 to determine whether there was a violation of due process. As provided in West, the District Court examined the “totality of the circumstances.” ¶10 The court considered the four-year time between the 2009 arrest warrant and Koon’s arrest in 2013; the fact that her location was unknown when the warrant was issued; and the fact that Koon was subsequently arrested and incarcerated in Colorado under a sentence that was not discharged until 2013. ¶11 The District Court determined that the extradition statutes do not impose a duty on a state to seek the return of a prisoner from another state for purposes of a revocation proceeding. The District Court determined that Koon had “no right to demand a hearing or extradition to Montana” and that her 2009 letter to the Clerk of the Court “triggered no requirement” that she be extradited. The court determined that even if Koon had been returned to Montana during her period of incarceration or supervision in Colorado, she had no right to receive a concurrent sentence to whatever sentence she was serving in Colorado. In addition, her original 2007 Montana sentence was specifically consecutive to her Colorado sentences, materially decreasing the likelihood that she would have received a concurrent sentence in any event. In light of all these factors, the District Court determined that Koon had not suffered a deprivation of due process. ¶12 The District Court ultimately held a hearing upon the petition to revoke Koon’s 2007 suspended sentence and determined that she had violated the terms of the sentence. The District Court nevertheless sentenced her to the same term of three years, and suspended the entire term. ¶13 Koon appeals. STANDARD OF REVIEW ¶14 This Court exercises plenary review of issues of constitutional law. West, ¶ 13. This Court reviews a district court’s imposition of a criminal sentence for legality only. State v. Kroll, 2004 MT 203, ¶ 12, 322 Mont. 294, 95 P.3d 717. This Court reviews a district court’s interpretation of a statute as an issue of law, to determine whether the interpretation is correct. West, ¶ 13. DISCUSSION ¶15 Issue One: Whether the District Court erred in dismissing Koon’s motion to dismiss the petition to revoke her suspended sentence on the ground that there had been a four-year delay in executing the arrest warrant. ¶16 In 2008 this Court established that “execution of a probation violation warrant without unreasonable delay is one of the due process protections afforded defendants,” based upon the due process guarantee of Article II, Section 17 of the Montana Constitution. West, ¶ 27. The concept of due process does not have a static definition, but generally expresses a requirement of fundamental fairness. State v. Graves, 2015 MT 262, ¶ 21, 381 Mont. 37, 355 P.3d 769; Edmundson, ¶ 17. A probation revocation proceeding is civil, and the offender is not entitled to the full range of constitutional protections available to a person first charged with a crime. Edmundson, ¶ 16. Probation revocation deprives an individual not of absolute liberty, but only of the “conditional liberty” that depends upon adherence to established parole restrictions. West, ¶ 36. A charged defendant’s rights to a speedy trial do not apply in the context of a probation revocation. Edmundson, ¶ 16. ¶17 Assessing the due process implications of a particular revocation proceeding requires a flexible approach that provides the procedural protections that the particular case demands. West, ¶ 32. Due process is “ultimately measured by the fundamental fairness of the proceeding,” Edmundson, ¶ 17, and requires “an appraisal of the totality of the facts in a given case.” West, ¶ 32. The reviewing court should consider the delay in serving the warrant; the State’s diligence; the reasons for the delay; the conduct of the probationer; whether the State knows the location of the probationer; and any actual prejudice that resulted. This list is not exclusive. West, ¶ 34. ¶18 The Dissent opines that “any straight-up application of the West factors to the undisputed facts of this case does not bode well for the State.” Dissent, ¶ 35. However, the West opinion clearly emphasizes the “flexible” nature of the due process analysis in revocation proceedings, appraising the “totality of facts in a given case.” West, ¶ 32. Quoting the United States Supreme Court, “That which may, in one setting constitute a denial of fundamental fairness ... may, in other circumstances and in light of other considerations fall short of such denial.” West, ¶ 32 (citing County of Sacramento v. Lewis, 523 U.S. 833, 850, 118 S. Ct. 1708, 1719 (1998)). ¶19 It is established that the time between issuance and execution of an arrest warrant for a probation violation is but one factor for consideration and is “not alone dispositive.” West, ¶ 34. In West, for example, this Court held that a twenty-six-month delay in executing a probation violation warrant, during which the defendant was in State custody, did not amount to a “per se due process violation.” West, ¶ 33. The District Court in this case properly applied West, considering the totality of the circumstances, to determine that Koon suffered no violation of due process. The District Court considered the four-year lapse between issuance and execution of the warrant; the fact that Koon was serving a sentence for offenses in Colorado for most of that time; and that securing Koon’s presence for executing the warrant would require initiation of an extradition proceeding. ¶20 The conduct of the probationer is also an important factor in the resolution of this case. Koon notes that while in custody in Colorado she wrote a letter to the Clerk of the Court in Lewis and Clark County expressing a desire to return to Montana to deal with the revocation warrant. However, it is difficult to determine how she was prejudiced upon review of these facts. When she finally discharged her Colorado sentence and returned to Montana in 2013, she did not seek a resolution of her situation. While obviously aware that the warrant had been issued, she did not notify her probation officer that she had returned as the conditions of her prior sentence required. Thus, her presence in Montana and the outstanding warrant for her arrest came to light only after she was stopped for a traffic offense. Koon’s conduct indicates a desire to evade service of the warrant and an intent to avoid the requirements of her probation. West, ¶ 34. ¶21 While Koon argues that she was prejudiced by not being able to argue that her Montana-revoked probation should be served concurrently with her Colorado sentence, her original Montana sentence was specifically imposed as consecutive to the Colorado sentence. Koon has not demonstrated any likelihood that she would have received a concurrent sentence upon revocation in Montana, and she had no statutory entitlement to a concurrent sentence. Section 46-18-401, MCA. We also decline to ascribe any material prejudice to Koon’s unsupported suggestion that she could forget the facts of past events. ¶22 We affirm the District Court’s decision to deny Koon’s motion to dismiss the revocation petition. ¶23 Issue Two: Whether the District Court’s written judgment should be amended to conform to the oral pronouncement of sentence. ¶24 Koon contends that during sentencing the District Court stated that probation supervision fees would be waived because of her inability to pay. The State concedes that the final written disposition failed to reflect the waiver of supervision fees and should be corrected. The written disposition must conform to the pronouncement of the sentence in open court. Kroll, ¶ 15. ¶25 Therefore, we remand to the District Court so that the final disposition of Koon’s sentence may be amended to waive supervision fees. CONCLUSION ¶26 The District Court is affirmed. This matter is remanded for correction of the final disposition to reflect that Koon is not required to pay supervision fees for probation. JUSTICES BAKER, WHEAT, SHEA and McKINNON concur. A “Montana only” warrant is a case management tool that allows prosecutors and law enforcement administrators to limit the geographical area where a warrant should be served. It provides notice that extradition from another state will not be sought.

JUSTICE RICE delivered the Opinion of the Court. ¶ 1 The State of Montana appeals from the order entered by the Tenth Judicial District Court, Fergus County, granting Defendant Jason Terronez’ (Terronez) motion to withdraw his guilty plea. We affirm, addressing the following issues: 1. Is the State authorized to appeal the District Court’s order granting Terronez’ motion to withdraw his guilty plea? 2. Did the District Court err by determining that good cause existed to permit Terronez to withdraw his guilty plea? FACTUAL AND PROCEDURAL BACKGROUND ¶2 David and Sunnshine Welton are both dentists and owned Montana Family Dentistry in Lewistown, Montana. They have two children: a girl, L.W. and a boy, M.W. Dana and Jason Terronez are nurses and worked at Central Montana Medical Center in Lewistown. They have four children: three girls and one boy. Dana and Terronez were patients at the Weltons’ dental clinic and the families became close friends—sharing meals, weekend gatherings, and holidays. ¶3 Sunnshine was sexually abused as a child, which made her apprehensive about letting her children participate in sleepovers with other families. She described herself as a “paranoid” mom who is hypersensitive about sexual abuse issues. As a precaution, Sunnshine educated her children about “good touch” and “bad touch” and initiated such conversations with them every six months. However, she trusted Terronez and Dana, and had permitted her daughter, five-year-old L.W., to sleep over at the Terronez household prior to the incident in question. On March 7, 2015, she again allowed L.W. to sleep over at the Terronez residence. L.W. watched a movie with Terronez and his three girls, including Terronez’ oldest daughter, nine-year-old A.T. Dana was in and out of the living room while the others watched the movie, during which Terronez was seated next to L.W. After the movie, Dana asked L.W. if she wanted to go home, and L.W. said she wanted to stay at the Terronez household. ¶4 On March 8, L.W. was sitting on the toilet and told Sunnshine it hurt when she peed. L.W. also reported that, while bathing, her vagina hurt. On March 10, L.W. again complained that her vagina hurt, and Sunnshine washed it. On March 11, L.W. told Sunnshine that, during the movie at Terronez’ house, Terronez had put his hand into her pajamas and touched her vagina. Sunnshine informed David, and then immediately reported this to the Lewistown Police Department. The same day, Sunnshine took L.W. to her physician, Dr. Bolstad, for a sexual abuse examination. Because more than 72 hours had lapsed since the reported contact, Dr. Bolstad did not collect biological evidence. The examination revealed L.W.’s external genitalia was normal, but internally there were four discrete areas of injury. Dr. Bolstad diagnosed the injuries as sexual abuse based on the areas of injury and what L.W. reported. ¶5 Officer Jenness interviewed A.T., who had also been in the room watching the movie at the Terronez residence. A.T. initially stated that, during the movie, she was sitting next to Terronez, but later admitted she lied to prevent Terronez from getting into trouble. However, none of Terronez’ daughters or Dana reported they had seen Terronez do what L.W. had reported. At defense counsel’s request, Officer Jenness also interviewed Sunnshine’s brother-in-law, Jeremy Baxter, as a possible suspect. Baxter had watched L.W. and M.W. a week prior to the sleepover. Sunnshine had commented that Baxter looked like a pedophile, but later said her comment was meant as a joke. This inquiry by police did not yield any evidence implicating Baxter. Other males in L.W.’s life at the time were her brother, seven-year-old M.W., and her father, David. ¶6 On March 12, the State charged Terronez with one count of sexual intercourse without consent via digital penetration. On March 16, Honorable Jon A. Oldenburg, District Judge, recused himself from the case after David confronted him at a local restaurant, and Honorable Randal I. Spaulding assumed jurisdiction of the case. Terronez was initially represented by attorney Craig Buehler, but on April 6, a notice of substitution of counsel was filed indicating that Jeffry Foster had assumed representation of Terronez. Foster filed a motion for change of venue, arguing a reasonable apprehension existed that Terronez could not receive a fair trial in Fergus County because of: (1) the small size of the F ergus County jury pool; (2) the heinous nature of the crime; (3) both families’ relationships and standing in the community; (4) statements about the case made by the Weltons to others in person and on social media; and (5) concerns expressed by court staff and law enforcement about Terronez’ safety. The District Court denied the motion, but stated the matter would be reconsidered if concerns arose during voir dire. Foster also filed a motion for production of all of L.W.’s medical records by the State. After an in-camera review, the court denied the motion, reasoning the records were “devoid of any evidence that can fairly be characterized as exculpatory or useful as impeachment evidence.” ¶7 On September 21, 2015, the trial began and the parties selected a jury over the next two days. That morning, the court held a final pretrial conference in-chambers with Terronez, Foster, Deputy County Attorney Jean Adams, Deputy County Attorney Monte Boettger, and Officer Jenness. Foster reported he had received a “tongue lashing” from Sunnshine and recommended that the Weltons be excluded from trial. The court indicated it had “personally observed some facial expressions and hand gestures and things during the course of testimony” from the Weltons that caused “considerable concern about potential mistrial.” The court ordered the Weltons be excluded from trial until they testify, upon which it would re-evaluate the situation. On September 22, the court had a conference in-chambers with the same parties. Adams reported that Sunnshine may have had a purposeful encounter with a prospective juror in the women’s restroom. Foster moved to extend the Weltons’ exclusion from the courthouse for the entirety of the trial. After interviewing a witness to the incident, the court granted the request, basing its decision mainly on David’s earlier confrontation with Judge Oldenburg and Sunnshine’s encounter with potential jurors. Foster renewed his motion for a change of venue, but the court denied the motion, stating instead it would admonish the jurors not to talk about the case. ¶8 On September 23, the court held another conference with the same parties in-chambers. Officer Jenness brought to the court’s attention a report that David, while viewing the proceeding remotely, had stated that if the jury found Terronez not guilty, he would “take care of it himself.” The parties discussed increased protection for Terronez. On Friday, September 25, at another in-chambers conference with the same parties, Officer Jenness reported to the court that, sometime during the previous evening, a large chunk of concrete had been thrown through the windshield of Foster’s vehicle while it was parked outside the Terronez household. Foster renewed his motion for change of venue and also moved for a mistrial, stating the culmination of issues had “infectfed] [the] proceeding.” The court denied the motion, but again sternly admonished the jurors. Foster expressed his concern, stating he had not “had a lot of time to process” what had occurred and he “just [didn’t] know what to do or how to handle” the incident. Foster also expressed his concern for the Terronez children, who were also witnesses, and the rest of Terronez’ family. He advised the court he wasn’t prepared to proceed. The court expressed sympathy, noting that it had “not had anything quite as extraordinary as this happen,” and adjourned the trial until the following Monday. ¶9 Several witnesses testified at trial. L.W. stated that Terronez had used his hand to touch her privates and that his hand was outside her vagina, but in response to a leading question, affirmed his hand had been inside her vagina. Dr. Bolstad testified regarding L.W.’s injuries, stating her diagnosis was partially based on what L.W. reported to have occurred and that she could not state with medical certainty that L.W. sustained her injuries on March 7, or rule out infection or self-touch as explanations. Dr. Bolstad explained that, when L.W. was two or three years old, she had a skin condition called mollescum contagiosum, an infection of small vesicles on her back thighs and buttocks. However, at a January 9,2015, check-up, two months before the incident, L.W.’s skin was clear. Dr. Bolstad further established that L.W. never had vaginal complaints or urinary tract symptoms. Although Foster had originally planned to call A.T. as a witness and stated his intent to do so in his opening statement, he ultimately decided against doing so and negotiated a stipulation with the State to avoid calling A.T. ¶10 On Monday, September 28, the court held a conference in-chambers with Terronez, Foster, Adams, County Attorney Thomas Meissner (substituting for Boettger), Undersheriff Vaughn, Officer Jenness, and Sheriff Troy Eades. The purpose of the conference was for law enforcement to provide an update on security measures and concerns. Eades commented on the concrete block thrown through Foster’s windshield, indicating in his years securing “several trials in this county,” he had not seen anything like this and noted that tensions were “relatively high.” He suggested Terronez and Foster wear bulletproof vests, and advised the parties they would be required to submit to a metal-detector wand inspection prior to entering the courtroom. Sheriff Eades also updated the court on security measures at the Terronez household. The court cautioned everyone to be “vigilant,” and to pay attention to “the people that are coming and going.” That evening, although Foster had checked into the Yogo Hotel and rented a new vehicle to avoid detection from the Weltons, the Wei tons encountered Foster in the hotel’s restaurant. ¶11 On September 29, the court held a conference in-chambers with Terronez, Foster, Meissner, Adams, and Officer Jenness. The court inquired if any plea offers had been relayed to the defense and Adams stated that the State offered a general plea offer, which specified that Terronez would plead guilty to the lesser included offense of felony sexual assault instead of sexual intercourse without consent. Foster stated he had not communicated the offer to Terronez because he wanted the agreement in writing first. The court urged the parties to discuss the matter. During a court recess, Terronez met with Foster and family members to discuss the possible plea agreement. Terronez was worried that he could not win the case, but his family members told him if he had not committed the offense, he should not plead guilty. Terronez ultimately decided to accept the plea agreement. ¶12 During another court recess that afternoon, the parties requested an impromptu meeting with the court, and the court met in-chambers with the same individuals. Foster stated the parties had reached a plea agreement, which stipulated that Terronez would plead guilty to felony sexual assault, and the parties would jointly recommend a sentence of 25 years in prison with a parole restriction for the first 13 years. Adams indicated she wanted to wrap up the agreement quickly because the next day was “18 hours from now” and that she wanted to schedule the change-of-plea hearing for later in the evening because “of the nature of how this case has gone” and because there were “high tensions on all sides.” Adams pointed to the benefit of a late-night change-of-plea hearing, indicating that Terronez would have some time to see his children after school was out and their family would be able to have dinner together, and it would give Adams and Meissner time to draft the plea agreement. The court agreed to the evening change-of-plea hearing, and the parties agreed that Terronez would go home then return to the courthouse at 7:15 p.m. to meet with Foster and review the acknowledgement of waiver of rights and plea agreement, with a change-of-plea hearing to follow at 8:00 p.m. The parties and law enforcement then discussed plans to secure the building that evening. The court re-convened the trial to dismiss the jury for the rest of the day, with the intention of bringing the jury back at nine o’clock the next morning to inform them an agreement had been reached. ¶13 Prior to the change of plea hearing, Deputies and Lewistown Police officers cleared the courthouse and were posted in plainclothes and in uniform throughout the building. During the hearing, the court informed Terronez of the rights he was giving up and Terronez confirmed verbally and in writing that he was giving a knowing, voluntary, and intelligent plea. Terronez apologized to L.W. in accordance with the plea agreement and the proceeding concluded. Foster drove back to the Yogo Hotel with a police escort. Tragically, in the early hours of the next morning, Foster committed suicide in his hotel room. ¶14 On October 16, Attorney Michael Sherwood filed a notice of appearance stating he was now representing Terronez. On February 10, 2016, Terronez, through Sherwood, moved to withdraw his guilty plea and rescind the plea agreement. The parties briefed the issue and attached witness affidavits. On May 20, Sherwood requested an evidentiary hearing be set “if the prosecution contests any facts set forth in the various affidavits submitted by Terronezl, |” but deferred to the court as to whether such a hearing was necessary. ¶15 On September 28, without a hearing, the District Court granted Terronez’ motion to withdraw his guilty plea, concluding that Terronez had established “good cause” under § 46-16-105(2), MCA, to withdraw his plea. The court based its decision primarily on its conclusion that Foster had rendered ineffective assistance of counsel, reasoning that his trial performance was “deficient or fell below an objective standard of reasonableness” under the first prong of the Strickland test, citing the deficiencies as: (1) telling the jury during the opening statement they would hear testimony from A.T., a critical defense witness, but later stipulating to her not testifying; (2) not interviewing several critical prosecution witnesses; (3) failing to subpoena the victim’s medical records and instead relying on the prosecution’s representation that all the victim’s records had been provided to the court; (4) filing a motion to exclude the results of the DNA testing on L.W.’s pajama bottoms in spite of a report indicating the presence of alleles of at least two unknown male subjects, thus casting doubt on Terronez’ guilt; and (5) not requesting DNA testing of other males with the means and opportunity to assault L.W. The court concluded that prejudice to Terronez was “properly presumed,” or, alternatively, Foster was clearly deficient under the first prong of Strickland, and there was a “reasonable probability that, but for counsel’s errors, the Defendant would not have pleaded guilty and would have insisted on continuing with trial” under the second prong of Strickland. ¶16 Although the District Court primarily based its decision on ineffective assistance of counsel, it also based its decision on a “pervasive air of fear” surrounding the trial that had impacted the proceedings and Foster’s performance, highlighting the incident of the concrete block thrown though Foster’s windshield, as well as several alleged incidents of the Weltons’ threats, stalking, and confrontations. The court observed that these events “objectively appeared to have a serious deleterious effect on [Foster],” who appeared “disheveled” and “overly anxious” (sweating profusely, running his fingers through his hair stammering, pacing, repeating himself, etc.). This behavior was, from the court’s perspective, “very uncharacteristic of counsel,” and led the court to have “serious doubts about his effectiveness at trial and up to and including the Defendant’s guilty plea.” Similarly, the court noted Foster was uncharacteristically deficient in cross-examination, and did not mitigate the harmful effects of witness testimony. The court also noted that Foster appeared indecisive on strategy decisions, and described his demeanor after the concrete block incident and before the plea agreement was reached: IC lounsel appeared visibly distraught and fearful for himself as well as the Defendant and the Defendant’s family. His behavior became somewhat erratic. For example, the defense had made it known early on that they would be presenting a full defense including evidence of the Defendant’s good character and would be calling numerous character witnesses in that regard. The defense also notified the Court and counsel that it would be calling the Defendant’s wife and children to testify regarding the alleged assault. Then, suddenly and rather unexpectedly and in the midst of trial, former counsel flatly told the Court and counsel that the defense was abandoning its good character defense and would not be calling the Terronez children to testify. A short while later, counsel returned from lunch and promptly announced once again that the defense would be presenting a full defense including evidence of the Defendant’s good character. Mere moments later, the parties notified the Court that they had reached a plea agreement. ¶17 Based on ineffective assistance and the threatening atmosphere surrounding the proceedings, the court concluded that “good cause” was established for allowing Terronez to withdraw his plea. The State appeals. STANDARD OF REVIEW ¶18 The ultimate question of whether a plea is voluntarily made is a mixed question of law and fact. State v. Prindle, 2013 MT 173, ¶ 16, 370 Mont. 478, 304 P.3d 712 (citing State v. Brinson, 2009 MT 200, ¶ 3, 351 Mont. 136, 210 P.3d 164). Consequently, we review a district court’s ruling on a motion to withdraw a guilty plea de novo. Prindle, ¶ 16. We review a district court’s underlying factual findings for clear error. State v. Warclub, 2005 MT 149, ¶¶ 22-24, 327 Mont. 352, 114 P.3d 254. We review for correctness the district court’s interpretation of the law and its application of the law to the facts. Warclub, ¶ 23. ¶19 We review a district court’s denial of an evidentiary hearing for a clear abuse of discretion. State v. Schulke, 2005 MT 77, ¶ 10, 326 Mont. 390, 109 P.3d 744. A court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Passmore, 2010 MT 34, ¶ 51, 355 Mont. 187, 225 P.3d 1229 (citing State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811). DISCUSSION ¶20 1. Is the State authorized to appeal the District Court’s order granting Terronez’ motion to withdraw his guilty plea? ¶21 As a threshold matter, we address Terronez’ contention that the State’s appeal is barred. Terronez argues the State does not have statutory authority to appeal the District Court’s order allowing him to withdraw his guilty plea because none of the enumerated orders listed in § 46-20-103, MCA, from which the State is authorized to appeal, apply here. The State responds § 46-20-103(2)(c), MCA, permits its appeal because the substantive effect of the District Court’s order allowing Terronez to withdraw his plea is the granting of a new trial. Section 46-20-103(2), MCA, provides, in pertinent part: The state may appeal from any court order or judgment the substantive effect of which results in: (c) granting a new trial[.] ¶22 Not all plea withdrawals have the substantive effect of granting a new trial, but the circumstances here bring the matter within the language of the statute. At the time Terronez entered his guilty plea, the trial was in its second week. A jury had been selected, and the State had called most of its witnesses and was nearing the end of its case-in-chief. Terronez had the opportunity to preview virtually the entirety of the State’s case. Therefore, the substantive effect of the District Court’s order allowing Terronez to withdraw his guilty plea entered at this point was to grant Terronez a new trial. The State is thus authorized to appeal under § 46-20-103(2)(c), MCA. ¶23 2. Did the District Court err by determining that good cause existed to permit Terronez to withdraw his guilty plea? ¶24 The State argues that a hearing should have been conducted and the District Court’s “good cause” determination was in error because it was premised upon hearsay and the failure to “test the [witness] affidavits through the adversarial process.” Terronez answers that the District Court relied on undisputed facts, and only needed to determine the underlying law. Terronez also argues the State should have requested an evidentiary hearing if it thought one was needed. ¶25 While an evidentiary hearing would ordinarily be necessary and may well have been the prudent course in this case, given that the State was arguably contesting some of Terronez’ factual contentions, we conclude the District Court did not clearly abuse its discretion in failing to conduct a hearing under these circumstances. Schulke, ¶ 10. We first note that the State did not request a hearing, even after Sherwood asked that a hearing be held “if the prosecution contests any facts set forth in the various affidavits submitted by Terronez.” More importantly, the District Court did not rely solely on the witness affidavits, but also relied on its own observations and its assessment of a “pervasive air of fear” surrounding the proceedings and impacting Foster. Further complicating the matter was the impossibility of obtaining from Foster his account of what occurred and the reasoning for his actions during trial, given his untimely death. Both parties had the opportunity to present witness affidavits and did so, providing sworn assertions about the proceedings. A hearing on a request to withdraw a plea is not expressly mandated as a matter of law. Section 46-16-105(2), MCA. We thus conclude the District Court did not act arbitrarily or erroneously by not holding a hearing on the motion. ¶26 The State next disputes the District Court’s determination that good cause existed for Terronez’ plea withdrawal because of Foster’s ineffective assistance of counsel, offering refutations for the District Court’s five apparent examples of ineffectiveness. Terronez responds that his plea was involuntarily entered and the court correctly concluded that both prongs of Strickland were satisfied, based on evidence of Foster’s deficiencies and the resulting prejudice to Terronez. ¶27 A defendant may withdraw his guilty plea within one year of final judgment for “good cause.” Section 46-16-105(2), MCA; State v. Wise, 2009 MT 32, ¶ 9, 349 Mont. 187, 203 P.3d 741. Good cause “includes the involuntariness of the plea, but it may include other criteria.” Warclub, ¶ 16 (citation omitted). A plea must be voluntary because the defendant is waiving his constitutional rights to not incriminate himself and to a trial by jury. Prindle, ¶ 17 (citing Brady v. U.S., 397 U.S. 742, 748, 90 S. Ct. 1463, 1468-69 (1970)). We have adopted the Brady standard to determine if a plea was voluntarily made: A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper to the prosecutor’s business (e.g. bribes). Warclub, ¶ 18 (citing Brady, 397 U.S. at 755, 90 S. Ct. at 1472). The burden is on the defendant to show the plea was involuntary. See State v. Robinson, 2009 MT 170, ¶¶ 17-18, 350 Mont. 493, 208 P.3d 851. “If any doubt exists on the basis of the evidence presented regarding whether a guilty plea was voluntarily and intelligently made, the doubt must be resolved in favor of the defendant.” State v. Hendrickson, 2014 MT 132, ¶ 14, 375 Mont. 136, 325 P.3d 694 (citation omitted). ¶28 Ineffective assistance of counsel can constitute good cause to withdraw a guilty plea. State v. Valdez-Mendoza, 2011 MT 214, ¶ 14, 361 Mont. 503, 260 P.3d 151. “Where a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases Prindle, ¶ 17 (citing State v. McFarlane, 2008 MT 18, ¶ 11, 341 Mont. 166, 176 P.3d 1057). We apply the Strickland test for ineffective assistance of counsel to evaluate whether counsel’s ineffectiveness impacted the voluntariness of the defendant’s plea. See Hendrickson, ¶ 16; McFarlane, ¶ 11; Strickland v. Washington, 446 U.S. 668, 698, 104 S. Ct. 2052, 2070 (1984). Under Strickland, “the defendant must show (1) that his counsel’s advice fell outside the range of competence demanded of a criminal attorney and (2) but for counsel’s deficient performance, he would not have entered a guilty plea.” McFarlane, ¶ 11. We consider “whether counsel’s conduct fell below an objective standard of reasonableness considering prevailing professional norms, and in the context of all circumstances.” McGarvey v. State, 2014 MT 189, ¶ 25, 375 Mont. 495, 329 P.3d 576. We do not rely on “rigid categorization of counsel’s performance as strategic/tactical or ignorant/neglectful” because it is “not an adequate measure of that performance.” Whitlow v. State, 2008 MT 140, ¶ 19, 343 Mont. 90, 183 P.3d 861. The question is not merely whether counsel’s conduct flowed from strategic decisions and trial tactics, but rather, whether it was based on “reasonable” or “sound” professional judgment. Whitlow, ¶ 19; See e.g. Massaro v. United States, 538 U.S. 500, 505, 123 S. Ct. 1690, 1694 (2003); Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Counsel’s conduct is strongly presumed to be within professional norms, and a defendant must “identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Whitlow, ¶ 16 (quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2066). ¶29 The District Court determined Foster’s performance was deficient because he failed to: (1) call A.T. as a witness after declaring he would do so in his opening statement; (2) interview State witnesses; (3) obtain L.W.’s medical records; (4) argue for admittance of potentially exculpatory DNA evidence; and (5) seek DNA samples with other males with whom L.W. may have had contact. The State counters by offering potentially valid reasons for Foster’s actions, including that: (1) Terronez and Dana wanted to prevent A.T. from testifying, even during trial; (2) Foster had his defense investigator interview the State’s witnesses to be able to call his investigator to impeach the witnesses if necessary; (3) Foster actually did move for the State to produce all of L.W.’s medical records and the court denied production of such records as not relevant after an in-camera review; (4) the inconclusive lab result identifying two unknown males’ alleles on an article of L.W.’s clothing was offered by the State as evidence that DNA evidence is reliable; however, Foster objected to it having no probative value—as it would not be surprising if L.W.’s father or brother’s touch DNA was on L.W.’s articles of clothing; and (5) even if Foster were to pursue DNA testing of L.W.’s brother and father, any DNA evidence would not be relevant because the charges against Terronez were based on digital penetration. ¶30 Although we recognize the difficult position of the District Court in evaluating ineffective assistance of counsel without having Foster’s explanation of his actions, the State has offered persuasive and plausible explanations for Foster’s conduct, particularly in view of the fact that “I c loun.set’s conduct is strongly presumed to be within professional norms.” Whitlow, ¶ 16. We cannot conclude on this record that Foster failed to exercise reasoned professional judgment that prejudiced Terronez. However, we affirm the District Court’s finding that good cause existed for withdrawal of Terronez’ plea on alternative grounds discussed in the District Court’s order, based on the extreme events that occurred during the proceeding. ¶31 The District Court, referencing Sherwood’s affidavit, summarized the facts supporting its determination that there existed a “pervasive air of fear” in the proceeding, including, but not limited to: (1) David’s confrontation with Judge Oldenburg; (2) David’s threat of suicide, and discharge of a weapon; (3) David tailgating Terronez; (4) Dana asking for a protective order against the Weltons; (5) Foster stating he feared for his safety to a mental health counselor; (6) F oster’s attempt to avoid the Weltons by checking into a hotel and switching vehicles, only to encounter the Weltons at that hotel; (7) the Weltons’ attempt to video record Terronez’ arrest; and (8) Officers being posted inside and outside the courtroom and conducting meetings on safety measures. These occurrences were in addition to the events reported during the trial, including the concrete block thrown through Foster’s windshield. The District Court observed the stressful impact of these events upon Foster. ¶32 “An involuntary plea can justify withdrawal, but it is not the only basis for establishing good cause.” State v. Ferris, 2010 MT 252, ¶ 8, 358 Mont. 244, 244 P.3d 732; Accord State v. Andrews, 2010 MT 154, ¶ 11, 357 Mont. 52, 236 P.3d 574; Wise, ¶ 9; McFarlane, ¶ 11; Warclub, ¶ 16; State v. Lone Elk, 2005 MT 56, ¶ 19, 326 Mont. 214, 108 P.3d 500, overruled on other grounds by Brinson, ¶ 9. We analyze “numerous case-specific considerations” to ascertain whether good cause is shown to withdraw a guilty plea. Robinson, ¶ 11; Accord Lone Elk, ¶ 23; Wise, ¶ 16; see State v. Nance, 120 Mont. 152, 164, 184 P.2d 554, 560 (1947) (quoting State v. McAllister, 96 Mont. 348, 353, 30 P.2d 821, 823 (1934)) (noting that “each case of necessity must depend upon its own facts and circumstances, and no hard and fast rule can be laid down that will fit every case”); see also Commission Comments to § 46-16-105, MCA (quoting Nance, 120 Mont. at 164, 184 P.2d at 560). This Court considers such factors as: an inadequate colloquy, newly discovered evidence, intervening circumstances, or any other reason for withdrawing a guilty plea that did not exist when the defendant pleaded guilty. Robinson, ¶ 11. We also evaluate “... the benefits obtained from the plea bargain, the withdrawal’s timeliness, and other considerations that may affect the credibility of the claims presented.” McFarlane, ¶ 17; (citing State v. Muhammad, 2005 MT 234, ¶¶ 14, 24, 328 Mont. 397, 121 P.3d 521). ¶33 We conclude that the District Court did not err in allowing Terronez to withdraw his guilty plea. Sufficient evidence exists within the record to support the mixed fact and law determination of “good cause” for withdrawal based on case-specific circumstances present here, including extensive intimidating, threatening, and inappropriate behaviors, acts of violence, the District Court’s own observations of the impact of these events upon the participants, and its description of a pervasive air of fear during the trial. See McFarlane, ¶ 17; Robinson, ¶ 11 (we consider “numerous case-specific considerations” in determining whether good cause exists for withdrawal.). ¶34 The District Court made the factual determination that Foster was personally impacted and his performance was affected by the threatening behaviors from the outset of this case. These findings were not clearly erroneous. Through Foster, Terronez was impacted and his plea was at least partially induced by these events. “If any doubt exists on the basis of the evidence presented regarding whether a guilty plea was voluntarily and intelligently made, the doubt must be resolved in favor of the defendant.” Hendrickson, ¶ 14. The record here establishes doubt concerning the voluntariness of Terronez’ plea. ¶35 Affirmed. JUSTICES McKINNON, BAKER, SHEA and SANDEFUR concur. The District Court permitted the State to make arrangements for the Weltons to view the trial proceedings remotely.

JUSTICE SHEA delivered the Opinion of the Court. ¶1 Plaintiffs Marc and Gloria Flora appeal the October 13, 2015, Order by the First Judicial District Court, Lewis and Clark County, granting their preliminary injunction based on a prescriptive easement rather than on an express public easement. The Floras also appeal the Order’s limit that constrains their prescriptive use to light duty and passenger vehicles along the contested easement of Turk Road. We restate the issues on appeal as follows: 1. Whether the District Court erred in granting the Floras a preliminary injunction based on a prescriptive easement claim. 2. Whether the District Court erred by limiting the Floras’ prescriptive easement to the use of passenger vehicles. We affirm in part and reverse in part. PROCEDURAL AND FACTUAL BACKGROUND ¶2 This dispute involves the existence and use of an easement along Turk Road, a private road that runs through multiple properties. Turk Road begins at Threemile Road in the southeast quarter of Section 15, Township 11 North, Range 5 West, Principal Montana Meridian, in Lewis and Clark County, and runs northwest across nine parcels before turning onto state land in Section 16, then continuing north into Section 9, which contains several other parcels. Turk Road is not maintained by Lewis and Clark County or any other government entity. All the parties in this case own property accessed via Turk Road, and Turk Road passes through at least portions of the defendants’ properties. This appeal concerns only the Floras’ right to use Turk Road over two properties owned by four defendants: the first property is owned by husband and wife Dennis Shaw and Linda Koontz, and the second property is owned by husband and wife John Mehan and Katy Wessel. ¶3 All the properties along Turk Road were originally owned in common by Rosemary and Ray Sewell until the 1970s, when they began to divide and sell tracts of their land. In 1977, the Sewells sold 980 acres to Cecil and Beverly Hill in a contract for deed (Sewell-Hill Deed). The Sewell-Hill Deed provides: “Seller will provide a 60 foot public easement to Section 9.” The Sewell-Hill Deed further provides: “S[ellers] reserve an easement for public use for ingress and egress to the property on the existing roads.” The easement referenced is understood by all parties to be Turk Road. ¶4 Koontz and Shaw (Koontz/Shaw) own the north half of the southeast quarter of the northwest quarter of Section 15, which they purchased in the 1990s. Deeds within the Koontz/Shaw property chain of title provide the property was conveyed “including a 60 foot public road easement on the existing road ....” In 2003, Shaw rerouted a portion of Turk Road from his property onto the neighbors’ property to the east. ¶5 Mehan and Wessel (Mehan/Wessel) own the northwest quarter of the northwest quarter of Section 15, which they purchased in 2008. The deeds within the Mehan/Wessel property chain of title and their title insurance policy state their property was conveyed “subject to the existing sixty (60) feet [sic] right of way easement of record.” However, neither the Mehan/Wessel warranty deed nor the deed of their predecessor in interest contains information regarding an easement or covenant. ¶6 The Floras own the southwest quarter of Section 10 that sits directly north of and shares a property line with the Mehan/Wessel property. In 1972, the Sewells first sold a parcel in Section 10 that, combined with other parcels they later sold, was purchased by the Floras in 2000. The Floras constructed a home and moved to their property in 2005. ¶7 The dispute over the use of Turk Road began in 2009, after Mehan/Wessel purchased their property. The Floras originally accessed their property from Redtail Ridge Road, which meets Turk Road on a parcel at the eastern edge of Section 9. In 2009, the Floras purchased an easement from their neighbor, Steffen Rasile, and constructed a new driveway that connects to Turk Road and parallels the eastern MehanAVessel property line. The Floras’ agents and invitees also have used Turk Road to access the Floras’ property in Section 10. Beginning in 2009, Levi Cheff performed logging operations on the Floras’ property in Section 10, and other properties in Section 17. The logging operations cleared dead and dying trees, and required Cheff to transport heavy machinery to the job sites and use large logging trucks along Turk Road. Because the Floras believe they have a right to use Turk Road, they used it to access their property from 2000 until 2012, when they moved out of the area during this pending controversy. Koontz/Shaw and Mehan/Wessel contest the Floras’ right to use the road as it crosses their respective properties. ¶8 In attempts to stop others from using Turk Road, Koontz/Shaw and Mehan/Wessel removed existing road signs, dug a ditch across the road, and blocked the road with debris, dirt, snow, and rudimentary gates and fences. Mehan brandished and fired pistols as the Floras and others used Turk Road to cross the Mehan/Wessel property. In November 2010, after construction of the Floras’ new driveway on the Rasiles’ property to the east of the Mehan/W essel property, Mehan and Shaw placed straw bales across the driveway and covered them in water to create an ice berm, making the driveway unplowable and unusable for eight days. Mehan also constructed a snow fence on his property that caused snow to accumulate on the Floras’ new driveway. ¶9 On May 2, 2011, the Floras sought a declaratory judgment that they have legal access along Turk Road as it passes through the Koontz/Shaw and Mehan/Wessel properties pursuant to an express easement reserved within the Sewell-Hill Deed and the Koontz/Shaw and Mehan/Wessel properties’ chains of title. In November 2012, the Floras moved for summary judgment on all claims against Koontz/Shaw, which the District Court denied by concluding that the documents presented did not establish that the Floras owned an express easement across the Koontz/Shaw property under an easement appurtenant theory. Further, the District Court held that it could not reach a conclusion by clear and convincing evidence that there are no genuine issues of material fact to establish a prescriptive easement. ¶10 In January 2014, the Floras submitted a consolidated motion for partial summary judgment against Mehan/W essel and renewed partial summary judgment against Koontz/Shaw. The District Court heard oral argument on April 23,2014. On June 27,2014, while the summary judgment motion was pending, the Floras moved for a temporary restraining order and preliminary injunction to enjoin Koontz/Shaw and Mehan/Wessel from interfering with the Floras’ access along Turk Road. The District Court declined to issue a temporary restraining order and held a hearing on the preliminary injunction. ¶11 On August 27, 2015, before ruling on the preliminary injunction, the District Court granted the Floras’ motion to take judicial notice of Judge Seeley’s May 14,2014 Final Judgment in another case involving the use of Turk Road. In that action, Judge Seeley concluded: “[A]n express sixty-foot road easement exists across the [Mehan/JWessel Property due to the deeds within the chain of title to the [Mehan/JWessel Property. The express easement allows [the plaintiffs] Taylor and Dickerson use of Turk Road to access the Taylor and Dickerson property.” The District Court then denied the Floras’ motion for partial summary judgment, concluding there remained genuine issues of material fact as to whether the Sewells intended to create a “public easement” along Turk Road through the Sewell-Hill Deed, and that the Floras are strangers to the Sewell-Hill Deed and cannot claim rights to an express easement under it. ¶12 On October 13, 2015, the District Court granted the Floras a preliminary injunction, enjoining Koontz/Shaw and Mehan/Wessel from blocking the Floras’ use of Turk Road across their properties because the Floras laid out a prima facie case for a prescriptive easement. However, the District Court concluded “in order to minimize potential damage, the scope of the injunction must be limited” to light-duty passenger vehicles or trucks. The Floras appeal the District Court’s reasoning basing the preliminary injunction on a prescriptive easement theory and not on an express public easement theory. The Floras also appeal the District Court’s limitation on the easement to passenger vehicles. STANDARDS OF REVIEW ¶13 An order granting, dissolving, or refusing to grant an injunction is immediately appealable, notwithstanding that the merits of the controversy remain to be determined. M. R. App. P. 6(3)(e). Because of the high degree of discretion vested in the district courts to maintain the status quo, the standard for reviewing the grant of a preliminary injunction is a “manifest abuse of discretion.” Shammel v. Canyon Res. Corp., 2003 MT 372, ¶ 12, 319 Mont. 132, 82 P.3d 912. We only disturb a district court’s decision regarding injunctive relief with a showing of a manifest abuse of discretion. Sandrock v. DeTienne, 2010 MT 237, ¶ 13, 358 Mont. 175, 243 P.3d 1123. “A ‘manifest’ abuse of discretion is one that is obvious, evident or unmistakable.” Shammel, ¶ 12 (citations omitted). We review a district court’s conclusions of law to determine whether they are correct. Sandrock, ¶ 13. DISCUSSION ¶14 1. Whether the District Court erred in granting the Floras a preliminary injunction based on a prescriptive easement claim. ¶ 15 The Floras argue the District C ourt erred by granting their motion for a preliminary injunction on the basis of their prima facie showing of a prescriptive easement rather than an express public easement. In their motion for a temporary restraining order and preliminary injunction, the Floras requested that the District Court issue a preliminary injunction barring Koontz/Shaw and Mehan/Wessel from obstructing, threatening, harassing, or otherwise interfering in any way with their access on Turk Road pending the outcome of the litigation. The Floras’ motion argued that the public has an express easement over the Koontz/Shaw and Mehan/Wessel properties and that the Floras have prescriptive easements over the Koontz/Shaw and Mehan/Wessel properties. According to the Floras, there are no disputed facts, and the language in the Sewell-Hill Deed expressly granted an easement to the public, particularly when considered with evidence that demonstrates the Sewells undertook a common development scheme to divide and sell their property in Sections 9,10, and 15. See Broadwater Dev., L.L.C. v. Nelson, 2009 MT 317, ¶ 37, 352 Mont. 401, 219 P.3d 492; Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159, ¶ 19, 338 Mont. 41, 164 P.3d 851. ¶16 The District Court granted the following relief requested by the Floras: “Wessel, Mehan, Koontz, and Shaw are enjoined from interfering with the Floras’ use of Turk Road to access their property pending the outcome of this litigation.” The District Court held the Floras laid out a prima facie case that they are entitled to a prescriptive easement along Turk Road as it crosses the Koontz/Shaw and Mehan/Wessel properties, granting the Floras a preliminary injunction under § 27-19-201(1), MCA. In other words, the District Court granted the Floras the relief they sought, just not on the basis that they preferred it to be granted. ¶17 The Floras contend the District Court implicitly ruled against their express public easement claim by granting their preliminary injunction based on a prescriptive easement claim. We disagree. While the District Court concluded the Floras have laid out a prima facie case for a prescriptive easement, the preliminary injunction order is silent as to the Floras’ express public easement claim. This is entirely consistent with the District Court’s order denying summary judgment on the Floras’ express public easement claim on the basis that there remained genuine issues of material fact. That order is not before us. The District Court’s summary judgment order was not certified by the District Court pursuant to M. R. Civ. P. 54(b). Therefore, the Floras’ express public easement claim is not before us on appeal. M. R. App. P. 6(6) (“[A] district court may direct the entry of final judgment as to an otherwise interlocutory order or judgment, only upon an express determination that there is no just reason for delay, pursuant to M. R. Civ. P. 54(b).”); see Kohler v. Croonenberghs, 2003 MT 260, 317 Mont. 413, 77 P.3d 531. ¶18 The District Court granted the Floras’ requested relief, and enjoined Koontz/Shaw and Mehan/Wessel from interfering with the Floras’ use of Turk Road to access their property pending the outcome of this litigation. Our review finds the record accurately reflects the District Court’s findings of fact and conclusions of law regarding the Floras’ establishment of a prima facie case of a prescriptive easement along Turk Road. We conclude the District Court did not manifestly abuse its discretion in granting a preliminary injunction based on the Floras’ prescriptive easement claim. ¶19 2. Whether the District Court erred by limiting the Floras’ prescriptive easement to the use of passenger vehicles. ¶20 The Floras contend the District Court’s limit on their use of Turk Road to passenger vehicles is a manifest abuse of discretion because their prescriptive use evidenced in the record does not support such a limit. Koontz/Shaw and Mehan/Wessel argue the limit to passenger vehicles prevents further damage to Turk Road pending the outcome of the litigation. ¶21 The purpose of a preliminary injunction is to prevent further injury or irreparable harm pending an adjudication on the merits. Yockey v. Kearns Props., L.L.C., 2005 MT 27, ¶ 18, 326 Mont. 28, 106 P.3d 1185 (citing Knudson v. McDunn, 271 Mont. 61, 65, 894 P.2d 295, 297-98 (1995)). In granting a preliminary injunction, the district court should decide whether a sufficient case was made to warrant the preservation of the status quo until trial. Yockey, ¶ 18. “Upon the requisite showing, a preliminary injunction is issued to maintain the status quo pending trial, which has been defined as ‘the last actual, peaceable, noncontested condition which preceded the pending controversy.’ ” Sandrock, ¶ 16 (citations omitted). Under § 70-17-106, MCA, the extent of an easement is determined by the nature of the enjoyment by which it was acquired. ¶22 The District Court concluded that the Floras made a prima facie case for a prescriptive easement along Turk Road. However, in granting the preliminary injunction, the District Court limited the scope of the use to passenger vehicles after making findings of undisputed fact that support use of heavy equipment, including Cheff s use of Turk Road since 2009 to transport heavy equipment for logging operations to the Floras’ property in Section 10 and other properties in Section 17. Neither Koontz/Shaw nor MehanAVessel rebutted the evidence of use by trucks and heavy equipment. The District Court’s preliminary injunction as ordered has the effect of altering the status quo by limiting use of Turk Road to passenger vehicles and diminishing the Floras’ ability to maintain their property. ¶23 The last peaceable, noncontested condition in this case entailed the Floras using Turk Road to access their property by passenger vehicles as well as the Floras’ agents using Turk Road to access the Floras’ property for maintenance with large trucks and heavy equipment. See Sandrock, ¶ 16. The established status quo would then be use by the Floras and their agents that includes use beyond light duty passenger vehicles. The extent of the easement on Turk Road includes the use of large trucks and heavy equipment by prescription. We hold that the District Court’s conclusion restricting the Floras’ use of Turk Road to light duty vehicles is incorrect and a manifest abuse of discretion. We therefore reverse on this issue. CONCLUSION ¶24 We affirm the District Court’s decision that the Floras are entitled to a preliminary injunction based on a prescriptive easement. We reverse the District Court’s decision restricting the Floras’ use along Turk Road to light duty and passenger vehicles, and remand to the District Court for further proceedings consistent with this Opinion. CHIEF JUSTICE McGRATH, JUSTICES WHEAT, BAKER and RICE concur. APPENDIX A: Turk Road Area Map A depiction of the properties involved and the road at issue is attached as Appendix A.

Affirmed Dist. 4 (Missoula)

JUSTICE WHEAT delivered the Opinion of the Court. ¶1 Mid-Century Insurance Company (Mid-Century) appeals the Opinion and Order of the Twenty-First Judicial District Court, Ravalli County, granting Jennifer Teeter’s (Teeter) motion for summary judgment. We reverse and remand. ¶2 We restate the issue on appeal as follows: Whether the District Court erred in granting Teeter’s motion for summary judgment under §§ 33-18-201(6) and (13), MCA, concluding that no disputed issues of material fact existed regarding causation and damages. FACTUAL AND PROCEDURAL BACKGROUND ¶3 This case arises from a motor vehicle accident in Missoula, Montana, on May 30, 2014. Derek Colberg (Colberg) rear-ended Plaintiff Teeter’s vehicle on Brooks Street. Mid-Century insured Colberg. The officer who arrived at the scene concluded Colberg was responsible for the crash and cited him for careless driving. ¶4 Later that day, Teeter sought medical treatment for possible injuries from the crash. The treating physician diagnosed Teeter with whiplash and a right shoulder strain. Following her diagnosis, Teeter saw several health care professionals to treat her physical and psychological injuries including a chiropractor, neurologist, physical therapist, counselor, and masseuse. ¶5 Immediately after the accident Teeter retained counsel demanding advance payment of medical costs from Mid-Century. Mid-Century determined its insured Colberg was responsible for the accident and made several advance payments to Teeter for her medical expenses and lost wages. Mid-Century paid in advance $53,347.97 from May 30, 2014, until December 2014. In November 2014, Mid-Century sought Teeter’s past medical records and asked Teeter to undergo an independent medical examination (IME) to determine if the ongoing medical expenses were related to the accident. Teeter refused both requests. In December, Mid-Century had Dr. Lennard Wilson conduct a records review of Teeter’s post-accident medical records. Mid-Century discontinued Teeter’s advance payments based on Dr. Wilson’s opinion that Teeter’s ongoing expenses were no longer causally related to the accident. ¶6 On February 17, 2015, Teeter filed a declaratory action against Mid-Century seeking payment of medical expenses and lost wages incurred after December 16, 2014. During discovery, Mid-Century obtained two IMEs of Teeter. The first IME was with forensic psychiatrist Dr. William Stratford on March 15 and 16, 2016. Dr. Stratford concluded that Teeter’s symptoms were almost entirely a psychological issue. The second IME was with board-certified orthopedist Dr. Emily Heid on March 22, 2016. Dr. Heid determined that there was no physiological basis for Teeter’s pain complaints. ¶7 On June 23,2016, Teeter filed her motion for summary judgment arguing that there is no dispute of material facts that Colberg’s liability is reasonably clear and that Teeter’s medical expenses and lost wages were causally related to the accident. The following day, Mid-Century filed its own motion for summary judgment. Mid-Century argued that the opinions of Dr. Wilson, Dr. Heid, and Dr. Stratford (collectively, the Doctors) provided objective evidence establishing a reasonable debate regarding whether Teeter’s ongoing medical expenses and wage losses were causally related to the accident. Further, Mid-Century maintained that a declaratory action was inappropriate since there was a clear dispute of fact that should be resolved by a jury in a tort action. ¶8 On August 23,2016, the District Court held oral arguments on the cross-motions for summary judgment. On December 30, 2016, the District Court issued its sixty-nine-page Opinion and Order. The District Court determined the following: (1) a declaratory action was appropriate to resolve narrow issues of fact regarding medical causation and damages; (2) Teeter’s sworn statement combined with her treating providers’ affidavits made a prima facie showing that it is reasonably clear that her medical expenses and wage losses are causally related to the accident; (3) the opinions of the Doctors did not create a disputed issue of material fact as to medical causation and damages; and (4) the Doctors lacked foundation. ¶9 Following the District Court’s Opinion and Order, Teeter petitioned for supplemental relief seeking fees and costs. Mid-Century objected to the petition. On March 23,2017, the District Court granted Teeter’s petition and ordered Mid-Century to pay Teeter’s unpaid medical expenses, lost wages, medically related mileage, attorney fees and costs. Mid-Century appeals the District Court’s order granting Teeter summary judgment and the award of fees and costs. STANDARD OF REVIEW ¶10 We review a district court’s grant of summary judgment de novo, applying the same criteria of M. R. Civ. P. 56 as the district court. Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. We review a district court’s conclusions of law to determine whether they are correct and its findings of fact to determine whether they are clearly erroneous. Pilgeram, ¶ 9. Under Rule 56(c), summary judgment will be granted if the moving party can show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Roe v. City of Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200. DISCUSSION ¶11 Whether the District Court erred in granting Teeter’s motion for summary judgment under §§ 33-18-201(6) and (13), MCA, concluding that no disputed issues of material fact existed regarding causation and damages. ¶12 Mid-Century argues the District Court erred in granting summary judgment to Teeter because it was not reasonably clear that the medical expenses and wage losses were causally related to the accident. Further, Mid-Century maintains that the issues of fact as to causation and damages should be resolved by a jury in a tort action. Lastly, Mid-Century argues that the District Court erroneously disregarded the opinions of the Doctors. ¶13 Teeter counters that the District Court properly granted summary judgment because there was no issue of material fact as to causation and damages. Further, Teeter counters that the declaratory action is the appropriate method to resolve this case. Finally, Teeter contends the District Court properly disregarded the opinions of Mid-Century’s Doctors because they provided unsworn testimony and lacked foundation. ¶14 The Montana Uniform Declaratory Judgments Act provides the following: Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by statute, municipal ordinance, contract or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinances, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. Section 27-8-202, MCA. Thus, a declaratory action is appropriate to “afford relief from uncertainty with respect to rights, status and other legal relations.” Tarlton v. Kaufman, 2008 MT 462, ¶ 33, 348 Mont. 178, 199 P.3d 263. “A declaratory proceeding is primarily intended to determine the meaning of law or a contract and to adjudicate the rights of the parties therein, but not to determine controversial issues of fact such as the existence or denial of procedural due process.” Tarlton, ¶ 33 (internal citations omitted). ¶15 In Ridley v. Guaranty Nat’l Ins. Co., the plaintiff sought a declaratory judgment that §§ 33-18-201(6) and (13), MCA, required an insurer to pay medical expenses as they were incurred when the tortfeasor’s liability was reasonably clear. 286 Mont. 325, 332-33, 951 P.2d 987, 991 (1997). We held that under the statutes an insurer is required to pay an injured third party’s medical expenses when liability is reasonably clear for the expense that is submitted. Ridley, 286 Mont. at 334, 951 P.2d at 992. However, “even though liability for the accident may be reasonably clear, an insurer may still dispute a medical expense if it is not reasonably clear that the expense is causally related to the accident in question.”Ridley, 286 Mont. at 334, 951 P.2d at 992. Therefore, Ridley is a two-part test: (1) whether liability is reasonably clear and (2) whether it is reasonably clear that a medical expense is causally related to the accident. ¶16 We later clarified our “reasonably clear” legal standard in Peterson v. St. Paul Fire & Marine Ins. Co., 2010 MT 187, 357 Mont. 293, 238 P.3d 904. We adopted the following standard: liability is reasonably clear “when a reasonable person, with knowledge of the relevant facts and law, would conclude, for good reason, that the defendant is liable to the plaintiff.” Peterson, ¶ 39. Further, we concluded that if liability was reasonably clear it “would leave little room for objectively reasonable debate.” Peterson, ¶ 39. Essentially, the reasonably clear standard of Ridley is comparable to the “clear and convincing evidence” standard. Peterson, ¶ 37. Even though in Peterson we only addressed whether liability is reasonably clear, the reasonably clear standard applies to the causal relationship of a medical expense and the accident as set forth in Ridley. Therefore, if there is an objectively reasonable debate about whether a medical expense is causally related to the accident then a Ridley declaratory action would be inappropriate because a controversial issue of fact exists. ¶17 Our Ridley cases demonstrate that a Ridley declaratory claim is an inappropriate method to resolve disputed issues of material fact. Our decision in Giambra v. Travelers Indem. Co., is instructive. 2003 MT 289, 318 Mont. 73, 78 P.3d 880. In Giambra, the plaintiffs filed a declaratory action under Ridley arguing that liability was reasonably clear and that Travelers was obligated to advance pay medical expenses. Giambra, ¶ 12. The district court disagreed. The district court determined that there was a conflict in the evidence as to negligence and therefore liability was not reasonably clear. Giambra, ¶ 14. Thus, the district court granted Travelers’ motion for summary judgment dismissing the declaratory action. We affirmed, holding that summary judgment was appropriate because there was a clear issue of material fact that should be resolved in a negligence action and that Travelers had no obligation under Ridley. Giambra, ¶¶ 15-16. Therefore, Giambra would have to pursue reimbursement through a negligence suit against Travelers’ insured tortfeasor. Subsequently, Giambra brought a negligence action against the tortfeasor to resolve the disputed issues of material fact, evidenced by our decision in Giambra v. Kelsey, 2007 MT 158, 338 Mont. 19, 162 P.3d 134. ¶18 Similarly, in Safeco Ins. Co. v. Montana Eighth Judicial Dist. Court, we held that disputed facts should be left to a jury. 2000 MT 153, 300 Mont. 123, 2 P.3d 834. In Safeco, the plaintiff brought a declaratory action seeking advance payment of medical expenses. Safeco, ¶ 5. Safeco’s insured admitted liability and the district court concluded there were no disputed material facts concerning causation. Safeco, ¶ 9. Therefore, the declaratory action was proper to establish plaintiff s right under Ridley that Safeco must as a matter of law pay the undisputed medical expenses. Safeco, ¶ 20. Then, the district court determined the only matter reserved for trial would be damages since Safeco reasonably disputed a portion of the medical expenses. Safeco, ¶ 24. We upheld the district court’s ruling. Safeco, ¶ 34. Thus, we conclude that based on the purpose of the Declaratory Judgments Act and our Ridley cases, a Ridley declaratory claim is an inappropriate method to adjudicate disputed issues of material fact as to causation. ¶19 Next, we turn to whether a disputed issue of material fact exists in this case. The District Court concluded that there was no disputed issue of material fact regarding causation or damages. The District Court came to this conclusion because it rejected Mid-Century’s Doctors’ affidavits for two reasons: (1) Mid-Century’s affidavits of the Doctors were unsworn affidavits, and (2) the Doctors lacked foundation. We conclude the District Court erred in disregarding the Doctors’ affidavits and opinions. ¶20 First, the District Court determined that the affidavits of the Doctors did not comply with M. R. Civ. P. 56. However, each of the Doctors’ affidavits properly stated that they were made based on personal knowledge, the affiants were competent to testify, and represented the attached doctors’ reports were true and correct. Thus, the Doctors’ affidavits do comply with M. R. Civ. P. 56(e). Second, the District Court determined that the Doctors’ opinions lacked foundation to opine about Teeter’s pre-accident conditions because they relied on post-accident records. However, the Doctors relied on Teeter’s medical history that documented her pre-accident counseling history, which was later corroborated in Teeter’s deposition. Further, the appropriate method to challenge foundation for the Doctors’ opinions is on cross-examination at trial because whether the expert reliably applied the reliable field to the facts is a question of fact for a jury to decide. Beehler v. E. Radiological Assocs. P.C., 2012 MT 260, ¶ 35, 367 Mont. 21, 289 P.3d 131. Therefore, the Doctors’ affidavits and opinions should have been considered in determining whether a disputed issue of material fact existed regarding causation and damages. ¶21 Having determined the District Court erroneously disregarded the Doctors’ affidavits, we now balance the evidence presented by both parties to determine whether a disputed issue of material fact exists regarding whether Teeter’s remaining damages are causally related to the accident. Teeter presented the following evidence to support that her treatments were causally related to the accident: her own sworn affidavit and the affidavits of her treating physicians. In their affidavits, Teeter’s treating physicians maintained that all of Teeter’s treatments were reasonable and necessary to treat her injuries from the accident. ¶22 Mid-Century countered by presenting evidence of the Doctors’ opinions that disputed the ongoing medical expenses and wage losses were causally related to the accident. Specifically, Dr. Wilson and Dr. Heid opined that Teeter’s ongoing treatments were excessive for the normal standard of care for her injuries. Dr. Heid asserts there is no physiological basis for Teeter’s pain complaints and diagnosed her with chronic pain syndrome. Further, Dr. Stratford opined that Teeter’s pain complaints stem from a psychological condition rather than from injuries suffered in the accident. Lastly, Dr. Wilson and Dr. Heid dispute that Teeter’s wage losses are reasonable because there is no objective evidence that Teeter has any physical or vocational restrictions from the accident. Fundamentally, Mid-Century’s experts set forth a disputed issue of material fact regarding causation and damages. ¶23 We conclude after balancing Teeter’s affidavits against the Doctors’ affidavits there remains a clear disputed issue of material fact regarding causation and damages. Thus, it is not reasonably clear that Teeter’s ongoing medical expenses are causally related to the accident because there is a reasonable debate. Therefore, we conclude that the District Court erred in granting Teeter summary judgment on her Ridley declaratory action. CONCLUSION ¶24 We conclude that the District Court erred in granting Teeter’s motion for summary judgment. A declaratory action is an inappropriate method to resolve disputed issues of material fact. Here, there is a clear dispute of material fact regarding causation because it is not reasonably clear if Teeter’s remaining expenses are causally related to the accident. Further, the District Court’s order granting fees and costs to Teeter is reversed because granting summary judgment to Teeter was in error. We reverse and remand for further proceedings consistent with this Opinion. ¶25 Reversed and remanded. CHIEF JUSTICE McGRATH, JUSTICES BAKER, McKINNON, SANDEFUR and RICE concur. Additionally, Mid-Century filed a motion in limine which was granted in part and denied in part by the District Court’s December 30, 2016 Opinion and Order. However, Mid-Century does not appeal the District Court’s ruling on its motion in limine. The plaintiff also brought claims against Safeco’s insured for negligence.

CHIEF JUSTICE McGRATH delivered the Opinion of the Court. ¶1 Eric Horn appeals from the District Court’s post-jury-trial orders overturning the verdict in Horn’s favor, and granting judgment to St. Peter’s Hospital (Hospital). We affirm. ¶2 We restate the issue on appeal as follows: Whether the District Court erred in granting a judgment as a matter of law in favor of St. Peter’s Hospital following a jury verdict in favor of Eric Horn. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Horn was injured in April 2011 when he fell from a roof, fracturing his heels and a vertebra. His injuries required several surgeries, a seventeen-day stay in the Hospital, and a subsequent period of immobilization. Prior to surgery, Hospital orthopedic surgeon Dr. Jeffrey Martin ordered that a retrievable blood clot filter be placed in Horn’s inferior vena cava (IVC), a large vein leading to the heart. The purpose of installing the filter was to trap blood clots that might arise from the period of physical inactivity during Horn’s recuperation after surgery. A radiologist employed by Great Divide Radiology implanted an Optease brand filter. ¶4 Dr. Martin was the primary physician responsible for Horn’s care from April 28,2011, to August 16,2011. In early August 2011, after the filter had been in place about 120 days and Horn had regained some mobility, Dr. Martin ordered that it be removed. On August 16, 2011, Dr. Jeffrey Georgia attempted to remove the filter, but discovered that it was embedded in the wall of Horn’s IVC and could not be retrieved. ¶5 After the failed filter retrieval, Horn returned to the Hospital’s emergency room several times with severe abdominal, pelvic and groin pains. He was treated for a bladder or kidney infection, but in August 2011 returned to the ER with a swollen right leg. Horn was transported to St. Patrick Hospital in Missoula on August 29 and remained there through September 2,2011. Doctors there treated Horn for a blood clot and hematoma, and inserted a stent in his left iliac vein. ¶6 The doctors at St. Patrick Hospital determined that removal of the blood clot filter was too complicated for them to attempt and referred Horn to the Oregon Health Sciences University in Portland. Doctors there unsuccessfully attempted to remove the embedded filter. In the process of doing so, the tip of a catheter broke off in the vein and could not be retrieved. ¶7 The OHSU referred Horn to Stanford University where doctors used a unique laser procedure to remove the blood clot filter. The Stanford doctors were unable to remove the fragment of catheter because it was embedded in the wall of Horn’s IVC. ¶8 In September 2013 Horn sued St. Peter’s Hospital seeking to recover damages for medical negligence. The case went to jury trial on August 29, 2016. Horn presented his case, including the testimony of treating doctors as well as two expert medical witnesses. When Horn rested, the Hospital moved for judgment as a matter of law under M. R. Civ. P. 50(a), contending that Horn had failed to prove that the Hospital departed from the applicable standard of care. The District Court denied the motion and the case proceeded, lasting a total of four days. ¶9 The jury returned a verdict in favor of Horn, awarding damages for medical expenses, lost wages, pain and suffering, and mental and emotional distress. On September 14,2016, the District Court entered judgment in Horn’s favor for $492,268.39. ¶10 The Hospital then renewed its motion for judgment as a matter of law and joined it with motions under M. R. Civ. P. 59 and 60 for a new trial and for relief from the judgment. On November 18, 2016, the District Court reversed its prior order and granted the Hospital’s Rule 50(b) motion for judgment as a matter of law, dismissing Horn’s complaint. ¶11 The District Court’s order reviewed the testimony from the trial, noting that the only express reference to standard of care from Horn’s expert, Dr. Alzheimer, came during cross-examination when he was asked whether the standard of care would vary depending upon where the medical professional practiced. The District Court concluded that Dr. Alzheimer “provided no opinion” regarding the applicable standard of care, or whether it was breached. ¶12 The District Court noted that Horn’s other expert, Chris Bilyeu, testified about the practices and procedures followed by the hospital where he works in Sheridan, Wyoming. The District Court determined that Bilyeu did not establish that these practices and procedures constituted the standard of care “for all hospitals,” and did not establish that they should have been followed by the Hospital in this case. The District Court determined that upon review, Bilyeu provided no opinion on the standard of care, and no opinion that the Hospital departed from the standard of care to Horn’s injury. ¶13 The District Court also noted Horn’s reliance upon the testimony of treating physician Dr. Martin, but again determined that Martin did not testify as to any standard of care or that there was a breach of the standard of care. The District Court further determined that the only expert to testify about a standard of care was the Hospital’s expert, Dr. Moriarty. He testified that the decision to use the IVC filter was within “acceptable medical practice” and met the applicable standard of care. The District Court noted that Moriarty’s testimony was “unrefuted.” ¶14 The District Court rejected Horn’s argument that the record showed negligence by the Hospital and that “multiple experts either inferred or admitted that the evidence indicated a deviation from what was safe and prudent aftercare.” The District Court concluded that these arguments were unavailing because “inference, implication, and jury purview is not what Montana law requires. Expert testimony as to the standard of care must be presented at trial.” ¶15 Horn appeals, seeking reversal of the District Court’s order and reinstatement of the verdict and judgment in his favor. STANDARD OF REVIEW ¶16 A district court may only grant judgment as a matter of law under M. R. Civ. P. 50 when “there is a complete absence of any evidence which would justify submitting an issue to a jury.” Schumacher v. Stephens, 1998 MT 58, ¶ 14, 288 Mont. 115, 956 P.2d 76. All evidence and all legitimate inferences that might be drawn from it “must be considered in the light most favorable to the party opposing the motion.” Schumacher, ¶ 14. This Court reviews the district court decision using those same principles to determine whether the district court’s decision was correct. Schumacher, ¶ 14. Determination of a Rule 50 motion is an issue of law, and this Court provides “full review ... without special deference to the views of the trial court.’’ Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727. ¶ 17 Courts should “exercise the greatest self-restraint in interfering with the constitutionally mandated process of a jury decision.” Johnson, ¶ 13. DISCUSSION ¶18 Issue: Whether the District Court erred in granting a judgment as a matter of law in favor of St. Peter’s Hospital following a jury verdict in favor of Eric Horn. ¶19 Horn’s claim was that the Hospital was negligent in providing care to him. Horn claimed that the Hospital failed to implement procedures to assess the risks of inserting various types of blood clot filters; failed to implement procedures for tracking filters after insertion into a patient; and waited too long to attempt retrieval of his filter. Horn contended that these failures resulted in the filter staying inside his body until retrieval was extremely difficult, requiring successive referrals to high-level medical facilities before the filter could be removed. ¶20 The District Court considered the Hospital’s motion under M. R. Civ. P. 50, which provides in part: (1) If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable ruling on that issue. M. R. Civ. P. 50(a)(1). The District Court applied the well-settled governing principle that judgment as a matter of law is properly granted only when there is a complete absence of any evidence which would justify submitting an issue to a jury and all such evidence and any legitimate inferences that might be drawn from the evidence must be considered in the light most favorable to the party opposing the motion. Johnson, ¶ 13. The District Court also applied the principle that in cases of alleged medical negligence, the plaintiff (Horn) has the burden to establish the standard of care; that the standard was breached; and that he suffered damage. Labair v. Carey, 2012 MT 312, ¶ 29, 367 Mont. 453, 291 P.3d 1160. Expert testimony is required to establish these issues when they are beyond the common experience of the jury and the testimony will assist the jury in understanding the facts. Labair, ¶ 29. These same principles apply when the case involves alleged medical negligence by a hospital. Dalton v. Kalispell Regional Hosp., 256 Mont. 243, 246-47, 846 P.2d 960, 962 (1993). ¶21 Horn does not dispute that these principles govern his claim against the Hospital. Horn contends that he proved that the Hospital “did not use reasonable care” in treating him, and that “multiple experts either inferred or admitted” that there was a “deviation from what was safe and prudent aftercare.” He contended that the treatment he received was “slipshod and negligently coordinated.” However, after review of the evidence that Horn presented at trial, the District Court determined that neither of his two medical experts “established the requisite standard of care.” ¶22 Horn’s expert, Dr. Alzheimer, did not identify any medical standard of care that would have been applicable to Horn’s situation, either as to the Hospital as an organization or as to individual doctors. During Dr. Alzheimer’s testimony, Horn’s attorney read passages from medical articles and from the manufacturer’s package insert for the IVC filter itself, asking him whether he “agreed” with the text. In particular, Dr. Alzheimer “agreeldl” with the “advice and assessment” in the literature that “[t]he success of retrieval attempts has been shown to decrease with prolonged dwell times, ... highlighting] the importance of frequent follow-up for reassessment of risk and consideration of filter retrieval.” The fact that Dr. Alzheimer “agreed” with what was read to him by the attorney is essentially irrelevant without further testimony that it was part of the established standard of medical care applicable to Horn’s situation. On cross-examination, Dr. Alzheimer also “agreed” that he was not aware of any filter that had been retrieved at the manufacturer’s recommended twenty-three days, that the literature also had reported successful retrieval after a dwell time as long as 3,006 days, and that “these filters vary from patient to patient.” ¶23 Similarly, Horn’s other medical expert Chris Bilyeu failed to provide any testimony as to the standard of care for the defendant hospital. Bilyeu, the medical imaging manager at Sheridan, Wyoming’s eighty-eight-bed hospital, testified that “in [his] department” the company representative is brought in “for the first couple filter placements to make sure we know—understand how to use them.” In terms of filter retrieval, Bilyeu stated, “Ultimately, ... it’s the collaboration between the ordering physician and the radiologist to determine that the filter can come out. We simply just provide an avenue to make sure they understand when the retrieval time is coming up.” As the District Court noted, Bilyeu “provided testimony of what occurs at the hospital he works at.” However, he “did not testify this was the standard of care for all hospitals, or opine this is the standard SPH should have utilized.” On cross-examination, Bilyeu acknowledged that he was aware of only one case in which his hospital attempted retrieval of an Optease filter within the manufacturer’s recommended twenty-three days, and his hospital “had to send it out” after an unsuccessful removal attempt. Again, Horn’s second expert failed to provide any description of the standard of care applicable to this case. We have recognized that a medical provider’s “individual practice, when not based on national standards, lacks relevance to a medical malpractice case.” Norris v. Fritz, 2012 MT 27, ¶ 44, 364 Mont. 63, 270 P.3d 79. See also Montana Deaconess Hospital v. Gratton, 169 Mont. 185, 190, 545 P.2d 670, 673 (1976). ¶24 Horn also relies upon two documents from the manufacturer of the Optease filter. One appears to be information for patients as to the purpose, design and placement of the filter. It states, in part, that the filter “may be placed permanently as an implantable device or temporarily as a retrievable device” depending upon the doctor’s recommendation. The other was an insert into the packaging for the filter itself. It states, in part, that a “21 patient study and a 40 patient retrospective chart review suggest” that the filter “can be safely retrieved (mean of 11.1 days, range 5-14 days and mean of 16.4 days, range 3-48 days).” The same section of the document then states that the “Optease filter can be safely retrieved up to 23 days.” ¶25 While Horn argues that such manufacturer information may contain the standard of medical care, standing alone it does not do so. The issue is that there was no medical expert testimony stating that the manufacturer’s information was the standard of care. There was no description of a standard of care that a jury could comprehend. A doctor witness’s statement that he agreed with this information in no way helps the jury to understand it, and does not in any way establish the medical standard of care that should be followed by all hospitals for blood clot filter cases. ¶26 A manufacturer’s recommendation or package insert can be relevant evidence to be considered by the jury, but it is not a substitute for the required expert evidence that describes the standard of care. See Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 114(Ky. 2008) (concluding that, although information about a drug in the package insert and the Physicians’ Desk Reference “is relevant and useful information regarding the prescribing physician’s standard of care, it is not the sole determinant of the standard of care”); Richardson v. Miller, 44 S.W.3d 1, 16-17 (Tenn. Ct. App. 2000) (observing that such materials are “intended to comply with the FDA’s regulations, to provide advertising and promotional material, and to limit the manufacturer’s liability” and cannot, by themselves, be considered prima facie evidence of the prescribing physician’s standard of care; Morlino v. Medical Center of Ocean County, 684 A.2d 944, 949 (N. J. Super. App. Div. 1996) (holding that package inserts and parallel Physicians’ Desk Reference information “may be considered by the jury along with expert testimony to determine the appropriate standard of care”); Craft v. Peebles, 893 P.2d 138, 151 (Haw. 1995) (holding that a manufacturer’s insert, in and of itself, may not establish the relevant standard of care in a medical negligence action, but may be considered by the fact finder “along with expert testimony” to define the standard of care). ¶27 Horn attempts to downplay this fundamental failure at trial by dismissing it as only a quibbling over the absence of “magic words.” As noted above, Montana law has long required the presentation of expert testimony to establish the standard of care in a medical negligence case. Labair, ¶ 29. The issue here is the total failure to establish for the jury the medical standard of care applicable to this case. Without proof of this fundamental element of the medical negligence case, the jury was essentially left on its own to determine what the standard of care might be. The issue is not the absence of magic words, but rather trial counsel’s failure to meet the clear and established requirements for maintaining a medical negligence case. Without presentation of a standard of care against which the jury can evaluate the medical care Horn received, this case becomes a simple negligence action governed by a “reasonable person” standard. This is contrary to Montana law. ¶28 The necessity of proving the first and essential leg of a medical negligence claim was at the forefront throughout this case. The District Court specifically referred to its prior order, which had stated that the “parties agree Horn bears the burden of establishing the standard of care” and that expert testimony is ordinarily required to establish the standard of care. For whatever reason, that was not done when the case went to trial. Unfortunately, Horn must bear the burden of that failure. ¶29 The District Court determined that because of the failure to present evidence of the first and essential part of a medical negligence claim, the jury did not have a “legally sufficient evidentiary basis” to return a verdict against the Hospital for medical negligence. As discussed above, this is the threshold for granting a judgment as a matter of law under M. R. Civ. P. 50. The District Court applied the well-settled governing principle that judgment as a matter of law is warranted when there is a complete absence of evidence that would justify submitting an issue to a jury. Johnson, ¶ 13. With Horn’s complete failure to prove the applicable standard of care, as the District Court eventually recognized, the case should not have been presented to the jury. ¶30 We agree with the District Court’s evaluation of the evidence in this case. Even under the very high standard for granting a Rule 50(b) motion, it is clear that Horn’s representatives at trial utterly failed to present evidence on the fundamental requirements of a medical negligence case—the applicable medical standard of care; a breach of the standard of care; and damage resulting from that breach. Unfortunately for Horn, this departure from the requirements for a prima facie claim of medical negligence make it impossible to uphold the jury verdict in this case. CONCLUSION ¶31 We affirm the District Court’s order granting judgment to the Hospital. justices McKinnon, wheat, sandefur, baker, shea and RICE concur.

Denied Original Proceeding Habeas Corpus

JUSTICE WHEAT delivered the Opinion of the Court. ¶1 Dana Rolan and the class she represents appeal from the order of the First Judicial District Court, Lewis and Clark County, granting New West Health Service’s (New West) motion for summary judgment. Finding the issue stated below dispositive we decline to address the additional issues raised by the parties. We reverse and remand for further proceedings. ¶2 We restate the issue on appeal as follows: Whether the District Court abused its discretion by granting New West leave to amend its answer to assert ERISA preemption. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Dana Rolan (Rolan) was injured in a vehicular collision on November 16,2007, and sustained serious injury, resulting in medical expenses totaling approximately $120,000. Rolan carried health insurance through New West. The tortfeasor who caused the accident carried liability insurance through Unitrin Services Group (Unitrin). Unitrin accepted legal responsibility and paid approximately $100,000 of Rolan’s medical bills. ¶4 On January 26, 2010, Rolan filed a complaint against New West alleging individual and class claims for breach of contract, violation of made-whole rights, and unfair claims settlement practices under §§ 33-18-201, MCA, et seq. Rolan sought compensatory and punitive damages. During a deposition, New West’s representative affirmatively stated that Rolan’s plan was “not a properly constituted ERISA plan.” Relying on such representation, Rolan proceeded with her claims and class claims based solely on state law. ¶5 Rolan sought to certify a class under M. R. Civ. P. 23(b)(2) for declaratory and injunctive relief arising from the claims for breach of contract and violation of made-whole rights. Rolan’s class certification was based on the systematic practices by New West to avoid paying medical bills for an insured when a liability carrier was available to pay medical bills as part of tort damages. On April 25, 2012, the District Court granted class certification. Maintaining that Rolan’s claims were based solely on state law claims, New West proceeded to appeal to this Court Rolan’s class certification. We upheld the class certification in Rolan v. New West Health Servs., 2013 MT 220, 371 Mont. 228, 307 P.3d 291. ¶6 On October 24, 2013, New West moved to amend its answer alleging the policy was an Employee Retirement Income Security Act (ERISA) policy and that all state law claims were preempted by federal law. Rolan opposed New West’s motion to amend. The District Court allowed New West to amend its answer to include the affirmative defense of ERISA preemption. The District Court reasoned, “[i]f federal law does in fact preempt state law resolution of this case, the ends of justice would not be served by denying the motion to amend.” The District Court granted Rolan attorney fees for time spent addressing New West’s abandoned defenses. Following the District Court’s order allowing New West to amend, New West moved for summary judgment. ¶7 On May 6,2015, the District Court granted New West’s motion for summary judgment holding that Rolan’s policy was subject to ERISA and thus her original state law claims were preempted. However, the District Court allowed Rolan to amend her complaint to include ERISA claims. On June 1,2015, Rolan amended her complaint to include both state law and ERISA claims. New West then removed the case to federal court. ¶8 On February 29, 2016, the federal court remanded the case back to state court. The federal court determined that New West’s removal was untimely. Judge Lovell cited several causes for the delay in removal; one cause was: “New West’s inexplicable confusion over whether its own plan was or was not an ERISA plan.” Nevertheless, the federal court concluded that the state court had concurrent jurisdiction over Rolan’s ERISA 502(a)(1) claims and therefore Rolan may proceed with her ERISA claims in state court. ¶9 Following remand, Rolan filed a motion requesting the District Court to resolve all matters regarding ERISA preemption. New West moved for summary judgment asserting ERISA preemption requires dismissal of Rolan’s state law and ERISA claims. On December 7, 2016, the District Court granted New West’s motion for summary judgment and denied Rolan’s motion. The District Court again dismissed Rolan’s argument that New West waived the affirmative defense of ERISA preemption. Further, the District Court determined that complete preemption under § 502 of ERISA was proper and thus barred any state law claims asserted by Rolan. STANDARDS OF REVIEW ¶10 We review the district court’s decision to amend for an abuse of discretion. Lindey’s v. Professional Consultants, 244 Mont. 238, 242, 797 P.2d 920, 923 (1990). “A district court abuses its discretion when it acts arbitrarily, without employment of conscientious judgment, or in excess of the bounds of reason resulting in substantial injustice.” Kershaw v. Mont. Dept. of Transp., 2011 MT 170, ¶ 11, 361 Mont. 215, 257 P.3d 358 (citation omitted). DISCUSSION ¶11 Whether the District Court abused its discretion by granting New West leave to amend its answer to assert ERISA preemption. ¶12 Rolan argues on appeal that the District Court abused its discretion in granting New West’s motion to amend its answer. Specifically, Rolan maintains that ERISA preemption is an affirmative defense and should have been pled in the answer. ¶13 New West counters that the District Court did not err by allowing leave to amend because leave should be freely given “when justice so requires.” M. R. Civ. P. 15(a)(2). New West contends that there was no evidence of bad faith, intentional delay, or dilatory motive by New West; therefore, leave to amend was proper. ¶14 Montana Rule of Civil Procedure 8(c) provides that “[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense.” The rationale for requiring these defenses be affirmatively pled are the underlying principles of fairness and notice. Weaver v. State, 2013 MT 247, ¶ 35, 371 Mont. 476, 310 P.3d 495. We have previously held that ERISA preemption is an affirmative defense and thus is waivable if not timely raised pursuant to M. R. Civ. P. 8(c). Winslow v. Mont. Rail Link, Inc., 2005 MT 217, ¶¶ 37-38, 328 Mont. 260, 121 P.3d 506; Rimrock Chrysler, Inc., v. DOJ, 2016 MT 165, ¶ 29, 384 Mont. 76, 375 P.3d 392 (citing Wolf v. Reliance Std. Life Ins., 71 F.3d 444, 449 (1st Cir. 1995)). However, Rule 8(c) is not absolute; a district court may allow a defendant to amend its answer to include an affirmative defense pursuant to M. R. Civ. P. 15. Keller v. Dooling, 248 Mont. 535, 542, 813 P.2d 437, 441 (1991). ¶15 Montana Rules of Civil Procedure 15(a) provides “a party may amend its pleading only with the opposing party’s written consent or court’s leave. The court should freely give leave when justice so requires.” However, “this does not mean that a court must automatically grant a motion to amend.” Kershaw, ¶ 25. We have articulated circumstances justifying a court’s denial of a motion to amend. Such situations include when the denial is “for an apparent reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by allowance of the amendment, futility of the amendment, etc.” Bitterroot Int’l Sys. v. Western Star Trucks, Inc., 2007 MT 48, ¶ 50, 336 Mont. 145, 153 P.3d 627 (quoting Lindey’s, 244 Mont. 238, 242, 797 P.2d 920, 923). ¶16 In determining whether an amendment would cause undue prejudice, a court should balance the prejudice suffered by the opposing party “against the sufficiency of the moving party’s justification of the delay.” Farmers Coop. Ass’n v. Amsden, LLC, 2007 MT 286, ¶ 14, 339 Mont. 445, 171 P.3d 690. We previously have concluded undue prejudice exists when the opposing party already had expended “substantial effort and expense” in the course of the dispute that “would be wasted” if the moving party were allowed to proceed on a new legal theory. Eagle Ridge Ranch v. Park County, 283 Mont. 62, 68-69, 938 P.2d 1342, 1346 (1997). ¶17 Initially, the District Court failed to conduct an inquiry into whether Rolan and the class she represents would be prejudiced. The District Court failed to determine if undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by allowance of the amendment, or futility of the amendment existed. The District Court’s reasoning was as follows: “[t]he Court is sensitive to Rolan’s arguments regarding the effects of allowing amendment at this stage. However, the briefing before the Court does not directly address the question of whether ERISA in fact preempts federal law. If federal law does in fact preempt state law resolution of this case, the ends of justice would not be served by denying the motion to amend.” Clearly, the District Court allowed amendment purely because the defense would apply. ¶18 We have upheld a District Court’s denial to amend to include an affirmative defense, even if such defense could apply. See, e.g., Bitterroot, ¶ 54; Cullen v. Western Mortgage & Warranty Title Co., 47 Mont. 513, 530, 134 P. 302, 307 (1913); Meadow Lake Estates Homeowners Ass’n v. Shoemaker, 2008 MT 41, ¶¶ 30-31, 341 Mont. 345, 178 P.3d 81; Peuse v. Malkuch, 275 Mont. 221, 228, 911 P.2d 1153, 1157 (1996). If we allowed amending an answer any time an affirmative defense applied it would effectively eliminate M. R. Civ. P. 8(c). A district court should freely allow a party to amend its pleadings; however, leave to amend should not be automatically given. Thus, the District Court should have inquired as to whether Rolan would suffer prejudice from the amendment. ¶19 We have upheld a district court’s denial of motion for leave to amend if extraordinary circumstances are present. In Peuse, we recognized that a party’s prolonged delay in adopting a new legal theory is prejudicial to the opposing party, particularly when a party waits until after the opposing party files a motion for summary judgment. Peuse, 275 Mont. at 228, 911 P.2d at 1157. In affirming the district court’s denial of the defendants’ motion, we noted the two-year delay and explained that if the district court were to have granted the defendants’ motion, the plaintiff would have been “prejudiced since his [summary judgment] motion was based on the original pleadings which remained unchanged for almost two years.” Peuse, 275 Mont. at 227, 911 P.2d at 1157. Further, we noted that new counsel does not excuse an inopportune request for amendment when those defenses were available to original counsel. Peuse, 275 Mont. at 227, 911 P.2d at 1156. We concluded that “|1 litigants should be allowed to change legal theories after a motion for summary judgment has been filed only in extraordinary cases .’’ Peuse, 275 Mont. at 228, 911 P.2d at 1157. ¶20 We later affirmed Peuse in Bitterroot Int’l Sys. v. Western Star Trucks, Inc., ¶¶-52-54. We recognized that a district court should balance the alleged prejudice to the opposing party against the rationale of the party seeking leave to amend. We noted that Western Star’s oversight justification in seeking leave to amend did not outweigh Bitterroot’s prejudice against the amendment which would have occurred after a five-year delay, the close of discovery, and within three months of trial. Bitterroot, ¶¶ 51-53. Further, Western Star attempted to minimize its oversight by stating that Bitterroot should have known such a defense was likely. We were unpersuaded, stating, “Western’s counsel fails to explain adequately, however, how such an obvious defense escaped its attention for nearly five years.” Bitterroot, ¶ 53. In concluding the district court properly denied Western Star’s motion to amend, we determined that allowing Western Star to amend under these circumstances “would render Rule 8(c)’s purpose of providing adequate notice of affirmative defenses to the plaintiff a nullity.” Bitterroot, ¶ 54. ¶21 There are no extraordinary circumstances in this case that would warrant granting New West’s motion to amend. Rolan and the class argued that they would be substantially prejudiced by allowing New West to amend its answer to include the affirmative defense of ERISA preemption. Rolan and the class cite to three specific reasons prejudice would occur: (1) the length of the delay, (2) the parties have conducted extensive discovery, and (3) the case has already been appealed to the Montana Supreme Court for class certification based on state law claims. Conversely, New West has not offered any reasonable justification for the delay. New West has not sufficiently explained why it failed to assert ERISA preemption in its original answer, why its own representative in a deposition substantiated that ERISA did not apply, or why it proceeded based upon state law claims for nearly three and a half years. The facts of this case are akin to Peuse and Bitterroot, in which we affirmed the district courts’ denial of leave to amend. Nevertheless, the District Court determined that New West should be able to amend its pleading. ¶22 Although length of delay and stage of the proceedings are crucial factors, alone they may not warrant denying the amendment. However, had the District Court conducted a proper inquiry into undue prejudice, we conclude the class certification would have been the dispositive issue. Rolan and the class were certified as a class based only on state law claims. Allowing New West to amend to include ERISA preemption would effectively destroy the class. As a class, they shared a common question of law or fact. Specifically, Rolan and her class alleged New West had systematically violated their state law made-whole rights. New West’s amendment could de-certify the class, forcing Rolan and the class to either seek re-certification based on ERISA claims or proceed alone, ten years after Rolan’s injury and more than seven years after she filed suit. The District Court failed to consider the effect of the amendment on the class. We conclude that Rolan and the class she represents would be unduly prejudiced by allowing New West to amend. ¶23 Rolan and the class she represents already had expended substantial effort and expense, including an appeal to this Court in the course of the dispute, that was wasted when New West was allowed to proceed on a new legal theory. Therefore, Rolan’s showing of undue prejudice to her and the class combined with the New West’s failure to reasonably justify the delay should have led the District Court to deny leave to amend. ¶24 Thus, we conclude the District Court exceeded the bounds of reason resulting in substantial injustice to Rolan. We recognize that district courts should freely grant leave to amend; however, based on the District Court’s inadequate inquiry and the extraordinary circumstances of this case, we conclude that the District Court abused its discretion by granting New West leave to amend. ¶25 Reversed and remanded. CHIEF JUSTICE McGRATH, JUSTICES SHEA, BAKER, SANDEFUR and RICE concur.

Denied Original Proceeding Habeas Corpus

JUSTICE BAKER delivered the Opinion of the Court. ¶1 In 2008, Gunnersfield Enterprises, Inc. purchased five condominium units and an adjoining vacant lot. The deed was properly recorded and a Realty Transfer Certificate was submitted to the Department of Revenue, which did not correctly update its ownership records for the vacant lot. Gunnersfield received notice of and paid the tax assessments for the five condominium units each year, but the Gallatin County Treasurer continued to send the tax bills for the vacant lot to the previous owner. When the taxes went unpaid, the Treasurer sold the lot for delinquent taxes. Zinvest, LLC acquired the County’s interest. Gunnersfield now appeals the District Court’s determination to quiet title to Zinvest. We reverse and remand, concluding that the Department of Revenue’s defective property tax assessment voided the tax lien sale. PROCEDURAL AND FACTUAL BACKGROUND ¶2 In June 2008, Gunnersfield purchased five commercial condominium units, known as Units 1 through 5, and an adjacent fenced lot, known as Lot 6A, from Prospero, LLC in a single transaction. A single Warranty Deed conveying all of the property to Gunnersfield was recorded that same month in the records of the Gallatin County Clerk and Recorder. The Department of Revenue (Department) received both a copy of the deed and the Realty Transfer Certificate in 2008. While the Department correctly updated its ownership records for Units 1 through 5, it did not update the ownership record for Lot 6A. ¶3 Gunnersfield paid all property tax notices it received from the Gallatin County Treasurer (County) for the property. The notices it received, however, were for the five condominium units only. From 2009 through 2012, the County continued to send tax bills for Lot 6A to Prospero, the former owner. Beginning in the second half of 2009 and continuing in the subsequent years, the taxes for Lot 6A went unpaid. In July 2010, the County offered a property tax lien for sale against Lot 6A for the 2009 delinquent taxes. At that time there was no purchaser and the County was listed as the purchaser of the lien. ¶4 In 2012, Zinvest, LLC became interested in the property and took action to acquire the tax lien from the County. Zinvest sent the statutorily required notice of pending assignment of the tax lien to Prospero, which the U.S. Postal Service returned undelivered. Zinvest did not send notice to Gunnersfield. Upon Zinvest’s payment of the delinquent taxes, interest, and fees, the County assigned its tax lien interest in the property to Zinvest on October 9, 2012. ¶5 Zinvest then began the process to acquire a tax deed on the property. During this process, Zinvest obtained a Litigation Guarantee from Stewart Title, which revealed that the title to Lot 6A had vested in Gunnersfield in 2008. Zinvest sent a notice that a tax deed may issue to Prospero, to Gunnersfield, and to the County. Gunnersfield admits that it received this notice. In an affidavit from Jon Chaney, the President and majority shareholder of Gunnersfield, Gunnersfield attested that it inquired with the County about what property was at issue in the notice. The County office staff informed Gunnersfield that the notice pertained to the property located at 153 Shepherd Trail, the street address for the condominium building. Lot 6A has no street address. Gunnersfield maintains that it assumed the notice must relate to condominium Units 6 and 7, which it believed Prospero still owned, because Gunnersfield had never been notified, and was unaware, of any delinquent taxes on its own properties. In September 2013, when the period for redemption expired, the County issued a tax deed to Zinvest. ¶6 Zinvest filed a quiet title action for the property in the District Court in October 2013. During this litigation, Zinvest’s attorney sent a letter to Gunnersfield requesting that it sign a Disclaimer of Interest. Gunnersfield signed and returned the Disclaimer of Interest, again believing that the proceedings related to Units 6 and 7, and not to Lot 6A. The District Court granted final judgment and quieted title to Zinvest in May 2014. ¶7 Realizing its error in February 2015, Gunnersfield filed a motion for relief from judgment with the District Court. The court granted the motion and struck Gunnersfield’s prior Disclaimer of Interest from the record, reasoning that it was “not unreasonable” for Gunnersfield to assume that the proceedings did not pertain to its property and that “negligence in this instance [was] excusable.” Following additional briefing and argument, the District Court denied Gunnersfield’s motions for summary judgment and granted Zinvest’s motion. It issued a final judgment on December 2, 2016, quieting title to Zinvest. STANDARDS OF REVIEW ¶8 This Court reviews a district court’s grant or denial of summary judgment de novo. RN & DB, LLC v. Stewart, 2015 MT 327, ¶ 13, 381 Mont. 429, 362 P.3d 61. Like the district court, we apply the criteria of M. R. Civ. P. 56(c)(3) to determine whether there is a “genuine issue as to any material fact” and whether “the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3); see also RN & DB, LLC, ¶ 13. If there is no genuine issue of material fact, we review for correctness the district court’s conclusion that the moving party is entitled to judgment as a matter of law. RN & DB, LLC, ¶ 13. ¶9 We review de novo a district court’s interpretation and application of a statute. Dick Irwin Inc. v. State, 2013 MT 272, ¶ 18, 372 Mont. 58, 310 P.3d 524. DISCUSSION ¶10 Whether the defective property tax assessment voided the tax lien sale. ¶11 It is undisputed that Gunnersfield properly recorded its deed to Lot 6A and that the Department received the Realty Transfer Certificate, which showed correctly the conveyance of Lot 6A from Prospero to Gunnersfield. It is also undisputed that the Department continued to assess Lot 6A to Prospero, rather than to Gunnersfield; that Gunnersfield did not receive any notices of taxes due on Lot 6A; and that Gunnersfield paid all taxes due on the notices it did receive for Units 1 through 5. Gunnersfield argues that, under these facts, the Department’s tax assessments on Lot 6A were invalid. ¶12 Among its arguments before the District Court, Gunnersfield contended that errors in the tax assessment of the property invalidated the assessment and therefore rendered void the tax deed to Zinvest. The District Court disagreed and held that, even though the wrong party was assessed, the tax assessment was valid under § 15-8-201(4), MCA. The District Court reasoned further that the language in the misnomer statute protecting tax lien sales, § 15-17-325, MCA, supported this understanding. It quoted two cases from this Court in support—Cobban v. Hinds, 23 Mont. 338, 349, 59 P. 1, 2 (1899), and Meyer v. Chessman, 132 Mont. 187, 192, 315 P.2d 512, 514 (1957). ¶13 On appeal, Zinvest argues that the District Court decided the case correctly and that the tax assessments were procedurally proper. In support, it argues that the language of §§ 15-8-201(4) and 15-17-325, MCA, as well as some of our prior case law, indicates that taxation is an in rem proceeding, not an in personam proceeding. Zinvest thus contends that a valid assessment does not require that the actual owner of the property be assessed, as long as some individual person or entity is assessed for the parcel of property at issue. Finally, Zinvest argues that it is the responsibility of taxpayers to exercise diligence and ensure their property taxes are paid. ¶14 Title 15 of the Montana Code Annotated encompasses the statutes governing taxation in the state of Montana. It prescribes a detailed process both for the assessment and taxation of property and for the sale of property for unpaid taxes. The process involves multiple steps and multiple levels of government. The Department of Revenue is tasked with valuing all of the taxable property in the state and with maintaining the database of ownership and property value information. See §§ 15-7-101, -304, 15-8-101, -201, MCA. Based on information from the Department, each taxing jurisdiction calculates its own mill levy and submits it to the Department. See §§ 15-10-201, -202, MCA. The Department computes the taxes, fees, and assessments to be levied and provides this information to each county’s clerk and recorder and treasurer. Section 15-10-305, MCA. The county treasurer in turn produces and mails the property tax bills, collects the property taxes, and distributes the monies to the taxing jurisdictions. Sections 15-16-101, -104, MCA. Failure to pay taxes can result in the county treasurer taking actions under Title 15, chapter 17, MCA, to sell a tax lien on the delinquent property, and, if the taxes remain unpaid, to issue a tax deed under Title 15, chapter 18, MCA, which creates a new title extinguishing the interests of the original owner. Collier v. Kincheloe, 2008 MT 100, ¶ 15, 342 Mont. 314, 180 P.3d 1157. ¶15 Property taxes are one of the primary and most stable means available to support local government budgets. 5-39 Richard R. Powell, Powell on Real Property, § 39.02[1], 39-7 (Michael Allan Wolf ed., 2017). Failure to pay taxes is a serious breach of an individual’s social obligations, and tax liens are a powerful tool to ensure payment. Powell, supra, § 39.04, 39-37. But the tax lien statutes mandate many procedures that must be strictly followed when a county takes action to sell a tax lien or issue a tax deed “because a property owner’s fundamental interests are at stake in tax deed proceedings.” Isern v. Summerfield, 1998 MT 45, ¶ 10, 287 Mont. 461, 956 P.2d 28. In fact, “[t]he purpose behind the tax lien sales statutes is to protect property owners and their rights to due process.” Zinvest, LLC v. Hudgins, 2014 MT 201, ¶ 20, 376 Mont. 72, 330 P.3d 1135. ¶16 The interests of the property owner also find protection in the tax assessment statutes requiring that property taxes be assessed in the owner’s name. See 72 Am. Jur. 2d State and Local Taxation § 630 (2017). Among the protections that the tax assessment statutes provide is to alert property owners to tax assessments levied against them and their property. Such notice gives property owners the opportunity to dispute the government’s valuation of their land, see § 15-7-102(3), (6), MCA; see also RN & DB, LLC, ¶ 36, and helps to prevent any unwarranted property forfeitures through a tax lien sale. The latter purpose is evidenced in the fact that a valid assessment is a foundational requirement for a county treasurer to have jurisdiction to sell a tax lien for delinquent taxes. See Martin v. Glacier Cnty., 102 Mont. 213, 219, 56 P.2d 742, 744 (1936); see also Powell, supra, § 39.04[4], 39-48 (“All steps required of the public authority for a properly levied tax assessment to arise are jurisdictional prerequisites for a valid tax sale.”). ¶17 Although the entire process described above is often referred to as “taxation,” there are distinct stages. “Assessment [is] the process by which persons subject to taxation [are] listed, their property described, and its value ascertained and stated. Taxation consistís] in determining the rate of the levy and imposing it.” Vail v. Custer Cnty., 132 Mont. 205, 214, 315 P.2d 993, 998 (1957) (quoting Hilger v. Moore, 56 Mont. 146, 165, 182 P. 477, 480 (1919)) (emphasis omitted). Under current law, assessment is entirely the responsibility of the Department. Collection and enforcement are the responsibility of county treasurers. Gunnersfield argues that the errors of the Department make the tax assessment invalid. ¶18 The Department must assess property taxes to “the person by whom it was owned or claimed or in whose possession or control it was at midnight of the preceding January 1.” Section 15-8-201(2)(a), MCA. Even if the owner is absent or unknown, “the department shall make an estimate of the value of the property.” Section 15-8-501(1), MCA. But the statute elaborates that “[i]f the name of the absent owner is known to the department, the property must be assessed in the owner’s name.” Section 15-8-501(2), MCA. Further, when property is sold and ownership changes, the Department is statutorily obligated upon receipt of a Realty Transfer Certificate to update ownership records used for the assessment and taxation of real property. Section 15-7-304, MCA. ¶19 The language of these provisions indicates that the Legislature intended to make these protections mandatory: “the department shall assess property to ... the person by whom it was owned,” “the property must be assessed in the owner’s name,” and “[t]he department is not required to change any ownership records... unless the department has received a transfer certificate.” Sections 15-8-201(2), -501, 15-7-304(2), MCA (emphasis added). Indeed, in prior cases interpreting almost the exact same language in predecessor statutes of §§ 15-8-201(2) and -501, MCA, this Court determined that the language is mandatory in relation to both personal property and real property. See Birney v. Warren, 28 Mont. 64, 67-68, 72 P. 293, 294 (1903) (“[T]he provisions ... are mandatory, and... require the assessor to assess personal property in the name of the real owner.”); Vail, 132 Mont. at 214, 315 P.2d at 998 (quoting 3 Thomas M. Cooley, A Treatise on the Law of Taxation § 1096, 2216-17 (4th ed. 1924)) (“ ‘An assessment should ordinarily be made to the owner of record, and statutes so provide in many states ... Such statutes are mandatory so that an assessment to one not the owner makes the assessment void.’ ”). ¶20 Since those cases were decided our tax laws have been amended. The Department was created in 1973, removing the responsibility for tax assessments from county officers. Along with updating §§ 15-8-201(2) and -501, MCA, to apply to the Department rather than to county assessors, the Legislature added other responsibilities to the Department, including § 15-7-304(2), MCA, which requires the Department to update its ownership records upon receipt of a Realty Transfer Certificate. 1975 Mont. Laws ch. 528, § 4, as amended 1993 Mont. Laws (Nov. 1993 Sp. Sess.) ch. 27, § 44. These changes emphasize the importance the Legislature placed on the Department assessing taxes to the owner of the property. ¶21 Zinvest relies, as did the District Court, on §§ 15-17-325 and 15-8-201(4), MCA, to overcome the mandatory language of these statutes. Section 15-17-325, MCA, provides: “When a tax lien sale certificate is acquired, as provided [by the tax lien statutes] and the taxes were properly assessed on the property of a particular person, no misnomer of ownership or other mistake relating to ownership affects the sale or renders it void or voidable.” In plain language, this statute makes clear that it offers no curative effects unless the “taxes were properly assessed.” Section 15-17-325, MCA. The statute cannot save an otherwise invalid tax assessment. Only the curative provision in the assessment statute, § 15-8-201(4), MCA, could do so. ¶22 Zinvest argues that the District Court properly relied on Cobban, 23 Mont. at 348-49, 59 P. at 2, in applying § 15-17-325, MCA. Cobban upheld a tax assessment on the basis of the language in the predecessor statutes of §§ 15-8-201(4), -308, and 15-17-325, MCA. The predecessor to § 15-17-325, MCA, originally was passed in 1891. The language of the statute remained largely unchanged until 1987 when the modern tax lien statutes were enacted. 1987 Mont. Laws ch. 587, § 13. The original language in force at the time of Cobban stated: “When land is sold for taxes correctly imposed as the property of a particular person, no misnomer of the owner, or supposed owner, or other mistake relating to the ownership thereof affects the sale or renders it void or voidable.” See 1891 Mont. Laws 118. The modern statute differs in two important ways. First, the Legislature removed the language “When land is sold for taxes” and replaced it with “When a tax lien sale certificate is acquired.” This change means the modern statute now applies to both real and personal property sold at a tax sale. This highlights the important distinction we draw between § 15-17-325, MCA—which now applies to both real and personal property—and § 15-8-201(4), MCA—which applies to real property only. Second, the Legislature broke down the qualifier that taxes be “correctly imposed” into two separate predicates: (1) the county must have followed the statutory tax lien procedures; and (2) the Department must have “properly assessed” the taxes. The Legislature’s change in language indicates that the modern statute, § 15-17-325, MCA, does not apply unless the tax assessment was proper. ¶23 We next turn to the other misnomer statute, § 15-8-201(4), MCA. That provision states that “[a] mistake in the name of the owner or supposed owner of real property does not invalidate the assessment.” The provision is specific to a mistake in the name of the owner rather than to a mistake in the identity of the owner. The statute says nothing about assessing the property to the wrong person or entity entirely. ¶24 The Dissent puts much weight on the inclusion of “supposed owner” in § 15-8-201(4), MCA, in arguing that the statute excuses an assessment made to the wrong person. It cannot bear this weight. “Supposed” carries connotations of belief that something is probable or certain. The first definition of “supposed” in Webster’s Third New International Dictionary is “believed to be or accepted as such.” See Webster’s Third New International Dictionary 2298 (Philip Babcock Gove ed., 1971). The modern statutes provide a process to inform the Department of ownership changes. Gunnersfield followed this process. The Department did not “believe” Prospero was the owner, it simply had failed to update its records. There is no basis for a “supposed owner” when the process outlined in § 15-7-304, MCA, is followed and the Department is informed of the actual owner. A “supposed owner” may exist if, for example, ownership changes and the new owner fails to record his or her interest in the property and to file a Realty Transfer Certificate with the Department. But these are not the facts of this case. ¶25 Our role in interpreting statutes “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. Section 15-8-201(4), MCA, does not include a mistake in ownership and we decline to insert it. Because the provisions requiring the owner to be named are mandatory, and § 15-8-201(4), MCA, provides no cure for a defect in the identity of the owner, a tax assessment to a person or entity other than the owner, where the owner is known to the Department through properly recorded transfer records, is not a valid assessment. ¶26 Comparing the language of §§ 15-8-201(4) and 15-17-325, MCA, further supports this conclusion. Section 15-17-325, MCA, states “no misnomer of ownership or other mistake relating to ownership affects the sale or renders it void or voidable.” This language differs from the “mistake in the name” language of § 15-8-201(4), MCA. Unlike the phrasing in § 15-17-325, MCA, the phrasing in § 15-8-201(4), MCA, does not include language about mistakes relating to ownership. The language that appears in these modern provisions was first adopted into Montana law in the same act of legislation in 1891. See 1891 Mont. Laws 73, 78, 118. Because the enacting Legislature did not use identical language in the two provisions, it is proper for us to assume that a different statutory meaning was intended and that “mistake in the name” therefore does not include “misnomer of ownership or other mistake relating to ownership.” See Gregg v. Whitefish City Council, 2004 MT 262, ¶ 38, 323 Mont. 109, 99 P.3d 151 (“Different language is to be given different construction.”); In re Kesl’s Estate, 117 Mont. 377, 386, 161 P.2d 641, 646 (1945) (citations and internal quotations omitted) (“It is a settled rule of statutory construction that, where different language is used in the same connection in different parts of a statute, it is presumed the legislature intended a different meaning and effect.”). ¶27 The Dissent relies on Birney v. Warren to demonstrate that the statutes treat a mistake relating to the ownership of personal property differently from a mistake relating to the ownership of real property—that is, that such a mistake during the tax assessment voids a personal property tax sale, but not a real property tax sale. Dissent, ¶ 49. Birney voided a tax sale of personal property because the property was assessed to the wrong entity. Birney, 28 Mont. at 67, 72 P. at 294. The Birney Court’s holding rested on two grounds: (1) the language of the predecessor statutes to §§ 15-8-201(2) and -501, MCA, which applies to both real and personal property, was “imperative” and thus mandatory; and (2) the predecessor statute to § 15-17-325, MCA, which excused mistakes relating to ownership, did not apply to personal property. Birney, 28 Mont. at 67-68, 72 P. at 294. Tellingly, the Birney court did not rely on the predecessor to § 15-8-201(4), MCA, to distinguish a mistake relating to ownership of real property, but relied only on the predecessor to § 15-17-325, MCA. Further, as discussed above, after the 1987 amendments to § 15-17-325, MCA, that statute now applies both to real property and to personal property sold at a tax sale and requires “properly assessed” taxes. Section 15-17-325, MCA, is no longer a basis for a distinction between a mistake in the ownership of real property as opposed to a mistake in the ownership of personal property. And as we discussed above, § 15-8-201(4), MCA, does not cure a failure to name the record owner at all. ¶28 Zinvest next argues that the tax assessment process and the subsequent tax lien sale are in rem proceedings that require only that an individual or entity be assessed, not that the actual owner be assessed. Zinvest cites three cases in support: Meyer, 132 Mont. at 192, 315 P.2d at 514; Sutter v. Scudder, 110 Mont. 390, 394, 103 P.2d 303, 305 (1940); and Cobban, 23 Mont. at 349, 59 P. at 2. ¶29 Zinvest’s argument that proceedings are in rem, rather than in personam, conflates the tax assessment with tax enforcement. Assessment is the responsibility of the Department. Responsibility for enforcement lies with the counties. The error in the present case occurred in the tax assessment itself. None of our prior cases have held that the assessment itself is in rem. Vail, 132 Mont. at 213, 315 P.2d at 998 (“The tax sale is the proceeding in rem”); Meyer, 132 Mont. at 192, 315 P.2d at 514 (“[T]he tax sale is a proceeding in rem against the property itself.”); Sutter, 110 Mont. at 394, 103 P.2d at 305 (“We hold that proceedings for the enforcement of a tax obligation when proceedings are against the property ... are in rem.”). ¶30 Further, Zinvest’s argument that the proceedings are in rem, rather than in personam, is a distinction without a difference in this case. Characterization of the assessment as in rem or in personam does not change the statutory requirements that property be assessed to the owner. See §§ 15-8-201(2), -501,15-7-304(2), MCA. Developments in in rem jurisprudence over the last forty years also support this position. The United States Supreme Court has rejected the traditional justifications for distinguishing between in rem and in personam proceedings. Shaffer v. Heitner, 433 U.S. 186, 212, 97 S. Ct. 2569, 2584 (1977) (requiring assertions of in rem jurisdiction to meet the same requirements as assertions of in personam jurisdiction); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 796 n.3, 103 S. Ct. 2706, 2710 n.3 (1983) (holding that a mortgagee with a legally protected property interest is entitled by due process to notice of a tax sale and quoting Shaffer, 433 U.S. at 206, 97 S. Ct. at 2580, “An adverse judgment in rem directly affects the property owner by divesting him of his rights in the property before the court.”). Our approach to interpreting the requirements of §§ 15-8-201(2), -501, and 15-7-304(2), MCA, does not hinge on whether the proceeding is in rem or in personam. Even if we were to hold that the tax assessment is an in rem proceeding, this would not change our interpretation of the statutory requirements that property must be assessed in the name of a known owner. ¶31 A closer look at the case law Zinvest cites convinces us that this conclusion is correct. First, Meyer and Sutter are distinguishable. In Meyer, the parties challenged the lack of notice before the county issued the tax deed. Meyer, 132 Mont. at 191, 315 P.2d at 514. The case did not raise or address any alleged errors during the tax assessment. In Sutter, tax assessment notices were sent to the record owner of the property, who had passed away. Sutter, 110 Mont. at 392, 103 P.2d at 304. His heirs had neither gone through probate in Montana nor taken any steps to record their interest in the property. Sutter, 110 Mont. at 392, 103 P.2d at 304. The heirs challenged the tax sale because they, as the current owners, had not received actual notice of the tax assessments. Sutter, 110 Mont. at 393, 103 P.2d at 305. We upheld the tax assessment as proper, however, because the record owner, i.e., the “supposed owner”, was assessed and tax notices were sent to the last known address. Sutter, 110 Mont. at 395, 103 P.2d at 306. We held that the heirs should have taken steps to properly record their interest and also that it was “incumbent upon a property owner to take notice of the known fact that all property is taxed annually, and unless the taxes are paid that the property will be sold at tax sale.” Sutter, 110 Mont. at 395, 103 P.2d at 305. ¶32 Sutter counsels a different result under the facts of the present case. Gunnersfield properly recorded its interest and a Realty Transfer Certificate was sent to the Department to notify it to update its records. But the Department failed to assess the owner of record, Gunnersfield. Further, Gunnersfield paid the annual taxes on the portion of the property for which it was assessed and therefore did not have notice that it was not paying any annual taxes that were due. ¶33 The final case on which both Zinvest and the District Court relied is Cobban v. Hinds. The language in Cobban suggests that the correct listing of the owner is a mere formality and listing the lands to the wrong person during the tax assessment was not grounds for voiding a tax sale. Cobban, 23 Mont. at 349, 59 P. at 2. Cobban is not controlling for several reasons. First, as we discussed above, Cobban rested its holding on three statutes, including the predecessor to § 15-17-325, MCA. The current language of § 15-17-325, MCA, undermines Cobban’s holding relying on that statute. Further, the tax assessment statutes also have been amended and now include § 15-7-304, MCA, which obligates the Department to update ownership records when it is notified of real property transfers. More, the plain language of the assessment statutes imposes a requirement on the Department to assess land in the name of the owner. ¶34 Second, our subsequent case law also has undermined the decision. In Musselshell County v. Morris Development Company, 92 Mont. 201, 203, 11 P.2d 774, 775 (1932), Roundup Coal Mining Company quitclaimed only the surface rights to Morris Development Company and “reserve[d] to itself all coal and other minerals underlying the surface.” Musselshell County, 92 Mont. at 203, 11 P.2d at 775. Thus, Roundup Coal Mining Company retained a fee simple interest in the minerals in the ground. The county assessed Morris Development for the mining claim but this Court held that Roundup Coal Mining was the proper party to tax. Musselshell Cnty., 92 Mont. at 209-10, 11 P.2d at 777. This Court explained that “separate estates or interests should be separately assessed to the respective owners” and declined to decide whether the assessment against Morris Development would be valid for all purposes against Roundup Coal Mining. Musselshell Cnty., 92 Mont. at 210, 11 P.2d at 777. Despite citing Cobban and Cullen v. Western Mortgage & Warranty Title Company, 47 Mont. 513, 134 P. 302 (1913), the Musselshell County Court ordered that steps be taken to change the assessment to the Roundup Coal Mining Company, “[t]o obviate any question regarding the validity of the assessment,” suggesting that even after Cobban the effect of mistaken identity of the owner on the validity of a tax assessment remained an open question. Musselshell Cnty., 92 Mont. at 211, 11 P.2d at 778. ¶35 Further, Cobban directly conflicts with the later decided case of Vail. Both cases dealt with the propriety of the assessment of several parcels of land together without any separation of the assessment between landowners who owned individual parcels. Vail, 132 Mont. at 208, 315 P.2d at 995; Cobban, 23 Mont. at 348, 59 P. at 2. But the two cases arrived at opposite conclusions. The Cobban Court upheld the tax sale, ruling that the single assessment of multiple properties with various owners was proper. Cobban, 23 Mont. at 348, 59 P. at 2. In Vail, however, this Court reaffirmed that taxes are levied upon persons—not upon property—and invalidated the tax lien on the property. Vail, 132 Mont. at 213, 315 P.2d at 998. We held that an assessment made en bloc to an entire development, rather than to the individual landowners within the development, was void. Vail, 132 Mont. at 213, 315 P.2d at 998. To the extent that Cobban conflicts with Vail, it implicitly was overruled. We decline to rely on any language in Cobban taken out of context, especially when our decision in Vail and amendments to the statutes already have undermined the foundation of Cobban and bring its continued validity into question. ¶36 Finally, Zinvest argues that voiding the tax lien sale “would effectively absolve the property owner from any level of diligence in the assessment process.” Zinvest is correct that “it is incumbent upon a property owner to take notice of the known fact that all property is taxed annually, and unless the taxes are paid that the property will be sold at tax sale.” Sutter, 110 Mont. at 395, 103 P.2d at 306. But“[m]ore importantly, a party’s ability to take steps to safeguard its interests does not relieve the State of its constitutional [due process] obligation.” Mennonite Bd. of Missions, 462 U.S. at 799, 103 S. Ct. at 2712. There is nothing in the record to indicate that Gunnersfield had reason to know that the Department was not assessing the taxes for Lot 6A to Gunnersfield. During the time in question, the County taxed Units 1 through 5 together. It was reasonable for Gunnersfield to believe—and the record lacks any evidence that Gunnersfield believed otherwise—that its tax bill included Lot 6A, which was purchased in the same transaction and was conveyed to Gunnersfield in the same deed. In fact, when it received the notice from Zinvest that a tax deed may issue, Gunnersfield did inquire with the County. This inquiry only buttressed Gunnersfield’s belief that the notice did not pertain to its properties, because it had paid all tax notices it had received and was unaware of any delinquent taxes on its properties. ¶37 We conclude that the tax assessment on Lot 6A was invalid. Because the tax assessment was void, the subsequent tax lien sale and issuance of a tax deed also must be voided. We require strict compliance with “every essential and material step required by the tax deed statute.” Moran v. Robbin, 261 Mont. 478, 482-83, 863 P.2d 395, 398 (1993). In order for a county treasurer to have the jurisdiction to sell real property for delinquent taxes, “there must be (1) a valid assessment; (2) a valid levy; and (3) nonpayment of the tax so duly levied and assessed.” Martin, 102 Mont. at 219, 56 P.2d at 744. The County lacked jurisdiction to hold the tax lien sale on the property because there was no valid assessment. The subsequent tax deed issued to Zinvest is void and its quiet title action must fail. ¶38 This does not mean that Gunnersfield is relieved from its tax obligations for Lot 6A. Under § 15-8-601, MCA, the Department may assess property for prior erroneous assessments within ten years of the calendar year in which the original assessment was or should have been made, “provided that the property is under the ownership or control of the same person who owned or controlled it at the time it... was erroneously assessed.” The taxes for Lot 6A were erroneously assessed starting in 2009, and the ten-year limitation has not yet run. CONCLUSION ¶39 We reverse the District Court’s December 15, 2015 and October 22, 2016 orders denying summary judgment to Gunnersfield, as well as the judgment quieting title in Zinvest. We remand for entry of judgment quieting title in Gunnersfield. CHIEF JUSTICE McGRATH, JUSTICES WHEAT, SHEA, SANDEFUR and RICE concur. Gunnersfield also challenges other steps in the process, but we find it unnecessary to entertain these arguments. The Dissent challenges the applicability of Musselshell County because not all mining interests are taxed as real property. Dissent, ¶ 46. As we explained in Rist v. Toole County, 117 Mont. 426, 434, 159 P.2d 340, 343 (1945), “the concept of royalty is very different from that of the fee-simple title to minerals in place in the ground.” This Court clarified in Past that royalty interests are taxed as personal property, but fee-simple title to minerals in the ground is taxed as real property. Rist, 117 Mont. at 442, 159 P.2d at 347. In Musselshell County, Roundup Coal Mining Company retained a fee simple interest in the minerals underlying the surface and thus the tax assessment at issue in that case was for real property taxes, not for personal property taxes as the Dissent states. Upon review of our case law, we find few cases that have actually relied on Cobban to uphold challenged assessments. To the extent that Cullen relies on Cobban and the predecessor to § 15-17-325, MCA, its continued validity on this point also is called into question by our decision today. The Dissent correctly points out that Vail involved special assessments rather than property taxes. Dissent, ¶ 46. However, in Vail, this Court analyzed the special assessments in the same manner as property taxes and even relied on the predecessor to § 15-8-201, MCA, the general tax assessment statute, in its analysis. Vail, 132 Mont. at 214, 315 P.2d at 998. We disagree that Vail is distinguishable in a meaningful way.

Affirmed Dist. 3 (Powell)

CHIEF JUSTICE McGRATH delivered the Opinion of the Court. ¶1 Richard Lee Griffin appeals from his May 14, 2014 conviction on six felony offenses of incest, sexual intercourse without consent and sexual assault. We affirm. ¶2 We restate the issue on appeal as follows: Whether this Court should undertake plain error review and conclude that the District Court committed reversible error by failing to directly address a spectator comment made during closing argument. FACTUAL AND PROCEDURAL BACKGROUND ¶3 In January 2014 the State charged Griffin with six felonies arising from his sexual contact with two step-daughters. The evidence presented during the State’s case-in-chief showed that Griffin repeatedly engaged in sexual contact with the girls, in addition to inflicting beatings, requiring them to do house work in the nude, and killing their pets. Griffin did not present any evidence and did not testify. ¶4 During closing argument by Griffin’s attorney, an audience member interrupted by stating: “Well I’d like to say that God is faithful and just to those who confess their sins.” The District Court intervened, stating: “No, ma’am. Ma’am, any more outbursts and whoever makes the outburst will be removed from the courtroom.” Griffin’s attorney continued his closing without noting the statement and did not move for any relief. The jury deliberated and returned the convictions. ¶5 Griffin appeals, arguing that the spectator’s comment deprived him of a fair trial and that this Court should undertake plain error review and reverse the convictions. STANDARD OF REVIEW ¶6 Griffin requests that this Court review the District Court’s response or lack of response to the spectator comment during closing argument, even though there was no objection or motion from defense counsel. The general rule is that an issue raised for the first time on appeal will not be considered, because a defendant who does not object to an error is deemed to have waived the error. State v. Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79. However, this Court has the discretionary authority to find plain error even though the defendant made no objection or requested no relief at trial. State v. Jackson, 2009 MT 427, ¶ 42, 354 Mont. 63, 221 P.3d 1213. This Court has repeatedly stated that it will find plain error only sparingly, where failing to do so “may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial, or may compromise the integrity of the judicial process.” State v. Walton, 2014 MT 41, ¶ 17, 374 Mont. 38, 318 P.3d 1024. Our precedent requires that the alleged error “firmly convince” the Court that there was a serious mistake that must be addressed. Taylor, ¶ 17. ¶7 We will not undertake “full analysis” of the alleged error each time a party requests plain error review. Walton, ¶ 17. Conducting a full analysis in order to determine whether to find plain error would defeat the underlying rule that a party must object to error at trial, because errors should be brought to the attention of the trial court where they can be initially addressed. State v. Daniels, 2003 MT 247, ¶ 28, 317 Mont. 331, 77 P.3d 224. DISCUSSION ¶8 Issue: Whether this Court should undertake plain error review and conclude that the District Court committed reversible error by failing to directly address a spectator comment made during closing argument. ¶9 A criminal defendant has a right to a fair trial under both the United States and Montana Constitutions. State v. Aker, 2013 MT 253, ¶ 24, 371 Mont. 491, 310 P.3d 506. The district court bears the duty to insure that the defendant receives a fair trial. State v. Egan, 178 Mont. 67, 78, 582 P.2d 1195, 1201 (1978). Griffin argues that the spectator’s remark eroded his presumption of innocence and impacted his right to be judged solely upon properly-presented evidence. Griffin argues that the effect of the speaker’s comment was to implicate him as a sinner who should confess. Griffin argues that the District Court had the options to poll the jury to determine whether the remark influenced any of them; to instruct the jury to disregard the statement; or to declare a mistrial. Finally, he contends that the District Court’s failure to invoke one or more of these options deprived him of a fair trial. ¶10 Under the circumstances of this case, and based upon existing precedent, we disagree with Griffin and decline to find plain error. First, the spectator’s remark did not expressly accuse Griffin of a crime or of guilt, and did not imply any extra-judicial knowledge of the facts. It was more an expression of the spectator’s personal beliefs. Second, it was a brief and isolated event. Third, the District Court responded promptly by chastising and warning the spectator, in the presence of the jury, that her conduct was inappropriate and that further outbursts would not be tolerated. ¶11 In addition, the District Court’s instructions to the jury emphasized Griffin’s presumption of innocence “throughout every stage of the trial” and the fact that he was not required to prove his innocence or to present any evidence. The District Court cautioned the jurors to not accept any person’s version of the applicable law except as stated in the instructions. The jurors were instructed to deliberate and decide “uninfluenced by passion or prejudice.” The District Court instructed the jury that the “law forbids you to be governed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” ¶12 In many cases this Court has declined to find plain error when a defendant argues that a prosecutor’s statement about witness credibility in closing argument was improper. Aker, ¶¶ 29-30 and cases cited therein. In State v. Lacy, 2012 MT 52, ¶¶ 24-26, 364 Mont. 291, 272 P.3d 1288, we acknowledged the impropriety of a prosecutor’s invocation of a “reliance on God” during closing, but determined that is was “not so far from the permissible” to justify finding plain error. We follow those cases here. While the spectator’s remark was improper, it was not sufficiently serious that it caused a manifest miscarriage of justice, left unsettled the fundamental fairness of the trial, or compromised the integrity of the judicial system. CONCLUSION ¶13 The convictions are affirmed. JUSTICES McKINNON, COTTER, BAKER and RICE concur. Out of the presence of the jury the District Court further admonished the spectator that her conduct was inappropriate and was the type of conduct that could lead to a mistrial.

Affirmed Dist. 14 (Musselshell)

Denied Original Proceeding Extraordinary Relief

Denied Original Proceeding Extraordinary Relief

Denied Original Proceeding Habeas Corpus

OPINION AND ORDER JUSTICE McKINNON delivered the Opinion and Order of the Court. ¶1 Petitioners challenge the constitutionality of Constitutional Initiative 116 (CI-116), commonly known as Marsy’s Law, in an original petition for declaratory judgment and injunctive relief. The merits of CI-116 and the policy choices behind it are not at issue in this case. The only question before this Court is whether the procedure by which CI-116 was submitted to voters conformed to Montana’s constitutional requirements. ¶2 This Court has original jurisdiction over declaratory judgment actions “when urgency or emergency factors exist making litigation in the trial courts and the normal appeal process inadequate and when the case involves purely legal questions of statutory or constitutional interpretation which are of state-wide importance.” M. R. App. P. 14(4). See also Mont. Const. art. VII, § 2(1)-(2); §§ 3-2-201 and -202(1), MCA. In this case, normal litigation and appeal processes are inadequate because implementation of CI-116 is imminent. Furthermore, the question of whether CI-116 violates the Montana Constitution involves purely legal questions of constitutional interpretation because analysis of Montana Constitution, Article XIV, Section ll’s separate-vote requirement focuses on the manner in which a constitutional amendment is submitted to the voters at an election. What is in issue and what this Court must adjudge is not directed by a factual record or inquiry, but rather is directed to the legality of the enactment or adoption process itself. Indeed, it is precisely because we are addressing only the enactment process and whether that process survives constitutional scrutiny that a factual record evidencing a dispute or conflict surrounding the numerous provisions of CI-116 is unnecessary. Thus, this case is properly before the Court as an original proceeding and we accordingly accept jurisdiction. See Marshall v. State, 1999 MT 33, ¶ 5, 293 Mont. 274, 975 P.2d 325. ¶3 We conclude that the single-subject requirement, set forth in Article V, Section 11(3), of the Montana Constitution, applies to bills of the Legislature and not to constitutional amendments. We further conclude that CI-116 violates the separate-vote requirement, set forth in Article XIV, Section 11, of Montana’s Constitution, and is therefore void in its entirety. ¶4 We restate the dispositive issue as whether CI-116 violates the separate-vote requirement contained in Montana Constitution, Article XIV, Section 11. FACTUAL AND PROCEDURAL BACKGROUND ¶5 On November 8,2016, a majority of Montana voters approved CI-116, a constitutional amendment proposed by popular initiative. As enacted, CI-116 amended Article II of Montana’s Constitution by adding a new Section 36, titled Rights of Crime Victims. By way of description, CI-116 contains four sections. CI-116(1) enumerates eighteen rights to which crime victims are entitled. These rights are meant “[t]o preserve and protect a crime victim’s right to justice, to ensure a crime victim has a meaningful role in criminal and juvenile justice systems, and to ensure that a crime victim’s rights and interests are respected and protected by law in a manner no less vigorous than the protections afforded to a criminal defendant and a delinquent youth.” Among some of the rights afforded to victims by CI-116 are the right “to due process,” CI-116(1)(a); the right “to privacy, including the right to refuse an interview, deposition, or other discovery request and to set reasonable conditions on the conduct of any interaction to which the victim consents,” CI-116(1)(f); the right to “notice of’ and to be “present at all proceedings involving the criminal conduct, plea, sentencing, adjudication, disposition, release, or escape of the defendant or youth ... and any proceeding implicating the rights of the victim,” CI-116(1)(g); the right to be “heard in any proceeding involving the release, plea, sentencing, disposition, adjudication, or parole of the defendant or youth,” CI-116(1)(i); the right to “proceedings free from unreasonable delay and to a prompt and final conclusion of the case and any related postjudgment proceedings,” CI-116(1)(o); and the right to be informed of the enumerated rights and advised that “the victim may seek the advice and assistance of an attorney with respect to” those rights, CI-116(1)(r). ¶6 CI-116(2) provides the manner in which victim’s rights are to be recognized and effectuated. A victim, the victim’s attorney or representative, or the prosecuting attorney “may assert and seek enforcement of the rights enumerated” in any “trial or appellate court or any other authority with jurisdiction over the case as a matter of right.” The court “shall act promptly on the request, affording a remedy by due course of law for the violation of any right. The reasons for any decision regarding disposition of a victim’s right must be clearly stated on the record.” ¶7 CI-116(3) ensures that the enumerated rights “may not be construed to deny or disparage” other victims’ rights and provides that CI-116 “applies to criminal and youth court proceedings, is self-executing, and requires no further action by the Legislature.” ¶8 CI-116(4) provides definitions for “crime” and “victim.” A “crime” to which a victim’s enumerated rights apply includes felonies, misdemeanors, and delinquency proceedings. The definition of “victim,” CI-116(4)(b), includes the victim, who has suffered direct or threatened harm, and his or her “spouse, parent, grandparent, child, sibling, grandchild, or guardian.” Victim also includes someone with a “relationship to the victim that is substantially similar” to the relationship of a spouse, parent, grandparent, child, sibling, grandchild, or guardian. Finally, “victim” does not include the accused or someone the “court believes would not act in the best interests of a minor or of a victim who is deceased, incompetent, or incarcerated.” ¶9 CI-116 was to become effective July 1, 2017. Mont. Cnty. Attorneys Ass’n v. State, No. OP 16-0720, 387 Mont. 534, 391 P.3d 734 (table) (Jan. 3, 2017). However, on June 20, 2017, the Petitioners, Montana Association of Counties, Leo Gallagher, Adrian M. Miller, Montana Association of Criminal Defense Lawyers, and ACLU of Montana Foundation, Inc. (together, MACo), filed an original petition for declaratory judgment and injunctive relief. We ordered a response from the State of Montana (State) and additional briefing from the parties. On June 30, 2017, we stayed implementation of CI-116 to allow thorough consideration of the parties’ arguments, relevant case law, and the applicable provisions of Montana’s Constitution. ¶10 MACo, supported by amici, requests this Court declare void the enactment of CI-116, enjoin CI-116’s implementation and enforcement, and decertify the election results with respect to CI-116. MACo argues CI-116 violates two provisions of the Montana Constitution: the single-subject requirement of Article V, Section 11(3), and the separate-vote requirement of Article XIV, Section 11. MACo reasons CI-116 violates the single-subject requirement because involving a victim’s kin in criminal justice decisions is a subject separate from providing rights to traditional victims. Regarding the separate-vote requirement, MACo argues the “extensive language” of CI-116 amends at least eight sections of Montana’s Constitution and, thus, a vote was needed to amend each section individually. ¶11 The State, also supported by amici, responds that the single-subject requirement does not apply to constitutional initiatives. Alternatively, the State maintains that crime victims’ rights is CI-116’s only subject. The State also contends CI-116 does not violate the separate-vote requirement because the initiative does not “change or formally alter” any preexisting constitutional provision. The State further urges this Court to not follow the “amendment-by-implication” theory advanced by MACo, but, in any event, maintains that CI-116 does not impliedly amend other parts of the Constitution. Finally, the State contends that construing the separate-vote requirement as MACo requests would essentially abolish the constitutional initiative process in Montana. DISCUSSION ¶12 Montana’s Constitution may be amended in three ways, all of which are set forth in Article XIV: (1) by constitutional convention, Mont. Const. art. XIV, §§ 1-7; (2) by legislative referendum, Mont. Const. art. XIV, § 8; and (3) by popular initiative, Mont. Const, art. XIV, § 9. Here we are only concerned with amendment by popular initiative. The people of this State have the “exclusive right of governing themselves as a free, sovereign, and independent state” and “may alter or abolish the constitution and form of government whenever they deem necessary.” Mont. Const. art. II, § 2. Where the people, in adopting a constitution, have prescribed the method by which it may be revised or amended, any attempt to amend the fundamental law in violation of a self-imposed restriction is unconstitutional. Accordingly, as long as Montana’s Constitution is in effect, “the people may amend the constitution by initiative only in the manner provided by the constitution.” State ex rel. Mont. Citizens for Pres. of Citizen’s Rights v. Waltermire, 227 Mont. 85, 90-91, 738 P.2d 1255, 1258 (1987). The constitutional limitations on the initiative process are important because “[t]he sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed.” Waltermire, 227 Mont. at 91, 738 P.2d at 1258 (quoting Hunter v. Erickson, 393 U.S. 385, 392, 89 S. Ct. 557, 561 (1969)). ¶13 Montana’s 1972 Constitution provided citizens with a new way to amend their Constitution: by popular initiative. Compare Mont. Const. of 1889, art XIX, § 9 with Mont. Const. art. XIV, §§ 1-11. The addition was consistent with the overall theme of the 1972 Constitutional Convention of constructing a flexible Constitution subject to popular control. Anthony Johnstone, The Constitutional Initiative in Montana, 71 Mont. L. Rev. 325, 341 (2010). The Constitutional Convention Delegates (Delegates) focused on creating a Constitution that would reflect the notions of popular sovereignty and self-government embodied in Article II. Johnstone, supra, at 340, 342. The Constitutional Revision Committee (Committee) proposed the initiative power because it believed the power was “an inherent right in a body politic whose Constitution is to be the embodiment of the will of the people.” Montana Constitutional Convention, Committee Proposals, February 12, 1972, p. 363 (hereinafter Committee Proposal). The Committee wanted to ensure the 1972 Constitution provided a constitutional revision process that “hit a happy and workable medium.” Committee Proposal, p. 364. ¶14 Consequently, while providing for initiative power, the 1972 Constitution also imposed limitations on the initiative process. Such limitations included signature gathering and geographic distribution requirements. Mont. Const. art. XIV, § 9(1). The Committee determined limitations were necessary because it was “not unreasonable to demand strict standards when dealing with something as fundamental and important as Constitutional change.” Committee Proposal, p. 363. The Committee noted another check on the constitutional amendment process: the separate-vote requirement. Committee Proposal, p. 363. Indeed, the official voter pamphlet for the new Constitution explained to voters that the only limit on how constitutional amendments may be submitted at an election was the requirement that each amendment “be clearly designated on the ballot so that they can be voted on separately.” Concerned Citizens for Constitutional Improvement, The Proposed 1972 Constitution for the State of Montana, Montana Newspapers, 1972, at 5. ¶15 The separate-vote requirement is one of eleven sections in Article XIV directing the manner in which Montana’s Constitution may be revised. In particular, the separate-vote requirement pertains to submission of a proposed amendment, providing that if more than one constitutional amendment is presented to voters during the same election, voters must have the option to vote on each amendment separately: Submission. If more than one amendment is submitted at the same election, each shall be so prepared and distinguished that it can be voted upon separately. Mont. Const. art. XIV, § 11. The separate-vote requirement was “designed to aid voters in casting their votes on Constitutional issues, and as a check on the possible action of grouping several issues under one innocuous title.” Committee Proposal, p. 363. The separate-vote requirement has a long history in Montana. Montana’s 1884 and 1889 Constitutions both contained a separate-vote requirement, and the requirement was adopted unanimously during the Constitutional Convention of 1972. Montana Constitutional Convention, Verbatim Transcript, March 1, 1972, pp. 1195-96. The separate-vote requirement has two well-recognized objectives. The first is to avoid voter confusion and deceit of the public by ensuring proposals are not misleading or the effects of which are concealed or not readily understandable. The second is to avoid “logrolling” or combining unrelated amendments into a single measure which might not otherwise command majority support. By combining unrelated amendments, approval of the measure may be secured by different groups, each of which will support the entire proposal in order to secure some part, even though not approving all parts of a multifarious amendment. Fugina v. Donovan, 104 N.W.2d 911, 914 (Minn. 1960). See also In re Initiative Petition No. 314, 625 P.2d 595 (Okla. 1980); Kerby v. Luhrs, 36 P.2d 549 (Ariz. 1934). ¶16 This Court’s interpretation of the separate-vote requirement has narrowed over time as the processes by which the Constitution can be amended have changed. In the early twentieth century, before Montana’s Constitution could be amended by initiative, we held the separate-vote requirement satisfied as long as all provisions of the proposed constitutional amendment related to one subject matter or a single plan. See, e.g., State ex rel. Corry v. Cooney, 70 Mont. 355, 365, 255 P. 1007, 1011 (1924) (concluding the separate-vote requirement satisfied if “the operation of the amendment relates to a single plan or purpose”); State ex rel. Hay v. Alderson, 49 Mont. 387, 404, 142 P. 210, 213 (1914) (holding the separate-vote requirement satisfied as long as all parts of the proposed constitutional amendment “may be logically viewed as parts or aspects of a single plan”); State ex rel. Teague v. Bd. of Comm’rs, 34 Mont. 426, 430, 87 P. 450, 451 (1906) (holding a proposed amendment constitutional under the separate-vote requirement because it was not “three separate propositions” but instead was “only one matter and one subject”). ¶17 We revisited our Cooney, Hay, and Teague separate-vote reasoning and jurisprudence following ratification of the 1972 Constitution and introduction of the petition by popular initiative. Notably, our 1999 decision in Marshall v. State overruled Cooney, Hay, and Teague to the extent those decisions failed to recognize a distinction between the single-subject and separate-vote requirements. Marshall, ¶ 23. In Marshall we explained that a proposed amendment could relate to a single plan or purpose, but still violate the separate-vote requirement because it contained more than one amendment to Montana’s Constitution. Marshall, ¶ 22. Central to our decision in Marshall was the fact that Cooney, Hay, and Teague were decided when constitutional amendments could only be proposed by the Legislature—before Montana’s Constitution could be amended by initiative. Marshall, ¶ 19. We found this distinction remarkable because when a constitutional amendment is proposed by the Legislature through referendum, representatives debate and deliberate the proposition. Marshall, ¶ 19. On the other hand, when a constitutional amendment is proposed by initiative, Montana voters do not have the same opportunity to consider and debate the proposition. Marshall, ¶ 19. ¶18 Based on these observations, we noted that the separate-vote requirement “is a cogent constitutional recognition of the circumstances under which Montana voters receive constitutional initiatives.” Marshall, ¶ 19. Voters do not have the opportunity to consider, discuss, and potentially change constitutional amendments proposed by initiative in the same way the Legislature does those proposed by referendum. Therefore, the separate-vote requirement serves as an important check on the initiative process, confirming the integrity of the vote and ensuring the voters actually approve of a particular amendment. Our interpretation of the separate-vote requirement in Marshall ensured Montana voters always have the option to independently select or reject each constitutional amendment, guaranteeing the people have complete control over Montana’s fundamental law. Marshall, ¶¶ 19, 22. ¶19 Prior to Marshall and adoption of our 1972 Constitution, this Court analyzed the separate-vote provision based on whether a proposed constitutional amendment contained one subject or matter. The 1972 Constitution’s amendment by initiative interjected a new element into the separate-vote requirement, leading to some confusion regarding the difference between the separate-vote and single-subject requirements. While we distinguished the separate-vote and single-subject requirements in Marshall, holding each provision is substantively different, we implied that both provisions apply to constitutional amendments proposed by initiative. Marshall, ¶¶ 18, 22. We decided the test for the separate-vote requirement is stricter than that of the single-subject requirement. Marshall, ¶ 22. We noted that reading the separate-vote requirement narrower than the single-subject requirement made sense “because the act of amending the constitution is significantly different from enacting or enabling legislation.” Marshall, ¶ 22. We explained in Marshall that a proposed constitutional amendment could satisfy the single-subject requirement but be invalid under the separate-vote requirement. Marshall, ¶ 22. Because the Court found CI-75 unconstitutional pursuant to the separate-vote requirement of Article XIV, Section 11, a narrower requirement than the single-subject requirement, we never addressed the applicability of Article V, Section ll(3)’s single-subject requirement. ¶20 We now directly consider whether the single-subject requirement applies to constitutional amendments proposed by initiative and decide that it does not. The Montana Constitution contains both a single-subject requirement for bills proposed by the Legislature, Article V, Section 11(3), and a separate-vote requirement for constitutional amendments, Article XIV, Section 11. The single-subject requirement provides the guidelines by which the Legislature must present bills to the electorate: Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void. Mont. Const. art. V, § 11(3). ¶21 Montana’s single-subject requirement necessitates that bills developed by the Legislature contain only one subject. In contrast, constitutional amendments developed via initiative never go through the Legislature. Therefore, the Legislature has no control over a constitutional amendment proposed by initiative. It follows that Article V, governing the way in which the Legislature prepares and proposes bills, does not also govern constitutional amendments raised by initiative, a power lying exclusively with the people and provided for in Article XIV. ¶22 The Oregon Supreme Court’s decision Armatta v. Kitzhaber, 959 P.2d 49 (Or. 1998), guided our Marshall decision. Marshall, ¶ 22. However, the Montana Constitution differs from Oregon’s Constitution. Oregon’s Constitution has a single-subject requirement that applies directly to constitutional initiatives. Or. Const. art. IV, § (1)(2)(d) (“A proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith.”). Conversely, and significant to our analysis here, Montana’s Constitution, Article XIV, guiding constitutional revision, does not have a single-subject requirement. Montana’s single-subject requirement relied on by MACo is contained in Article V, which pertains to the Legislature. To the extent our holding here conflicts with our analysis of the single-subject requirement in Marshall, we clarify that the single-subject requirement contained in Article V, Section 11(3), of the Montana Constitution does not apply to constitutional amendments. Nonetheless, the distinction made in Marshall between the separate-vote and single-subject requirements, the reasoning in support thereof, and our reliance on Armatta’s separate-vote analysis were well- reasoned and remain valid. Because we hold that the single-subject requirement does not apply to constitutional amendments, we do not address MACo’s contention that CI-116 violates Montana Constitution, Article V, Section 11(3). ¶23 While Marshall is significant for its explanation of the separate-vote requirement in the context of an amendment by initiative, particularly in distinguishing the separate-vote requirement from the less arduous single-subject requirement, the Court invalidated CI-75 based on the express language of the initiative itself, which specifically amended other provisions of the Constitution. Marshall, ¶ 24. We determined these express amendments each needed a separate vote pursuant to Article XIV, Section 11. Marshall, ¶ 24. While explaining that CI-75 also affected other parts of the Constitution by limiting legislative spending, we did not incorporate these implied amendments into our reasoning because our discussion of the three express changes was sufficient to demonstrate CI-75’s violation of the separate-vote requirement. See Marshall, ¶ 24 n.2. In deciding Marshall in this manner, we left unanswered what is a “separate amendment” for purposes of the separate-vote requirement. ¶24 Before turning to that question, however, we are compelled to address the State’s assertion that we completely rejected the amendment-by-implication theory in Marshall. Deciding Marshall on alternative grounds, without addressing amendment-by-implication, does not mean we rejected such an analysis. In fact, we left open the possibility in Marshall of expanding upon our separate-vote analysis should the need arise, as it has here. Marshall, ¶ 24 n.2. More importantly, we conclude our reasoning would be fundamentally flawed if we limited the separate-vote requirement to only those multifarious amendments which expressly refer to other constitutional provisions. Such an interpretation would allow the separate-vote requirement to be easily undermined by simple drafting techniques. In the context of constitutional amendments by initiative, voters act as legislators. It is this Court’s obligation to ensure that interest groups and individuals advocating for passage or defeat of a measure do not undermine the right of the voters to decide upon each constitutional change separately, either as a result of expressly incorporating more than one change or doing so by implication. We endeavor now to answer the question left open in Marshall; that is, how to determine whether an amendment by initiative contains two or more separate amendments in violation of Montana Constitution, Article XIV, Section 11. ¶25 It is our task to interpret the Constitution by giving “effect to the intent of the people adopting it.” State ex rel. Hinz v. Moody, 71 Mont. 473, 481, 230 P. 575, 578 (1924). This intent “is to be found in the instrument itself’ by looking at “the natural signification of the words employed.” Moody, 71 Mont. at 481-82, 230 P. at 578-79. The separate-vote requirement states, “If more than one amendment is submitted at the same election, each shall be so prepared and distinguished that it can be voted upon separately.” Mont. Const. art. XIV, § 11. The clear import of this provision is that voters must be allowed to express their separate opinion as to each proposed constitutional amendment. Accordingly, this Court is obligated to ensure that voters have the opportunity to cast separate votes for separate amendments. At the same time, we must apply the separate-vote requirement in a manner that does not encumber the right of the people to amend the Constitution. ¶26 There is considerable variance in the way other state courts interpret their separate-vote requirements. See Cambria v. Soaries, 776 A.2d 754, 762-65 (N.J. 2000). At one end of the spectrum are states that make only a slight distinction between the broader single-subject requirement and the separate-vote requirement, requiring the parts be rationally or logically related to each other. See Fugina, 104 N.W.2d at 915. Other states have adopted a more narrow interpretation, but are still deferential to the single-subject analysis and do not make a measurable distinction between single-subject and separate-vote requirements. See, e.g., Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 830-31 (Mo. 1990); Milwaukee Alliance Against Racist and Political Repression v. Elections Bd. of Wis, 317 N.W.2d 420, 425 (Wis. 1982); Carter v. Burson, 198 S.E.2d 151, 156 (Ga. 1973); Ohio ex rel. Roahrig v. Brown, 282 N.E.2d 584, 586 (Ohio 1972). The narrowest interpretation of the separate-vote requirement clearly distinguishes it from the single-subject requirement by requiring there be a single subject to the proposed amendment and parts so interdependent that they constitute a whole and cannot be separated. See Kerby, 36 P.2d at 554 (“[T]he different changes contained in the proposed amendment [did not] cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and if, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted.”). See also Lee v. Utah, 367 P.2d 861, 864 (Utah 1962); Farris v. Munro, 662 P.2d 821, 825 (Wash. 1983); Armatta, 959 P.2d at 63. ¶27 In Armatta, which this Court relied upon in Marshall, the Oregon Supreme Court concluded the proper inquiry was “whether, if adopted, the proposal would make two or more changes to the constitution that are substantive and that are not closely related.” Armatta, 959 P.2d at 64. If the “proposal would effect two or more changes that are substantive and not closely related, the proposal violates the separate-vote requirement ... because it would prevent the voters from expressing their opinions as to each proposed change separately.” Armatta, 959 P.2d at 64. “In some instances, it will be clear from the text of the proposed initiative whether it runs afoul of [the separate-vote requirement]. In other instances, it will be necessary to examine the implications of the proposal before determining whether it contains two or more amendments.” Armatta, 959 P.2d at 64. ¶28 We conclude that the proper inquiry is whether, if adopted, the proposal would make two or more changes to the Constitution that are substantive and not closely related. This conclusion is based upon the language of Article XIV, Section 11; our decision in Marshall distinguishing between the single-subject and separate-vote requirements in the context of constitutional amendment by initiative; our conclusion that the single-subject requirement contained in Article V, Section 11(3), is inapplicable to constitutional amendments; and the transcripts of the 1972 Constitutional Convention. Furthermore, if a proposed constitutional amendment adds new matter to the Constitution, that proposition is at least one change in and of itself. See, e.g., Oregon v. Rogers, 288 P.3d 544, 547 (Or. 2012) (citing Lehman v. Bradbury, 37 P.3d 989, 996 (Or. 2002)). Then, “if a measure has the effect of modifying an existing constitutional provision, it proposes at least one additional change to the constitution, whether that effect is express or implicit.” Rogers, 288 P.3d at 548 (citing Meyer v. Bradbury, 142 P.3d 1031, 1036 (Or. 2006)). ¶29 Our separate-vote inquiry begins by focusing on the changes CI-116 makes to the Montana Constitution. We employ well-understood legal meanings in considering whether changes are substantive: “[a]n essential part of constituent or relating to what is essential.” Black’s Law Dictionary 1429 (Henry C. Black ed., 6th ed. 1990). Additionally, numerous factors may be considered in determining whether the provisions of a proposed constitutional amendment are “closely related.” These factors may include: [WJhether various provisions are facially related, whether all the matters addressed by [the proposition] concern a single section of the constitution, whether the voters or the legislature historically has treated the matters addressed as one subject, and whether the various provisions are qualitatively similar in their effect on either procedural or substantive law. McLaughlin v. Bennett, 238 P.3d 619, 622 (Ariz. 2010) (quoting Ariz. Together v. Brewer, 149 P.3d 742, 746 (Ariz. 2007)). The Oregon Supreme Court explained Armatta’s “closely related” prong: First, we examine the relationship among the constitutional provisions that the measure affects, both explicitly and implicitly. If the affected provisions of the existing constitution themselves are not related, then it is likely that changes to those provisions will offend the separate-vote requirement. That conclusion makes sense, because it is difficult to make related changes to unrelated constitutional provisions. However, we decline to speculate whether the fact that a proposed amendment affects unrelated provisions of the constitution will be fatal in every case, because, in doing so, we might underestimate the ability of initiative petitioners to design careful, constitutionally sound amendments for the voters to consider. Nonetheless, the fact that a proposed amendment asks the people, in one vote, substantively to change multiple provisions of the Oregon Constitution that are not themselves related is one indication that the proposed amendment might violate the separate-vote requirement. Next, we must consider the constitutional changes themselves. That is, assuming that the constitutional provisions affected by the measure are related, we must determine whether the changes made to those related constitutional provisions are closely related. If they are closely related, the measure under consideration survives scrutiny under [the separate-vote requirement]. If they are not, it does not. Lehman, 37 P.3d at 998 (emphasis in original; footnote omitted). See also League of Or. Cities v. Oregon, 56 P.3d 892, 910 (Or. 2002) (applying the same closely-related analysis to a proposed constitutional amendment). ¶30 Consideration of whether the proposed constitutional changes are closely related gives appropriate effect to the separate-vote requirement by ensuring each constitutional amendment receives its own vote without unduly restricting constitutional change. Other states have applied similar closely-related analyses to proposed constitutional amendments and upheld the amendments as constitutional, demonstrating that a properly constructed constitutional amendment could certainly be found constitutional pursuant to our reasoning today. See, e.g., Rogers, 288 P.3d at 552-53 (applying Armatta’s separate-vote analysis to and upholding a proposed amendment to Oregon’s Constitution imposing the death penalty because the changes to multiple areas of the constitution were closely related); Cambria, 776 A.2d at 765 (applying Armatta’s separate-vote analysis to and upholding a proposed amendment to New Jersey’s Constitution dedicating revenue streams because the amendment “constitu[ted] a reasonably integrated whole in which the parts are closely related to one another”). ¶31 We turn now to the text of CI-116 to determine whether its submission to Montana voters violated the separate-vote requirement. CI-116 expressly amends Article II of the Montana Constitution by adding a new Section 36, providing for specific crime victim rights. Adding a new constitutional provision constitutes one change. CI-116 does not expressly mention, repeal, or otherwise modify any other areas of the Constitution. However, CI-116 implicitly substantively changes multiple provisions of Montana’s Constitution, some of which we now discuss. A. CI-116(1)(a) Provides a New Due Process Right for Crime Victims. ¶32 Article II, Section 17, of Montana’s Constitution provides an individual the right of due process: No person shall be deprived of life, liberty, or property without due process of law. Mont. Const. art. II, § 17. CI-116 supplements this preexisting provision with another due process right—one exclusive to crime victims. ¶33 The first right CI-116 provides to a crime victim is the right “to due process and to be treated with fairness and respect for the victim’s dignity.” CI-116(1)(a). Accordingly, subsection (1)(a) of CI-116, standing on its own, creates a new due process guarantee for, specifically, crime victims. This new due process right for crime victims is a change in itself because, unlike our existing due process clause, it identifies a particular group of persons entitled to due process protections. Identifying and defining a group of persons who are entitled to expressly enumerated due process protections may also implicitly change other areas of the Constitution by effectuating a substantive change which is not closely related to a victim’s due process right, thus violating the separate-vote requirement. Although it is difficult to imagine that a proposed provision granting a due process guarantee to crime victims would not be closely related to Montana’s existing grant to persons of a due process guarantee as contained in Montana Constitution, Article II, we decline to speculate on whether submission of only CI-116(1)(a) would violate the separate-vote requirement. By way of illustration, the definition in CI-116 of “crime” and “victim,” appears broader through its inclusion of various individuals and types of proceedings than that ascribed to “person” as embodied in our existing constitutional provision. Nonetheless, for purposes of our decision today, it is clear that CI-116 as a whole enumerates many other crime victim rights that are not closely related to our existing due process guarantee contained in Article II, Section 17. Consequently, it is unnecessary to determine whether CI-116(1)(a) is closely related to Article II, Section 17, as CI-116(1)(a) undisputedly adds matter to an existing constitutional provision and constitutes one change in itself. B. CI-116(1)(j) and (2) Affect Montana Constitution Article VII, Section 2(B)’s Grant of Power to the Supreme Court to Regulate Attorney Conduct. ¶34 Article VII, Section 2(3), of Montana’s Constitution provides the Supreme Court with the authority to “make rules governing ... admission to the bar and the conduct of its members.” A prosecutor, as a member of the bar, must obey the Montana Rules of Professional Conduct (Rules). For example, the Rules prohibit a prosecutor from “prosecuting a charge that the prosecutor knows is not supported by probable cause.” M. R. Pro. Cond. 3.8(a). ¶35 The purpose of CI-116 is to provide rights to victims “[t]o preserve and protect a crime victim’s right to justice, to ensure a crime victim has a meaningful role in criminal and juvenile justice systems, and to ensure that a crime victim’s rights and interests are respected and protected by aw in a manner no less vigorous than the protections afforded toa criminal defendant and a delinquent youth” CI-116(1) (emphasis added). One of the ways CI-116 effectuates those purposes is by giving a victim the right to “confer with the prosecuting attorney.” CI-116(1)(j). CI-116 also provides that “the prosecuting attorney at the request of the victim may assert and seek enforcement of the [victim’s] rights ....” CI-116(2). ¶36 CI-116 changes a prosecutor’s duties in a criminal adjudication. CI-116 requires prosecutors to confer with a victim for the purposes of preserving and protecting the victim’s right to justice, ensuring the victim has a meaningful role in the justice system, and ensuring the victim’s rights and interests are respected and protected in a manner as vigorous as the protections afforded to a criminal defendant. CI-116 also gives prosecutors the option to, at the victim’s request, seek enforcement of the victim’s rights. CI-116 changes the way a prosecutor must handle a criminal case in which there is a victim, thus affecting the Supreme Court’s power under Article VII, Section 2(3), to make rules governing attorney conduct. We conclude Montana Constitution Article VII, Section 2(3), is substantively changed by CI-116(1)(j) and (2), and that the provisions relating to crime victims’ rights are not closely related to this Court’s constitutional authority to regulate attorney conduct. Accordingly, asking the people in one vote to substantively change multiple provisions of the Constitution which are not closely related violated the separate-vote requirement. C. CI-116(1)(g) and (i) Affect Montana Constitution Article II, Section 2Vs Right to Bail. ¶37 Article II, Section 21, of Montana’s Constitution provides the right to bail: All persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption is great. Mont. Const. art. II, § 21. ¶38 CI-116 affords victims the right to “notice of and to be present at all proceedings involvingthe... release ... of the defendant or youth,” CI-116(1)(g), and the right “to be heard in any proceeding involving the release ... of the defendant or youth,” CI-116(1)(i). Thus, CI-116 changes an accused’s right to bail provided in Montana Constitution Article II, Section 21, by constitutionally prohibiting a court from releasing a defendant or youth on bail until all victims, including kinship and those having a “substantially similar relationship” to the victim, are present and heard by the court. CI-116 constitutionally requires a court not release a defendant until the victim appears and is heard, substantively affecting Article II, Section 21’s requirement of bail upon sufficient surety. We conclude Montana Constitution Article II, Section 21, is substantively changed by CI-116(1)(g) and (i), because CI-116(1)(g) and (i) add new constitutional requirements to the preexisting bail provision. The constitutional provision regarding an accused’s right to bail is not closely related to victims’ rights and the separate-vote requirement was violated when voters were asked to consider these multiple amendments in one measure. D. CI-116(1)(g) and (i) Affect Montana Constitution Article II, Section 20’s Criminal Procedure Rules. ¶39 Article II, Section 20, of Montana’s Constitution provides constitutional guidelines for initiating criminal proceedings: (1) Criminal offenses within the jurisdiction of any court inferior to the district court shall be prosecuted by complaint. All criminal actions in district court, except those on appeal, shall be prosecuted either by information, after examination and commitment by a magistrate or after leave granted by the court, or by indictment without such examination, commitment or leave. (2) A grand jury shall consist of eleven persons, of whom eight must concur to find an indictment. A grand jury shall be drawn and summoned only at the discretion and order of the district judge. Mont. Const. art II, § 20. ¶40 CI-116 provides a victim with the right “to receive reasonable, accurate, and timely notice of and to be present at all proceedings involving the criminal conduct, plea, sentencing, adjudication, disposition, release, or escape of the defendant or youth accused of delinquency and any proceeding implicating the rights of the victim.” CI-116(1)(g). The initiative further grants victims the right “to be heard in any proceeding involving the release, plea, sentencing, disposition, adjudication, or parole of the defendant or youth accused of delinquency and any proceeding implicating the rights of the victim.” CI-116(1)(i). ¶41 CI-116 thus requires courts give the victim notice of, allow the victim to be present at, and give the victim the opportunity to be heard at various hearings. These rights given to the victim add steps to the procedures a court is constitutionally required to take under Article II, Section 20, in initiating proceedings against a defendant and drawing a grand jury. We conclude Article II, Section 20, of Montana’s Constitution is substantively changed by CI-116(1)(g) and (i) and that the preexisting constitutional provision related to initiation of criminal proceedings is not closely related to crime victims’ rights. E. CI-116(1)(e) and (f) Affect Montana Constitution Article II, Section 24’s Rights of the Accused. ¶42 Article II, Section 24, of Montana’s Constitution provides rights of the accused: In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same. Mont. Const. art. II, § 24. As a “corollary to [Article II, Section 24’s] fundamental right to defend,” a defendant has “the right to conduct investigations and otherwise prepare a defense to the charges.” State v. Couture, 2010 MT 201, ¶ 77, 357 Mont. 398, 240 P.3d 987. ¶43 CI-116 provides a victim with the right “to prevent the disclosure of information that could be used to locate or harass the victim or that contains confidential or privileged information about the victim.” CI-116(1)(e). The initiative further provides a victim with the right “to privacy, including the right to refuse an interview, deposition, or other discovery request and to set reasonable conditions on the conduct of any interaction to which the victim consents.” CI-116(1)(f). ¶44 CI-116 changes the accused’s constitutional rights enumerated in Article II, Section 24. CI-116(1)(e) changes a defendant’s right to discover any information he or she may be entitled to under Article II, Section 24, that “could be used to locate or harass the victim or that contains confidential or privileged information about the victim.” CI-116(1)(f) also changes a defendant’s right to discover information he or she may be entitled to under Article II, Section 24, by giving victims and those close to the victim as defined in CI-116(4)(b)(i) the right to “refuse an interview, deposition, or other discovery request.” We conclude Montana Constitution, Article II, Section 24, is substantively changed by CI-116(1)(e) and (f). Further, sections (1)(e) and (f) are not closely related to our preexisting constitutional provision establishing basic constitutional rights of the accused, including the right to discover information, meet accusers, and prepare a defense. F. CI-116(1)(f) and (4)(b) Affect Montana Constitution Article II, Section 9’s Right to Know and Section 10’s Right of Privacy. ¶45 Article II, Section 9, of Montana’s Constitution provides the public’s right to know: No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure. Mont. Const. art. II, § 9. ¶46 Article II, Section 10, of Montana’s Constitution provides for an individual’s right of privacy: The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest. Mont. Const. art II, § 10. The public’s right to know, Article II, Section 9, is balanced against the individual’s right of privacy, Article II, Section 10. Montana Constitutional Convention, Committee Proposals, February 23, 1972, p. 631. Consistent with this interpretation by the Delegates, we have likewise found the two constitutional provisions are evaluated using a carefully designed, fact-intensive, balancing test. See, e.g., Billings Gazette v. Billings, 2013 MT 334, ¶¶ 14-16, 372 Mont. 409, 313 P.3d 129; Missoula Cnty. Pub. Sch. v. Bitterroot Star, 2015 MT 95, ¶ 11, 378 Mont. 451, 345 P.3d 1035. The right of privacy is an individual right and therefore cannot be invoked by all legally defined “persons,” such as corporations or other groups. Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1680; Great Falls Tribune v. Mont. PSC, 2003 MT 359, ¶ 33, 319 Mont. 38, 82 P.3d 876. Thus, the right to know, Article II, Section 9, is limited only by a natural person’s right of privacy, and may not be limited by the privacy interests of corporations or groups. Great Falls Tribune, ¶ 37. ¶47 CI-116(1)(f) provides a crime victim with the right “to privacy, including the right to refuse an interview, deposition, or other discovery request and to set reasonable conditions on the conduct of any interaction to which the victim consents.” Thus, CI-116 creates an entirely new privacy interest for victims, extended family members, and others with “similar relationships.” ¶48 CI-116 affects Article II, Section 10’s right of privacy and the balancing test between the right of privacy and the right to know. Aside from providing a new constitutional right to a particular class of persons—crime victims—which is a change in itself to the Constitution, CI-116 affects the balancing test employed between two preexisting constitutional provisions, the right of privacy and the right to know. Further, CI-116 gives the right of privacy to extended family members and others with similar relationships to the victim. Finally, CI-116(4)(b) specifically defines a victim as a “person” who suffers direct or threatened harm. In contrast, the term “person,” as recognized by the Delegates, includes corporations and other nonhuman entities. Montana Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1680. Accordingly, “persons” entitled to a right to privacy under CI-116 would be different than under the constitutional provisions of Article II, Section 9, the public’s right to know, and Section 10, an individual’s right of privacy. We conclude Montana Constitution Article II, Sections 9 and 10, are substantively changed by CI-116(1)(f) and (4)(b) and that the people should have been afforded the right to vote on each amendment separately. ¶49 To summarize, CI-116 adds a new Section 36 to Article II of Montana’s Constitution, substantively changing the Constitution by enumerating rights for victims. The preexisting constitutional provisions that are substantively changed by CI-116 include Article VII, Section 2(3)’s grant of power to the Supreme Court to govern attorney conduct; Article II, Section 21’s right to bail; Article II, Section 20’s criminal procedure rules; Article II, Section 24’s rights of the accused; Article II, Section 9’s right to know; and Article II, Section 10’s right of privacy. ¶50 Some of these provisions are related in the broad sense that they are implicated during a criminal prosecution. For example, Article II, Section 21’s right to bail, Article II, Section 20’s criminal procedure rules, and Article II, Section 24’s rights of the accused all seek to protect an accused’s fundamental rights during a criminal proceeding. However, a broad relationship between various provisions or a broad single subject does not satisfy the narrower interpretation of the separate-vote requirement we adopted in Marshall because voters did not have the opportunity to convey their opinions as to each constitutional provision changed by CI-116. For instance, voters should have had the option to independently decide if they wished to change the accused’s right to bail by adding CI-116(1)(g) and/or (i); if they wished to change criminal procedure rules by adding CI-116(1)(g) and/or (i); if they wished to change rights of the accused by adding CI-116(1)(e) and/or (f); and if they wished to change the right to know and the right of privacy by adding CI-116(1)(f) and/or (4)(b). Further, not all of the affected provisions share even the broad connection of relating to a criminal prosecution or victim’s rights. For example, attorney conduct, Article VII, Section 2(3), is not closely related to the right of privacy, Article II, Section 10, and neither of those provisions is closely related to the accused’s right to bail, Article II, Section 21. Each of these amendments should have been presented to the electorate individually. Separate votes on each change would have protected the integrity of the vote and ensured that voters had complete control over each amendment made to the Montana Constitution. ¶51 CI-116 violates the separate-vote requirement and for that reason is void in its entirety. The Montana Constitution may only be amended pursuant to Article XIV. A constitutional amendment is invalid unless it is formed and adopted in a manner consistent with Article XIV. Marshall, ¶ 26 (citing Waltermire, 227 Mont. at 90-91, 738 P.2d at 1258). Moreover, a constitutional amendment submitted to the electorate in violation of the separate-vote requirement is void in its entirety because the constitutional “defect lies in the submission of [the proposed amendment] to the voters of Montana with more than one constitutional amendment.” Marshall, ¶ 25 (emphasis in original). ¶52 CI-116 impliedly changed Montana’s Constitution in numerous ways and we deem those changes to be both substantive and not closely related. When voters were required to vote “yes” or “no” for CI-116 in its entirety, they were forced to vote for or against multiple, not closely related, changes to the Montana Constitution with one vote. Voters had no way to express their opinions as to each proposed constitutional change. The way in which CI-116 was submitted to the electorate violated the separate-vote requirement of Article XIV, Section 11. Therefore, we declare CI-116 void in its entirety. We void the enactment of CI-116, enjoin its implementation and enforcement, and decertify the election results with respect to CI-116. ¶53 We reiterate that our decision is not based on the merits of the constitutional changes proposed by CI-116. Montana Constitution, Article XIV, Section 9, clearly grants the people initiative power to popularly amend the Constitution as they deem necessary, even if an amendment affects other portions of the Constitution. However, the procedure by which the Montana Constitution is amended must comply with existing constitutional requirements. Article XIV, Section 11, is specifically designed to ensure voters have complete control over each and every constitutional change. Our decision today is based solely on our conclusion that CI-116 contains more than one constitutional amendment, each of which required a separate vote under Article XIV, Section 11. CONCLUSION ¶54 We hold Montana Constitution, Article V, Section ll(3)’s single-subject requirement does not apply to constitutional amendments. Therefore, we do not address MACo’s argument that CI-116 violates Article V, Section 11(3). We expand upon our analysis of Montana Constitution, Article XIV, Section ll’s separate-vote requirement and hold a proposed constitutional amendment violates the separate-vote requirement if it substantively changes two or more parts of the Constitution that are not closely related. Applying that analysis to CI-116, we hold CI-116 violates the separate-vote requirement and is therefore void in its entirety. DATED this 1st day of November, 2017. CHIEF JUSTICE McGRATH, JUSTICES SHEA, WHEAT and SANDEFUR concur. The full text of CI-116 is attached as Appendix A and can be found online at https://perma.cc/VQ76-WRAJ. CI-116 is currently recorded as Article II, Section 36, of the Montana Constitution (2017). Two groups filed briefs supporting the Petitioners: Constitutional Convention Delegates, Retired Montana Supreme Court Justices, and Law Professors; and “The Montana Newspapers,” including Lee Enterprises, The Billings Gazette, The Missoulian, The Helena Independent Record, The Ravalli Republic, The Great Falls Tribune, and The Bozeman Daily Chronicle. The Petitioners acknowledge that “[e]xtending rights to traditional victims of crime is a single, fairly contained subject.” Specifically, the Petitioners argue CI-116 amends Article II, Section 17’s due process guarantee in criminal proceedings; Article VII, Section 2(3)⅛ grant of power to the Supreme Court to regulate attorney conduct; Article II, Section 9’s right to know; Article II, Section 10’s right of privacy; Article II, Section 20’s initiation of criminal proceedings; Article II, Section 21’s right to bail; Article II, Section 24’s right to a speedy trial; and Article II, Section 28’s principles guiding laws punishing crime. Two groups filed briefs supporting the State: Marsy’s Law for Montana, LLC; and National Crime Victim Law Institute. We refer to Montana Constitution, Article XIV, Section 11, as the “separate-vote requirement” throughout this Opinion. We refer to Montana Constitution, Article V, Section 11(3), as the “single-subject requirement” throughout this Opinion. The 1884 provision was stylistically different than the current provision. It stated, “Should more amendments than one be submitted at the same election, they shall be so prepared and distinguished by numbers or otherwise that each can be voted upon separately.” Mont. Const. of 1884, art XVI, § 13. Montana’s 1889 Constitution contained the exact same provision as the 1884 Constitution but also placed a three-amendment per-election limit. Mont. Const. of 1889, art XIX, § 9. The 1972 Delegates removed the three-amendment per-election limit. Johnstone, supra, at 346. The Delegates believed that the people, through the initiative process, should have the freedom to place as many proposed constitutional amendments on the ballot as they wish, as long as voters maintained the ability to vote on each amendment separately. Johnstone, supra, at 346 (citing Montana Constitutional Convention, Verbatim Transcript, February 18, 1972, p. 517). MACo suggests CI-116 makes at least eight implied changes to the Constitution. While CI-116 would violate the separate-vote requirement if it made only two substantive changes that are not closely related, for purposes of illustration we choose to address six discrete, not closely related, changes CI-116 makes to the Montana Constitution.

JUSTICE BAKER delivered the Opinion of the Court. ¶1 David Rasmussen was arrested in Missoula for driving under the influence of alcohol (DUI)- The State charged him with felony DUI because Rasmussen had four prior DUI convictions. Rasmussen moved to dismiss, arguing that two of his prior convictions were obtained in violation of his constitutional right to counsel. The District Court held a hearing on the motion at which Rasmussen testified as the only witness. After the hearing, the court denied Rasmussen’s motion to dismiss on the ground that he had not met his burden of rebutting the presumption of regularity that attached to the prior convictions. Rasmussen appeals that ruling. We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶2 Rasmussen was arrested in April 2015 and charged with felony DUI under § 61-8-401(l)(a), MCA. The State based its felony enhancement on the fact that Rasmussen had four prior qualifying DUI convictions: on March 4, 1996, March 25, 1996, August 9, 2001, and April 3, 2008. ¶3 Rasmussen moved to dismiss the charge. He asserted that the State had obtained the two March 1996 convictions in violation of his constitutional right to counsel and that these convictions could not be used for felony DUI enhancement purposes. Rasmussen submitted an affidavit with his motion to dismiss. As to the proceedings for the March 4,1996 conviction, Rasmussen asserted that “he did not have an attorney and that he did not sign a waiver of his right to an attorney and he did not understand that he had a right to an attorney.” As to the March 25,1996 proceedings, Rasmussen’s affidavit stated that “he did not have an attorney and did not sign any document waiving his right to an attorney.” ¶4 The District Court held a hearing in September 2015 on Rasmussen’s motion to dismiss. The parties agreed that there were no records in existence of Rasmussen’s 1996 DUI proceedings, other than an e-mail from the Missoula Justice Court clerk advising that that court’s file on Rasmussen’s March 4, 1996 conviction had been shredded and including some coding notes from the court’s “old system.” Rasmussen was the only witness at the hearing. His testimony on direct examination essentially repeated his statements in the affidavit. As to the March 4, 1996 proceedings, he testified that he did not have an attorney, that he did not sign a waiver of his right to an attorney, and that he did not understand that he had a right to an attorney. With regard to the March 25, 1996 proceedings, he testified that he did not have an attorney and did not sign a waiver of his right to an attorney. ¶5 At the conclusion of Rasmussen’s direct examination, the State argued that Rasmussen had failed to meet his burden to rebut the presumption of regularity in the 1996 convictions. The District Court asked for cross-examination, noting that it was “reserving [its] decision” on whether Rasmussen had satisfied his burden until a more complete record could be developed. ¶6 On cross-examination, Rasmussen testified that he knew at the time he executed his affidavit that no court records existed for the 1996 convictions that could contradict his affidavit. Rasmussen confirmed that his attorney had secured court records for the August 2001 conviction, that the records showed that Rasmussen was represented by counsel in those proceedings, that the 2001 case was the first time he “ever did need an attorney,” and that he was not challenging the validity of that conviction. Rasmussen acknowledged that challenging a prior DUI conviction had “worked for [him] in the past” in a separate case. He agreed that he was previously convicted of multiple jailable, traffic-related offenses prior to 1996 and that he was arrested for DUI in 1983. Rasmussen testified that he remembered the judge, he remembered “not signing any waiver” of his right to counsel, and he remembered that he did not have an attorney in the 1996 proceedings. ¶7 The prosecutor asked specifically, “Do you agree with me that that’s a pretty specific memory, right, that you were never advised of the right to an attorney? That’s pretty specific.” Rasmussen replied, “I—well, I was never asked to sign anything for an attorney.” The prosecutor asked Rasmussen for other details about the 1996 proceedings. Rasmussen stated what he recalled about the presiding judges and then responded, “This has been 20-some years ago.” When the prosecutor remarked to Rasmussen that it was “curious” that he remembered specifically that he did not sign a waiver of his right to counsel but that he could “not remember anything else” from the proceedings, Rasmussen responded, “I do remember not signing anything.” The prosecutor again asked, “As to your 1996 justice court conviction, in your affidavit, you assert that you were never advised of your right to an attorney; is that right?” Rasmussen responded, “Correct.” She continued, “You never signed any waiver of your right to an attorney.” Rasmussen again replied, “Correct.” Rasmussen confirmed his assertion that, despite having eight prior jailable offenses before 1996, he never knew that he had the right to counsel. ¶8 The day after the hearing, the District Court denied Rasmussen’s motion to dismiss. In a brief, written order denying the motion, the court summarized Rasmussen’s and the State’s arguments. The court then stated that, “[biased on the contents of [Rasmussen’s] Affidavit and his own testimony during the hearing,” Rasmussen had not met his burden to rebut the presumption of regularity in his 1996 convictions. ¶9 A Missoula County jury subsequently found Rasmussen guilty of DUI. The court imposed a felony DUI sentence of thirteen months in the Department of Corrections’ WATCh program, followed by a five-year suspended commitment to the Department. Rasmussen appeals. STANDARDS OF REVIEW ¶10 Whether a prior conviction maybe used for sentence enhancement is a question of law that we review de novo. State v. Maine, 2011 MT 90, ¶ 12, 360 Mont. 182, 255 P.3d 64. However, in determining whether a prior conviction is invalid, a district court may first need to make findings of fact, based on oral and documentary evidence presented by the parties, regarding the circumstances of that conviction. Maine, ¶ 12. We will not disturb such findings unless they are clearly erroneous. Maine, ¶ 12. DISCUSSION ¶11 Rasmussen contends that the District Court erred in denying his motion to dismiss. He argues that the court erred as a matter of law by making a “categorical ruling” that a defendant’s “self-serving” testimony is never sufficient to satisfy the defendant’s burden to overcome the presumption of validity that attaches to prior convictions. Rasmussen contends that a defendant’s testimony is categorically insufficient only if it is both self-serving and conclusory. His testimony, although self-serving, was not conclusory in his view because it described the facts and circumstances of his 1996 convictions. He asserts that his testimony therefore constituted “affirmative evidence” sufficient to satisfy his burden. ¶12 The Due Process Clause of Article II, Section 17, of the Montana Constitution “protects a defendant from being sentenced based upon misinformation.” State v. Chaussee, 2011 MT 203, ¶ 9, 361 Mont. 433, 259 P.3d 783 (citing State v. Phillips, 2007 MT 117, ¶ 17, 337 Mont. 248, 159 P. 3d 1078). “A constitutionally infirm prior conviction used for enhancement purposes constitutes ‘misinformation of constitutional magnitude.’ ” Chaussee, ¶ 9 (quoting United States v. Tucker, 404 U.S. 443, 447, 92 S. Ct. 589, 592 (1972)). The State therefore “may not use a constitutionally infirm conviction to support an enhanced punishment.” Chaussee, ¶ 9 (quoting State v. Okland, 283 Mont. 10, 15, 941 P.2d 431, 434 (1997)). ¶13 Article II, Section 24, of the Montana Constitution guarantees that in all criminal prosecutions, the accused shall have the right to the assistance of counsel. “The fundamental right to counsel in misdemeanor cases extends only to those cases in which a sentence of imprisonment is actually imposed.” State v. Hass, 2011 MT 296, ¶ 20, 363 Mont. 8, 265 P.3d 1221 (citing State v. Walker, 2008 MT 244, ¶ 17, 344 Mont. 477, 188 P.3d 1069). ¶14 “[A] rebuttable presumption of regularity attaches to [a] prior conviction, and we presume that the convicting court complied with the law in all respects.” State v. Krebs, 2016 MT 288, ¶ 12, 385 Mont. 328, 384 P.3d 98 (citation and internal quotations omitted). “[T]he defendant has the burden to overcome the presumption of regularity by producing affirmative evidence and persuading the court, by a preponderance of the evidence, that the prior conviction is constitutionally infirm.” Chaussee, ¶ 13. “Affirmative evidence” is evidence showing “that certain facts actually exist or, in the context of a collateral challenge, that certain facts actually existed at some point in the past—e.g., that an indigent defendant actually requested the appointment of counsel but counsel was actually refused.” Hass, ¶ 16. “Ambiguous documents, self-serving and conclusory inferences, and forcing the State to prove the validity of the prior conviction, when such validity is already presumed, do not suffice as affirmative evidence for purposes of meeting the defendant’s burden.” Hass, ¶ 16 (citing Chaussee, ¶ 18). If the defendant satisfies his burden, the burden shifts to the State to rebut the defendant’s evidence. Chaussee, ¶ 10. “Nevertheless, the defendant has the ultimate burden of proof to both produce and persuade ‘by a preponderance of the evidence that the conviction is invalid.’" State v. Hancock, 2016 MT 21, ¶ 12, 382 Mont. 141, 364 P.3d 1258 (quoting Maine, ¶ 12). ¶15 We do not agree with Rasmussen’s assertion that the District Court “made a categorical ruling” in this case. Rasmussen relies on the following statement from the District Court’s order: “[T]he State argues that the Montana Supreme Court has stated that ‘[s]elf-serving statements by the defendant that his or her conviction is infirm are insufficient to overcome the presumption of regularity and bar the use of the conviction for enhancement.’ ” (Quoting State v. Chesterfield, 2011 MT 256, ¶ 27, 362 Mont. 243, 262 P.3d 1109) (emphasis added). Contrary to Rasmussen’s assertion, this statement is not an expression of the court’s rationale for its decision. Rather, it is part of the court’s summary of the arguments. The court’s order did not adopt the State’s reasoning. Instead, following its summary, the court explained: During the September 14, 2015, hearing Defendant restated the contents of his Affidavit and the State had the opportunity to cross-examine Defendant regarding his Affidavit’s contents. Based on the contents of Defendant’s Affidavit and his own testimony during the hearing, this Court has determined that Defendant has not met his burden to overcome the “presumption of regula[rity] by producing affirmative evidence and persuading the Court, by a preponderance of the evidence, that the prior convictions are constitutionally infirm.” (Quoting Chesterfield, ¶ 20). The plain language of the order demonstrates that the court based its decision on the evidence before it and not on a categorical rule that a defendant’s testimony could never satisfy the burden to rebut the presumption of regularity. ¶16 We are not convinced from the evidence that the court clearly erred in finding that Rasmussen failed to satisfy his burden. Rasmussen testified that he knew prior to executing his affidavit that no court records existed from his 1996 convictions that could contradict his assertions of constitutional violations. His testimony established that he remembered certain details of the 1996 proceedings—namely, that he did not sign a waiver of his right to counsel—but that he could not remember other details of the proceedings. Although Rasmussen asserted that he did not know at the time of his March 4, 1996 proceedings that he had a right to an attorney, he acknowledged that he had an extensive criminal history prior to those proceedings that included jailable offenses—for which he may have had a right to counsel. Rasmussen’s affidavit and testimony could have led the court reasonably to question his credibility and the probative force of his statements. It was “exclusively within the province” of the District Court to determine Rasmussen’s credibility, and “we will not reweigh the evidence or the credibility of witnesses.” State v. Nixon, 2012 MT 316, ¶ 21, 367 Mont. 495, 291 P.3d 1154. ¶17 Even more, Rasmussen did not specifically allege that he did not waive his right to counsel. Rasmussen asserted only that he did not sign a waiver of his right to counsel. In State v. Anderson, 2001 MT 188, 306 Mont. 243, 32 P.3d 750, Anderson claimed in part that he had been denied his right to counsel in a prior DUI proceeding. He submitted as evidence a copy of a disposition form that failed “to make any notation or indication that [he] at any time waived his right to counsel.” Anderson, ¶ 21. We explained, The fact that the disposition form fails to show that [Anderson] waived his right to counsel... is not direct evidence that Anderson was denied his right to an attorney ... it is not proof of anything. It is absence of proof. And it is wholly insufficient to shift the burden of proof to the State ... Simply submitting a document that does not prove regularity does not meet this burden [of showing irregularity]. Anderson, ¶ 22. We have explained similarly that “the lack of evidence showing that the prior conviction is valid is not proof, by affirmative evidence, that the conviction is invalid.” Chaussee, ¶ 25. ¶18 Rasmussen’s testimony that he did not sign a waiver of his right to counsel does not show that he did not waive his right to counsel. Although a defendant may waive his right to counsel only if such waiver is made “voluntarily, knowingly, and intelligently,” Chesterfield, ¶ 16, there is no requirement that a defendant sign a document affirming his waiver of this right. Asserting that he did not sign a waiver of his right to counsel “is not proof of anything. It is absence of proof.’’Anderson, ¶ 22. Rasmussen’s testimony that he did not sign a waiver of his right thus does not constitute “affirmative evidence” “that the prior conviction is constitutionally infirm.” Chaussee, ¶ 13. ¶19 Finally, Rasmussen argues that our holdings in State v. Howard, 2002 MT 276, 312 Mont. 359, 59 P.3d 1075, and State v. Walker, 2008 MT 244, 344 Mont. 477, 188 P.3d 1069, establish that his “unequivocal” sworn testimony is sufficient to satisfy his burden of rebutting the presumption of regularity in his 1996 convictions. In Howard, we held that the defendant’s prior conviction was constitutionally infirm in part because the defendant asserted in an affidavit, “I was not advised of my right to court-appointed counsel before I entered my plea of guilty, nor did I waive my right to court-appointed counsel.” Howard, ¶¶ 4, 18. We held that these statements constituted “direct evidence” sufficient to satisfy the defendant’s burden. Howard, ¶ 13. In Walker, the defendant filed an affidavit stating that she was not advised “that if she could not afford a lawyer, one would be appointed to represent her.” Walker, ¶ 11. We held that Walker met her burden of showing that her prior convictions were “irregular.” Walker, ¶ 14. ¶20 Our decision in Maine expressly modified the framework of analysis applied in Howard and Walker by imposing the burden on the defendant to prove by affirmative evidence that the prior conviction was constitutionally infirm. Maine, ¶ 34. Unlike the defendants in Howard and Walker, Rasmussen did not make “unequivocal” statements that he was not advised of his right to counsel or that he did not waive that right. Howard, ¶ 13; Walker, ¶ 14. Rasmussen asserted only that he was not aware of his right to counsel during the March 4, 1996 proceedings and that he did not sign a waiver of that right in either of the proceedings. He reiterated on direct examination that, as to the March 4,1996 proceedings, he did not “understand that [he] had a right to an attorney.” Although he answered affirmatively to one of the prosecutor’s questions misquoting a statement in his affidavit, his allegations do not amount to “unequivocal” testimony sufficient to overcome the presumption of validity that attached to his prior convictions. Howard, ¶ 13; Walker, ¶ 14. Howard and Walker are therefore distinguishable. ¶21 The District Court based its decision on the evidence before it, and that evidence did not show affirmatively that the 1996 convictions violated Rasmussen’s constitutional right to counsel. The court’s finding that Rasmussen had not satisfied his evidentiary burden to rebut the presumption of regularity in his 1996 convictions was not clearly erroneous. See Maine, ¶ 12. Its determination that those convictions could be used for felony enhancement purposes was correct. CONCLUSION ¶22 The District Court’s judgment is affirmed. CHIEF JUSTICE McGRATH, JUSTICES WHEAT, McKINNON, SHEA, SANDEFUR and RICE concur. There is no evidence in the record revealing whether Rasmussen was sentenced to jail for his 1996 DUI convictions. The Presentence Investigation Report indicates the disposition simply as “Convicted per driving history.”

Denied Original Proceeding Habeas Corpus

CHIEF JUSTICE McGRATH delivered the Opinion of the Court. ¶1 Johnathan Wesley Hill appeals from the District Court’s order imposing an obligation of restitution as a part of his sentence. We affirm. ¶2 The issue on appeal is: Did the District Court err in imposing a restitution obligation of $2,500? FACTUAL AND PROCEDURAL BACKGROUND ¶3 In September 2014 Hill stole and wrecked a 1995 Pontiac Bonneville. The car was a total loss and the State charged Hill with felony theft. In January 2015 the State and Hill signed an agreement under which Hill would plead guilty to felony theft and the State would recommend a three-year suspended sentence. The parties agreed that Hill owed restitution to the car’s owner, but could not agree upon the amount. At the change of plea hearing on January 20, 2015, Hill pled guilty to felony theft. As part of the factual basis to support the plea, Hill acknowledged that the vehicle “could potentially” be worth over $1,500, the threshold value for stolen property to support a charge of felony theft under § 45-6-301(8)(b), MCA. ¶4 The District Court conducted a sentencing and restitution hearing on March 23, 2015. The District Court imposed a suspended sentence pursuant to the plea agreement and moved on to consider restitution. The State filed and relied upon an affidavit of the vehicle’s owner that the “replacement value” of the car was $2,500. The owner’s affidavit was supported by a page from the “NADA Guide” that she relied upon, indicating an original sticker price of $20,804 for the car in 1995; a current “low retail” of $1,975; a current “average retail” of $3,575; and a current “high retail” of $5,400. The NADA Guide explained that the values given were “retail consumer valuéis] and to be considered as selling prices.” The NADA Guide described a vehicle fitting the “average retail” category as one in “good condition overall”: a well-maintained original, completely operable and serviceable. The Guide also contained descriptions of vehicles that would fit the other value categories. ¶5 In response, Hill did not present any testimony. His attorney referenced “Kelly Blue Book” material that he had appended to a prior motion to dismiss the charge. He asserted that the “Kelly Blue Book” placed a $1,400 “top dollar” value on the car because of its high mileage. Hill’s attorney argued that the $2,500 value was “extremely high.” ¶6 The District Court noted that Hill had “admitted the value of the property was over $1,500” by expressly pleading guilty to the offense of felony theft. The District Court elected to not impose a criminal fine on Hill, but to insure that the victim received restitution for the car. The District Court stated that if he were “going to err” it would be “on the side of the victim” and imposed restitution of $2,500. ¶7 Hill appeals. STANDARD OF REVIEW ¶8 This Court reviews a district court’s determination of restitution as an issue of law, to determine whether it is correct. State v. Johnson, 2011 MT 116, ¶ 13, 360 Mont. 443, 254 P.3d 578. This Court reviews a district court’s findings of fact as to the amount of restitution under the clearly erroneous standard. State v. Aragon, 2014 MT 89, ¶ 9, 374 Mont. 391, 321 P.3d 841. A finding of fact is clearly erroneous if it is not supported by substantial evidence; if the district court misapprehends the effect of the evidence; or if this Court’s review of the record convinces us that the district court has committed a mistake. State v. Passwater, 2015 MT 159, ¶ 9, 379 Mont. 372, 350 P.3d 382. Substantial evidence is evidence that a reasonable person might accept as adequate to support a conclusion; it is more than a mere scintilla of evidence but may be less than a preponderance of the evidence. State v. Jent, 2013 MT 93, ¶ 10, 369 Mont. 468, 299 P.3d 332. DISCUSSION ¶9 Issue: Did the District Court err in imposing a restitution obligation of $2,500? ¶10 Montana law requires a sentencing court to order restitution when a defendant’s crime results in pecuniary loss to a victim. Section 46-18-201(5), MCA; Aragon, ¶ 12. The amount of restitution is based upon the special damages that a crime victim could recover in a civil action against the defendant based upon the same facts. Section 46-18-243(1), MCA. The victim is entitled to restitution for “the full replacement cost of property taken, destroyed, harmed or otherwise devalued as a result of the offender’s criminal conduct.” Section 46-18-243(1)(b), MCA. The rules of evidence do not apply to a determination of restitution, but the defendant has a due process right to explain, argue and dispute any information presented on the issue. State v. McClelland, 2015 MT 281, ¶ 9, 381 Mont. 164, 357 P.3d 906. ¶11 A district court may award restitution even though the actual loss may be uncertain as long as the loss was derived by use of reasonable methods and the best evidence available under the circumstances. State v. O’Connor, 2009 MT 222, ¶ 14, 351 Mont. 329, 212 P.3d 276. The district court may rely upon the victim’s estimates of her loss to determine the level of restitution. McClelland, ¶ 10; Aragon, ¶ 14. ¶12 As in other cases, the issue here is not whether the car owner is entitled to restitution for her loss, but where that loss should be set between competing values. Aragon, ¶ 13. The choice was a value between $1,500 and $2,500. ¶13 Here the victim’s request for $2,500 replacement value was well explained. She filed an affidavit to support her request and appended supporting information from the NADA Guide. That Guide set a range of values for vehicles of the same make, model and year, and clearly described the condition of a vehicle that would fit in each of the valuation categories. The owner, who was the person most familiar with her car, affirmed that it should be valued between the low retail and average retail selling prices. ¶14 Hill’s reliance upon “Blue Book” values was not sufficient to displace the victim’s affidavit of loss. The Blue Book sheets appended to Hill’s prior brief did not relate the values given to particular vehicle conditions (except perhaps mileage) and did not specify the context in which those values should be used. By contrast, the NADA Guide described the relevant vehicle condition categories and specifically represented that its values should be “considered as selling prices” to the retail consumer. That is exactly the position that the owner here would be in if she were searching for a replacement vehicle. ¶15 There was substantial evidence of the replacement value of the vehicle that Hill stole and wrecked, and the District Court properly relied upon the evidence to set the restitution obligation. The evidence falls well within a range that a reasonable person might accept as adequate to support a conclusion as to the replacement value for the car. Because the victim presented evidence of valuation in the amount of $2,500, the District Court’s findings were not clearly erroneous. CONCLUSION ¶16 The District Court properly set Hill’s restitution obligation at $2,500. ¶17 Affirmed. JUSTICES SHEA, COTTER, BAKER, McKINNON, WHEAT and RICE concur. The motion to dismiss was based upon an argument that the stolen vehicle was not worth $1,500, the threshold value for a charge of felony theft. The District Court never ruled on that motion.

JUSTICE BAKER delivered the Opinion of the Court. ¶1 Junkermier, Clark, Campanella, Stevens, P.C. (Junkermier) lost its Bozeman branch office after all but one of its Bozeman shareholders decided to start their own firm, taking most of Junkermier’s clients with them. Junkermier sought to enforce a contractual covenant restricting competition, but the Eighteenth Judicial District Court held the agreement unenforceable. The court also rejected Junkermier’s claim for damages against some of the Appellees for breach of fiduciary duty. We consider the following issues on appeal: 1. Whether the District Court erred by failing to analyze the reasonableness of the covenant because it concluded that the underlying contract was unenforceable. 2. Whether the District Court erred in concluding that only one Former Shareholder breached a fiduciary duty and that Junkermier failed to prove awardable damages from that breach. ¶2 We reverse in part and remand. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Junkermier is a Montana accounting firm based in Great Falls, with offices in other Montana cities that it has acquired through merger or acquisition. Junkermier merged with the Bozeman accounting firm ofVeltkamp, Stannebein, and Bateson, P.C. (Veltkamp Firm) in 2002. At the time of the merger, the Veltkamp Firm had four shareholders—Former Shareholders Uithoven, Bateson, and Veltkamp, and nonparty Harry Stannebein. Under the merger agreement, Junkermier and the Veltkamp Firm equalized their book value and the Veltkamp Firm shareholders received equal value shares of Junkermier. The merger agreement provided that the Veltkamp Firm could be “spun-off’ if either party determined within eighteen months that the merger was not in its best interest. Neither party exercised this option. Former Shareholder Riekenberg was a non-shareholder employee at the Veltkamp Firm who became a Junkermier employee and shareholder after the merger. ¶4 Former Shareholder Alborn became a Junkermier shareholder in 1980. He served on Junkermier’s board of directors and, by the spring of 2013, he had been the Junkermier Bozeman office branch manager for nearly ten years. Former Shareholders were five of the six Junkermier shareholders in Junkermier’s Bozeman office and held nearly fifteen percent of Junkermier’s shares. All Junkermier shareholders are subject to a Stock Purchase and Redemption Agreement (Stock Agreement), which requires that shareholders be employed by Junkermier in a professional capacity, restricts the transfer of shares, and details the parties’ obligations regarding the sale and redemption of shares. ¶5 Throughout their employment with Junkermier, Former Shareholders—like all Junkermier shareholders—were employed under the terms of an annual Shareholder’s Employment Agreement (Employment Agreement). The Employment Agreement defines the parties’ various rights and obligations and contains a covenant restricting competition (Covenant) that provides, in part: 7. POST-EMPLOYMENT REPRESENTATION OF CLIENTS. If this Agreement is terminated for any reason and Shareholder provides professional services... in competition with [Junkermier] the Shareholder agrees as follows: a. To pay to [Junkermier] an amount equal to one hundred percent (100%) of the gross fees billed by [Junkermier] to a particular client over the twelve month period immediately preceding such termination, if the client was a client of [Junkermier] within the twelve month period prior to Shareholder’s leaving [Junkermier’s] employment (hereinafter “particular client”), and the particular client is thereafter within one year of date of termination served by Shareholder, Shareholder’s partners, or any professional services organization employing the Shareholder. f. For purposes of this Section, a Shareholder shall be considered to be in competition with [Junkermier], by providing professional services within the county of the Shareholder’s primary office (the office through which the Shareholder provides the majority ofhis professional services), or any county contiguous thereto. Under the Employment Agreement, Former Shareholders acknowledged that they were entering into the agreement “with full understanding of the nature and extent covered by the” Covenant, and that they realized that the Employment Agreement “would not be entered into without the [Covenant] contained herein.” ¶6 The Employment Agreement contained also a section entitled “Disclosure of Information.” That section prohibited shareholders from disclosing confidential information—defined to include “lists of [Junkermier’s] clients.” The disclosure term made clear that it applied both during the agreement’s term and “at all times after the termination of employment with [Junkermier].” The Employment Agreement specified further that any and all confidential information was “the sole and exclusive property of [Junkermier].” ¶7 Under the Employment Agreement, Junkermier agreed “to compensate the Shareholder at a mutually agreeable amount.” The agreement specified further that Former Shareholders would be paid a salary “pursuant to the policies and procedures contained in the [Junkermier] Employee Manual.” Former Shareholders were paid a base salary by Junkermier and they also received bonuses when approved by the board of directors, typically on an annual basis. ¶8 The Employment Agreement’s term would “expire one (1) year from the date of execution.” It also could be terminated upon the happening of certain specified events. The Employment Agreement provided further that it could be extended for a one-year term by Junkermier on written notice. ¶9 In June 2012, Former Shareholders were notified that Junkermier was exercising its option to extend the terms of their most recent Employment Agreements through June 30,2013. In the spring of2013, Former Shareholders began discussing splitting from Junkermier due to various frustrations with the firm. Former Shareholders retained an attorney, who suggested that the Covenant was not enforceable. In early June 2013, Former Shareholders met with a consultant to get advice about splitting from Junkermier. ¶10 Around that same time, Former Shareholders informed Junkermier CEO Jerry Lehman in writing that they wanted to discuss leaving Junkermier. Shortly after, the majority of Former Shareholders met with Lehman. Lehman then informed the other Junkermier shareholders that Former Shareholders intended to leave. He called a special meeting of the shareholders to discuss the topic. At that meeting the other Junkermier shareholders appointed a committee to negotiate the details of Former Shareholders’ split from the firm. The committee and Former Shareholders discussed a transition; each side made proposals regarding the Bozeman office’s clients, but they never reached an agreement. On June 20, 2013, Lehman met with the Bozeman office employees and informed them that Former Shareholders were leaving. Also that same day, Junkermier sent all the Bozeman office employees a “COBRA Election Notice” informing them that their employment would end on June 30, 2013. ¶11 The last week of June 2013, F ormer Shareholder Alborn prepared a “to do list” assigning various tasks to Former Shareholders and other Bozeman office employees relating to forming the new Amafies accounting firm, andfiled articles of incorporation for Amafies. Former Shareholders worked for Junkermier until June 30, 2013. The next day, Former Shareholders and almost all of the Junkermier Bozeman staff began work at Amafies. Amafies ran a full-page advertisement that same day in the Bozeman Daily Chronicle announcing its formation and new location. The ad stated that Amafies had “evolved” from Junkermier. ¶12 Prior to Former Shareholders’ leaving Junkermier, a Junkermier employee downloaded a copy of Junkermier’s Bozeman client list at Former Shareholder Alborn’s request. The client list was taken to a local printing shop to print letters to the clients. On its first day of business, Amafies sent the letters to all of the clients on the downloaded client list informing them about the split from Junkermier. The letter included a document that asked the clients to choose whether they wanted to continue their relationship with Junkermier or to continue their relationship “with the Shareholders and staff of the former [Junkermier] Bozeman office, now known as [Amafies].” Junkermier sent its own letter to the Bozeman clients informing them of the changes in the office in mid-July. Ultimately, about 2,100 of the 2,400 clients on the client list transferred their accounting work from Junkermier to Amatics. A significant number of these clients had preexisting relationships with Former Shareholders Uithoven, Bateson, Veltkamp, and Riekenberg from their days at the Veltkamp Firm. ¶13 Following the split, Junkermier filed a complaint to declare the Covenant enforceable and to recover damages. The complaint included claims for breach of contract and breach of fiduciary duty against Former Shareholders. Pursuant to the Covenant, Junkermier sought 100% of the gross fees that Junkermier billed in fiscal year 2013 to clients that were serviced by Amatics in fiscal year 2014. The complaint originally named a number of other defendants who had left Junkermier’s Bozeman office, but they were voluntarily dismissed, leaving Former Shareholders and Amatics as the only defendants. Former Shareholders asserted statutory wage, breach of contract, and breach of the implied covenant of good faith and fair dealing counterclaims that eventually also were dismissed. ¶14 On the parties’ cross-motions for summary judgment, the District Court held that the Employment Agreement was unenforceable because it was merely an agreement to agree and also was a contract of adhesion. The court concluded, however, that there were issues of material fact regarding the breach of fiduciary duty claim. It set a bench trial to resolve the issue. ¶15 Following three days of trial, the District Court determined that Junkermier is not a closely held corporation and concluded that Former Shareholders, other than Alborn, owed no legal duty to Junkermier. The court concluded that Alborn breached his fiduciary duty to Junkermier. The court held, however, that Alborn was not liable for damages because Junkermier failed to prove damages by substantial evidence. Junkermier appeals the District Court’s summary judgment and trial rulings. STANDARDS OF REVIEW ¶16 We review summary judgment rulings de novo. Garza v. Forquest Ventures, Inc., 2015 MT 284, ¶ 11, 381 Mont. 189, 358 P.3d 189. Summary judgment is appropriate when the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3); Garza, ¶ 11. If this burden is met, the burden shifts to the nonmoving party to establish with substantial evidence—as opposed to mere denial, speculation, or conclusory assertions—that a genuine issue of material fact does exist or that the moving party is not entitled to judgment as a matter of law. Garza, ¶ 11. ¶17 We review a district court’s findings of fact to determine if they are clearly erroneous. M. R. Civ. P. 52(a)(6); Letica Land Co., LLC v. Anaconda-Deer Lodge Cnty., 2015 MT 323, ¶ 13, 381 Mont. 389, 362 P.3d 614. A finding is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record convinces us that the district court made a mistake. Letica Land Co., LLC, ¶ 13. We review a district court’s conclusions of law to determine if they are correct. Letica Land Co., LLC, ¶ 13. DISCUSSION ¶18 1. Whether the District Court erred by failing to analyze the reasonableness of the Covenant because it concluded that the underlying contract was unenforceable. ¶19 The District Court acknowledged that in order to be considered reasonable, a covenant not to compete must meet each of three factors that we articulated in Dobbins, De Guire & Tucker, P. C. v. Rutherford, MacDonald & Olson, 218 Mont. 392, 708 P.2d 577 (1985) (hereafter Dobbins). The court concluded that while there were genuine factual issues as to some of the Dobbins elements, the Employment Agreement as a whole was not enforceable. Relying on cases from other jurisdictions, the court concluded that the amount of compensation is an essential term in a contract for services. Because the Employment Agreement did not specify the amount of compensation, or provide a “formula, mode, or provision” for determining compensation, the District Court determined that the agreement was an unenforceable agreement to agree. The court concluded further that the Employment Agreement was unenforceable because it was a contract of adhesion. The court thus held that the Covenant was unenforceable because the Employment Agreement was unenforceable. A. Junkermier’s arguments pertaining to the Employment Agreement’s enforceability ¶20 Former Shareholders contend that Junkermier did not respond to their summary judgment arguments that the Employment Agreement lacked an adequate compensation term and was only an agreement to agree. Because it was Junkermier’s duty to respond as the party opposing the motion, Former Shareholders claim that the District Court had no duty to develop arguments on Junkermier’s behalf. The District Court adopted Former Shareholders’ position and granted summary judgment to them in large part because Junkermier failed to address the arguments. Former Shareholders contend that Junkermier cannot now raise the arguments it failed to raise with the District Court. ¶21 In response, Junkermier claims that it specifically addressed the issues of compensation and whether the Employment Agreement was an agreement to agree. As such, Junkermier argues that its arguments are properly before this Court on appeal. ¶22 A review of the record demonstrates that although Junkermier did not develop the argument, it did address briefly Former Shareholders’ claims regarding the issues of compensation and agreements to agree both in its briefing and in oral arguments before the District Court on summary judgment. Either way, Junkermier’s alleged failure to respond to Former Shareholders’ arguments did “not relieve the District Court of the duty to engage in a Rule 56 analysis when presented with [F ormer Shareholders’] motion for summary judgment.” Chapman v. Maxwell, 2014 MT 35, ¶ 11, 374 Mont. 12, 322 P.3d 1029. Thus, the District Court was required to look beyond the parties’ briefs in concluding on summary judgment that the Employment Agreement was unenforceable. M. R. Civ. P. 56(c)(3); Chapman, ¶ 11. We do the same in our de novo review of the District Court’s conclusion that the Employment Agreement was unenforceable. B. The Employment Agreement’s enforceability ¶23 Junkermier contends that the District Court’s ruling is wrong because the “amount of the salary is not the consideration for the [Covenant], the employment itself is.” Junkermier claims that the Employment Agreement was an enforceable contract, supported by adequate consideration, because Former Shareholders had employment and they had been compensated for their work through the end of their employment. Junkermier points out that Former Shareholders admitted as much in their counterclaims when they asserted that the parties mutually agreed upon a compensation amount and that they were compensated for their employment at Junkermier. Junkermier accordingly claims that the agreement was not merely an agreement to agree. ¶24 Junkermier contends also that the District Court erred in determining that the Employment Agreement was a contract of adhesion because Former Shareholders were not just Junkermier employees, but officers, shareholders, and a director. The Employment Agreement, Junkermier maintains, was effectively an agreement that Former Shareholders entered into with themselves as owners of Junkermier. Junkermier contends that Former Shareholders’ bargaining power precludes a conclusion that the Employment Agreement was an adhesion contract. ¶25 Former Shareholders counter that the Employment Agreement’s compensation term does not include the amount of compensation or a mode or means to calculate it. Therefore, Former Shareholders claim that the agreement does not include all of an employment contract’s essential terms and therefore is unenforceable. Former Shareholders argue that the Employment Agreement is merely an agreement to agree because it left the compensation to be determined later. Former Shareholders also contend that the Employment Agreement is a contract of adhesion because they “had no meaningful choice in signing” the agreement, they were in a weaker bargaining position, and the agreement’s terms are more favorable to Junkermier. I. Whether the Employment Agreement was an agreement to agree ¶26 “Both the existence of a contract and its interpretation are questions of law which we review for correctness.” Hurly v. Lake Cabin Dev., LLC, 2012 MT 77, ¶ 14, 364 Mont. 425, 276 P.3d 854. In order to be binding, “[a] contract must contain all its essential terms.” Hurly, ¶ 17 (citation and internal quotations omitted). A contract’s essential elements include “a sufficient cause or consideration.” Section 28-2-102(4), MCA. ¶27 Consideration is: Any benefit conferred or agreed to be conferred upon the promisor by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by the person, other than prejudice that the person is at the time of consent lawfully bound to suffer, as an inducement to the promisor is a good consideration for a promise. Section 28-2-801, MCA. In other words, “[cjonsideration requires that the contracting parties, each as to the other, confer some legal benefit and/or incur some detriment as an inducement to performance.” State Pub. Employee’s Ass’n v. Office of the Governor, 271 Mont. 450, 455, 898 P.2d 675, 678 (1995) (citing § 28-2-801, MCA); accord Larson v. Green Tree Fin. Corp., 1999 MT 157, ¶ 26, 295 Mont. 110, 983 P.2d 357 (“When an agreement contains a bargained-for exchange in legal positions between parties, the agreement becomes a legally enforceable contract.”). “A written instrument is presumptive evidence of consideration.” Section 28-2-804, MCA. ¶28 The written Employment Agreement “contains a bargained-for exchange in legal positions between [the] parties.” Larson, ¶ 26. Former Shareholders agreed to provide professional accounting services on behalf of Junkermier, and Junkermier agreed to employ Former Shareholders to provide those professional services. The Employment Agreement specifies the parties’ performance obligations to each other: Junkermier would employ and compensate Former Shareholders, and Former Shareholders would provide professional services, would not disclose confidential information, and would not compete without paying liquidated damages. And, to quote Former Shareholders’ counterclaims, the Stock Agreement and the Employment Agreement “were interdependent. The execution of one of the Agreements was consideration for the execution of the other Agreement.” (Emphasis added.) Not only was each Former Shareholder paid a salary, each was issued stock in Junkermier as called for by the Stock Agreement once he or she became an employee under the Employment Agreement. Clearly, Junkermier and Former Shareholders, “each as to the other, confer[red] some legal benefit and/or incur[red] some detriment as an inducement to performance.” State Pub. Employee’s Ass’n, 271 Mont. at 455, 898 P.2d at 678. ¶29 We are unpersuaded by Former Shareholders’ contention that the Employment Agreement is unenforceable because it does not include the amount of compensation or a mode or means to calculate compensation. Former Shareholders correctly assert that an “agreement that requires the parties to agree to material terms in the future is not an enforceable agreement.” GRB Farm v. Christman Ranch, Inc., 2005 MT 59, ¶ 11, 326 Mont. 236, 108 P.3d 507. Former Shareholders, however, cite no cases in which we have held that the amount of compensation, or a means or mode of calculating compensation, is a mandatory term in an employment contract. ¶30 A contract “must be complete and certain in all essential matters included within its scope.” Steen v. Rustad, 132 Mont. 96, 106, 313 P.2d 1014, 1020 (1957). Thus, the Employment Agreement could not be enforced if its terms were “not sufficiently certain to make the precise act which [was] to be done clearly ascertainable.” GRB Farm, ¶ 11 (citation and internal quotations omitted); accord Steen, 132 Mont, at 106, 313 P.2d at 1020 (concluding that in order for a contract to be enforceable “[njothing must be left to conjecture or surmise, or be so vague as to make it impossible for the court to glean the intent of the parties from the instrument, or the acts sought to be enforced”). On the other hand, “absolute certainty and completeness in every detail is not a prerequisite of specific performance, only reasonable certainty and completeness being required.” Steen, 132 Mont. at 106, 313 P.2d at 1020. ¶31 The parties’ intent in entering into the Employment Agreement is clear—Junkermier agreed to employ Former Shareholders, and F ormer Shareholders agreed to be employees of Junkermier. Under the Employment Agreement’s “Compensation” term, Former Employees would be compensated a “monthly salary (less applicable withholdings) ... pursuant to the policies and procedures contained in the [Junkermier] Employee Manual.” That Junkermier and Former Shareholders settled upon a base salary and that Junkermier paid Former Shareholders that base salary demonstrate that the parties “mutually agreeldl” to a compensation amount per the Employment Agreement. The employee manual—explicitly incorporated in the Employment Agreement—conferred additional benefits to Former Shareholders and specified additional performance obligations between the parties. The Stock Agreement—which was “interdependent” with the Employment Agreement—substantiates that the scope of the parties’ contractual relationship was “complete and certain in all essential matters.” Steen, 132 Mont. at 106, 313 P.2d at 1020. Although the parties did not fix a specific compensation amount, “there was sufficient information provided in the contract to make the parties’ obligations ‘clearly ascertainable.’ ” Hurly, ¶ 21 (quoting GRB Farm, ¶ 11). ¶32 We do not have to surmise the mutual obligations in the Employment Agreement. Its promise and acceptance of employment are sufficient consideration to establish an essential term of a contract. The District Court erred in declaring the Employment Agreement an unenforceable agreement to agree. II. Whether the Employment Agreement was a contract of adhesion ¶33 The fundamental tenet of “contract law is freedom of contract; parties are free to mutually agree to terms governing their private conduct as long as those terms do not conflict with public laws.” Arrowhead Sch. Dist. No. 75 v. Klyap, 2003 MT 294, ¶ 20, 318 Mont. 103, 79 P.3d 250. A court will find a contract unconscionable, however, “if the bargaining process itself had some inherent unfairness that actually prevented the contract from being freely negotiated and thus defeated the principle of freedom of contract.” Arrowhead Sch. Dist. No. 75, ¶ 49. A contract is unconscionable if: (1) it is a contract of adhesion, and (2) the contractual terms unreasonably favor the drafter. Arrowhead Sch. Dist. No. 75, ¶ 48. Here, the District Court found that the Employment Agreement was a contract of adhesion; we therefore analyze the unconscionability inquiry’s first factor. ¶34 A contract of adhesion is “a standard form contract prepared by one party, to be signed by the party in a weaker position (usually a consumer), who adheres to the contract with little or no choice about its terms.” Graziano v. Stock Farm Homeowner’s Ass’n, 2011 MT 194, ¶ 18, 361 Mont. 332, 258 P.3d 999 (citation omitted). “Disparity in bargaining power is an essential element of a contract of adhesion.” Day v. CTA, Inc., 2014 MT 119, ¶ 10, 375 Mont. 79, 324 P.3d 1205. Yet, mere disparity “in bargaining power does not equate to unenforceability and not all standardized contracts are unenforceable as adhesion contracts.” Denton v. First Interstate Bank of Commerce, 2006 MT 193, ¶ 33, 333 Mont. 169, 142 P.3d 797. ¶35 Granted, the Employment Agreement was a standard form contract—each Junkermier shareholder signed the same Employment Agreement. Missing, however, is the essential disparity in bargaining power between the parties. For starters, Former Shareholders are not “unsophisticated and unsuspecting ordinary citizens” entering into a contract “as part of the intercourse of daily life.” Kloss v. Edward D. Jones & Co., 2002 MT 129, ¶ 55, 310 Mont. 123, 54 P.3d 1. Rather, they are “sophisticated business personl s I” who entered into contracts to which they had been subject the entire time they worked at Junkermier. Denton, ¶ 33. Former Shareholders point to no evidence that shows that they “required specific protection or [were] improvident in [their] business dealings.” Denton, ¶ 33. To the contrary, the evidence shows that Former Shareholders all have extensive accounting experience and were sophisticated and shrewd enough to form and run a new accounting firm. ¶36 In addition, Former Shareholders were not merely Junkermier employees—they owned nearly fifteen percent of Junkermier’s shares at the time they left; Former Shareholder Bateson was on Junkermier’s board of directors immediately prior to the split; and Former Shareholder Alborn was on Junkermier’s board of directors from 2006-2012 and was the branch manager for Junkermier’s Bozeman office at the time of the split. Former Shareholders’ bargaining power is readily distinguishable from the disparity between parties in cases recognizing adhesion contracts. E.g., Kelker v. Geneva-Roth Ventures, Inc., 2013 MT 62, ¶ 31, 369 Mont. 254, 303 P.3d 777 (concluding that “[n]o doubt exists that [a payday lending company] afforded [a consumer] no opportunity to negotiate the terms of the [payday loan] contract”); Woodruff v. Bretz, Inc., 2009 MT 329, ¶¶ 9-10, 353 Mont. 6, 218 P.3d 486 (concluding that a purchase contract between a consumer and a motor home dealer “easily falls within” the adhesion contract definition in part because the consumer “was the weaker party to the transaction” and had a “ ‘relative lack of sophistication’ ”); Kloss, ¶¶ 27, 37 (concluding that agreements between a financial service provider and “a 95 year old widow with no bargaining power and a relative lack of sophistication in such matters” were “clearly contracts of adhesion”). ¶37 The fact that Former Shareholders Uithoven, Bateson, and Veltkamp were involved in the merger between Junkermier and the Veltkamp Firm in 2002 casts further doubt on Former Shareholders’ contentions that the Employment Agreement was an adhesion contract. Former Shareholder Bateson testified that he participated in the merger negotiations and “did the due diligence” for the merger. The merger agreement’s terms explicitly provided, “Each employee of [the Veltkamp Firm] that remains in the employ of [Junkermier] shall sign both an Employment Agreement and Confidentiality Agreement.” Junkermier’s CEO during the merger, Robert Nebel, testified that the Veltkamp Firm reviewed the Employment Agreement during the merger negotiations. The merger agreement provided further that the former Veltkamp Firm members had the option of splitting from Junkermier within eighteen months of its effective date if they “determine^] that [the] Merger [was] not in their best interest.” Former Shareholders Uithoven, Bateson, and Veltkamp did not determine that the Employment Agreement was not in their best interest during the eighteen months they were subject to it and could have opted out. They therefore had a “meaningful choice regarding [the Employment Agreement’s] acceptance.” Highway Specialties, Inc. v. State, 2009 MT 253, ¶ 16, 351 Mont. 527, 215 P.3d 667 (concludingthat an adhesion contract is one in which “the weaker bargaining party had no meaningful choice regarding its acceptance”). ¶38 We conclude that the District Court erred in determining that the Employment Agreement was an unenforceable adhesion contract. The Employment Agreement is an enforceable contract. C. The Covenant ¶39 Contracts that restrain trade are “strongly disfavor[ed].” Access Organics, Inc. v. Hernandez, 2008 MT 4, ¶ 17, 341 Mont. 73, 175 P.3d 899. Consequently, covenants are to be construed “strictly” and “in favor of rather than against the interest of the” party who is subject to the covenant. Access Organics, Inc., ¶ 17 (citation and internal quotations omitted). Covenants that act as an absolute prohibition on trade—absent an express statutory exception—are void. Section 28-2-703, MCA; Mungas v. Great Falls Clinic, LLP, 2009 MT 426, ¶¶ 37-38, 354 Mont. 50, 221 P.3d 1230. Yet, when “a contract contains a restraint on a person’s ability to practice their profession, but such restraint is not an absolute prohibition,” a determination must be made as to the covenant’s reasonableness. Mungas, ¶ 39. ¶40 Here, the District Court concluded, and we agree, that the Covenant only partially restrains trade. The Covenant is not an absolute prohibition on Former Shareholders’ right to engage in their profession. Nor does it prohibit them from competing with Junkermier. Rather, the Covenant requires Former Shareholders to pay liquidated damages if they provide services to a Junkermier client within one year of their departure from the firm. Because the Covenant is not an absolute prohibition, it cannot be declared invalid as a matter of law. Mungas, ¶ 38. Rather, when a covenant only partially restrains trade, we have repeatedly examined the following factors, articulated in Dobbins, to determine the reasonableness of an employment agreement’s covenant not to compete: 1) The covenant should be limited in operation either as to time or place; 2) the covenant should be based on some good consideration; and 3) the covenant should afford a reasonable protection for and not impose an unreasonable burden upon the employer, the employee or the public. E.g., Mungas, ¶ 39; Access Organics, Inc., ¶ 16; Mont. Mt. Prods. v. Curl, 2005 MT 102, ¶ 11, 327 Mont. 7, 112 P.3d 979; Daniels v. Thomas, Dean & Hoskins, Inc., 246 Mont. 125, 144, 804 P.2d 359, 370 (1990); State Medical Oxygen & Supply v. American Medical Oxygen Co., 240 Mont. 70, 74, 782 P.2d 1272, 1275 (1989); Dobbins, 218 Mont. at 397, 708 P.2d at 580. The Dobbins test “requires a balancing of the competing interests of the public as well as the employer and employee” in order to determine whether a covenant constitutes a restraint on trade prohibited by § 28-2-703, MCA. Dobbins, 218 Mont. at 397, 708 P.2d at 580. ¶41 Junkermier asserts that the District Court erred by not determining whether the Covenant was reasonable under Dobbins and its progeny. Junkermier contends that the Covenant is similar to other covenants that this Court has determined are partial restraints on trade. Junkermier asserts that the Covenant satisfies the Dobbins test as a matter of law because the Covenant was limited as to both time and place, it was based on consideration, and the Covenant serves a legitimate business interest. Accordingly, Junkermier asserts that the Covenant is reasonable and should have been enforced. ¶42 Former Shareholders contend first that the Covenant does not apply because the Employment Agreement expired by its terms. Given the use of the terms “terminated” and “expired” in the Employment Agreement, the common meaning of the terms, and Junkermier’s own interpretation of the terms, F ormer Shareholders argue that this Court should construe the Covenant to be applicable only if Junkermier terminated the Employment Agreement. Former Shareholders contend next that questions of fact prevent a conclusion that the Covenant was supported by adequate consideration or that it was reasonable. Finally, Former Shareholders allege that Junkermier did not have a legitimate business interest in the Covenant because its actions following Former Shareholders’ departure demonstrate that the Covenant was not necessary to protect its goodwill, customer relations, and trade information. ¶43 Both parties rely on Wrigg v. Junkermier, Clark, Campanella, Stevens, P.C., 2011 MT 290, 362 Mont. 496, 265 P.3d 646, to support their respective arguments regarding the Covenant’s reasonableness. In Wrigg, an accountant who was subject to the same Junkermier covenant at issue here was informed that her employment agreement would not be renewed. Wrigg, ¶¶ 5-6. The “dispositive issue” in Wrigg was whether an employer could “enforce a covenant not to compete when the employer ends the employment relationship”—an issue that had not yet been addressed by this Court. Wrigg, ¶¶ 2-3, 40. We held squarely that our analysis of a covenant’s enforceability “applies to both a terminated contract and an expired contract.” Wrigg, ¶ 42. We concluded that “I w|hether [Junkermier] terminated the [contract], or it expired under its own terms, proves immaterial to our analysis.” Wrigg, ¶ 42. The District Court correctly rejected Former Shareholders’ contentions that the Covenant does not apply here because the Employment Agreement expired and was not terminated. The “interdependent” Stock Agreement also helps to show that whether the Employment Agreement expired or was terminated by one party, both parties retained continuing obligations to each other. That agreement required Junkermier to redeem Former Shareholders’ shares after they retired, “whether voluntary or otherwise,” or began working at another accounting firm. None of these obligations under the Stock Agreement, nor of those under the Covenant, would materialize unless and until the employment relationship was severed. Former Shareholders’ claims that the Employment Agreement’s expiration terminated the obligations between them and the firm are inconsistent and we reject their argument. ¶44 We considered in Wrigg our statement in Dobbins that a covenant must “reasonably be related to a ‘legitimate business interest.’ ” Wrigg, ¶ 22 (quoting Dobbins, 218 Mont. at 397, 708 P.2d at 580). We made that observation in Dobbins while analyzing the “essential” components of a reasonable covenant. Dobbins, 218 Mont. at 396-97, 708 P.2d at 580. We said, in the absence of a controlling statute the enforceability of a covenant not to compete, ancillary to the withdrawal of a partner from an accounting firm, depends upon whether the restriction is reasonably related to the legitimate business interest of the remaining partners and is not unduly burdensome to the covenantor or the public. Dobbins, 218 Mont. at 397, 708 P.2d at 580. ¶45 In the context of Wrigg—where it was the employer who terminated the employment relationship—we highlighted “the requirement that an employer must establish a legitimate business interest” in order for a covenant to be enforceable. Wrigg, ¶ 22. We observed that “a legitimate business interest [is] an interest that must necessarily be enforced to protect the basis of the employer’s bargain.” Wrigg, ¶ 24 (citing Restatement (Second) of Contracts § 188 cmt b. (1981)). Because an employee has “little disincentive” to take “economic advantage of his employer),] [a] covenant may be necessary ... to prevent an employee from exploiting his employment to later compete and capture the employer’s market.” Wrigg, ¶ 25. A covenant protects the employer’s interest against an “employee appropriating valuable trade information, good will, and customer relationships to compete directly against—and take business from—his former employer.” Wrigg, ¶ 24. ¶46 We analyzed cases from various jurisdictions demonstrating that determining whether a covenant serves a legitimate business interest requires the court to weigh a number of factors relating to the employer’s and the employee’s interests. Wrigg, ¶¶ 26-36. We noted that courts enforce covenants when employers demonstrate an interest in protecting themselves from employees who use “customer relationships and information acquired during the employment relationship to compete directly against [their] former employer.” Wrigg, ¶ 26. In contrast, we noted that courts object to covenants when employers cannot demonstrate that a covenant is needed “to protect customer relationships or valuable trade information.” Wrigg, ¶ 28. We opined further that when an employee initiates termination of an employment relationship that is subject to a covenant, the employee’s interests are diminished because “[t]he employee makes an informed decision ... about the risks associated with a covenant’s enforcement and voluntarily chooses to encounter those risks.” Wrigg, ¶ 31. ¶47 We pointed out in Wrigg that the language of the Dobbins factors “does not explicitly require that an employer possess a legitimate interest in the covenant.” Wrigg, ¶ 22. (Emphasis added.) But when the employer discontinues the relationship, consideration of its legitimate business interest is inherent in the court’s balancing and examination of “the competing interests of the public as well as the employer and employee.” Dobbins, 218 Mont. at 397, 708 P.2d at 580; see Wrigg, ¶ 22 (concluding that establishing a legitimate business is “implicit in the Dobbins analysis”). That balancing process is undertaken within the framework of the Dobbins test. See Myers v. Howmedia Osteonics Corp., 2016 U.S. Dist. LEXIS 42583, 25-27 (D. Mont. 2016) (analyzing under the Dobbins test’s third element whether an employer that terminated the employment relationship had a legitimate interest in a covenant). ¶48 Balancing the Dobbins factors requires a particularized inquiry into the facts and circumstances of a particular case. Daniels, 246 Mont, at 144, 804 P.2d at 370 (concluding that “under certain factual circumstances a covenant restraining a lawful profession ... may be acceptable if it passes” the Dobbins reasonableness analysis). Here, protecting the basis of Junkermier’s bargain may justify restrictions against unfettered access to confidential information and established business relationships by Former Shareholders who, without such a restriction, have no disincentive to take advantage of their former employer. Equally, the court must consider Former Shareholders’ interests in being able to continue their profession and their clients’ ability to maintain the trusted relationships they may have built with their personal accountants. The court must balance the nature of Former Shareholders’ relationships with their clients with the protectable interest in Junkermier’s client base. ¶49 The District Court did not analyze any of these considerations under Dobbins because it held the contract unenforceable. This was error. Such an inquiry is “a factual determination.” Mungas, ¶ 39; accord Daniels, 246 Mont. at 144, 804 P.2d at 370 (concluding that “under certain factual circumstances a covenant... may be acceptable if it passes a three part test of reasonableness”). Accordingly, we remand to the District Court to undertake a Dobbins analysis. ¶50 2. Whether the District Court erred in concluding that only one Former Shareholder breached a fiduciary duty and that Junkermier failed to prove awardable damages from that breach. A. Breach of fiduciary duty ¶51 The District Court made a number of determinations in addressing Junkermier’s breach of fiduciary duty claim. First, the court concluded that Junkermier is not a closely held corporation because its ownership and management are not substantially the same. The court grounded this conclusion on its finding that—prior to Former Shareholders leaving—Junkermier had twenty-six shareholders but was governed by a six-member board of directors and was managed by a chief executive officer. The District Court next found that Former Shareholders were unaware that they were considered Junkermier vice-presidents, that none of them were ever assigned any duties as vice-presidents, and that Junkermier’s bylaws required the board to appoint shareholders as vice-presidents, which it failed to do. The court therefore concluded that Former Shareholders were not Junkermier officers and consequently owed no legal duty to Junkermier as officers. Similarly, the court concluded that Former Shareholders did not breach any duties as Junkermier employees prior to the termination of their employment because it found no evidence that Former Shareholders solicited other employees to leave Junkermier, solicited clients to leave Junkermier, or misappropriated any business opportunity of Junkermier. ¶52 The court concluded further that Former Shareholder Bateson did not breach a duty to Junkermier as a director because he had resigned from the board in early June 2013 and there was no evidence that he took any action that could be considered a breach of fiduciary duty prior to that time. The court did conclude, however, that Former Shareholder Alborn breached his duty to Junkermier as a branch manager given that he actively participated in planning the split from Junkermier, created the “to do list,” and directed an employee to download the client list. But the court found that Alborn’s breach of his duty to Junkermier was “largely offset by the subsequent acts of [Junkermier].” ¶53 Junkermier asserts several points of error in these rulings. First, while Junkermier agrees that it is not a statutory close corporation under § 35-9-102, MCA, it asserts that it is a close corporation because its management and ownership are substantially identical and its shares are not publicly traded. As a close corporation, Junkermier contends that Former Shareholders owed fiduciary duties of the “utmost good faith and loyalty” to Junkermier, which they breached by acting for their personal gain. Junkermier contends further that even if it was not a close corporation, the District Court erroneously found that Former Shareholders were not Junkermier officers. Junkermier argues therefore that the District Court erred in concluding that Former Shareholders did not breach their fiduciary obligations as officers. Finally, Junkermier asserts that as employees Former Shareholders owed a duty not to violate Junkermier’s bylaws and agreements. ¶54 Former Shareholders respond that Junkermier is not a close corporation because, contrary to Junkermier’s assertions, such a determination does not “turn on the fact that a corporation’s shares are not publicly traded or are not readily marketable.” Rather, Former Shareholders argue, a close corporation is one in which management and ownership are substantially identical. Former Shareholders emphasize that the court’s determination on this point is supported by substantial evidence, and therefore is not clearly erroneous. Next, Former Shareholders claim that the District Court correctly concluded that they did not owe Junkermier a fiduciary duty as shareholders or as officers. Furthermore, Former Shareholders contend, the District Court did not err in determining that Bateson did not breach a fiduciary duty as a director because, as the court found, he resigned as director in early June and his actions before his resignation were in good faith. Former Shareholders do not cross-appeal the District Court’s conclusion that Alborn breached his fiduciary duty. ¶55 A corporation that does “not elect to become a statutory close corporation under the Montana Close Corporation Act, §§ 35-9-101 et seq., MCA,” still may be considered a close corporation. Warren v. Campbell Farming Corp., 2011 MT 324, ¶ 10, 363 Mont. 190, 271 P.3d 36; accord Daniels, 246 Mont. at 134, 804 P.2d at 364. It is well-established that “[a] close corporation is one in which management and ownership are substantially identical to the extent that it is unrealistic to believe that the judgment of the directors will be independent of that of the stockholders.” Warren, ¶ 27 (quoting Skierka v. Skierka Bros., Inc., 192 Mont. 505, 519, 629 P.2d 214, 221 (1981)) (internal quotations omitted). We have characterized a close corporation relationship as “closely approximatl ingI the relationship between partners.” Daniels, 246 Mont. at 136-37, 804 P.2d at 366 (citing Fox v. 7L Bar Ranch, 198 Mont. 201, 212-13, 645 P.2d 929, 935 (1982)). While “close corporations often utilize share transfer restrictions,” we have underscored that this is “|b lecause ownership and management are so intimately related in such entities.” Gray v. Harris Land & Cattle Co., 227 Mont. 51, 53, 737 P.2d 475, 476 (1987). The relationship between management and shareholders is therefore the key component in determining whether a corporation is closely-held. See Fox, 198 Mont. at 213, 645 P.2d at 935 (citations omitted) (“The enterprise before us is a ‘close corporation’ in the strictest sense, that is, one in which, regardless of the distribution of the shareholdings, ‘management and ownership are substantially identical.’ ”); see also Warren, ¶ 27; Gray, 227 Mont. at 53, 737 P.2d at 476; Skierka, 192 Mont. at 519, 629 P.2d at 221. ¶56 In determining that Junkermier is not a close corporation, the District Court made the following findings: that Junkermier had twenty-six shareholders but was managed by a CEO and governed by six directors; that Junkermier’s bylaws allowed for twenty-five director positions, but it opted not to have that many directors; and that a major reason for Former Shareholders’ decision to leave Junkermier was because they felt that shareholders had been removed from the firm’s decision-making processes. A review of the record demonstrates that these findings were supported by substantial evidence. Junkermier has not demonstrated clear error in the District Court’s finding that Junkermier’s ownership and management are not substantially the same. Based on that finding, the District Court did not err in concluding that Junkermier is not a close corporation. We affirm its holding that Former Shareholders did not owe Junkermier a fiduciary duty in their capacity as shareholders. Cf. Daniels, 246 Mont. at 136, 804 P.2d at 366 (citation omitted) (concluding that “the fiduciary duty between stockholders of a close corporation is one of the ‘utmost good faith and loyalty’ ”). ¶57 Junkermier also urges that Former Shareholders owed a fiduciary duty as officers. Section 35-1-236(2), MCA, provides that “[t]he bylaws of a corporation may contain any provision for managing the business and regulating the affairs of the corporation that is consistent with law or the articles of incorporation.” “It is a well[-]established precedent that the bylaws of a corporation ... constitute a contract between the member and the corporation.” Walker v. Helena Ass’n of Realtors tm, Inc., 2000 MT 343, ¶ 16, 303 Mont. 224, 15 P.3d 414 (quoting Appeal of Two Crow Ranch, Inc., 159 Mont. 16, 23, 494 P.2d 915, 919 (1972)); accord 18A Am. Jur. 2d Corporations § 264 (“The bylaws of a corporation constitute part of a binding broader contract among the directors, officers, and stockholders formed within the statutory framework of the state.”). The interpretation of a contract is a question of law that we review for correctness. Hurly, ¶ 14. ¶58 Junkermier’s bylaws provide that all “shareholders not elected by the board [as other officers] shall be appointed vice-president by the board upon initial receipt of stock.” This provision does not deem shareholders to be officers, but—as the District Court determined—requires “board action” for a shareholder to be appointed an officer of Junkermier. Our review of the record demonstrates that the District Court did not misapprehend the effect of the evidence or make a clear mistake in finding that there were no director meeting minutes evidencing Former Shareholders’ appointment “as vice-presidents upon the initial receipt of their respective stock, or at any other time,” and that Junkermier “offered no evidence of any such board action.” The District Court properly determined that Former Shareholders were not Junkermier officers. We thus affirm its ruling that Former Shareholders did not breach a fiduciary duty as officers. ¶59 Finally, we are unpersuaded by Junkermier’s contention that Former Shareholder Bateson breached a fiduciary duty as a Junkermier director. Montana statute provides general standards of care for directors of corporations. Section 35-1-418, MCA. The standards apply, however, only if the person is acting as a director. Cf. § 35-1-418(4), MCA (“A director is not liable for any action taken as a director... if the director performed the duties of the director’s office in compliance with this section.” (Emphasis added)). The District Court therefore concluded correctly that it could consider whether Bateson breached a duty as a director up until the point he resigned from the board in early June 2013. The record supports the District Court’s factual findings that there was no evidence that Bateson breached a fiduciary duty during the time he was a director. We conclude that the District Court did not err in determining that Bateson did not breach a fiduciary duty to Junkermier. ¶60 The District Court likewise did not err in concluding that Former Shareholders—other than Alborn—did not breach any duties as Junkermier employees. The court’s findings that there was no evidence that, prior to leaving Junkermier, Former Shareholders solicited other employees to leave Junkermier, solicited any Junkermier clients, misappropriated any Junkermier trade secrets, or usurped any Junkermier business opportunity are supported by substantial evidence. ¶61 In sum, we conclude that the District Court did not err in determining that only Former Shareholder Alborn breached a fiduciary duty to Junkermier. B. Damages stemming from Alborn’s breach ¶62 The District Court concluded first that under § 27-1-317, MCA, Junkermier had the burden of proving both causation and damages stemming from Alborn’s breach of fiduciary duty. The court concluded further that Junkermier’s damages claims must be supported by substantial evidence and that damages may not be awarded absent such proof. Next, the court found that Junkermier’s damages claims for breach of fiduciary duty were based on the Covenant. The court therefore concluded that “[t]he claim for breach of fiduciary duty cannot be used as a basis for attempting to recover damages specified in an unenforceable contract.” Finally, the court determined that Junkermier’s damages claim—which the court characterized as 100% of gross fees billed under the Covenant—was not a proper measure of damages because it represented Junkermier’s loss of anticipated gross income, was predicated on gross receipts of business, and was the “product of a mere guess or speculation.” Accordingly, the District Court concluded that Junkermier failed to support its damage claim with substantial evidence and was not entitled to collect any damages stemming from Alborn’s breach of fiduciary duty. ¶63 To begin with, our conclusion that the Employment Agreement is an enforceable contract repudiates much of the District Court’s damages analysis. The court clearly tied its damages analysis to its determination that the Employment Agreement was unenforceable. Because we are remanding for analysis of the Dobbins factors, we reverse the District Court’s ruling. If the court concludes that the Covenant is valid under Dobbins, further analysis of damages may be unnecessary. If, in contrast, the court rejects the Covenant on the basis of its Dobbins reasonableness analysis, the court must reanalyze damages stemming from Alborn’s breach of fiduciary duty. In doing so, the District Court must consider the effect of Junkermier’s evidence regarding the value of the business it lost stemming from Alborn’s breach, the recurring loss of business caused by the breach, and whether Junkermier has proven that loss with reasonable certainty. ¶64 It is undisputed that Alborn breached his fiduciary duty to Junkermier. Thus, it is undisputed that Alborn is liable to Junkermier for that breach. “Once liability is shown, that is the certainty that damages are caused by the breach, then loss of profits on a reasonable basis for computation and the best evidence available under the circumstances will support a reasonably close estimate of the loss by a District Court.” Sebena v. AAA, 280 Mont. 305, 310, 930 P.2d 51, 54 (1996) (quoting Stensvad v. Miners & Merchants Bank, Etc., 196 Mont. 193, 206, 604 P.2d 1303, 1310 (1982)). Upon remand, if necessary, the District Court shall determine “the amount which will compensate [Junkermier] for all the detriment proximately caused” by Alborn’s breach, “whether it could have been anticipated or not.” Section 27-1-317, MCA. CONCLUSION ¶65 We reverse the District Court’s ruling that the Employment Agreement is not an enforceable contract. We affirm the District Court’s ruling that Former Shareholders, other than Alborn, owed Junkermier no fiduciary duty. We reverse the court’s ruling on damages resulting from Alborn’s breach of fiduciary duty. We therefore reverse the judgment of the District Court and remand for the court to analyze the Covenant’s reasonableness under Dobbins and, if necessary, to analyze Junkermier’s damages stemming from Alborn’s breach of fiduciary duty. CHIEF JUSTICE McGRATH, JUSTICES McKINNON, COTTER, SHEA, RICE and WHEAT concur. Appellees are Albom, Uithoven, Riekenberg, P.C., Terry Alborn, Paul Uithoven, Christina Riekenberg, Joe Bateson, and ShermVeltkamp. Albom, Uithoven, Riekenberg, P.C., does business as Amatics CPA Group and we refer to it as Amatics. We refer to the individual Appellees collectively as Former Shareholders.

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 David Weisbarth appeals his conviction from the Eighth Judicial District Court, Cascade County, for incest against his minor child, T.W. Weisbarth argues that he is entitled to a new trial based on the State’s failure to disclose T.W.’s medical records. We agree. The State obtained T.W.’s medical records and then failed to disclose those records to the defense. The medical records contained evidence that was clearly favorable to the defense, and the withheld evidence places the trial in such a different light that it undermines our confidence in the jury’s verdict. We reverse and remand for a new trial. ¶2 The issue on appeal is whether Weisbarth is entitled to a new trial based on the State’s failure to disclose T.W.’s medical records. FACTUAL AND PROCEDURAL BACKGROUND ¶3 David Weisbarth is the birth father of T.W. Since age three, T.W. has resided with her maternal grandfather Roy, who is her permanent guardian. Sometime between October 23, 2012, and December 13, 2012, when T.W. was five years old, Roy took T.W. to visit Weisbarth at his apartment in Great Falls. Soon after visiting her father, T.W. reported to law enforcement that Weisbarth had sexually abused her in his bathroom. T.W. alleged that Weisbarth took her into the bathroom and “all of [a] sudden started touching my private parts with his fingers.” As relevant to the defense’s trial strategy, prior to T.W.’s allegation of sexual abuse, she was diagnosed with reactive attachment disorder. In an attempt to treat her disorder, T.W. has seen a number of medical professionals, including two child specialists: Dr. Thomas Krajacich, a neuropsychologist, who started treating T.W. in early 2010; and Dr. Melinda Pike, a child psychiatrist, who began treating T.W. the following year. ¶4 On February 7,2013, the State charged Weisbarth by Information with one count of felony incest in violation of § 45-5-507, MCA. On April 1, 2014, Weisbarth provided notice to the State that he intended to call Dr. Donna Veraldi, a child psychologist, as an expert witness to testify about reactive attachment disorder and its possible effects on a child’s behavior—in particular, its tendency to affect a child’s propensity for truthfulness. The State filed a motion to exclude Veraldi’s testimony, reasoning that Veraldi did not have a basis to testify about T.W.’s disorder because Veraldi had not reviewed T.W.’s medical records. In response, Weisbarth filed a motion to compel the State to produce T.W.’s medical records so Veraldi could form a basis to testify as to T.W.’s specific ailments. The District Court permitted Veraldi to testify and granted Weisbarth’s motion. The court ordered that the State produce the medical records directly to Weisbarth. ¶5 On May 15, 2014, four days prior to the start of trial, the State filed a motion for an in camera inspection of T.W.’s medical records. The prosecutor represented to the court and defense counsel that she had reviewed the records, but expressed concern that T.W.’s “privacy rights have been implicated, such that the State does not feel comfortable” producing the medical records to the defense without the District Court reviewing the records in camera. The prosecutor did not alert the court or defense counsel that the records contained exculpatory evidence. Instead, the prosecutor stated that the information about T.W. was “intertwined with a multitude of other information, which the State does not believe to be discoverable.” ¶6 The next day, on May 16,2014, the State filed a motion to seal the medical records. The prosecutor acknowledged that, given the proximity to the start of trial, her request for an in camera inspection was not possible. The State then sent a heavily redacted copy of the medical records to Weisbarth. The State explained that it “redacted the medical records, in light of the victim’s privacy interest, so that they are limited to the diagnosis of Reactive Attachment Disorder, the date, and the likely cause.” As a result, the redacted medical records provided to Weisbarth consisted of a single sentence from a three-page report written by Krajacich. The portion of Krajacich’s report provided to the defense stated, in its entirety: “We will go slowly with differential diagnoses; but at this time, I am convinced this young girl has reactive attachment disorder most likely based on early neglect or even possible abuse.” The District Court granted the State’s motion to seal the medical records, without ever viewing the records in chambers. The State did not inform the defense or the District Court at any subsequent time that exculpatory information existed in the medical records. ¶7 On May 19, 2014, the matter proceeded to trial. The only direct evidence presented by the State against Weisbarth was T.W.’s testimony. T.W. testified that during a visit to Weisbarth’s apartment, he pulled down her pants and his pants; touched her private parts; and asked her to touch his private parts, but she refused. The State presented little circumstantial evidence in support of T.W.’s testimony. Dr. Nancy Maynard, who examined T.W. after the alleged incident, testified that there were no physical signs of abuse. Dr. Robert Page, a child psychologist, who reviewed a videotaped interview of T.W., testified that some aspects of T.W.’s disclosure were reliable, some aspects were unreliable, and T.W.’s disclosure was probably more consistent with an actual event. Roy testified that Krajacich indicated to him that T.W.’s disorder was relatively mild. Roy further testified that T.W. was “doing super” prior to the alleged incident and her counselor had indicated that T.W.’s disorder was not having a substantial impact on her behavior. Veraldi testified for the defense. The defense attempted to use Dr. Veraldi’s testimony to attack T.W.’s credibility. Veraldi testified that frequently reactive attachment disorder manifests itself in behavioral issues such as lying. During cross-examination, however, the prosecutor effectively contested Veraldi’s testimony. The prosecutor elicited from Veraldi that not all children diagnosed with reactive attachment disorder lie or fabricate information; that Veraldi had not actually evaluated T.W.; and that Veraldi had, in fact, little basis to conclude that in T.W.’s case her disorder manifests itself through lying or causes her to fabricate information. ¶8 In her closing argument, the prosecutor emphasized that T.W. was in a “stable and loving home” at the time of the alleged incident and T.W.’s disorder was simply a “red herring” manufactured by the defense to distract from Weisbarth’s culpability: The Defense wants to attack her. She’s an angry child with reactive attachment disorder. Cannot tell the truth.... Dr. Veraldi, what assistance did she give you with that? Nothing. She told you that children with reactive attachment disorder can have a propensity to be [unltruthful. She’s never evaluated this victim. And think about this, ladies and gentleman, when you’re evaluating [T.W.], what motive does she have to lie? ... She was safe. [Roy] had permanent guardianship. She was home. She had no reason to fabricate this abuse. The prosecutor further emphasized throughout her closing argument the lack of evidence that T.W.’s disorder manifests itself through lying: I think what’s telling, ladies and gentlemen, is Defense Counsel wants you to think that [T.W.] was lying, that she has reactive attachment disorder and was lying. There’s no evidence to suggest that [T.W.] exhibited any symptoms of lying. The only person, in fact, that tells you that she was lying was the Defendant. He has to have you believe she was lying, but there’s no evidence to support that. ¶9 The jury found Weisbarth guilty of felony incest. The District Court sentenced Weisbarth to 100 years in the Montana State Prison, with 50 years suspended and no parole eligibility for the first 25 years. ¶10 After the conclusion of trial, Weisbarth was able to gain access to the sealed medical records. The medical records provided evidence that T.W. suffers from psychosis; that T.W.’s disorder manifests itself through lying; that T.W.’s living situation at the time of the alleged incident was unstable and may have caused her symptoms to worsen; that Roy reduced T.W.’s medication below the recommended therapeutic levels around the time of the alleged incident; and that T.W. may have previously made and then recanted an allegation of sexual abuse against her mother. Evidence of Psychosis ¶11 The State redacted information in the medical records showing T.W.’s disorder causes her at times to lose contact with reality. The medical records show Krajacich diagnosed T.W. with “psychotic intrusions” in the spring of 2011. Krajacich noted T.W. suffers from “command hallucinations” in which various figures—including her teddy bear, Sponge Bob, and her step-brother—tell her to do inappropriate things. Krajacich noted that, while not conclusive, the results of his testing suggest a “breakdown in reality.” Krajacich believed T.W.’s condition was so severe that he considered whether she should be placed in a children’s hospital for “psychiatry” services, potentially Intermountain Children’s Hospital in Helena or a similar specialized program or in Virginia. ¶12 The medical records also reveal that Pike confirmed Krajacich’s initial diagnosis. The medical records show Pike prescribed 2 milligrams of Intuniv to treat T.W.’s mood disorder in February 2011, and approximately six months before the alleged incident, in March 2011, Pike considered prescribing antipsychotic medication to T.W., noting that the medication may be necessary if T.W. continued to suffer from psychotic symptoms. Evidence of Lying ¶13 The State redacted information in the medical records showing T.W.’s disorder manifests itself through lying. Krajacich noted that T.W. is very smart but, as a result of her disorder, “strugglefs] enormously with behavioral issues.” Krajacich reported that her grandparents complained of terrible deceptive behavior, that “she lies about a number of things,” and that she “make[s] stuff up on the spot.” Pike similarly explained T.W.’s disorder manifests itself through lying, noting that T.W. “lies a lot of the time” and has “problems with lying.” T.W.’s Tumultuous Life Circumstances ¶14 The State redacted information in the medical records showing T.W.’s living situation was unstable and may have worsened her symptoms. Pike noted that, in September 2011—around the time of the alleged incident—T.W.’s step-grandmother, Gina, was divorcing Roy after seven and one-half years of marriage. Pike noted that Gina had kicked Roy and T.W. out of the family home; Gina was afraid Roy was going to kill her; and Roy and T.W. had been forced to live in a fifth-wheel RV trailer. Dr. Pike further noted that, in the midst of all this, T.W.’s German shepherd had died. The medical records reveal that Pike was seriously concerned T.W.’s tumultuous life circumstances may cause her symptoms to worsen. Pike noted “the current circumstances could potentially be fairly stressful for [T.W.] and further her fears of abandonment and attachment problems.” Medication ¶15 The State redacted information in the medical records showing Roy began reducing T.W.’s medication below therapeutic levels around the time of the alleged incident without approval from Pike. Pike noted that, sometime before March 2013, Roy started reducing T.W.’s Intuniv dosage. According to the medical records, Roy believed that the medication was making T.W. drowsy so he reduced her Intuniv dosage by half, giving her 1 milligram per day instead of the prescribed 2 milligrams. After learning that Roy was reducing T.W.’s dosage, Pike admonished Roy for doing so and warned him against altering T.W.’s medication again in the future. Pike explained to Roy that “cutting it in half can destroy the long term effects” of the medication. Roy later acknowledged to Dr. Pike that T.W. needs the full 2 milligrams because “anything less does not work” and “there are problems when she is not taking it” as prescribed. False Accusation of Sexual Abuse ¶16 Finally, the State redacted information in the medical records regarding a potential allegation of sexual abuse. Krajacich noted that T.W. had a few overnight visits with her mother and her mother’s boyfriend. Krajacich’s report states: The first overnight visit seemed to go fairly well, but the second visit seemed to be more difficult for [T.W.]. She claimed that she had seen sexual behavior between mother and [boyfriend], and Roy and Gina are really suspicious about whether that is really a real observation versus “something pretend.” IT. WJ initially said that something happened to her also, but again, she then backed away from that later. Therefore, they are not really sure what has gone on. (Italics in original.) ¶17 After obtaining T.W.’s medical records, Weisbarth appealed his conviction. STANDARDS OF REVIEW ¶18 Brady claims not contained within the trial record are reviewed under the plain error authority of § 46-20-701(2)(b), MCA. State v. Ellison, 2012 MT 50, ¶ 12, 364 Mont. 276, 272 P.3d 646. A motion to dismiss charges based on the State’s suppression of exculpatory evidence is a question of law. State v. Duncan, 2008 MT 148, ¶ 17, 343 Mont. 220, 183 P.3d 111. We review conclusions of law for correctness. Valley Bank v. Hughes, 2006 MT 285, ¶ 15, 334 Mont. 335, 147 P.3d 185. DISCUSSION ¶19 Whether Weibarth is entitled to a new trial based on the State’s failure to disclose T.W.’s medical records. ¶20 Weisbarth argues that the State’s suppression of the medical records violated his right to due process. He maintains that the records clearly contained evidence favorable to his defense and prejudice ensued from the State’s failure to disclose the medical records. Under the landmark case of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, (1963), the prosecution is constitutionally obligated to provide any exculpatory or impeachment evidence in its possession to the defense. We have explained that a party seeking to establish a Brady violation must establish: (1) the State possessed evidence, including impeachment evidence, favorable to the defense; (2) the prosecution suppressed the favorable evidence; and (3) had the evidence been disclosed, a reasonable probability exists that the outcome of the proceedings would have been different. McGarvey v. State, 2014 MT 189, ¶ 16, 375 Mont. 495, 329 P.3d 576. We have further explained that even if the foregoing elements are satisfied, there is no Brady violation if the petitioner could have obtained the exculpatory evidence with reasonable diligence. McGarvey, ¶ 16. I. Favorable Evidence ¶21 We agree with Weisbarth that the medical records contained evidence favorable to his defense. Although the evidence differs in kind, it all shares a common feature: it impugns T.W.’s credibility. Clearly, all of the evidence in the medical records concerning T.W.’s mental health casts doubt on T.W.’s ability to credibly recall the alleged incident. This is “classic impeachment evidence.” Browning v. Trammell, 717 F.3d 1092, 1105 (10th Cir. 2013). “A witness’s credibility may always be attacked by showing that his or her capacity to observe, remember, or narrate is impaired.” Browning, 717 F.3d at 1105 (citing 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 607.05[1] (Joseph M. McLaughlin ed., 2d ed. 2014)). The evidence of T.W.’s problems with lying was valuable to the defense for impeachment purposes. While under M. R. Evid. 403, a court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, needless presentation of cumulative evidence, waste of time, undue delay, or misleading the jury, it is well-settled law that evidence of a witness having previously lied is favorable evidence that the defense may use for impeachment purposes absent a determination of inadmissibility pursuant to Rule 403. See State v. Passmore, 2010 MT 34, 355 Mont. 187, 225 P.3d 1229. Thus, the evidence of T.W.’s mental health and the related evidence of T.W.’s problems with lying were favorable evidence for the defense. ¶22 The evidence of the prior accusation of sexual abuse, however, presents a more difficult question because of the potentiality of invoking Montana’s Rape Shield Statute, §45-5-511, MCA, et seq. Krajacich’s report documented the potential prior accusation of sexual abuse. We have recognized that a complaining witness’s prior false accusation of a sexual offense “may often be probative of the complaining witness’ specific reputation for untruthfulness.” State v. Anderson, 211 Mont. 272, 283, 686 P.2d 193, 199 (1984). However, such evidence is admissible only if the accusation has been “proven or admitted to be false.” State v. Ring, 2014 MT 49, ¶ 17, 374 Mont. 109, 321 P.3d 800. In order to establish whether a contention is false, we require the trial court to conduct a separate hearing outside of the jury’s presence. Ring, ¶ 17. The hearing must address whether it is proper to question the witness regarding a previous accusation, as well as the admissibility of corroborating evidence. Ring, ¶ 18. Here, because the State failed to disclose to the defense T.W.’s prior accusation, the defense was unaware and thus unable to initiate the process set forth above to obtain a determination of whether the accusation was admissible. The defense, through the State’s actions, was prevented from obtaining a judicial ruling regarding whether the accusation was proven or admitted to be false and whether any corroborating evidence may have been admissible. Further, without the benefit of the requisite hearing and further evidence presented, this Court is unable to review on appeal whether Krajacich’s report documenting the prior accusation of sexual abuse was admissible. ¶23 The State argues that inadmissibility of the evidence is dispositive in determining whether the evidence should have been disclosed under Brady. The State reasons, that for purposes of Brady, inadmissible evidence cannot be considered favorable evidence because it cannot be used by the defense at trial. We have never squarely addressed whether inadmissible evidence can properly be considered Brady evidence. However, the majority of courts that have addressed the issue have concluded that inadmissible evidence can constitute Brady evidence. See Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir. 2003); United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002); Maynard v. Gov’t of Virgin Islands, 392 F. App’x 105, 115-16 (3d Cir. 2010); United States v. Sipe, 388 F.3d 471, 485 (5th Cir. 2004); Samyer v. Hofbauer, 299 F.3d 605, 614 (6th Cir. 2002); United States v. Asher, 178 F.3d 486, 496 (7th Cir. 1999); Madsen v. Dormire, 137 F.3d 602 (8th Cir. 1998); Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). ¶24 We agree with the majority of courts that have addressed the issue. The focus of the inquiry should not be on whether the evidence is admissible or inadmissible, but rather whether the evidence is favorable to the defense and could have affected the outcome of the proceedings. We decline to develop a rule that would foreclose the development of defense strategy and investigation or to presuppose what information the defense may have developed as a result of properly disclosed evidence. In light of the policy underlying Brady, we believe that even inadmissible evidence could have “substantial value to the defense that elementary fairness requires it to be disclosed.” United States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 2401 (1976). Here, although Krajacich’s report may have been inadmissible for any number of reasons, at the very least disclosure of the report had substantial value to the defense given its potential to lead directly to admissible exculpatory evidence. We therefore conclude that Krajacich’s report constituted favorable evidence within the meaning of Brady. ¶25 In sum, we agree with Weisbarth that the medical records contained favorable evidence to his defense. After obtaining the medical records, the State should have disclosed the substance of the records to Weisbarth. Thereafter, any concerns of the State regarding privacy rights of the victim, relevancy, and inadmissibility under the Rape Shield Statute, could be subsequently raised and considered by the District Court. We therefore turn to the question of whether the State’s failure to alert Weisbarth of the substance of the records caused him prejudice. II. Prejudice ¶26 In order to establish prejudice, Weisbarth must show that the undisclosed evidence was material to his defense. Evidence is material for purposes of Brady, if it “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1566 (1995). “The materiality of excluded evidence is considered collectively, not item by item.” McGarvey, ¶ 17. Further, “[ijmpeachment evidence is especially likely to be material when it impugns the testimony of a witness who is critical to the prosecution’s case.” United States v. Price, 566 F.3d 900, 914 (9th Cir. 2009). ¶27 T.W. was unquestionably the State’s most important witness. In contrast to the other circumstantial evidence with arguably minimal value, T.W.’s testimony provided direct testimonial evidence of Weisbarth’s guilt. With the significant redactions made by the State in T.W.’s medical records, the defense was unable to seriously challenge her testimony and the jury had little reason to doubt her memory or truthfulness. The prosecutor exploited this throughout her closing argument. The prosecutor emphasized that T.W. was in a safe environment and had no reason to fabricate: Now, look at the timing of the disclosure, and the sexual abuse that occurred, not until 2012. This isn’t an ongoing custody dispute that she’d like to get out of that situation. She was safe. [Roy] had permanent guardianship. She was home. She had no reason to fabricate this abuse. The prosecutor further emphasized the lack of evidence demonstrating untruthfulness: I think what’s telling, ladies and gentlemen, is Defense Counsel wants you to think that [T.W.] was lying, that she has reactive attachment disorder and was lying. There’s no evidence to suggest that [T.W.] exhibited any symptoms of lying. The only person, in fact, that tells you that she was lying was the Defendant. He has to have you believe she was lying, but there’s no evidence to support that. Weisbarth, of course, did not have any information to rebut the prosecutor’s narrative and to give the jury any evidence to question T.W.’s credibility. That information the prosecutor concealed. The State did not reveal the evidence of T.W.’s psychosis, her history of lying, or the prior allegation of sexual abuse. Nor did the State reveal the evidence in the medical records showing that T.W.’s life was in a state of upheaval at the time of the allegation and that her grandfather had altered her medication below therapeutic levels around the time of T.W.’s disclosure. ¶28 Had Weisbarth been able to discredit T.W.’s testimony with this evidence, there is a reasonable probability that he could have persuaded the jury that T.W. fabricated the allegations against him. By using the lack of any evidence casting doubt on T.W.’s credibility against the defense, the prosecutor further heightened the medical records’ impeachment value and the defense’s need for the suppressed evidence. Absent the concealed evidence, T.W.’s testimony firmly established Weisbarth’s guilt in the eyes of the jury and rendered his ability to undermine the State’s case exceedingly difficult. If the State had provided the evidence to the defense, Weisbarth would have been in a position to seriously challenge T.W.’s credibility through cross-examination and the direct testimony of Veraldi. In short, the undisclosed evidence in question “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S. Ct. at 1566. We conclude therefore that the State’s suppression of the medical records was prejudicial to the defense. III. Reasonable Diligence. ¶29 The State further argues that the medical records do not establish a Brady violation because it is unclear “what information the defense could have obtained with the exercise of reasonable diligence.” Citing the Ninth Circuit Court of Appeals’ decision in Amado v. Gonzalez, 758 F.3d 1119, 1135 (9th Cir. 2014), Weisbarth counters that a prosecutor’s obligation under Brady is not excused by defense counsel’s failure to exercise diligence with respect to suppressed evidence. Alternatively, Weisbarth argues that he exercised reasonable diligence in attempting to obtain the medical records. ¶30 We have on several previous occasions refused to find a Brady violation where the defense could have obtained the exculpatory evidence through the exercise of reasonable diligence. See, e.g., State v. James, 2010 MT 175, ¶ 34, 357 Mont. 193, 237 P.3d 672; State v. Parrish, 2010 MT 212, ¶ 21, 357 Mont. 477, 241 P.3d 1041; McGarvey, ¶ 18. We acknowledge that this precedent is now seemingly at odds with that of the Ninth Circuit. Amado, 758 F.3d at 1136 (concluding that the requirement of due diligence is contrary to federal law as clearly established by the Supreme Court and unsound public policy). (Internal citation omitted.) However, we nonetheless decline to address the apparent conflict or revisit our previous decisions here. Because we believe that Weisbarth exercised reasonable diligence in this instance, it is unnecessary to do so. Here, Weisbarth had no way of knowing what evidence the medical records contained and he did the only thing he could do to obtain the records by filing a motion with the District Court requesting their disclosure. The court granted the motion and ordered the State to produce the records. The State then represented, on the eve of trial, that it had produced all discoverable material from the medical records. Weisbarth was entitled to rely on the State’s representation. See Banks v. Dretke, 540 U.S. 668, 674, 124 S. Ct. 1256, 1263 (2004). In short, Weisbarth exercised due diligence in attempting to gain the records; the State thwarted those efforts. ¶31 As a final matter, the State argues that pursuant to State v. Johnston, 2014 MT 329, 377 Mont. 291, 339 P.3d 829, rather than reversing Weisbarth’s conviction, the proper remedy is to dismiss the appeal without prejudice and remand to the District Court for an in camera inspection of the medical records. We disagree. In Johnston, the district court erred by denying disclosure of confidential state agency records without first reviewing the records for exculpatory evidence, and we remanded the case to the district court to conduct an in camera review of the records. Johnston, ¶ 10. We did so, however, because the records were still in the agency’s possession and not in the record on appeal. Johnston, ¶ 4. Here, T.W.’s medical records are part of the record on appeal. Thus, because the medical records are reviewable on appeal, there is no need to remand to the District Court. CONCLUSION ¶32 We realize that child abuse is one of the most difficult crimes to prosecute, in large measure because there are often no witnesses except the victim. We acknowledge as well that there is something innately human about wanting to protect a young child from her abuser and the release of her personal information. In our system of justice, however, prosecutors occupy a unique position of public trust and their obligations extend beyond the protection of the victim. Prosecutors must ensure above all else that justice is done which necessarily requires that they provide a defendant, regardless of the nature of the offense, due process of law. For the foregoing reasons, we are not convinced that this occurred here. ¶33 Reversed and remanded. CHIEF JUSTICE McGRATH, JUSTICES COTTER, BAKER and WHEAT concur. The parties submitted a joint motion to seal their briefs and supporting documents because of confidentiality concerns regarding T.W.’s medical records. This Court issued an order authorizing the sealing of the briefs and supporting documents. While this Opinion discusses information contained within T.W.’s medical records, we have, to the extent possible, labored to protect the confidentiality of the records while simultaneously observing that any opinion of this Court must be public. The State obtained T.W.’s medical records after obtaining Roy’s written consent for their release.

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 Timothy McCann and Genet McCann appeal from three groups of orders entered by the Twentieth Judicial District Court, Lake County, in its efforts to oversee the guardianship and conservatorship of their elderly mother, A.M.M., including the preliminary injunction, Rule 11 sanctions, and request for recusal. This is Timothy’s second appeal to this Court in this matter. Appellees Paul McCann Jr. and Poison attorney Douglas J. Wold (together, Co-Conservators) and Casey Emerson (Guardian) submitted briefs in response. Genet, an attorney, represents herself and Timothy on appeal. Wold represents himself and Paul Jr. on appeal. We affirm. ¶2 Timothy and Genet raise twelve issues on appeal. We find the following three issues dispositive and restate them as: 1. Whether the District Court abused its discretion by granting Guardian’s motion for a preliminary injunction. 2. Whether the District Court erred by denying Genet’s motion to recuse. 3. Whether the District Court erred by sanctioning Genet. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Born in 1922, A.M.M. is the widowed mother of eight adult children: William, Thomas, Paul Jr., Miriam, Genet, Timothy, Kathleen, and Sheila. On March 14, 2014, the District Court concluded A.M.M. is an incapacitated person as defined by § 72-5-101(1), MCA. To protect A.M.M. and her substantial assets, the court appointed Poison attorney Casey Emerson as A.M.M.’s guardian; and son Paul Jr., son Timothy, and Wold as A.M.M.’s joint conservators. On October 7, 2014, the court granted Timothy’s voluntary withdrawal as Co-Conservator. ¶4 On January 2, 2015, Guardian filed a motion for preliminary injunction and temporary restraining order asking the District Court to enjoin Timothy and Genet from engaging in certain activities Guardian believed were detrimental to A.M.M.’s health. On January 7, 2015, the court held a hearing on Guardian’s motion. The morning of the hearing, Genet acted as Timothy’s attorney by filing a pleading on his behalf. However, twelve minutes before the hearing, Timothy filed a “Notice of Withdrawal of Attorney and My Appearance Pro Se.” At the hearing, the court denied Genet leave to withdraw as Timothy’s attorney due to Genet’s failure to comply with the rules governing withdrawals and because “[t]his is the latest in a pattern of conduct in which Tim has attempted to frustrate and delay scheduled hearings, which began with the earliest hearings in this case.” Genet did not appear at the hearing. Timothy was physically present, but the court denied him leave to appear pro se because he had counsel of record, Genet. ¶5 On February 4, 2015, the District Court issued findings of fact, conclusions of law, and a preliminary injunction. The court found A.M.M. “suffers from dementia and other health conditions which are exacerbated by stress, anxiety, and sleep interference” and, according to her treating physician, “Ia|ny thing that contributes to a higher stress and anxiety level is detrimental to her physical, mental and emotional well-being.” ¶6 The District Court found Timothy and Genet had engaged in activities negatively impacting A.M.M., her caregivers, and Guardian. For example, Timothy and Genet “strongly objected” to a trip A.M.M. planned to take during winter to visit her daughter Sheila where she lived in California. “Although they would apparently not object to [A.M.M.] going to Arizona or Hawaii with Tim accompanying her, they contended this trip to California would be detrimental to her health.” They tried to prevent her from going. Evidence in the record showed that they “loudly read the newspaper, within [A.M.M.’s] hearing, about the Air Asia plane crash,” talked about earthquakes in California, and took A.M.M. to a new doctor and “coached her to be ‘strong’ and tell this doctor that she did not want to go.” Timothy and Genet “have disparaged and insulted” A.M.M.’s caregivers, called one an obscene name, accused others of stealing towels or glasses, and created an “unpleasant and difficult work environment for these caregivers.” Timothy and Genet “have interfered with and ignored the authority of the Guardian” and “have been inappropriately aggressive and accusatory toward the Guardian.” The court found further: Two of [A.M.M.’s] children, Tim McCann and Genet McCann, during the pendency of this action, have acted in ways that caused significant stress and anxiety to [A.M.M.]. This situation has continued for a year. It appears that Tim and Genet love their mother, but do not grasp that their actions are harming her. Both are intelligent, educated people. However, despite repeated and clear attempts to communicate this reality to them (that their actions are harming their mother’s health), they appear to either be unable to understand this, or unable or unwilling to modify their behavior. Any judge would be reluctant to restrict adult children’s time with their mother, but this situation should not be allowed to continue. ¶7 The District Court’s preliminary injunction restricted Timothy and Genet’s time with A.M.M., but allowed them to attend church with A.M.M. and visit her, at her home, between 9 a.m. and 12 p.m., if she was awake and either a caregiver or Guardian was present. The injunction stated that the restrictions did not apply to family gatherings where other siblings or relatives were present. It also provided that either Timothy or Genet could request a modification of its terms. The preliminary injunction required Timothy and Genet to return their keys to A.M.M.’s home. It also enjoined them from discussing, either with or in front of A.M.M., “financial matters, legal proceedings, feuds or difficulties between siblings, or any other matters which will foreseeably cause additional stress and anxiety for [A.M.M.] ” or “make derogatory remarks within [A.M.M.’s] hearing, about the Guardian, Conservators, caregivers, or any relatives” and “[t]hey shall not speak with [A.M.M.] about this Preliminary Injunction.” ¶8 On February 13,2015, Co-Conservators filed a motion for Rule 11 sanctions against Genet, but later withdrew it. On March 2, 2015, Genet filed a request for Rule 11 sanctions against Wold and a request that Judge Manley recuse himself. Genet argued she should not be sanctioned, but that Wold should be sanctioned for filing “frivolous Motions,” and accused Judge Manley of “bias,” being in an “unethical association” with Wold, and employing Wold’s daughter as his judicial assistant. Both “requests” were denied. On May 22, 2015, Genet filed a motion for recusal wherein she reiterated her earlier arguments, accusation of bias, and added felonious accusations against Guardian, alleging she had committed “criminal tampering with a subpoenaed witness” and “engaging in official criminal misconduct.” ¶9 In its June 24, 2015, order, the District Court noted that during the hearing on May 22, 2015, Genet was “contrite and apologetic for her words and tone used in her pleadings.” The court noted that Genet cited her lack of legal experience for her conduct and appeared to be sincere. “However, three minutes before the hearing began, [Genet] filed a 22 page motion for recusal and brief. This was similar to previous motions for recusal filed herein, except perhaps even more vitriolic.” Genet “filed this offensive pleading pro se, even though she was represented by two attorneys who were, in fact, personally present in the courtroom across the hall from the clerk’s office.” The court concluded the motion’s “allegations of misconduct against Mr. Wold and the Court are without factual or legal basis, and were made without inquiry reasonable under the circumstances.” The court noted “[t]he juxtaposition of [Genet’s] oral contrition and written vitriol is unusual, to say the least, and raises serious question[s about] whether she is capable of conforming her behavior to acceptable standards of practice and civility.” Genet had formed a “pattern of frivolous, incompetent, offensive and unfounded allegations made against numerous attorneys and others in past pleadings.” The District Court found her in violation of Rule 11 and imposed sanctions. Genet was required to pay reasonable attorney fees and costs incurred by Guardian and Co-conservators in connection with the Rule 11 matter and prohibited from filing “any other pleadings in this case, unless such pleading is also signed by a licensed, practicing Montana lawyer.” Genet and Timothy appeal, asserting various constitutional violations and other forms of prejudice suffered at the District Court. STANDARDS OF REVIEW ¶10 A district court has broad discretion to grant or deny a preliminary injunction and we review the court’s decision for an abuse of that discretion. Cole v. St. James Healthcare, 2008 MT 453, ¶ 9, 348 Mont. 68, 199 P.3d 810 (citations omitted). We review a district court’s findings of fact to determine whether they are clearly erroneous and its conclusions of law for correctness. In re Charles M. Bair Family Trust, 2008 MT 144, ¶ 28, 343 Mont. 138, 183 P.3d 61 (citations omitted). “[W]e will review a judge’s disqualification decision de novo, determining whether the lower court’s decision not to recuse was correct under the Montana Code of Judicial Conduct.” State v. Dunsmore, 2015 MT 108, ¶ 10, 378 Mont. 514, 347 P.3d 1220. “[W]e review de novo the district court’s determination that the pleading, motion or other paper violates Rule 11.” Byrum v. Andren, 2007 MT 107, ¶ 19, 337 Mont. 167, 159 P.3d 1062. DISCUSSION ¶11 1. Whether the District Court abused its discretion by granting Guardian’s motion for a preliminary injunction. ¶12 Timothy and Genet argue the District Court abused its discretion by granting Guardian’s motion for a preliminary injunction. First, Timothy and Genet argue the preliminary injunction violated several of A.M.M.’s constitutional rights. However, we have already held that Timothy lacks standing and cannot “assert A.M.M.’s constitutional due-process rights.” A.M.M. I, ¶ 28. Likewise, Timothy lacks standing to assert any new violations of A.M.M.’s constitutional rights and, for these same reasons, Genet also lacks standing. See A.M.M. I, ¶¶ 24-29. Timothy and Genet lack standing to present arguments premised upon A.M.M.’s constitutional rights. ¶13 Next, Timothy and Genet argue the District Court violated each of their constitutional rights to due process and equal protection by granting the preliminary injunction. However, Timothy and Genet do not advance any authority for their proposition that the constitutional rights of adult children are implicated in the guardianship and conservatorship proceedings of an incapacitated parent. The focus of these proceedings is on A.M.M. and her well-being. “Guardianship for an incapacitated person may be used only as is necessary to promote and protect the well-being of the person.” Section 72-5-306, MCA. We have stated that “a petition to appoint a guardian is not an adversarial proceeding, but rather a proceeding to promote the best interests of the person for whom guardianship is sought.” In re Estate of Bayers, 1999 MT 154, ¶ 14, 295 Mont. 89, 983 P.2d 339 (citation omitted). Timothy and Genet have not demonstrated that they have standing to present arguments premised on a violation of their own constitutional rights. ¶14 Timothy and Genet argue § 27-19-303, MCA, “ensures a respondent to an injunction order is afforded an opportunity to be heard.” They argue Timothy was denied that opportunity at the show cause hearing when the District Court denied Genet leave to withdraw as Timothy’s attorney and denied Timothy leave to appear pro se. ¶15 “An injunction is an order requiring a person to refrain from a particular act.” Section 27-19-101, MCA. Before granting an injunction, a hearing is required to show cause “why the injunction should not be granted.” Section 27-19-301(2), MCA. “The injunction order may be granted after the hearing” and at the hearing “each party may present affidavits or oral testimony.” Section 27-19-303(1), (2), MCA. “The attorney in an action or special proceeding may be changed at any time before or after judgment” upon consent of both client and attorney or by court order “upon the application of either client or attorney, after notice from one to the other.” Section 37-61-403, MCA. Additionally, the Montana Uniform District Court Rules require that an attorney who withdraws from representing a party to a civil proceeding to “inform the court and all other parties of the full name and address of his/her client.” M.U.D.C.R. 10(a). Then, the opposing party must give the newly unrepresented party notice that the party is required to appoint new counsel within twenty one days or appear pro se in further proceedings. M.U.D.C.R. 10(b). This Court has stated that we require “strict compliance” with the requirements of Rule 10. Stewart v. Rice, 2013 MT 55, ¶ 32, 369, Mont. 203, 296 P.3d 1174 (citation omitted). ¶16 The District Court held a show cause hearing on January 7, 2015. This hearing provided Timothy with an opportunity to show cause “why the injunction should not be granted.” However, Timothy initiated a change in representation twelve minutes prior to the beginning of the hearing. Genet acted as Timothy’s attorney, by filing a pleading on his behalf earlier that day, but did not appear at the hearing. There was no indication Genet was unavailable to represent Timothy at the hearing. The District Court denied Genet leave to withdraw and Timothy leave to proceed pro se for their failure to comply with § 37-61-403, MCA, because doing so would cause delay, and the court recognized that Timothy had a pattern of “frustratfing] and delaying] scheduled hearings.” ¶17 Timothy’s attempt to change representation did not meet the requirements of § 37-61-403, MCA, because his “Notice of Withdrawal of Attorney and My Appearance Pro Se” did not indicate whether Genet had either consented to her withdrawal or been given notice from Timothy. In its order denying Genet leave to withdraw, the District Court stated, “Because of [M.U.D.C.R. 10], the last-minute attempt (or last 12 minute attempt), to change from a represented party to a pro se party would have required immediately vacating the hearing, and the represented parties to give [Timothy] notice of all the information required by Rule 10(b), and a delay of at least 21 days before the hearing could be held pursuant to Rule 10(d).” Reviewing the record prior to the show cause hearing, Timothy was initially represented by the law firm Datsopoulos, MacDonald, and Lind, who then withdrew; Genet, who then withdrew; Wendell B. Dunn, who then withdrew; and then again by Genet. In between being represented by counsel, Timothy proceeded pro se. The District Court could have denied Genet leave to withdraw and Timothy leave to appear pro se for any one of the reasons upon which it relied and did not abuse its discretion by denying both motions. ¶18 Evidence showed Timothy and Genet’s behavior was inappropriate, disruptive, and not in A.M.M.’s best interests. The preliminary injunction’s restrictions were reasonable and furthered A.M.M.’s best interests while still allowing Timothy and Genet to maintain a relationship with A.M.M. The District Court followed proper procedures by holding a hearing and providing an opportunity for Timothy and Genet to show why it should not grant Guardian’s request for a preliminary injunction. The District Court did not abuse its discretion by granting the preliminary injunction. ¶19 2. Whether the District Court erred by denying Genet’s motion to recuse. ¶20 On March 2,2015, Genet requested Judge Manley recuse himself. Responding to her request, the District Court stated “Genet has not filed a motion for substitution pursuant to MCA 3-1-804, or a motion for disqualification for cause with affidavit of prejudice pursuant to MCA 3-1-805.” The court denied Genet’s request. On May 22, 2015, hours before the hearing set for Rule 11 and contempt proceedings, Genet filed a “Motion for Recusal form DG 14-2; or in the alternative, Motion for Recusal for Rule 11 Contempt Proceedings; Brief in Support.” ¶21 A party in a civil action may move to disqualify a judge. Preliminarily, we must note that the issue of whether Genet, daughter of the protected person, is a party to these proceedings has not been raised by any of the litigants and is therefore not before us. Further, it is not necessary to decide whether Genet is a “party” to these proceedings as we resolve the issue based upon the District Court’s reasoning. The procedure for disqualification is set forth in § 3-1-805, MCA. “Whenever a party to any proceeding in any court shall file an affidavit alleging facts showing personal bias or prejudice of the presiding judge, such judge shall proceed no further in the cause.” Section 3-1-805(1), MCA. The affidavit must be filed more than 30 days before the date set for hearing or trial, must be accompanied by a certificate that it is made in good faith, and, if the affidavit is not proper in form or fails to allege facts showing personal bias or prejudice, the motion maybe set aside as void. Section 3-l-805(l)(a)-(c), MCA. A judge must not sit or act in any action or proceeding to which he is a party, interested, related to a party, related to an attorney, or related to any attorney or member of a firm of attorneys of record for a party. Section 3-1-803, MCA. ¶22 Genet failed to file an affidavit alleging bias or prejudice. Instead, on appeal, Genet argues Judge Manley erred by not recusing himself because he violated Montana Rules of Judicial Conduct 2.12 and 2.13 and violated her right to due process. Rule 2.12 governs disqualification. “IDisqualification questions in the Montana state courts are governed by the Montana Code of Judicial Conduct” and, because the Code “provides more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution.” Dunsmore, ¶ 12 (citations omitted). “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned,” including if the judge has a personal bias or personal knowledge of the facts in dispute. M. C. Jud. Cond. Rule 2.12(A). Rule 2.13 governs supervisory duties. “A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.” M. C. Jud. Cond. Rule 2.13. ¶23 Genet argues Judge Manley violated Rule 2.12 because a prior association with Wold created a bias in Wold’s favor and Rule 2.13 because he employed Wold’s daughter as his judicial assistant while she also worked for Wold. The District Court concluded that: The allegations of misconduct against Mr. Wold and the Court are without factual or legal basis, and were made without inquiry reasonable under the circumstances. [Genet] thereby violated Rule 11. [Genet] offered no evidence to prove the allegations of misconduct were true, or even that she had a reasonable basis for repeatedly making those same allegations which had been made in the past, and shown to be without merit. Nor did she offer evidence of reasonable inquiry. The District Court proceeded to sanction Genet for her behavior. We agree with the District Court that there is no evidence in the record supporting Genet’s allegation that Judge Manley violated either Rule 2.12 or Rule 2.13. Genet did not file an affidavit alleging bias or prejudice or otherwise comply with § 3-1-805, MCA. Section 3-1-805, MCA, sets forth a procedure which must be followed when a party believes the presiding judge cannot be fair and impartial in the proceeding. The procedure is designed to provide due process to the aggrieved litigant in a proceeding in which the judge is presumptively fair and impartial. The requirement of an affidavit is therefore not dispensable. We conclude the District Court did not err by denying Genet’s motion to recuse. ¶24 3. Whether the District Court erred by sanctioning Genet. ¶25 Genet argues the District Court erred by sanctioning her for violating Rule 11 because it was “fundamentally unfair” and her motion to recuse was “well grounded in fact and law.” “By presenting to the court a pleading, written motion, or other paper ... an attorney or unrepresented party certifies to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation” and “(3) the factual contentions have evidentiary support.” M. R. Civ. P. 11(b). “If after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney ... responsible for the violation.” M. R. Civ. P. 11(c)(1). The court may do this on motion or its own initiative. M. R. Civ. P. 11(c)(2)-(3). ¶26 It is apparent from the record that the District Court grew increasingly burdened and frustrated by Timothy and Genet’s behavior. The court warned the parties well before eventually finding Genet in violation of Rule 11 and sanctioning her. The court demonstrated leniency and tolerance, while also urging Timothy and Genet to retain competent counsel. In an order issued February 4, 2015, the court summarized some of the burdens Genet and Timothy’s tactics were placing on it at the time: January 7, 2015, Genet McCann caused to be filed a Rule 12(b)(2) Motion to Dismiss Application for TRO and Preliminary Injunction. Both appear to be copies, not originals. Neither contained a Certificate of Service. She apparently intended to file these on her own behalf, as a party, although at the time she was both denying she is a party, and counsel of record for Timothy McCann, who is a party and her brother. Thereafter, on January 12, 2015, Timothy McCann, who by this time was contending he was pro se, filed an “Amended Certificate of Service to [Genet’s] Motion to Quash Application for TRO and Preliminary Injunction” (though not for Genet’s Motion to Dismiss). He may have believed he was acting as Genet’s attorney. On January 13, 2015, Genet filed an “Amended Certificate of Service” for her Rule 12(b) Motion to Dismiss. She did not file an Amended Certificate of Service relating to her defective Motion to Quash. Perhaps she believed Tim had done so as her attorney the day before. Simultaneously with these filings, Genet and Tim were filing defective and amended pleadings, (some copies and some originals) for the apparent purpose of asking leave for Genet to withdraw as Tim’s attorney (without actually asking for leave). This frivolous, frothful filing practice is not new. It is a pattern. The Court and parties have had to spend inordinate time on this. [A.M.M.’s] estate is incurring inordinate legal expenses as a result. Tim and Genet have declined to get competent counsel, in favor of this kind of practice. The court sanctioned Genet on June 24, 2015, based on her May 22, 2015, motion to recuse. In that pleading, Genet repeated accusations that Wold was filing frivolous motions, Judge Manley was biased, and added a new accusation that Guardian committed crimes without providing evidence or providing evidence that she had conducted a reasonable inquiry. The court concluded Genet violated Rule 11 for these reasons. Its conclusion is not clearly erroneous. The District Court did not err by sanctioning Genet. CONCLUSION ¶27 The District Court did not abuse its discretion by granting Guardian’s motion for a preliminary injunction and did not err by approving the Co-Conservator’s first annual accounting, by denying Genet’s motion to recuse, or by sanctioning Genet. ¶28 Affirmed. JUSTICES WHEAT, BAKER, COTTER and RICE concur. Timothy and Genet fail to develop several arguments, especially relating to the first annual accounting, or cite relevant, favorable authority to support them. Parties must present a reasoned argument to advance their positions, supported by citations to appropriate authority. M. R. App. P. 12(1)(g). “When a party fails to do so, our caselaw is well-settled. We will not consider unsupported issues or arguments.” Griffith v. Butte Sch. Dist. No. 1, 2010 MT 246, ¶ 42, 358 Mont. 193, 244 P.3d 321 (citation omitted). We decline to consider Timothy and Genet’s undeveloped, unsupported arguments. Additional factual background can be found in Timothy’s first appeal to this Court, In re Guardianship and Conservatorship of A.M.M., 2015 MT 250, 380 Mont. 451, 356 P.3d 474 (A.M.M. I). It is unclear in many pleadings throughout the District Court record and in the briefs on appeal, whether Genet is representing herself, Timothy, or both herself and Timothy. The District Court record shows that Genet argued both that she was not a party to the proceedings and, thus, the District Court lacked jurisdiction over her. Other times she insisted she was a party and her constitutional rights were implicated. Genet’s motion to recuse was, apparently, filed only on her own behalf.

JUSTICE BAKER delivered the Opinion of the Court. ¶1 A Yellowstone County Justice Court jury convicted Gerald Jeffry Krenning of driving under the influence of alcohol (DUI). Following the Thirteenth Judicial District Court’s rejection of his challenges to the conviction, Krenning appeals. We affirm. ¶2 Krenning raises four issues on appeal: 1. Was Krenning denied his right to a speedy trial? 2. Did the Justice Court deny Krenning a fair trial when it refused to allow him to cross-examine Officer Huertas about the reasons for his administrative leave? 3. Did the Justice Court deny Krenning a fair trial when it allowed Officer Huertas to testify as an expert on horizontal gaze nystagmus (HGN)? 4. Did the Justice Court err in refusing Krenning’s proposed jury instructions on breath test refusal? PROCEDURAL AND FACTUAL BACKGROUND ¶3 Laurel, Montana, police officer Jim Huertas stopped Krenning on suspicion of DUI on the night of December 23, 2014, after Huertas and another officer independently observed Krenning’s vehicle weaving and drifting between lanes on the interstate highway and on Highway 212. Officer Heurtas noticed that Krenning’s eyes were bloodshot and glassy, he smelled of alcohol, and he fumbled when retrieving his driver’s license from his wallet. Officer Huertas administered a roadside HGN test, but Krenning refused a breath test. The State charged Krenning with DUI and with operating a motor vehicle with expired registration. ¶4 Krenning was arraigned on January 8, 2015. Initially, the Yellowstone County Justice Court set a pretrial conference date of April 21, 2015, and trial for May 22, 2015. On the State’s motions, the trial was continued until June 26. Then, at the end of a motions hearing and pretrial conference days before trial, the State moved for a three-week continuance on grounds that Officer Huertas was unavailable to testify because he was on paid administrative leave. The court granted that motion and set trial for July 17. ¶5 A week before trial, the defense moved to dismiss the charges against Krenning on the ground that his right to speedy trial had been denied. The Justice Court denied that motion. ¶6 Krenning pleaded guilty to operating a motor vehicle with expired registration and the DUI charge proceeded to trial. Officers Huertas and Jason Wells testified for the State. Krenning testified on his own behalf. The jury found Krenning guilty of DUI. ¶7 Krenning appealed to District Court, which affirmed his conviction. STANDARDS OF REVIEW ¶8 In an appeal from a justice court established as a court of record—as is the Justice Court in this case—the district court functions as an appellate court and the appeal is confined to a review of the record. See § 3-11-110, MCA. In reviewing a justice court’s findings and conclusions, this Court examines the record independently of the district court’s decision. State v. Marcial, 2013 MT 242, ¶ 10, 371 Mont. 348, 308 P.3d 69. We discuss additional standards of review in the context of each issue. DISCUSSION ¶9 1. Was Krenning denied his right to a speedy trial? ¶10 Krenning’s trial occurred nine days past the end of the six-month period allowed for trial of a misdemeanor offense under § 46-13-401(2), MCA. The Justice Court denied Krenning’s motion to dismiss without stating its reasoning. We review the trial court’s legal conclusions on a statutory speedy trial claim to determine whether its interpretation of the law is correct. City of Helena v. Roan, 2010 MT 29, ¶ 7, 355 Mont. 172, 226 P.3d 601. ¶11 Krenning relies on State v. Ronningen, 213 Mont. 358, 360, 691 P.2d 1348, 1349 (1984), in asserting that the statutory right to trial within six months in a misdemeanor case is absolute. That is not true. As acknowledged in Ronningen, 213 Mont. at 360, 691 P.2d at 1349, the statutory six-month limit for trial of a misdemeanor offense does not apply if the trial is postponed on the defendant’s motion or if the State demonstrates good cause to continue the trial date. See also City of Helena v. Heppner, 2015 MT 15, ¶ 12, 378 Mont. 68, 341 P.3d 640. ¶12 Absent evidence of foot-dragging by the prosecution, the unavailability of a prosecution witness constitutes valid reason for trial delay. In State v. Johnson, 2000 MT 180, ¶ 20, 300 Mont. 367, 4 P.3d 654, we characterized the unavailability of an officer on an out-of-state work assignment as “good cause” for the State’s requested continuance. See also State v. Billman, 2008 MT 326, ¶ 27, 346 Mont. 118, 194 P.3d 58 (noting that the primary officer’s unavailability because of training generally would constitute “good cause” for delay, but for the fact that the State did not move for continuance until four days after the scheduled trial date); State v. Ariegwe, 2007 MT 204, ¶ 70, 338 Mont. 442, 167 P.3d 915 (citing Johnson for principle that unavailability of key prosecution witness is valid reason for delay). Although those cases analyzed the constitutional right to speedy trial, the same conclusion logically attaches to a determination of “good cause” for postponement of trial under § 46-13-401(2), MCA. Officer Huertas’s unavailability was not due to any fault of or “foot-dragging” by the State. ¶13 To be sure, a police officer could be subpoenaed to testify notwithstanding the officer’s administrative leave or absence for numerous other reasons. But in our constitutional speedy trial discussions we have not imposed an obligation on the State to subpoena an unavailable officer in every instance in order to demonstrate a valid reason for delay. We decline to impose that obligation here, where the delay—nine days—was minimal. The police department’s investigation of Huertas for his off-duty conduct was a valid reason for a brief continuance of the trial. Under these circumstances, this short delay does not compel a conclusion that the State had to subpoena Huertas while the internal investigation was pending in order to secure a trial within the six-month deadline. We conclude that the unavailability of the arresting officer was, for purposes of § 46-13-401(2), MCA, good cause for continuing Krenning’s trial nine days beyond the six-month deadline. ¶14 We conclude that Krenning was not denied a speedy trial. ¶15 2. Did the Justice Court deny Krenning a fair trial when it refused to allow him to cross-examine Officer Huertas about the reasons for his administrative leave? ¶16 The Justice Court ruled prior to trial that the defense could not cross-examine Officer Huertas about his administrative leave. We review this evidentiary rulingfor an abuse of discretion. State v. Hicks, 2013 MT 50, ¶ 14, 369 Mont. 165, 296 P.3d 1149. A trial court abuses its discretion when it “acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Hicks, ¶ 14 (citation omitted). ¶17 A party may offer evidence of a specific instance of the conduct of a witness only if the specific instance of conduct is probative of the witness’s truthfulness. See M. R. Evid. 608(b). If such evidence is probative, the court nonetheless may exclude the evidence if its prejudicial effect would outweigh the probative value. State v. Dunning, 2008 MT 427, ¶ 25, 347 Mont. 443, 198 P.3d 828. ¶18 Krenning provides no facts of record or legal arguments to support his argument that he should have been allowed to cross-examine Huertas on his administrative leave. Instead, Krenning merely attached to his brief a copy of a newspaper article that is not in the record. Krenning has failed to show that the conduct underlying Huertas’s administrative leave is probative of Huertas’s truthfulness. ¶19 We hold that the Justice Court did not abuse its discretion when it refused to allow the defense to cross-examine Officer Huertas about his administrative leave. ¶20 3. Did the Justice Court deny Krenning a fair trial when it allowed Officer Huertas to testify as an expert on horizontal gaze nystagmus (HGN)? ¶21 Krenning contends that the State failed to give the defense adequate notice that it would present Officer Huertas as an expert witness on HGN. Without a showing of an abuse of discretion, we will not disturb a trial court’s determinations on the presentation of expert testimony. State v. DuBray, 2003 MT255, ¶ 38, 317 Mont. 377, 77 P.3d 247. ¶22 The State argues that it notified Krenning’s defense counsel four months prior to trial of its intent to call Huertas as a trial witness and provided counsel a copy of Huertas’s police report describing Huertas’s administration of the HGN test and its results. Krenning does not deny this. ¶23 Section 46-15-322, MCA, does not obligate the State to designate which of its proposed witnesses are experts; the State is required only to disclose the names of the persons it may call as witnesses. Further, a trial court has great latitude to determine whether a police officer’s training is sufficient to allow the officer to testify as an expert on the HGN test. State v. Harris, 2008 MT 213, ¶ 10, 344 Mont. 208, 186 P.3d 1263. In this case, the State elicited Huertas’s testimony that he had completed basic training at the law enforcement academy for conducting field sobriety tests, as well as advanced training in the Advanced Roadside Impaired Driving Enforcement program, the Drug Recognition Expert (DRE) class, and a forty-hour course for DRE instructors. ¶24 We conclude that Krenning was not denied a fair trial when the Justice Court allowed Officer Huertas to testify as an expert on HGN. ¶25 4. Did the Justice Court err in refusing Krenning’s proposed jury instructions on breath test refusal? ¶26 Krenning offered three jury instructions regarding an individual’s right to refuse to submit to breath testing. His third proposed instruction also stated that refusal does not prove the person was under the influence of alcohol or drugs. The Justice Court rejected the three instructions based on the State’s argument that they were inaccurate statements of law. ¶27 The court instructed the jury that a person’s refusal to submit to a breath test is admissible as evidence and may be the basis for an inference that the person was under the influence, but that the inference is rebuttable. That instruction accurately reflected the language of § 61-8-404(2), MCA. A trial court has discretion in formulating jury instructions; we will affirm if, as a whole, the instructions fully and fairly set forth the law applicable to the case. Ammondson v. Northwestern Corp., 2009 MT 331, ¶ 30, 353 Mont. 28, 220 P.3d 1. ¶28 The instructions given to Krenning’s jury do, as a whole, fully and fairly set forth the law applicable to Krenning’s refusal to take a breath test. We hold that the Justice Court did not err in refusing Krenning’s proposed instructions. ¶29 Affirmed. JUSTICES COTTER, WHEAT and RICE concur. The District Court analyzed this issue under the constitutional right to speedy trial, and concluded that the right was not violated. However, Krenning did not raise his constitutional right to speedy trial in Justice Court, where the statutory right applied.

JUSTICE COTTER delivered the Opinion of the Court. ¶1 Stephanie Healy filed for dissolution of her four-year marriage with John Healy in July 2002. Following a November 2003 dissolution hearing, the Second Judicial District Court approved a stipulated Final Parenting Plan and Property Settlement Agreement. As part of the Agreement, John paid $600 per month in child support for the couple’s two minor children. In November 2013, Stephanie requested modification of the child support arrangement. Following a hearing in November 2014, the District Court granted modification of the Agreement and increased John’s child support to $2,048 per month. John appeals. We affirm in part and vacate and remand in part. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Stephanie and John Healy were married in Butte, Montana, on September 26,1998. A daughter was born in June 1999, and a son was born in November 2000. On July 10,2002, Stephanie filed a petition for dissolution. The parties participated in a settlement conference on November 12, 2003, at the conclusion of which they entered into a Final Parenting Plan and Property Settlement Agreement (the Agreement). The Agreement was presented to and approved by the District Court. ¶3 The Agreement provided, in relevant part: 1. Stephanie and John would share parenting but Stephanie would be the primary custodial parent. 2. John would pay child support in the amount of $600/month ($300/child/month). 3. John would establish an irrevocable college trust account (College Trust) and deposit $1,000/year into the trust effective June 1, 2004. 4. Stephanie would deposit $300/year into the College Trust effective June 1, 2005. 5. John would provide health insurance for the children and both parents would divide any uninsured expenses. ¶4 Following the dissolution, John consistently made timely child support payments; however, he neglected to establish the College Trust. Rather, he deposited the mandated annual funds into his employment-related 401(k) plan for a period of time prior to transferring it to a segregated account at a federal credit union. Stephanie established two savings accounts in the children’s names and deposited her annual contributions into those accounts. ¶5 During the marriage, John worked, and continues to work, as a transmission operator at Northwestern Energy. Stephanie was, and continues to be, employed as an elementary school teacher at Butte Central Catholic School (BCCS). As a teacher, Stephanie’s children may attend BCCS at a 50% discounted tuition. Upon reaching school age, the children began attending BCCS and John and Stephanie cooperatively paid the annual tuitions for the school. John paid approximately 60% and Stephanie paid the remainder. In 2008, after Stephanie remarried, she and John agreed that John would pay their daughter’s school tuition and Stephanie would pay their son’s. This practice continued until 2012 when their daughter got braces. John agreed to pay for the braces and Stephanie agreed to pay both tuitions for school year 2012/2013 with the understanding that the tuitions for the 2013/2014 school year would revert to the 50/50 arrangement and remain so thereafter. ¶6 In November 2013, Stephanie applied to the Department of Health and Human Services (DPHHS) Child Support Enforcement Division (CSED) for review and modification of the ten-year-old Agreement. In January 2014, after obtaining relevant information from both parties and applyingthe Montana Child Support Guidelines, CSED calculated a monthly child support amount of $571/child/month, for a total of $1,142/month. John was to begin making these payments in February 2014. CSED served the modification notice and order on Stephanie and John, informing them that they had 20 days in which to object to the new terms. If neither objected, the modification would be submitted to the district court for approval and would become final. Neither party objected within 20 days and on March 24, 2014, CSED filed its modification motion with the District Court. ¶7 On April 2,2014, John filed an objection in District Court arguing that CSED used his 12-month salary to calculate his annual income but used only a 9-month salary for Stephanie. He asserted that some income should be imputed to Stephanie for the summer months. CSED defended its calculation asserting that Stephanie worked only 9 months/year and did not, and had not historically, earned income during the summer months so no imputation of additional income was required. CSED moved the District Court to adopt the modified child support order while John urged the court to reject it and remand the matter to CSED for recalculation. In accordance with § 40-5-277(8)(b), MCA, the District Court scheduled a hearing for May 30, 2014. This hearing was repeatedly continued before being held on November 17, 2014. ¶8 In June 2014, Stephanie learned that John had not paid their daughter’s tuition for school year 2013/2014. Consequently, in July 2014, while the modification hearing was pending, Stephanie asked CSED to recalculate John’s child support to include school tuition and submit a revised modification order for the court’s approval. In August 2014, CSED submitted a revised modification order that included John’s recalculated child support of $ 1,024/child/month, or a total of $2,048/month. John objected. ¶9 The District Court conducted a hearing on November 17, 2014. John initially argued that the court did not have jurisdiction over CSED’s August 2014 proposed modification because that proposal had not been subject to the administrative process. The District Court concluded it had jurisdiction to hear all issues raised before it and commenced the hearing. Both John and Stephanie testified. ¶10 John challenged the salary upon which CSED based his child support obligation. While he acknowledged that the annual salary CSED relied upon was derived from his year-end or near-year-end employment pay stubs from 2010-2013, he explained that during those years as well as in 2014, he worked considerable overtime hours at double-pay. However, he claimed that Northwestern intended to eliminate all overtime opportunities beginning in 2015. He argued that CSED should have calculated his child support obligation using his regular hourly wage multiplied by a maximum annual hours of 2,080. Stephanie testified that John had told her in 2003, when they were negotiating John’s initial child support, that he would “probably not be getting any more overtime.” ¶11 On April 16, 2015, the District Court issued its Findings of Fact, Conclusions of Law and Final Order (Final Order). The court found that the evidence presented supported CSED’s use of past earnings to calculate John’s child support. The court stated that John’s “assertions that he will not continue to earn overtime and that his wages would decrease in the future should not be considered by child support because they are speculative in nature.” The District Court ordered John to pay child support in the amount of $2,048/month, retroactive to February 2014. ¶12 The District Court further concluded that John’s failure to pay school tuition in accordance with the parties’ past practices constituted a substantial change in circumstances which justified modification of the 2003 Agreement. The court determined that a modification addressing, among other things, school tuition was necessary, appropriate, and in the best interests of the children. Turning to the College Trust, the District Court ordered the parties to establish a 529 plan account for each minor child. John was ordered to deposit $17,531.18, constituting his annual $1,000 contribution from June 1, 2004 through June 1, 2013, with 10% interest per annum. Stephanie was ordered to deposit $4,481.23, constituting $300 per year plus 10% interest per annum. The parties were to make their respective deposits within 60 days of the date of the court’s order. ¶13 John appeals. ISSUES ¶14 The issues on appeal are: ¶15 Did the District Court have jurisdiction to decide the CSED motion when there was no showing of changed circumstances so as to make the existing child support obligation unconscionable? ¶16 Did the District Court misapprehend the evidence when it made findings with respect to John’s future income potential? ¶17 Did the District Court err when it imposed a 10% interest penalty on the parents’ required College Trust contributions? STANDARD OF REVIEW ¶18 We review a district court’s findings of fact in parenting plans and child support orders to determine whether they are clearly erroneous. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record convinces us that the district court made a mistake. In re the Parenting of M. C., 2015 MT 57, ¶ 10, 378 Mont. 305, 343 P.3d 569. We review a district court’s conclusions of law to determine if they are correct. M.C., ¶ 10. ¶19 Whether a party is entitled to post-judgment interest is a conclusion of law which we review de novo. In re Marriage of Debuff, 2002 MT 159, ¶ 15, 310 Mont. 382, 50 P.3d 1070. DISCUSSION ¶20 Did the District Court have jurisdiction to decide the CSED motion when there was no showing of changed circumstances so as to make the existing child support obligation unconscionable? ¶21 The District Court in its Final Order indicated its jurisdiction derived from § 40-4-208, MCA, addressing modification of child support, and § 40-4-219, MCA, addressing amendments to a parenting plan. Section 40-4-208, MCA, provides in relevant part: (1) Except as otherwise provided in 40-4-201(6), a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of the motion for modification. (2)(b) Except as provided in 40-4-251 through 40-4-258, whenever the decree proposed for modification contains provisions relating to... support, modification under subsection (1) may only be made: (i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable; (ii) upon written consent of the parties; or (iii) upon application by [DPHHS], whenever [DPHHS] is providing services under Title IV-D of the federal Social Security Act. ... ¶22 Section 40-4-219, MCA, provides, in relevant part, that the district court “may in its discretion amend a prior parenting plan if it finds, upon the basis of facts that have arisen since the prior plan or that were unknown to the court at the time of entry of the prior plan, that a change has occurred in the circumstances of the child and that the amendment is necessary to serve the best interest of the child.” ¶23 John argues that the District Court did not have jurisdiction to hear CSED’s Motion to Approve Proposed Modification because Stephanie did not establish substantial and continuing changed circumstances that rendered the terms of the original Agreement unconscionable as required by § 40-4-208(2)(b)(i), MCA. In opposing CSED’s assertion that the District Court has jurisdiction under § 40-4-208(2)(b)(iii), MCA, John maintains that neither he nor Stephanie have been receiving Title IV-D services, or any other services, from CSED. ¶24 CSED argues that the District Court gained jurisdiction over the matter under both sections of § 40-4-208, MCA. Under § 40-4-208(2)(b)(i), MCA, CSED recounts multiple changed circumstances between the parties including, but not limited to, the passage of 10 years, the admission of the children into a tuition school, the changes in tuition over the years, the changes in the salaries of the parties, and John’s failure to pay the agreed-upon tuition. Under § 40-4-208(2)(b)(iii), MCA, CSED claims it was providing Title IV-D services to the couple. ¶25 Lastly, the agency claims that the court has jurisdiction under the statutory provisions of the administrative process set forth in § 40-5-201, et seq., MCA. While Chapter 4 of Title 40 (cited above) addresses the court’s role in the termination of marriage, child custody, and support, Chapter 5 of Title 40 addresses, among other things, the CSED’s regulatory and administrative role in establishing and enforcing court-approved or agency-issued child support orders. CSED notes that Stephanie’s application for modification was filed with CSED under § 40-5-272, MCA. As required by the statute, the agency reviewed the application to determine if it met the criteria for modification. The relevant sections of § 40-5-272, MCA, are: (1) Upon the application of the department, the obligor, or the obligee, a support order issued by a district court of this state ... may be reviewed by the department to determine whether the support order should be modified in accordance with the guidelines. (4) Criteria constituting sufficient grounds for review of a child support order include: (a) a substantial change in circumstances as defined by administrative rules; [or] (c) a lapse of 36 months from the date that: (i) the order was entered. ... ¶26 The CSED accepted review of the order under § 40-5-272(4)(c), MCA, based upon the 10-year lapse from the date the order was entered. Subsequently, and in accordance with § 40-5-273, MCA, CSED requested information from both parties for the purpose of calculating child support in accordance with the Child Support Guidelines. CSED then served both parties with the proposed modification order, informing them that they had 20 days in which to request a hearing. When no timely request for hearing was filed, the administrative law judge signed the modification and CSED submitted it to the District Court for approval. Section 40-5-277, MCA. ¶27 Section 40-5-277(8)(a), MCA, mandates, with exceptions and alternatives inapplicable to this case, that the original district court that approved the initial child support order must also approve the modified order. Section 40-5-277(8)(c), MCA, instructs that the district court may adopt, modify, or reject an administrative modified child support order. It may also remand the modified order to CSED with instructions. CSED posits that the District Court undertook review of this case specifically under the mandate set forth in § 40-5-277, MCA. ¶28 As § 40-5-277(8)(c), MCA, mandates that a district court review a CSED-modified child support order, the District Court unequivocally had the authority to adjudicate the issues before it. The record indicates that the District Court considered and acknowledged changes in the circumstances of the parties and the passage of time resulting in the children reaching school age and attending a tuition-required school. The District Court fulfilled its obligation to review CSED’s modification actions taken under § 40-5-272, MCA. ¶29 We therefore conclude the District Court had jurisdiction to decide the CSED motion under the authority granted by § 40-5-277, MCA. ¶30 Did the District Court misapprehend the evidence when it made findings with respect to John’s future income potential? ¶31 John argues that the District Court ignored his direct and uncontradicted testimony that he would no longer be earning overtime wages. We see no evidence that the court ignored relevant evidence or misapprehended the effect of the evidence before it. Rather, the District Court was presented with substantial and reasonable evidence of John’s actual earning power for the previous five years. Based upon John’s documented earnings and other factors, CSED calculated John’s child support obligation. Other than his oral testimony, John produced no evidence at the hearing to support his claim that his employer intended to eliminate all overtime opportunities beginning in 2015. Moreover, evidence was presented that in both 2003 and 2013 John stated he would no longer have overtime opportunities; however, he continued to earn substantial overtime pay subsequent to both such announcements. It is the District Court’s function to determine “the credibility of the witnesses and the weight assigned to their respective testimony.” Tubaugh v. Jackson, (In re C.J.), 2016 MT 93, ¶ 19, 383 Mont. 197, 369 P.3d 1028, citing In re the Parenting of N.S., 2011 MT 98, ¶ 25, 360 Mont. 288, 253 P.3d 863. Our review of the record confirms that the District Court did not misapprehend the effect of the evidence or clearly make a mistake in adopting CSED’s calculation of John’s child support. The District Court’s reliance on John’s past pay stubs to establish his child support obligation was not clearly erroneous. ¶32 However, the District Court abused its discretion by requiring John to pay $2,048/month retroactively to February 2014. Section 40-4-208(1), MCA, expressly states that increased child support payments may only be required “subsequent to actual notice ... of the motion for modification.” John received the notice of modification from CSED in mid-January 2014, in which he was informed that his child support may be increased to $1,142/month, and in accordance with Admin. R. M. 37.62.2119(5), would become effective in February 2014. John challenged the notice in District Court. Following numerous continuances to the scheduled hearing, and the discovery of new information, Stephanie requested a revision to her initial request for modification seekingthe inclusion of school tuition into the calculation. CSED filed a Notice to Court on August 15, 2014, requesting the court’s approval of a child support modification increasing John’s monthly child support obligation to $2,048/month. In accordance with § 40-4-208(1), MCA, the District Court was authorized to impose child support of $1,142/month effective in February 2014 and collectible through August 2014. Based upon CSED’s recalculation and re-notice in August 2014, the court was authorized to require a child support payment of $2,048/month beginning in September 2014. We therefore vacate the District Court’s order requiring John to pay $2,048/month retroactive to February 2014 and remand for an amended order in accordance with this Opinion. ¶33 Did the District Court err when it imposed a 10% interest penalty on the parents’ required College Trust contributions? ¶34 Section 25-9-205, MCA, provides a statutory right to post-judgment interest, stating, in relevant part: “(1) Except as provided in subsection (2), interest is payable on judgments recovered in the courts of this state and on the cost incurred to obtain or enforce a judgment at the rate of 10% per year. The interest may not be compounded.” This statute has been applied repeatedly in marital dissolution cases involving support and maintenance. In In re Marriage of Gibson, 206 Mont. 460, 671 P.2d 629 (1983), Husband agreed in the parties’ settlement agreement to pay Wife $7,500 on a given date. When Husband failed to pay, Wife sought enforcement of the agreement. Gibson, 206 Mont. at 461-62, 671 P.2d at 630-31. On appeal, we held that Husband was liable for statutory interest under § 25-9-205, MCA, from the date payment was due through the date payment was made. Gibson, 206 Mont. at 467, 671 P.2d at 633. See also In re Marriage of Pospisil, 2000 MT 132, 299 Mont. 527, 1 P.3d 364. The District Court determined that under the 2003 Parenting Agreement both John and Stephanie were obligated to make annual deposits into the College Trust on specific dates. However, because the College Trust was not established, neither party made timely payments into it. As a consequence, the delinquent payments became a money judgment subject to the statutory interest established in § 25-9-205, MCA. The District Court correctly interpreted and applied that statute and did not err in requiring both parties to pay interest into the delinquently-established College Trust. CONCLUSION ¶35 For the foregoing reasons, we affirm the District Court’s rulings with the exception of the court’s retroactive application of $2,048/month child support beginning in February 2014. John is required to pay $1,142/month retroactive to February 2014 and through the month of August 2014. He is required to pay $2,048/month retroactive to September 2014. We remand this matter to the District Court for the issuance of a revised order in accordance with this Opinion. CHIEF JUSTICE McGRATH, JUSTICES BAKER, WHEAT and RICE concur.

Affirmed Dist. 1 (Lewis and Clark)

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 R.H. appeals from an involuntary commitment order entered by the Thirteenth Judicial District Court, Yellowstone County, on October 14, 2015. The order committed R.H. to the Montana State Hospital for a period not to exceed three months and ordered the use of involuntary medication, if needed. We affirm the order for commitment and reverse the administration of involuntary medication. ¶2 R.H. presents the following issues for review: 1. Whether there was sufficient evidence to support the commitment of R.H. 2. Whether the District Court erred in authorizing involuntary medication. FACTUAL AND PROCEDURAL BACKGROUND ¶3 R.H., age 72, suffers from bipolar disorder and general anxiety disorder. She takes medication for her mental illnesses. R.H. also has physical infirmities, including chronic obstructive pulmonary disease, congestive heart failure, hypertension, hyperlipidemia, diabetes and gout. She is being treated with oxygen, insulin, and other medications. In September of 2015, R.H. was evicted from her senior-living apartment at Pleas antview after having multiple altercations with her neighbors. Following her eviction, R.H.’s adult son paid for one week’s lodging at a motel. However, as of October 6, 2015, R.H. had nowhere to go and her son was unsuccessful in securing other living arrangements. R.H. lives on a limited fixed income controlled by a conservator, Joyce Wuertz (Wuertz). ¶4 On October 6, 2015, R.H.’s son and Wuertz contacted R.H.’s treating physician, Dr. Amstutz, because they were concerned about where R.H. was going to live and that R.H. was exhibiting mood swings and other symptoms of her bipolar disorder. Further, R.H. had made a suicidal comment and did not appear to understand that her finances prevented her from continuing to stay in a hotel. Dr. Amstutz requested that R.H. be picked up by law enforcement and transported to the Billings Clinic Psychiatric Center for evaluation. ¶5 Upon admission to the Billings Clinic, R.H. was evaluated by Dr. Schuett. Dr. Schuett determined R.H. suffered from a mental disorder and needed treatment. Thereafter, the Yellowstone County Attorney’s Office filed a petition on October 8, 2015, to involuntarily commit R.H. At the initial hearing held October 9, 2015, the court found probable cause to believe R.H. was suffering from a mental disorder which might need commitment, and set trial on the State’s petition for October 14, 2015. The court appointed R.H. counsel and subsequently appointed, on October 13, 2015, Bonnie Karinen (Karinen) to evaluate R.H. Karinen is a nurse practitioner with an emphasis in psychiatry. ¶6 On October 13, 2015, Karinen filed a report with the court describing R.H.’s moods as labile; that R.H. exhibited grandiose thoughts and irrational decision-making; and that R.H. easily became irritable or cried. Karinen concluded R.H. suffered from a mental disorder requiring commitment because R.H. was unable to care for herself. During the hearing on October 14, 2015, Karinen testified consistent with her report and added that she believed the court should order involuntary medication for R.H. Karinen explained, “[i]n most cases for the safety of the patient and possibly others, you know, we usually do recommend [involuntary medication], and I would in this case, too.” Karinen testified, however, that R.H. had no history of refusing her medication and that, at the time, R.H. was compliant and had been taking her medication as directed. ¶7 The evidence produced at trial established that R.H. either applied for or otherwise considered multiple types of housing, including Section 8 or HUD housing, hotels, nursing homes, assisted living, a crisis center, and a friend’s home. In each instance, R.H. was unsuccessful in securing housing, either because her request was denied or not responded to, or because R.H., herself, was uncooperative. Karinen testified that, “once a patient is a patient in the psychiatric center when we sen[d] the records, especially if there is any behavioral issues, it's highly unlikely that any [nursing home] will take her.” ¶8 Following the hearing, the District Court issued its Finding of Facts, Conclusion of Law and Order. The District Court found that R.H. suffered from a mental disorder; was unable to care for herself; the Montana State Hospital was the least restrictive treatment option available to R.H.; and that administration of medication “may be necessary to facilitate treatment” for R.H. The court reasoned that, “because of her mental disorder, she could abruptly decide not to take her medications.” STANDARD OF REVIEW ¶9 We review a civil commitment order by a district court to determine whether its conclusions of law are correct and whether the court’s findings of fact are clearly erroneous. In re Mental Health of L.K.-S., 2011 MT 21, ¶ 14, 359 Mont. 191, 247 P.3d 1100. “A finding of fact is clearly erroneous if‘it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence or if, after a review of the entire record, we are left with the definite and firm conviction that a mistake has been made.’ ” In re C.R., 2012 MT 258, ¶ 12, 367 Mont. 1, 289 P.3d 125 (quoting L.K.-S., ¶ 14). ¶10 “Whether a district court’s findings of fact satisfy statutory requirements is a question of law.” In re S.M., 2014 MT 309, ¶ 13, 377 Mont. 133, 339 P.3d 23. “We have long emphasized the necessity of ‘strict adherence’ to the statutory scheme governing involuntary commitment, given the utmost importance of the rights at stake in such proceedings, and the ‘calamitous effect of a commitment, including loss of liberty and damage to a person’s reputation.’ ” In re B.D., 2015 MT 339, ¶ 7, 381 Mont. 505, 362 P.3d 636 (citation omitted). DISCUSSION ¶11 1. Whether there was sufficient evidence to support the commitment of R.H. ¶12 The District Court concluded, relying on § 53-21-126(1)(a), MCA, that R.H. could not meet her “basic needs.” Basic needs are “food, clothing, shelter, health, or safety.” Section 53-21-126(1)(a), MCA. When committing a person pursuant to § 53-21-126(1)(a), MCA, the court must find that the person suffers from a mental disorder and that “because of a mental disorder, is substantially unable to provide for the [person’s] own basic needs[.]” (Emphasis added.) ¶13 It is undisputed that R.H. has a mental disorder and is currently unable to meet her own basic needs; specifically, R.H. is unable to find housing. R.H. argues, however, that her inability to find housing is not because of her mental disorder. R.H. maintains that she is simply a person with a mental disorder who is having a housing crisis; not that she is homeless because she has a mental disorder. R.H. believes that her inability to find housing is due to her lack of family support and financial resources. ¶14 We will only disrupt a district court’s finding of fact and conclusions of law if we determine factual findings are clearly erroneous or legal conclusions are incorrect. L.K.-S., ¶ 14. The District Court found that R.H. was unable to meet her basic needs. Testimony established that R.H. suffers from bipolar disorder which is characterized by fluctuating mood swings frequently exhibited by symptoms of mania and depression. Bipolar disorder is incurable, but treatable with medication, therapy, and the assistance of social supports. R.H. exhibited symptoms typical of a bipolar disorder by being irritable, frequently emotionally disturbed, and having irrational thoughts, paranoia, poor insight, and poor decision-making ability. The State produced evidence that R.H. was unaware of her financial limitations regarding housing options; that R.H.’s disorganized thoughts prevented R.H. from caringfor herself; and that R.H.’s beliefs that she would soon find housing were fanciful, at best. ¶15 After careful review of the record, we conclude the District Court correctly determined that R.H. was unable to provide for her basic need of shelter because of her mental disorder and that the requirements of § 53-21-126(1)(a), MCA, were therefore satisfied. R.H. was evicted because of problems she was having with her neighbors which were a result of her mental disorder. There was substantial evidence to support the District Court’s conclusion that R.H.’s bipolar disorder and history of conflict with neighbors prevented R.H. from obtaining and securing housing. We reject R.H.’s argument that the District Court committedher simply because she was homeless; rather, the District Court correctly concluded that R.H’s inability to find shelter was because of her mental disorder. ¶16 2. Whether the District Court erred in authorizing involuntary medication. ¶17 The District Court held in its Finding of Facts and Conclusion of Law that involuntary medication “may be necessary to facilitate treatment.” R.H. argues that the evidence does not support a finding of actual necessity to authorize involuntary medication. The State maintains that whether involuntary administration of medication “is necessary” must be considered within the context of the statute as a whole. Specifically, the State argues that § 53-21-127(6), MCA, sets forth three distinct levels of authority which must be met before medication is involuntary administered: (1) the district court’s authorization, (2) approval by the chief medical officer or designated physician, and (3) review by the involuntary medication review committee. Accordingly, the State maintains R.H.’s construction of the statute is too narrow and, as a practical matter, district courts do not ultimately make the decision as to whether involuntary medication should be administered. ¶18 We have held that due to the constitutional rights at stake during an involuntary commitment, we require “’strict adherence’ to the statutory scheme.” In re C.R., 2012 MT 258, ¶ 13, 367 Mont. 1, 289 P.3d 125; In re R.W.K., 2013 MT 54, ¶ 18, 369 Mont. 193, 297 P.3d 318. Pursuant to § 53-21-127(6), MCA, “[t]he court may authorize the chief medical officer of a facility or a physician designated by the court to administer appropriate medication involuntarily if the court finds that involuntary medication is necessary to protect the respondent or the public or to facilitate effective treatment.” (Emphasis added.) If a commitment order includes involuntary medication, the court “shall make [a] ... finding of fact [establishing] ... the reason involuntary medication was chosen from among other alternatives.” Section 53-21-127(8)(h), MCA. ¶19 Here, the District Court did not find that involuntary medication “is necessary;” rather, the District Court found that involuntary medication “may be necessary to facilitate treatment.” The District Court concluded that although “[s]he has taken her medications while detained at the Clinic, but because of her mental disorder, she could abruptly decide not to take her medications.” Indeed, while we determine the District Court’s conclusion incorrectly applied the law, it was consistent with the evidence that involuntary medication, while not currently necessary, may become necessary in the future. Karinen explained Q What is your opinion on the involuntary administration of medication facility treatment? Do you believe the Court should order that? A Yes. In most cases for the safety of the patient and possibly others, you know, we usually do recommend that, and I would in this case, too. Q But [R.H.] hasn’t been declining to take her medication? A No, she has been very compliant with her treatment. Q So [R.H.] suffers from a mental disorder? A Yes. Q She suffers from a bipolar disorder? A Yes. Q Because of her bipolar disorder she is unable to care for herself? A Yes. Q Because of her bipolar disorder she may be a threat to herself? A Yes. Q And you believe the least-restrictive treatment option available to her is the Montana State Hospital at this time? A Unfortunately, yes. Q And you’d recommend the involuntary administration of medication to facilitate treatment? A Yes. ¶20 Despite support in the record that involuntary medication “may be necessary” in the future and the District Court’s conclusion to the same effect, such a finding and conclusion does not satisfy the statute’s clear requirement that before involuntary medication is ordered by a court, the court must find that medication “is necessary.” Nor does the tiered level of review provided in subsection (8) of § 53-21-127, MCA, dilute the statutory requirement and obligation of the court to find that involuntary medication “is necessary.” “[T]he office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible to be adopted as will give effect to all.” Section 1-4-101, MCA. Accordingly, we will not alter the clear words of the statute by declaring that “is necessary” means “may be necessary,” as to do so would violate maxims of jurisprudence and the plain language of the statute. ¶21 Based upon the record before us, R.H. had never refused to take her medication and, in fact, had been compliant in taking her medication while at the Billings Clinic and detained awaiting her trial. A finding or general understanding that an individual with bipolar disorder may at some undisclosed future point in time decide not to take her medications is insufficient to satisfy the plain language of the statute requiring that involuntary medication “is necessary.” Had a standard other than “is necessary” been the goal and intent of the legislature when it addressed forced medication of mentally ill individuals, the legislature could have provided as much. Instead, it chose to use “is necessary” rather than “may be necessary,” clearly implying a heightened standard of consideration before involuntary medication may be utilized. This is consistent with other statutory sections contained within Title 53, chapter 21, MCA, pertaining to the mentally ill. The legislature sought to enhance protection against forced medication of the mentally ill by enacting § 53-21-145, MCA, specifically declaring that “[platients have the right to be free from unnecessary or excessive medication.” Accordingly, we have little difficulty strictly enforcing the statutory requirement that there must be evidence supporting a finding and conclusion that involuntary medication “is necessary.” A finding and conclusion that in the future a person may become noncompliant is insufficient to meet this statutory requirement. We find no basis on the record before us to conclude that R.H. would not take her medication and that it was necessary for the court to issue an order forcing her to do so. ¶22 Finally, we observe that should necessity for involuntary medication arise subsequent to entry of the commitment order, there are no statutory provisions which would prevent issuance of an order authorizing involuntary medication under such circumstances, provided due process demands have been satisfied. CONCLUSION ¶23 We conclude there was sufficient evidence to support R.H.’s involuntary commitment and affirm the commitment order. We reverse the portion of the order authorizing involuntary medication because there was insufficient evidence to support the requirement that an involuntary medication order was necessary and the District Court erred in concluding the statute did not require involuntary medication was necessary. CHIEF JUSTICE McGRATH, JUSTICES SHEA, BAKER and RICE concur. This appeal is not moot. Appeals from judgments of civil commitment are not rendered moot by expiration of the commitment. In re Mental Health of D.V., 2007 MT 351, ¶¶ 31-32, 340 Mont. 319, 174 P.3d 503.

Affirmed Dist. 4 (Missoula)

Affirmed Dist. 11 (Flathead)

Denied Original Proceeding Mandamus

Granted in Part Original Proceeding Extraordinary Relief

Denied Original Proceeding Habeas Corpus

Affirmed Dist. 18 (Gallatin)

Affirmed Dist. 2 (Butte-Silver Bow)

JUSTICE WHEAT delivered the Opinion of the Court. ¶1 Kyle Wade Nelson (Nelson) appeals from the District Court’s denial of his motion to suppress. We affirm. ¶2 We restate the issue on appeal as follows: Did the District Court err when it denied defendant’s motion to suppress? FACTUAL AND PROCEDURAL BACKGROUND ¶3 On July 25, 2015, Kittrell Saunders (Saunders), a waitress, called 911 to report a drunk individual driving away from a restaurant. Saunders called 911 while a coworker, Justin Sharbono (Sharbono), watched the individual leave the restaurant, get in his vehicle, and drive away. Saunders reported her first and last name, the location of where she was calling from, her place of employment, a make, model, and license plate number of the vehicle, as well as the location of travel. Saunders reported Sharbono’s name and that they were both willing to sign a complaint about what they witnessed. Saunders spoke with both the 911 operator and Sharbono simultaneously. Saunders informed dispatch that the man was “walking into stuff, and he was going all over the place. He couldn’t walk in a straight line to save his life, and then he got in the, stumbled around and got in the vehicle.” Sharbono, while not the caller, could be heard by the dispatcher say, “he just bounced off that wall.” ¶4 Montana Highway Patrol Trooper Luke Burson was on patrol in the area when he received the report from dispatch. Eleven minutes after the initial report, Trooper Burson located the van in a hotel parking lot. He observed the vehicle drive from the check-in area to a spot in the parking lot. Trooper Burson activated his lights and made contact with the driver, Nelson. Trooper Burson conducted a driving under the influence (DUI) investigation after he smelled alcohol on Nelson. Trooper Burson arrested Nelson for DUI. ¶5 On July 25, 2015, the Missoula County attorney charged Nelson with DUI. In the Justice Court, Nelson filed a motion to suppress evidence of the stop based on Trooper Burson’s lack of particularized suspicion based on an informant’s tip. The State responded and an evidentiary hearing was held. The Justice Court granted Nelson’s motion. The State appealed to the District Court, which reviewed the issue de novo. Nelson filed a motion to suppress, again arguing particularized suspicion did not exist and the “Pratt factors” were not met in order to create particularized suspicion based on Saunders’ and Sharbono’s report. The State responded and the District Court held an evidentiary hearing on May 9,2016. Saunders, Sharbono, and Trooper Burson testified at the hearing. The District Court denied Nelson’s motion. Nelson entered a nolo contendere plea pursuant to a plea agreement in which he reserved the right to appeal the denial of his motion to suppress. Nelson appeals. STANDARD OF REVIEW ¶6 We review a district court’s denial of a motion to suppress to determine whether the court's findings are clearly erroneous and whether those findings were applied correctly as a matter of law. State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60. DISCUSSION ¶7 Did the District Court err when it denied defendant’s motion to suppress? ¶8 Nelson argues the District Court erroneously denied his motion to suppress the evidence of the stop. Specifically, Nelson argues the citizen informant’s tip was unreliable and that Trooper Burson did not have particularized suspicion to conduct an investigatory stop. The State asserts Trooper Burson was provided with a reliable citizen informant’s tip which created the particularized suspicion necessary to conduct an investigatory stop. ¶9 Both the United States Constitution and the Montana Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; Mont. Const. art. II, § 11. Under Montana law, a law enforcement officer “may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.” Section 46-5-401(1), MCA; State v. Peters, 2011 MT 274, ¶ 57, 362 Mont. 389, 264 P.3d 1124; Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, ¶ 12, 289 Mont. 1, 961 P.2d 75. ¶10 Particularized suspicion exists when an officer has “objective data and articulable facts from which an officer can make certain inferences, and a resulting suspicion that the subject is, or has been, engaged in wrongdoing.” City of Missoula v. Moore, 2011 MT 61, ¶ 16, 360 Mont. 22, 251 P.3d 679. Whether particularized suspicion exists is a question of fact, which is evaluated under the totality of the circumstances. Gill, ¶ 15. When evaluating the totality of the circumstances a court considers the quantity or content of the information available and the quality or degree of reliability of that information. Gill, ¶ 15. ¶11 An arresting officer may rely on information conveyed by a reliable third person to form the particularized suspicion necessary to justify an investigative stop. State v. Pratt, 286 Mont. 156, 162, 951 P.2d 37, 41 (1997). To determine the reliability of a third person report and thus the sufficiency of an officer’s particularized suspicion based on that report, this Court has adopted three factors to use in its evaluation. State v. Clawson, 2009 MT 228, ¶ 11, 351 Mont. 354, 212 P.3d 1056 (citing Pratt, 286 Mont. at 164-65, 951 P.2d at 42-43). The factors are: (1) whether the informant identified herself to the authorities; (2) whether the informant’s report is based on personal observation; and (3) whether the officer’s observations corroborate the informant’s information. Pratt, 286 Mont. at 164-65, 951 P.2d at 42-43. ¶12 Nelson argues, contrary to the facts in the record, that Saunders’ report was unreliable because she did not identify herself, she was not the personally observing party, and that she was not willing to sign a complaint. Nelson argues Sharbono’s report was insufficient to believe Nelson was drunk. Therefore, the citizen informant’s tip was insufficient to give Trooper Burson particularized suspicion for an investigatory stop. ¶13 The first Pratt factor is whether the informant identified herself to the authorities. Pratt, 286 Mont. at 165, 951 P.2d at 42. An informant’s tip may be considered more reliable where the citizen identifies himself or herself, thus exposing himself to civil and criminal liability. State v. Foster, 2017 MT 118, ¶ 13, 387 Mont. 402, 394 P.3d 916 (citing Pratt, 286 Mont. at 165, 951 P.2d at 42). However, a citizen reporter is not required to self-identify or provide specific pieces of personal information in order for the report to be deemed reliable. Foster, ¶ 13 (citing State v. Brander, 2004 MT 150, 321 Mont. 484, 92 P.3d 1173; State v. Lee, 282 Mont. 391, 395, 938 P.2d 637, 640 (1997)). A citizen reporter is not required to sign or be willing to sign a complaint in order for the report to be considered reliable. See City of Missoula v. Tye, 2016 MT 153, ¶ 3, 384 Mont. 24, 372 P.3d 1286. ¶14 Nelson concedes Sharbono’s report satisfies the first factor because he was identified and willing to sign a complaint that Nelson was drunk. However, Nelson contests the reliability of Saunders’ report. As the record disclosed, Saunders told and spelled to dispatch her first and last name, agreed to sign a complaint, provided her place of work and stated she could be reached there. Saunders testified at the evidentiary hearing to the above. This Court does not require a citizen informant to identify himself or herself or be willing to sign a complaint in order for the report to be deemed reliable. Here, Saunders both identified herself and was willing to sign a complaint. The District Court’s finding that the first Pratt factor was satisfied is supported by substantial evidence and is not clearly erroneous. ¶15 The second Pratt factor is whether the informant’s report is based on personal observation. Pratt, 286 Mont. at 165, 951 P.2d at 42. An officer is allowed to infer that a report is based on a citizen informant’s personal observations if “the report contains sufficient detail that it is apparent that the informant has not been fabricating the report out of whole cloth and the report is of the sort which in common experience may be recognized as having been obtained in a reliable way.” Moore, ¶ 21. A citizen informant’s belief that a person is DUI must be based on his or her personal observations. Moore, ¶ 21. Innocent details, personally observed by the citizen informant, are also relevant in assessing the reliability of the report. Moore, ¶ 21. ¶16 Nelson argues Saunders’ and Sharbono’s personal observations are insufficient to allow Trooper Burson to infer the observations were made personally. Nelson argues because Saunders relayed Sharbono’s personal observations the report was insufficiently based on personal observations. ¶17 This Court has determined that a report is made on personal observations sufficient to create particularized suspicion when a citizen informant relays information from a third party who is contemporaneously observing the behavior of the individual in question. See Pratt, 286 Mont. at 166, 951 P.2d at 43. Recently, this Court reviewed this issue in State v. Zietlow, 2017 MT 148, ¶ 13, 388 Mont. 26, 396 P.3d 740. Similar to Saunders’ and Sharbono’s report, the caller in Zietlow related information regarding a possible drunk driver to the dispatcher which was relayed to her by a coworker and the caller relayed her own personal observations to the dispatcher. Zietlow, ¶ 13. This Court determined the report was sufficient to satisfy Pratt because “the circumstances clearly establish the conduct was occurring as [caller] was talking to dispatch and that [caller] was relating what [coworker] was contemporaneously reporting and observing,” and that separate calls by each to law enforcement were not necessary. Zietlow, ¶ 13. ¶18 Here, Saunders was on the phone with the dispatcher while Sharbono watched Nelson drive away. Saunders spoke with both Sharbono and the dispatcher, contemporaneously relaying information from Sharbono. In fact, while Sharbono was not the caller, dispatch could hear him over the phone state that “he just bounced off that wall.” Saunders then informed dispatch that she observed the man “walking into stuff, and he was going all over the place. He couldn’t walk in a straight line to save his life, and then he got in the, stumbled around and got in the vehicle.” The District Court’s finding that the report was based on the personal observations of Saunders and Sharbono is supported by substantial evidence and is not clearly erroneous. ¶19 The third Pratt factor is whether the officer’s observations corroborate the informant’s information. Pratt, 286 Mont. at 165, 951 P.2d at 43. An officer corroborates an informant’s report by observing illegal activity or by finding “the person, the vehicle, and the vehicle’s location substantially as described by the informant.” Gill, ¶ 30 (citing Pratt, 286 Mont. at 165, 951 P.2d at 43). Where the first and second factors have been satisfied, an officer may corroborate the citizen informant’s report by observing wholly innocent behavior. Gill, ¶ 30. Nelson argues that the first two Pratt factors were not satisfied; therefore, Trooper Burson was required to observe independently illegal activity or evidence of impairment to form particularized suspicion before making the investigatory stop. Pratt, 286 Mont. at 168, 951 P.2d at 44. ¶20 We determined above that the District Court’s findings were not clearly erroneous and were based on substantial evidence when it determined the first two Pratt factors had been satisfied. Therefore, Trooper Burson could corroborate Saunders’ and Sharbono’s report by observing wholly innocent behavior. Nelson concedes that Trooper Burson corroborated Saunders’ description of the vehicle and license plate number, its location, and its direction of travel. The District Court’s finding that the third Pratt factor was satisfied is supported by substantial evidence and is not clearly erroneous. CONCLUSION ¶21 Based on the totality of the circumstances, we conclude that the District Court’s determination that particularized suspicion existed is not clearly erroneous. Saunders’ and Sharbono’s report contained sufficient indicia of reliability to form the basis for Trooper Burson’s particularized suspicion. The District Court did not err in denying Nelson’s motion to suppress. ¶22 Affirmed. CHIEF JUSTICE McGRATH, JUSTICES BAKER, SANDEFUR and SHEA concur.

JUSTICE BAKER delivered the Opinion of the Court. ¶1 Donald Theeler physically assaulted his girlfriend, causing her numerous injuries. He sought to dismiss his Partner or Family Member Assault (PFMA) charge on the ground that the statute under which he was charged violated his right to equal protection because it did not apply to persons in same-sex intimate relationships. The Eleventh Judicial District Court upheld the Justice Court’s denial of his motion. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In September 2012, Theeler was arrested after his girlfriend reported that he had “been beating on her all night.” The State charged Theeler in Flathead County Justice Court with PFMA pursuant to § 45-5-206, MCA (2011). At that time, the statute defined “partners,” in part, as “persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex.” Section 45-5-206(2)(b) (2011). In 2013, the Legislature struck “with a person of the opposite sex” from the definition of “partners.” 2013 Mont. Laws 803, 804. ¶4 Theeler filed a motion to dismiss the PFMA charge. He argued that § 45-5-206, MCA, violated his right to equal protection under the United States and Montana constitutions because the statute treated similarly-situated individuals unequally. The Justice Court denied the motion, reasoning that there was “not a difference in treatment under the law for equal protection purposes.” The Justice Court found Theeler guilty. He appealed to the District Court. The District Court concluded that the Justice Court correctly analyzed Theeler’s equal protection claim and therefore affirmed its denial of Theeler’s motion to dismiss. Theeler appeals. STANDARDS OF REVIEW ¶5 We review cases that originate in justice court and are appealed to district court as if the appeal originally had been filed in this Court. State v. Kebble, 2015 MT 195, ¶ 14, 380 Mont. 69, 353 P.3d 1175. Accordingly, we undertake an independent examination of the record apart from the district court’s decision. Kebble, ¶ 14. ¶6 We review de novo a trial court’s decision on a motion to dismiss. State v. Kant, 2016 MT 42, ¶ 11, 382 Mont. 239, 367 P.3d 726. Our review of constitutional questions is plenary. State v. Covington, 2012 MT 31, ¶ 13, 364 Mont. 118, 272 P.3d 43. We may uphold a judgment on any basis supported by the record, even if the lower court applied a different rationale. Rooney v. City of Cut Bank, 2012 MT 149, ¶ 25, 365 Mont. 375, 286 P.3d 241. DISCUSSION ¶7 Whether Theeler was entitled to dismissal of the PFMA charge because the statute violated his constitutional right to equal protection. ¶8 The Justice Court reasoned that § 45-5-206, MCA, did not violate Theeler’s right to equal protection because the statute does not treat similarly-situated individuals unequally. The District Court affirmed the Justice Court’s interpretation of the statute. ¶9 On appeal, Theeler asserts that § 45-5-206, MCA, “by its plain terms,” discriminates between similarly-situated individuals in opposite-sex and same-sex relationships. Such a discriminatory classification, Theeler contends, violates the equal protection clauses of the United States and Montana constitutions. Theeler argues that the statute fails even rational basis review because the classification—sexual orientation—is not rationally related to the statute’s primary purposes—to protect victims of domestic violence and to punish abusers. ¶10 Theeler acknowledges that he was not in a same-sex relationship, but points out that the statute exposes him to greater punishment than a same-sex abuser would face if charged with simple assault. Theeler argues that the statute facially discriminates against similarly-situated classes without justification. He relies, in part, on our decisions in Snetsinger v. Montana University System, 2004 MT 390, 325 Mont. 148, 104 P.3d 445, and Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997), and on the United States Supreme Court’s decisions in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003), Obergefell v. Hodges, _ U.S. _, 135 S. Ct. 2584 (2015), and United States v. Windsor, _ U.S. _, 133 S. Ct. 2675 (2013), to support his position. He also cites empirical evidence showing similar or higher incidence of domestic violence among same-sex partners as among heterosexual partners. Because the statute unconstitutionally violates his right to equal protection, Theeler argues that his conviction must be reversed. ¶11 For purposes of Theeler’s appeal, and based upon the cited authorities, we accept his argument that the former version of § 45-5-206, MCA, under which he was charged violated equal protection by defining “partners” as “persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex.” It does not necessarily follow, however, that Theeler’s PFMA conviction cannot stand. ¶12 Whenever possible, we attempt to “construe statutes in a manner that avoids unconstitutional interpretation.” Williams v. Bd. of Cnty. Comm’rs, 2013 MT 243, ¶ 64, 371 Mont. 356, 308 P.3d 88. So, if a statute “contains both constitutional and unconstitutional provisions, we examine the legislation to determine if there is a severability clause.” Williams, ¶ 64; accord United States v. Jackson, 390 U.S. 570, 585, 88 S. Ct. 1209, 1218 (1968) (applying severability in a criminal case and concluding that the “unconstitutionality of a part of an Act does not necessarily defeat... the validity of its remaining provisions”) (citation and internal quotations omitted). “The inclusion of a severability clause in a statute is an indication that the drafters desired a policy of judicial severability to apply to the enactment.” Williams, ¶ 64. If a statute does not contain a severability clause, we still may sever an unconstitutional provision. Williams, ¶ 64. In doing so, we “must determine whether the unconstitutional provisions are necessary for the integrity of the law or were an inducement for its enactment.” Williams, ¶ 64 (citation and internal quotations omitted). In order to sever an unconstitutional provision, “the remainder of the statute must be complete in itself and capable of being executed in accordance with the apparent legislative intent.” Williams, ¶ 64. That is, if severing “the offending provisions will not frustrate the purpose or disrupt the integrity of the law, we will strike only those provisions of the statute that are unconstitutional.” Williams, ¶ 64. We have long held that “[i]f an invalid part of a statute is severable from the rest, the portion which is constitutional may stand while that which is unconstitutional is stricken out and rejected.” Sheehy v. Public Employees Retirement Div., 262 Mont. 129, 141, 864 P.2d 762, 770 (1993); Mont. Auto. Ass’n v. Greely, 193 Mont. 378, 399, 632 P.2d 300, 311 (1981). ¶13 Here, the statute as originally enacted contained a severability clause. 1985 Mont. Laws 1575, 1577. A 1995 bill that partially amended the statute’s definition of “partners” also included a severability clause. 1995 Mont. Laws 1108, 1128. These severability clauses indicate that the Legislature “desired a policy of judicial severability to apply to the enactment” of § 45-5-206, MCA. Williams, ¶ 64. ¶14 With or without severability clauses in each amendment since the statute’s enactment, we conclude that the unconstitutional provision is unnecessary “for the integrity of the law.” Williams, ¶ 64. It is undisputed that the purpose of § 45-5-206, MCA, is to protect victims of domestic violence and to punish and rehabilitate abusers. Severing the phrase “with a person of the opposite sex” from § 45-5-206(2)(b), MCA—as the Legislature did in 2013—“will not frustrate the purpose or disrupt the integrity of the law.” Williams, ¶ 64. Further, severing the unconstitutional provision so as to construe the statute “in a manner that avoids unconstitutional interpretation” leaves the “remainder of the statute . . . complete in itself and capable of being executed in accordance with the apparent legislative intent.” Williams, ¶ 64. The statute still would protect victims of domestic violence and provide for the punishment and rehabilitation of abusers. ¶15 We reject Theeler’s claims to the contrary. We are not persuaded by his argument that severing the offending provision violates his right to due process. As a heterosexual male, Theeler received every constitutional protection he was due when prosecuted for physically assaulting his female partner. We conclude that Theeler was not entitled to dismissal of his PFMA charge. Accordingly, even though we do so applying a different rationale, we conclude that the Justice Court and the District Court correctly denied Theeler’s motion to dismiss. CONCLUSION ¶16 We affirm Theeler’s PFMA conviction. CHIEF JUSTICE McGRATH, JUSTICES WHEAT, SHEA, COTTER and RICE concur. Unless otherwise noted, all subsequent citations to § 45-5-206, MCA, in this Opinion refer to the 2011 version of the statute.

JUSTICE SHEA delivered the Opinion of the Court. ¶1 Carl R. Shepp appeals an order of the Twenty-First Judicial District Court, Ravalli County, denying his motion to suppress the results of a blood test that led to his conviction for Driving Under the Influence (DUI). We address the following issue: Whether or not the District Court erred by denying Shepp’s motion to suppress the results of his blood test. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On September 19, 2014, Ravalli County Deputy Sheriff Gordy Jessop pulled Shepp over after observing Shepp fail to signal a turn. Deputy Jessop asked Shepp if he had been drinking, and Shepp responded that he had “five or six beers” before driving. Deputy Jessop conducted a series of field sobriety tests and asked Shepp to consent to a preliminary breath test. Shepp refused. Deputy Jessop then asked Shepp to consent to a blood test at Marcus Daly Memorial Hospital in Hamilton. After several minutes of indecision, Shepp stated: “Sure, I’ll take the blood test.” Deputy Jessop helped Shepp into his patrol car and explained the blood test procedure, to which Shepp responded: “Yes, sir.” ¶4 When he arrived at the hospital, Shepp was given a “Patient Consent and Financial Agreement” (Patient Consent Form) to sign. The Patient Consent Form provided: “I consent to the treatment and procedures to be performed in connection with my inpatient, outpatient and/or emergency medical treatment at Marcus Daly Memorial Hospital....” After Shepp studied the Patient Consent Form for several minutes without signing it, Deputy Jessop took it from him and signed on the signature line. Seconds later, Shepp’s blood was drawn. Shepp did not verbally or physically resist the blood test. ¶5 On September 19, 2014, the State charged Shepp in the Ravalli County Justice Court with DUI in violation of § 61-8-401, MCA. Shepp filed a motion to suppress the results of his blood test, which the Justice Court denied. Shepp then pled guilty, reserving his right to appeal the Justice Court’s denial of his motion to suppress. On May 14, 2015, Shepp filed a notice of appeal in the District Court. On June 18, 2015, Shepp filed a motion to suppress, asking the District Court to suppress the results of his blood test and dismiss the case. On July 13, 2015, the District Court held a suppression hearing, during which both Shepp and Deputy Jessop testified. On July 20, 2015, the District Court issued an order denying Shepp’s motion to suppress. Shepp appeals that decision. STANDARDS OF REVIEW ¶6 An appeal from a justice court that is not a court of record “must be tried anew in the district court on the papers filed in the justice’s ... court unless the [district] court, for good cause shown and on terms that are just, allows other or amended pleadings to be filed in the action.” Section 25-33-301(1), MCA. Additionally, “[e]ach party has the benefit of all legal objections made in the justice’s ... court.” Section 25-33-301(1), MCA. Thus, the parties’justice court filings are subsumed into the district court record. In all other ways, the district court acts as a trial court—rather than an intermediate appellate court—and we review its decision applying the same standards that we would to any other district court decision. Compare § 25-33-301(2), MCA (“When the action is tried anew on appeal, the trial must be conducted in all respects as other trials in the district court.”) (applying to appeals from justice courts that are not courts of record), with State v. Hodge, 2014 MT 308, ¶ 11, 377 Mont. 123, 339 P.3d 8 (“In an appeal from a justice court established as a court of record, the district court functions as an intermediate appellate court and, as such, is confined to review of the record and questions of law.”). ¶7 We review a district court’s grant or denial of a motion to suppress “to determine whether the court’s findings of fact are clearly erroneous and whether the court correctly interpreted and applied the law to those facts.” State v. Wagner, 2013 MT 159, ¶ 9, 370 Mont. 381, 303 P.3d 285. “A factual finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if our review of the record convinces us that the court made a mistake.” State v. Brave, 2016 MT 178, ¶ 6, 384 Mont. 169, 376 P.3d 139. DISCUSSION ¶8 Whether or not the District Court erred by denying Shepp’s motion to suppress the results of his blood test. ¶9 Shepp concedes that he verbally consented to a blood test at the scene of the stop but contends he withdrew his consent by not signing the Patient Consent Form. “We have held that certain uncooperative actions by the motorist may comprise a refusal. A refusal to take a blood test does not have to be express but may be implied ....” Wessell v. State, 277 Mont. 234, 239, 921 P.2d 264, 266 (1996) (citing Johnson v. Division of Motor Vehicles, 219 Mont. 310, 711 P.2d 815 (1985) (holding that a defendant impliedly refused to take a breath test by continuing to ask for an attorney to be present before the test)); see Hunter v. State, 264 Mont. 84, 869 P.2d 787 (1994) (holding that a defendant impliedly refused to take a breath test because she was capable of completing the test but gave a deficient performance). Shepp contends that the facts of this case are analogous to the facts of Hunter and Johnson. The District Court rejected this argument, holding that Shepp gave express verbal consent to a blood test and never withdrew that consent. ¶10 In reaching its decision, the District Court found: “Shepp admitted he never informed Deputy Jessop or hospital personnel that he had changed his mind and withdrawn his consent, nor did he give any verbal indication that he refused consent.” This finding also is supported by Shepp’s testimony at the July 13, 2015 suppression hearing, from which the District Court further found that Shepp gave contradictory testimony regarding whether he intended to revoke his consent to a blood test: initially, Shepp testified that he changed his mind about consenting to the blood test, but then testified that he could not decide whether to sign the Patient Consent Form because he was not sure how best to protect himself. The District Court determined that Shepp’s latter testimony was more credible. We repeatedly have held that “[i]t is not this Court’s function, on appeal, to reweigh conflicting evidence or substitute our evaluation of the evidence for that of the district court.” State v. Deines, 2009 MT 179, ¶ 20, 351 Mont. 1, 208 P.3d 857 (quoting State v. Gittens, 2008 MT 55, ¶ 27, 341 Mont. 450, 178 P.3d 91). Rather, “[w]e defer to the district court in cases involving conflicting testimony because we recognize that the court had the benefit of observing the demeanor of witnesses and rendering a determination of the credibility of those witnesses.” Deines, ¶ 20 (quoting Gittens, ¶ 27). The District Court thus properly weighed the credibility of Shepp’s testimony, and we will not disturb its finding on appeal. ¶11 Finally, the District Court found that the Patient Consent Form has no bearing on consent under Montana’s DUI law. The District Court found that the Patient Consent Form is “an agreement between the hospital and its patients that encompasses issues regarding treatment, services, and payment.” We agree with the District Court’s assessment, and note that Shepp has not pointed to any evidence to contradict this finding. The District Court’s factual findings are not clearly erroneous, and the District Court correctly interpreted and applied the law to those facts. See Wagner, ¶ 9. CONCLUSION ¶12 The District Court’s order denying Shepp’s motion to suppress the results of his blood test is affirmed. CHIEF JUSTICE McGRATH, JUSTICES COTTER, McKINNON and WHEAT concur.

Affirmed Dist. 1 (Lewis and Clark)

Affirmed Dist. 12 (Hill)

JUSTICE BAKER delivered the Opinion of the Court. ¶1 Marte Krebs and the State contest whether one of Krebs’s prior convictions is a “qualifying conviction” that allowed the State to charge him with a felony for his most recent driving under the influence (DUI) violation. Krebs challenged the prior conviction’s applicability, arguing that the State failed to meet its burden of showing that the prior conviction could be used to enhance the penalty for his conviction to a felony. The District Court disagreed and imposed a felony sentence. ¶2 We reverse because the State had the burden of demonstrating the existence of qualifying convictions for purposes of enhancing Krebs’s penalty to a felony DUI and did not meet it. PROCEDURAL AND FACTUAL BACKGROUND ¶3 The State charged Krebs with felony DUI in June 2014. The probable cause affidavit alleged that Krebs had three prior DUI convictions—two from North Dakota in 1988 and 2006, and one from Montana in 1991. Krebs filed a motion challenging the 1988 North Dakota conviction’s applicability, arguing that the 1988 conviction should not qualify as a conviction sufficient to enhance the penalty for his 2014 charge to a felony. ¶4 Krebs contended that the State bore the burden to prove that the 1988 conviction was a qualifying conviction. Krebs maintained that it was impossible to determine whether the 1988 conviction was a “blood alcohol concentration” (BAC) conviction or an “under the influence” conviction because, under North Dakota’s statutory framework, the same statute governed both offenses. In contrast, there are distinct Montana statutes that govern BAC convictions and “under the influence” convictions. Krebs asserted that it was the State’s burden to prove whether the 1988 conviction was an “under the influence” conviction or a BAC conviction. If the 1988 conviction was a BAC conviction, Krebs asserted that it would have been expunged under Montana law. Alternatively, if it were an “under the influence” conviction, Krebs contended that it could not count as a qualifying conviction pursuant to § 61-8-734, MCA, because it was not a substantially similar offense given the differences between North Dakota’s and Montana’s definitions of “under the influence.” ¶5 The State countered that Krebs bore the burden to prove whether the 1988 conviction was an “under the influence” or a BAC conviction. Prior to hearing Krebs’s motion, the District Court requested supplemental information regardingthe nature of the 1988 conviction. Both parties agreed that the register of actions from the North Dakota court was the only documentation available, as the court file had been destroyed. The register showed only that Krebs had been convicted of DUI; it did not indicate whether the 1988 conviction was an “under the influence” or a BAC conviction. ¶6 The District Court denied Krebs’s motion following a hearing. The court concluded that it was Krebs’s burden to prove the nature of the 1988 conviction. Because Krebs failed to show that the 1988 conviction was expunged from his record, the District Court concluded that the 1988 conviction could be used to support the felony charge. Krebs pleaded guilty to the felony, reserving his right to appeal the denial of his motion. STANDARD OF REVIEW ¶7 Whether a prior conviction may be used to enhance a criminal sentence is a question of law that we review for correctness. State v. Burns, 2011 MT 167, ¶ 17, 361 Mont. 191, 256 P.3d 944; State v. Maine, 2011 MT 90, ¶ 12, 360 Mont. 182, 255 P.3d 64. DISCUSSION ¶8 Whether the State is required to prove the existence of a qualifying conviction in order to treat an alleged fourth DUI offense as a felony. ¶9 The District Court treated Krebs’s motion as a motion to dismiss. The court acknowledged that “[t]he record is inadequate to provide the Court with sufficient information as to whether [Krebs’s 1988 conviction] was a BAC conviction or an ‘under the influence’ conviction.” In addition, the court agreed with Krebs that if his 1988 conviction was a BAC conviction, it would have been expunged from his record and therefore it would not count for sentence enhancement purposes. The court concluded, however, that the burden was on Krebs to provide the court “with sufficient information supporting any argument that his 1988 DUI conviction was a BAC conviction.” In doing so, the court relied on the procedural framework we established in Maine to evaluate collateral challenges to prior convictions. Because Krebs failed to meet the burden imposed by Maine, the District Court concluded that the 1988 conviction was valid for enhancing his 2014 charge to felony DUI. ¶10 On appeal, the State agrees that if the 1988 conviction had been a BAC conviction, it would not qualify as a conviction for purposes of enhancing the new DUI to felony status. Relying exclusively on Maine, the State contends that it was Krebs’s “burden to produce direct evidence that the prior conviction is invalid.” (Quoting Maine, ¶ 12). The State contends further that it provided sufficient evidence of Krebs’s 1988 conviction by introducing the North Dakota court’s register of actions. Because Krebs was the moving party, and he “only disputed the type of DUI conviction,” the State argues that the “burden of proof clearly” remained with him. ¶11 The District Court’s and the State’s reliance on Maine is misplaced. In Maine, the defendant argued that a prior DUI conviction used to enhance his conviction to felony DUI was “constitutionally infirm” and was therefore invalid. Maine, ¶ 35. Our purpose in Maine was “to clarify the procedure on these sorts of collateral attacks on prior convictions .’’Maine, ¶ 17 (emphasis added). We grounded our analysis in the well-established principle that a constitutionally infirm conviction may not be used to support an enhanced punishment. Maine, ¶¶ 28, 33. We recognized also that the State has an interest “in deterring habitual offenders” and “in the finality of convictions.” Maine, ¶ 29. ¶12 Balancing these interests, we concluded that “a rebuttable presumption of regularity attaches to [a] prior conviction, and we presume that the convicting court complied with the law in all respects.” Maine, ¶ 33. We held therefore that when a defendant collaterally attacks the validity of a prior conviction on the ground that the conviction is constitutionally infirm, the defendant bears the “initial burden to demonstrate that the prior conviction is constitutionally infirm.” Maine, ¶ 33. In other words, under Maine, it is the defendant “who must prove by a preponderance of the evidence that the conviction is invalid.” Maine, ¶ 34 (emphasis in original). Imposing the burden of proving the prior conviction’s constitutional infirmity on the defendant does not violate due process “once [the] state proves the fact of a prior conviction.” State v. Okland, 283 Mont. 10, 17, 941 P.2d 431, 435 (1997) (citing Parke v. Raley, 506 U.S. 20, 29, 113 S. Ct. 517, 523 (1992)) (emphasis added). We have applied the Maine framework consistently in cases where a defendant attempts this type of collateral attack on a prior DUI conviction. E.g., State v. Hancock, 2016 MT 21, 382 Mont. 141, 364 P.3d 1258; State v. Johnson, 2015 MT 221, 380 Mont. 198, 356 P.3d 438; State v. Nixon, 2012 MT 316, 367 Mont. 495, 291 P.3d 1154. ¶13 But here, Krebs admits that he was validly convicted in 1988. He is not questioning whether the North Dakota court complied with the law or violated his constitutional rights. Rather, he is asserting that the State had the burden of proving the fact that the 1988 conviction qualified as a predicate for the felony charge in this case. ¶14 Montana’s statutory framework establishes separate offenses for driving under the influence and for driving with excessive blood alcohol concentration. Sections 61-8-401, -406, MCA. After three qualifying convictions, a defendant convicted of a fourth or subsequent offense is guilty of a felony and subject to an enhanced penalty. Section 61-8-731(1), MCA. Under current law, “all previous convictions,” whether “under the influence” or BAC, “must be used for sentencing purposes” no matter when they occurred. Section 61-8-734(1)(b)-(c), MCA. ¶15 Under the law in effect at the time of Krebs’s 1988 conviction, however, a person’s prior BAC conviction would be “expunged from the defendant’s record” if he or she did not receive another BAC conviction within five years. State v. Sidmore, 286 Mont. 218, 227, 951 P.2d 558, 564 (1997) (quoting § 61-8-722(6), MCA (1989)). This remained true even if the person received an “under the influence” conviction within five years of receiving a BAC conviction. Sidmore, 286 Mont. at 227, 951 P.2d at 564. Thus, a BAC conviction that was not followed by another BAC conviction within that five-year period could not “be counted to support [a] charge of felony DUI.” Sidmore, 286 Mont. at 227, 951 P.2d at 564; accord State v. Beckman, 284 Mont. 459, 466, 944 P.2d 756, 761 (1997); State v. Cooney, 284 Mont. 500, 508, 945 P.2d 891, 895 (1997); State v. Brander, 280 Mont. 148, 155, 930 P.2d 31, 36 (1996). ¶16 The parties do not dispute that if Krebs’s 1988 conviction was a BAC conviction, it could not have been used to support a felony charge under § 61-8-731, MCA, because he did not receive another BAC conviction in the subsequent five years. The parties do dispute, however, who bears the burden of proving whether a prior conviction qualifies as a “conviction” that may be used to support felony enhancement. ¶17 As noted, in order to be sentenced for felony DUI, a person must have four or more qualifying convictions. Section 61-8-731, MCA; Sidmore, 286 Mont. at 227, 951 P.2d at 564. Analogous are the statutes governing persistent felony offenders, which require that an offender have two or more qualifying felony convictions. Section 46-18-501, MCA. In both instances, prior convictions are considered at sentencing. State v. Nelson, 178 Mont. 280, 284, 583 P.2d 435, 437 (1978) (concluding that the State had to present evidence of prior DUI convictions at sentencing, not at a defendant’s trial for third DUI); § 46-18-502, MCA (“Sentencing of persistent felony offender”). We have analogized sentencing procedures for multiple DUI convictions to the sentencing procedures for repeat felony offenders in the past. Nelson, 178 Mont. at 284, 583 P.2d at 437. ¶18 In the persistent felony offender context, we have concluded that “in order to present evidence of a prior conviction in a sentencing proceeding there must be competent proof that the defendant in fact suffered the prior conviction.” State v. Lamere, 202 Mont. 313, 321, 658 P.2d 376, 380 (1983) (citing State v. Cooper, 158 Mont. 102, 489 P.2d 99 (1971)) (emphasis in original); accord State v. Farnsworth, 240 Mont. 328, 334, 783 P.2d 1365, 1369 (1989) (concluding that the “District Court relied on competent evidence ... to establish the requirements of the persistent felony offender statute”); State v. Smith, 232 Mont. 156, 160, 755 P.2d 569, 571-72 (1988) (agreeing that “because the Court relied on competent evidence in sentencing [the defendant],” the court properly sentenced the defendant as a persistent felony offender). Requiring competent proof of a prior conviction “has nothing to do with the validity of the conviction.” Cooper, 158 Mont. at 109, 489 P.2d at 103. ¶19 As demonstrated above, Krebs is not challenging the 1988 conviction’s validity; he is challenging whether the 1988 conviction may be used to enhance his penalty to felony status. It is the State’s burden to “prove[ ] the fact of a prior conviction.” See Okland, 283 Mont. at 17, 941 P.2d at 435. And the State must do so by presenting “competent proof that the defendant in fact suffered the prior conviction.” Lamere, 202 Mont. at 321, 658 P.2d at 380. The District Court acknowledged that “[t]he record is inadequate to provide the Court with sufficient information as to whether [Krebs’s 1988 conviction] was a BAC conviction or an ‘under the influence’ conviction.” An “inadequate record” cannot be competent proof that Krebs in fact suffered a prior conviction that would qualify to enhance his penalty to a felony. ¶20 We conclude that the State bore the burden to prove that the 1988 conviction could be used to support its felony charge against Krebs and that the State failed to meet this burden. Accordingly, we reverse the District Court’s order. ¶21 Because our resolution of this issue is dispositive, we need not address whether North Dakota’s and Montana’s definitions of “under the influence” are substantially similar. CONCLUSION ¶22 We reverse and remand to the District Court for further proceedings consistent with this Opinion. CHIEF JUSTICE McGRATH, JUSTICES McKINNON, SHEA, COTTER and WHEAT concur.

Denied Original Proceeding Habeas Corpus

JUSTICE WHEAT delivered the Opinion of the Court. ¶1 This appeal comes from the District Court’s denial of a motion for relief from a judgment or order under M. R. Civ. P. 60(b). ¶2 We restate the issues on appeal as follows: Issue One: Did the District Court err in determining M. R. Civ. P. 60(b) did not apply? Issue Two: Did the District Court err in denying Gail’s motion to modify a formal testacy order under § 72-3-317(4), MCA? Issue Three: Did the District Court err in denying Gail’s request for imposition of a constructive trust ? Issue Four: Is the Personal Representative entitled to attorney fees and costs pursuant to § 72-12-206, MCA? FACTUAL AND PROCEDURAL BACKGROUND ¶3 Bruce A. Erickson (Decedent) died on November 18,2015. At that time, he was married to Gail Erickson (Gail); he had two grown children, Tyler Erickson (Tyler) and Taylor Wortman. Gail is not the biological parent of either child. Decedent executed a Last Will and Testament on May 2,1995. After his first wife died, Decedent executed a Codicil to the Last Will and Testament on February 5, 2008. The Codicil nominated Tyler to act as Personal Representative of the Estate. ¶4 On December 16, 2015, Gail filed an Application for Informal Appointment of Personal Representative in Intestacy. The District Court Clerk granted Gail’s application and appointed her Personal Representative. ¶5 On December 18, 2015, Tyler filed a Petition for Formal Probate of Will, Determination of Testacy and Heirs, and Appointment of Personal Representative. At that time, the Last Will and Testament and Codicil were submitted collectively as the Decedent’s Will. The District Court issued an order setting a hearing on the Formal Petition for January 26, 2016, and directed anyone who intended to contest the Will and/or object to the appointment of Tyler as the Personal Representative was required to give written notice to the attorneys and the District Court no later than January 5, 2016. A copy of the order was provided to Gail personally, as well as counsel. ¶6 On January 22, 2016, Gail’s counsel notified Tyler’s counsel that Gail would not object to the probate of the Will and Codicil, the appointment of Tyler as Personal Representative, or the determination that Montana is the situs for the probate. On January 25, 2016, the day before the hearing, Tyler’s counsel provided Gail’s counsel with drafts of a Proposed Order and Letters of Appointment that would be presented to the Court for issuance. That same day Gail’s counsel sent an email to Tyler’s counsel providing him with a draft of “the Idaho document I mentioned,” told him that § 72-3-314, MCA, addresses the probate of more than one document, and that the parties could discuss it at the hearing. ¶7 At the January 26, 2016 hearing, Gail’s counsel advised the court that he had reviewed the Proposed Order and Letters of Appointment from Tyler’s counsel, and had no objection. No party raised any issues related to “the Idaho document” (hereinafter referred to as the 6 Point Document). Thus, without objection, the District Court issued an Order of Formal Probate and appointed Tyler as Personal Representative. Gail did not appeal the order. ¶8 Almost five months later, on June 3, 2016, Gail’s counsel filed a Verified Creditor’s Claim asserting the 6 Point Document is a written contract by the Decedent to make payments of money and provide benefits to or on behalf of Gail, and that it is a contract to make a will or devise that provides for said payment of money and provision of benefits. On August 16,2016, Gail’s counsel filed a Petition for Elective Share, Homestead Allowance, Exempt Property, and Family Allowance. On September 15, 2016, Tyler as the Personal Representative, filed a Notice of Disallowance of the Verified Creditor’s Claim. ¶9 On September 16,2016, Gail obtained new counsel. On November 14, 2016, Gail’s counsel petitioned the District Court to allow her creditor claim. However, on November 21,2016, before the court could rule on that motion, Gail’s counsel filed a Motion for Relief From Formal Testacy Order entered 1/26/2016; or alternatively for Imposition of Constructive Trust. Gail’s counsel argued the 6 Point Document should have been included in the Order of Formal Probate of the Will. The issue was fully briefed. On January 9, 2017, Gail withdrew her creditor claim against the Estate. ¶10 On January 18, 2017, the District Court denied Gail’s Motion for Relief From Formal Testacy Order entered 1/26/2016; or alternatively for Imposition of Constructive Trust. Gail appeals the denial of her Motion for Relief. We affirm. STANDARD OF REVIEW ¶11 We review a district court’s ruling denying a motion to alter or amend its judgment pursuant to Rule 60(b), M. R. Civ. P., for an abuse of discretion. Heller v. Gremaux, 2002 MT 199, ¶ 7, 311 Mont. 178, 53 P.3d 1259. ¶12 The interpretation and construction of a statute is a matter of law, and we review whether the district court interpreted and applied a statute correctly de novo. State v. Triplett, 2008 MT 360, ¶ 13, 346 Mont. 383, 195 P.3d 819. ¶13 This Court reviews factual findings to determine whether they are clearly erroneous. Roland v. Davis, 2013 MT 148, ¶ 21, 370 Mont. 327, 302 P.3d 91. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence or if, upon reviewing the record, this Court is left with the definite and firm conviction that the district court made a mistake. Roland, ¶ 21. DISCUSSION ¶14 Issue One: Did the District Court err in determining M. R. Civ. P. 60(b) did not apply? ¶15 Gail asserts that M. R. Civ. P. 60(b)(6) governs her January 26, 2016 Motion for Relief From Formal Testacy Order, or alternatively for Imposition of Constructive Trust, not § 72-3-317,MCA. Gail argues the District Court erred when it determined that M. R. Civ. P. 60(b)(6) does not apply to formal testacy orders because it is inconsistent with § 72-3-317, MCA. ¶16 Rule 60(b) applies generally to final judgments, orders, or proceedings, while § 72-3-317, MCA, applies specifically to formal testacy orders. Rule 1 of the Montana Rules of Civil Procedure states “these rules govern the procedure in all civil actions and proceedings in the district courts of the state of Montana, including probate proceedings, unless specifically provided to the contrary in the Uniform Probate Code.” Montana adopted the Uniform Probate Code (UPC) in 1947 as codified in § 72-1-101, MCA, et seq. (formerly R.C.M., 91A-1-101(1947)). The UPC, § 72-1-207, MCA, provides that “unless specifically provided to the contrary in this code or unless inconsistent with its provisions, the rules of civil procedure, including the rules concerning vacation of orders and appellate review, govern formal proceedings under this code.” ¶17 Therefore, the Montana Rules of Civil Procedure apply to all probate actions and proceedings, unless specifically provided to the contrary in the UPC or the Rules of Civil Procedure are inconsistent with the provisions of the UPC. ¶18 For the case at hand, the UPC, § 72-3-317, MCA, specifically provides that a formal testacy order is “final as to all persons with respect to all issues.” When a petitioner seeks relief from a formal testacy order, their petition is “subject to appeal and subject to vacation as provided in 72-3-318 and this section.” Section 72-3-317, MCA. The plain language of the statute allows for an appeal or vacation from a formal testacy order only under the terms provided in §§ 72-3-317 and -318, MCA. ¶19 Section 72-3-317, MCA, is inconsistent with M. R. Civ. P. 60 because no petition for probate of any other instrument may be entertained unless the final testacy order is first appealed or vacated as stated in § 72-3-317, MCA. ¶20 Gail cites a list of non-jurisdictional UPC cases asserting that final testacy orders are subject to collateral attack under M. R. Civ. P. 60(b). After review of these cases, we disagree with their application to the case at hand. Under the facts of this case, a petition for relief from a formal testacy order based on a later offered will, are entertained under §§ 72-3-317 and -18, MCA. ¶21 The District Court properly interpreted M. R. Civ. P. 60 and § 72-3-317, MCA, correctly determining that Gail’s motion for relief from the formal testacy order must be considered under § 72-3-317, MCA. Therefore, we decline to address Gail’s analysis of the motion for relief from formal testacy order under M. R. Civ. P. 60(b)(6). ¶22 Issue Two: Did the District Court err in denying Gail’s motion to modify a formal testacy order under § 72-3-317(4), MCA? ¶23 In the District Court, Gail asserted § 72-3-317(4), MCA, allows for modification of the Final Probate Order; thereby, allowing the 6 Point Document to be included in the order as a codicil to the will. Gail asserted in her motion and in her appeal that her previous counsel was grossly negligent regarding the introduction of the 6 Point Document to the District Court, that previous counsel was negligent in their unfamiliarity with Montana law, and that the Estates’ Personal Representative breached his fiduciary duties by failing to present the 6 Point Document at the January 26, 2016 hearing. Gail asserted this created an appropriate circumstance to provide relief under § 72-3-317(4), MCA. The District Court denied Gail’s claim, finding § 72-3-317(4), MCA, cannot be read separately from section 1 and Gail failed to satisfy either condition required in section 1 justifying relief. On appeal, Gail asserts this was error, as § 72-3-317(4), MCA, clearly stands alone as an avenue of relief, separate and apart from the statutes other sections. ¶24 When we interpret a statute, this Court’s purpose is to implement the objective the Legislature sought to achieve. In re Estate of Martelle, 2001 MT 194, ¶ 18, 306 Mont. 253, 32 P.3d 758. The court’s role is to ascertain and declare what is in “terms or in substance contained” in a statute, and not to insert what is omitted or omit what is inserted. Section 1-2-101, MCA; State v. Cooksey, 2012 MT 226, ¶ 32, 366 Mont. 346, 286 P.3d 1174. The intent of a statute must be ascertained from a holistic survey of the statute’s text, language, and structure. State v. Triplett, 2008 MT 360, ¶ 25, 346 Mont. 383, 195 P.3d 819. Legislative intent must first be determined from the plain words used in the statute, and when that is possible, no other means of interpretation are proper. City of Missoula v. Cox, 2008 MT 364, ¶ 9, 346 Mont. 422, 196 P.3d 452. Courts may not disregard the plain language of a statute. Bank of America v. Ivey, 2010 MT 131, ¶ 10, 356 Mont. 388, 234 P.3d 867. ¶25 Section 72-3-317, MCA, provides: Subject to appeal and subject to vacation as provided in 72-3-318 and this section, a formal testacy order under 72-3-313 through 72-3-316, including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent’s estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will and to the determination of heirs, except that: (1) the court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will: (a) were unaware of its existence at the time of the earlier proceeding; or (b) were unaware of the earlier proceeding and were given no notice of the proceeding, except by publication; (2) if intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that the persons: (a) were unaware of their relationship to the decedent; (b) were unaware of the decedent’s death; or (c) were given no notice of any proceeding concerning the decedent’s estate, except by publication; (3) a petition for vacation under either subsection (1) or (2) above must be filed prior to the earlier of the following time limits: (a) if a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate or, if the estate is closed by statement, 6 months after the filing of the closing statement; (b) whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by 72-3-122 when it is no longer possible to initiate an original proceeding to probate a will of the decedent; (c) 12 months after the entry of the order sought to be vacated; (4) the order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances, by the order of probate of the later-offered will or the order redetermining heirs. (Emphasis added.) ¶26 The above quoted statute is clear that a formal testacy order is final with respect to all issues concerning the decedent’s estate, including those issues which the court considered or might have considered, relevant to the question of whether the decedent left a valid will. It is equally clear that the court will not “entertain” a modification or vacation request unless the petitioner can show she was either unaware of the later-offered wills existence at the time of the earlier proceeding or was unaware of the earlier proceeding and was given no notice of the proceeding. Section 72-3-317(1), MCA. By the terms of the statute, a court cannot issue an order of probate of a later-offered will without the proponent of such a document satisfying either burden of § 72-3-317(1), MCA. ¶27 The District Court’s interpretation of the statute is correct; §§ 72-3-317(1)(a) and (4), MCA, are meant to be read together. Section 72-3-317, MCA, authorizes a modification or vacation from a formal testacy order under certain circumstances. Section 72-3-317(1)(a), MCA, requires the court to entertain a petition for modification or vacation, when the proponent of a later-offered will of the decedent, was either “unaware of its existence at the time of the earlier proceeding” or “unaware of the earlier proceeding and were given no notice of the proceeding, except by publication.” Then, if the required showing is sufficient under § 72-3-317(1), MCA, the court may modify or vacate the original probate order through the order of probate of the later-offered will, if appropriate. Section 72-3-317(4), MCA. ¶28 Gail does not assert she would be successful under § 72-3-317, MCA, if it required a showing of either condition in § 72-3-317(1), MCA. The factual record shows Gail and her counsel were both aware of the 6 Point Document and the hearing. The District Court correctly determined that Gail had failed to carry the burden necessary to seek relief under § 72-3-317(4), MCA. ¶29 Issue Three: Did the District Court err in denying Gail’s request for imposition of a constructive trust ? ¶30 Gail argues the Court should impose a constructive trust for her benefit; without imposition of a constructive trust, the decedent’s children would be unjustly enriched and the decedent’s express testamentary intent would be denied. The District Court determined that based on the facts in this case, Gail is not entitled to the equitable remedy of a constructive trust. ¶31 In her petition to be the Personal Representative, Gail represented to the District Court that she “exercised reasonable diligence to determine if Decedent died testate and is unaware of any unrevoked testamentary instrument relating to property having situs in Montana.” Gail filed a creditor claim against the Estate based on the 6 Point Document. When her claim was denied, Gail then sought to have the Formal Order of Probate modified or vacated to include the 6 Point Document based on its testamentary intent. The court denied Gail’s claim, finding Gail created the error of which she complains based on her legal strategy. The Decedent’s children and Personal Representative oppose the imposition of a constructive trust. ¶32 A constructive trust serves as a proper remedy to unjust enrichment. A constructive trust arises when a person holding title to property is subject to an equitable duty to convey it to another on the ground that the person holding title would be unjustly enriched if the holder were permitted to retain it. Section 72-38-123, MCA. However, a party cannot expect equitable relief unless she comes into court with clean hands. Schindler v. United Servs. Auto. Ass’n, 2011 MT 129, ¶ 24, 360 Mont. 528, 254 P.3d 583. Gail had knowledge of and exclusive control of the 6 Point Document when she filed her temporary intestacy petition and represented to the District Court that she was “unaware of any unrevoked testamentary instrument.” The District Court and the Personal Representative for the Estate relied on Gail’s representations when creating the Probate Order and Gail did not object to the Probate Order. Gail cannot now expect an equitable remedy in order to avoid the alleged wrong, the handling of the 6 Point Document. ¶33 The District Court found sufficient grounds to deny the imposition of a constructive trust. The District Court did not misapprehend the facts, nor did the District Court err in its interpretation of law. The District Court’s denial of an imposition of a constructive trust was not clearly erroneous. ¶34 Issue Four: Is the Personal Representative entitled to attorney fees and costs pursuant to § 72-12-206, MCA? ¶35 The Personal Representative (PR) seeks attorney fees under § 72-12-206, MCA. Gail asserts attorney fees should be denied because Gail did not contest the “validity or probate of the will,” the District Court impliedly denied an award of attorney fees, and that the PR’s request for attorney fees is untimely. ¶36 A motion for attorney fees filed after entry of a judgment is treated as a motion to alter or amend a judgment. Associated Press v. Crofts, 2004 MT 120, ¶ 36, 321 Mont. 193, 89 P.3d 971. M. R. Civ. P. 59(d) controls a motion to alter or amend a judgment and the motion must be filed within twenty-eight days of entry of judgment. However, once an appeal is filed, the District Court no longer has jurisdiction over a case. Powder River Cnty. v. State, 2002 MT 259, ¶¶ 27-28, 312 Mont. 198, 60 P.3d 357. “After notice has been filed, the District Court retains jurisdiction only to correct clerical errors and jurisdiction over ancillary matters, as well as some jurisdiction over matters involving appeal such as undertaking of costs, stay of judgment, and matters involving transcript on appeal.” Powder River Cnty., ¶ 27 (citing Powers Mfg. Co. v. Leon Jacobs Enterprises, 216 Mont. 407, 411, 701 P.2d 1377, 1380 (1985)). ¶37 Here, the PR filed the Notice of Entry of Order on January 27, 2017; the PR had until February 24, 2017, to file his motion for attorney fees. However, Gail filed an appeal in this Court on February 16, 2017, before the twenty-eight days to file a M. R. Civ. P. 59(e) motion to amend or alter the judgment seeking attorney fees expired. Thus, the PR was prevented from filing a motion to amend or alter seeking attorney fees in the District Court after February 16. ¶38 However, after an opposing party files a timely appeal, the petitioner may file a cross-appeal within fifteen days; which is exactly what the PR did here. M. R. App. P. 4; Neumann v. Rogstad, 232 Mont. 24, 29, 757 P.2d 761, 765 (1988). Gail filed her appeal on February 16, 2017, the PR filed his cross-appeal on March 1, 2017. The PR’s cross-motion for attorney fees is properly before this Court. ¶39 Next, we must determine if the PR is entitled to attorney fees under § 72-12-206, MCA, which provides: Fees and expenses—by whom paid. When the validity or probate of a will is contested through court action, the attorney fees and costs, as provided in 25-10-201, incurred in defending the validity or probate of the will must be paid by the party contesting the validity or probate of the will if the will in probate is confirmed. ¶40 The PR argues that he is entitled to fees pursuant to the statutory criteria: he defended the probate of a contested will, and the will was confirmed. Gail asserts that she did not contest the probate of a will, but instead moved for relief from the F ormal Probate Order. We disagree. While Gail did not initially contest the probate of the Will and Codicil, after her creditor’s claim was denied, Gail challenged the Final Probate Order. Gail’s motion to amend or alter is predicated on the argument that the current probate of the Will and Codicil is incorrect and that the 6 Point Document is a second codicil. The PR contested the 6 Point Document as a second codicil while defending the probate of the Will and Codicil. In re Estate of Edwards, 2017 MT 93, ¶¶ 85-90, 387 Mont. 274, 393 P.3d 639. The PR defended the probate of the Will pursuant to Gail’s motion, and the Will and Codicil in probate were confirmed. If a party successfully defends a will, he is entitled to both attorney fees and costs. In re Estate of Edwards, ¶ 87. The PR is entitled to attorney fees and costs under § 72-12-206, MCA. CONCLUSION ¶41 The District Court’s interpretation of the statutes is correct. Under the facts of this case, a motion for relief from a formal testacy ordermustbe considered under § 72-3-317, MCA. Section 72-3-317(1), (1)(a) and (4), MCA, are meant to be read together in order to determine if a proponent of a later-offered will can modify or vacate the final probate order. Gail failed to make the necessary showing under § 72-3-317(1), MCA, to justify relief from the final probate order. The District Court correctly determined that Gail had failed to carry the burden necessary to seek relief under § 72-3-317(4), MCA. The District Court’s denial of an imposition of a constructive trust was not clearly erroneous. The Personal Representative is entitled to costs and fees under § 72-12-206, MCA. ¶42 Affirmed and remanded to the District Court for determination of reasonable costs and fees. CHIEF JUSTICE McGRATH, JUSTICES McKINNON, SHEA and RICE concur. See Mathieson v. Hubler, 92 N.M. 381, 588 P.2d 1056 (N.M. App. 1978); In re Bourne, 99 N.M. 694, 662 P.2d 1361 (N.M. App. 1983) (judgement was not final); In re Estate of Chasel, 725 P.2d 1345, 1349 (Utah 1986) (argument denied based on failure to file timely motion); In re Estate of Pepper, 711 P.2d 261, 263 (Utah 1985) (The Utah Supreme Court while interpreting a separate and distinct statute, § 75-3-1001, UCA, Formal proceedings terminating administration—Testate or intestate—Order of general protection, did state “no reason ... appears why such an order should be treated any differently than any other final order or judgment of the court which is always subject to a timely Rule 60(b) attack.” However, that interpretation of a different statute is not relevant here.)

JUSTICE RICE delivered the Opinion of the Court. ¶1 Alpine Aviation, Inc. (Alpine) appeals the interlocutory adjudication of the First Judicial District Court, Lewis and Clark County, interpreting the phrase “regularly scheduled flights” within § 15-23-401(1), MCA. We affirm in part and reverse in part. ¶2 We consider the following issue on appeal: Did the District Court correctly interpret the phrase “regularly scheduled flights” in § 15-23-401(1), MCA? FACTUAL AND PROCEDURAL BACKGROUND ¶3 On May 31, 2013, the Montana Department of Revenue (DOR) informed Alpine it would be centrally assessed pursuant to §§ 15-23-101 and 15-6-145, MCA. Alpine filed a request for reclassification, which was denied by the DOR. ¶4 DOR and Alpine both waived proceedings before the DOR Office of Dispute Resolution, and Alpine filed an appeal with the State Tax Appeal Board (STAB). After the initial STAB pleadings were filed, DOR brought an interlocutory appeal to the District Court pursuant to § 15-2-304,MCA, seeking an “adjudication ofthe meaning of‘scheduled airline’ and ‘scheduled air commerce’ for Montana property tax purposes.” These terms are further informed by the statutory phrase “regularly scheduled flights,” the meaning of which was fully briefed by both parties. ¶5 On May 14, 2015, the District Court issued an order for interlocutory adjudication, holding that “scheduled airline company” under the statute means “any person who undertakes directly or indirectly to engage in the business of transportation by aircraft of persons or property for hire in interstate, intrastate, or international transportation on regularly scheduled flights,” and that, in turn, “regularly scheduled flights” are “those which follow a patterned but not necessarily uniform interval according to timetables and locations predefined by the carrier and which fly regardless of whether there are passengers or freight to be carried.” Alpine appeals. STANDARD OF REVIEW ¶6 We review issues of statutory interpretation for correctness. Westmoreland Res. Inc. v. Dep’t of Revenue, 2014 MT 212, ¶ 5, 376 Mont. 180, 330 P.3d 1188. DISCUSSION ¶7 This matter comes before us pursuant to statutes uniquely authorizing interlocutory adjudications and appeals from those adjudications. Section 15-2-305, MCA, provides: Jurisdiction to make interlocutory adjudication. A district court may make an interlocutory adjudication of an issue pending before the state tax appeal board if that issue involves procedure, the admissibility of evidence, or a substantive question of law and does not require the determination of a question of fact. If the petition is granted, the district court shall rule on all issues presented in the petition and the response, regardless of whether a ruling on less than all of the issues is dispositive of the case. Appeals from the ruling of the court may be appealed as in other civil actions. ¶8 DOR is required to “centrally assess each year ... all property of scheduled airlines.” Section 15-23-101(3), MCA. A “scheduled airline company” is defined as “any person who undertakes directly or indirectly to engage in the business of scheduled air commerce.” Section 15-23-401(8), MCA. In turn, “air commerce” is defined as “the transportation by aircraft of persons or property for hire in interstate, intrastate, or international transportation on regularly scheduled flights.” Section 15-23-401(1), MCA (emphasis added). “Regularly scheduled flights” is not separately defined in the Code, and thus, the purpose of this litigation is to provide a definition of the term, so that the corresponding statutory sections governing “scheduled airlines” can be properly applied. ¶9 To accomplish this task, Alpine encourages the Court to examine the lengthy legislative history of aviation-related state statutes, and also argues that “scheduled” has a unique meaning in federal aviation regulatory law that should be considered. Alpine requests that we reverse and remand this matter with instructions to the District Court “to issue an interlocutory adjudicatory ruling that Alpine is not a scheduled airline.” The DOR responds that the plain meaning of the statutes should control and that “Alpine impermissibly attempts to bring questions of fact into this interlocutory adjudication.” It asks that we affirm the District Court’s interpretation of the statute. ¶10 We agree with DOR’s general approach to this matter. As noted above, this is an interlocutory appeal that does not permit determination of questions of fact. Section 15-2-305, MCA. There is no factual record before us and we cannot here determine Alpine’s status as a scheduled airline company or its ultimate status as a centrally assessed company. The only issue properly before us is the legal question of the statute’s interpretation, and we begin with its plain wording. ¶11 “In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. “In the construction of a statute, the intention of the legislature is to be pursued, if possible.” Section 1-2-102, MCA. “[LJegislative intent is to be ascertained, in the first instance, from the plain meaning of the words used” by the legislature. W. Energy Co. v. Dep’t of Revenue, 1999 MT 289, ¶ 11, 297 Mont. 55, 990 P.2d 767. Similarly, “[w]hen the legislature has not defined a statutory term, we consider the term to have its plain and ordinary meaning.” Giacomelli v. Scottsdale Ins. Co., 2009 MT 418, ¶ 18, 354 Mont. 15, 221 P.3d 666; accord Bates v. Neva, 2014 MT 336, ¶ 15, 377 Mont. 350, 339 P.3d 1265. ¶12 As such, statutory interpretation begins with an examination of the plain language of the statute itself, Smith v. Burlington N. & Santa Fe Ry., 2008 MT 225, ¶ 22, 344 Mont. 278, 187 P.3d 639, and dictionary definitions may be considered, Mont. Dep’t of Revenue v. Priceline.com, Inc., 2015 MT 241, ¶ 10, 380 Mont. 352, 354 P.3d 631; Giacomelli, ¶ 18; AP v. Mont. Senate Republican Caucus, 286 Mont. 172, 179, 951 P.2d 65, 69 (1997); In re Irvine’s Estate, 114 Mont. 577, 580, 139 P.2d 489, 489-90 (1943). ¶13 Dictionary definitions of the operative words “regularly” and “scheduled” produce common sense renderings. “Regular” means “steady or uniform in course, practice, or occurrence,” “not subject to unexplained or irrational variation,” “returning, recurring, or received at stated, fixed, or uniform intervals.” Webster’s Third New International Dictionary 1913 (Philip Babcock Gove ed., 16th ed. 1971) [hereinafter Webster’s Third]. Similarly, “regularly” means “in a regular, orderly, lawful, or methodical way.” Webster’s Third, supra, 1913. “Schedule” is “a written or printed formal list,” “a transportation timetable,” or a “written plan or proposal for future procedure typically indicating the objective proposed, the time and sequence of each operation, and the materials required.” Webster’s Third, supra, 2028. ¶14 These terms, combined with the statute as a whole, demonstrate that a “regularly scheduled flight” occurs on a uniform or unvarying, and reoccurring, basis as preset by an airline and offered for hire to the public. See § 15-23-401(1), MCA (defining “air commerce” as offering air transportation “for hire”); § 15-23-401(8), MCA (defining “scheduled airline company” as engaging in “the business” of air commerce). One key concept here is who sets the flight schedule. An airline arranges a regularly scheduled flight; the customer does not. ¶15 The District Court’s definition of “regularly scheduled flight” was satisfactory with the exception of its use of the phrase “patterned but not necessarily uniform,” which potentially incorporates a notion of irregularly arranged flights that would be inconsistent with the Legislature’s “regularly scheduled” wording, because a pattern can be an irregular one. See, e.g., Trinity Am. Corp. v. EPA, 150 F.3d 389, 393 (4th Cir. 1998) (contaminated groundwater testing produced “an ‘irregular pattern’ of both low and high levels of contaminants at different times”); B B & L, Inc. v. NLRB, 52 F.3d 366, 370 (D.C. Cir. 1995) (employees working an “irregular pattern” of hours nonetheless had a “reasonable expectancy of further employment”); Maker’s Mark Distillery, Inc. v. Diageo N. Am., 679 F.3d 410, 417 (6th Cir. 2012) (trademark registered for the “irregular pattern” of the wax-like trade dress sealing bottles of Maker’s Mark bourbon); Thornton v. U.S. Dep’t of Agric., 715 F.2d 1508, 1510 (11th Cir. 1983) (“irregular patterns” of heat emissions from horse’s forelegs suggested inflammation characteristic of soring). Thus, making the small revision of removing this phrase, we affirm the remainder of the District Court’s definition of “regularly scheduled flights” as “those which follow an interval according to timetables and locations predefined by the carrier and which fly regardless of whether there are passengers or freight to be carried.” ¶16 Affirmed in part and reversed in part. CHIEF JUSTICE McGRATH, JUSTICES WHEAT, BAKER and McKINNON concur. Article VII, Section 4 of the Montana Constitution is entitled “District court jurisdiction.” It provides, in part, that “The legislature may provide for direct review by the district court of decisions of administrative agencies.” Mont. Const, art. VII, § 4(2). Although not binding on this Court, this interpretation is consistent with the common usage of the phrase “regularly scheduled flight” in various legal contexts. See, e.g., Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 626, 93 S. Ct. 1854, 1856 (1973) (“The only regularly scheduled flight affected by the ordinance was an intrastate flight of Pacific Southwest Airlines originating in Oakland, California, and departing from Hollywood-Burbank Airport for San Diego every Sunday night at 11:30.” (emphasis added)); Air Line Pilots Ass'n Int’l v. Fed. Aviation Admin., 454 F.2d 1052, 1053 (D.C. Cir. 1971) (“Two Mohawk pilots, on separate occasions, were disciplined (by 15-day suspensions) for refusing to fly a regularly scheduled flight.” (emphasis added)); Koirala v. Thai Airways Int’l, 126 F.3d 1205, 1207 (9th Cir. 1997) (“Flight TG-311 was a regularly scheduled flight from Bangkok, Thailand to Kathmandu, Nepal.” (emphasis added)).

JUSTICE RICE delivered the Opinion of the Court. ¶1 Sheila Cozzie (Cozzie) appeals the order of the First Judicial District Court, Lewis and Clark County, overturning the Board of Personnel Appeals’ (BOPA) Final Order. We affirm the District Court and restate the issues as follows: 1. Did the District Court err by affirming, on evidentiary or due process grounds, the evidentiary ruling made by the Hearing Examiner? 2. Did the District Court err by reversing the BOPA’s just cause decision? FACTUAL AND PROCEDURAL BACKGROUND ¶2 In 2006, the Montana Department of Transportation (MDOT) hired Cozzie to be its Civil Rights Bureau Chief. At that time, Jennifer Jensen, the Human Resource Director, was her supervisor and Jim Lynch was the MDOT’s Director. Over the following years, Cozzie advanced within the MDOT and became the Human Resources Operations Manager. As acknowledged by Cozzie, this position required a high degree of discretion and professionalism. ¶3 In June 2011, a MDOT payroll employee contacted Vivian Hammill, the Governor’s Chief of Staff, to report irregularities within the upper management of the MDOT. The employee reported favoritism in hiring; sick leave abuses; undocumented promotions; improper reclassification of employees’ positions, within the payroll system; and inappropriate coding of holiday and differential pay. ¶4 Taking the allegations seriously, Hammill began an investigation. Based on her findings, Hammill gave Jensen and Lynch, as stated in her testimony, “the Hobson’s choice between resigning or being fired,” in late summer or early fall of 2011. Both of them resigned and Tim Reardon, the MDOT’s chief legal counsel, was appointed department director. During her investigation, Hammill also received reports that Cozzie routinely arrived at work smelling of alcohol; became intoxicated at public functions, while representing the MDOT; exhibited poor management skills, including directing profanity at subordinates, mocking them, and in one instance throwing a book at an employee; and acted unprofessionally by arriving to work late, leaving early, engaging in erratic behavior, and expressing foul moods, particularly in the morning. ¶5 Based on Hammill’s investigation, the MDOT placed Cozzie on administrative leave and hired Jim Kerins to conduct an outside investigation of the allegations against her. At the conclusion of his investigation, Kerins submitted a written report (Report) which included evidence that Cozzie: 1) smelled strongly of alcohol at work; 2) exhibited embarrassing behavior at offsite conferences, while representing the MDOT; 3) used profanity at work; 4) kept and maintained files poorly; and 5) made questionable hiring and promotion decisions. ¶6 The MDOT provided Cozzie with a copy of the Report, and in October 2011, Reardon met with Cozzie to discuss it. Cozzie was given an opportunity to respond to the Report, and she provided a 33-page written response to the allegations. A second meeting was held to provide Cozzie with further opportunity to respond, which she did. After consideration, Reardon reassigned Cozzie to a lower paying, non-managerial position, which did not involve any human resource responsibilities, in August 2012. ¶7 Cozzie filed a grievance over the demotion, which proceeded before the BOPA. A BOPA investigator initially investigated the matter and recommended denial of the grievance. Cozzie disagreed and pursued a contested case proceeding, which was assigned to Hearing Examiner Gregory Hanchett (Hearing Examiner). After discovery was conducted, the MDOT moved for summary judgment, which the Hearing Examiner denied. In January 2014, a two-day hearing was held at which 15 witnesses testified, including several people initially interviewed by Kerins for the Report, and others called by Cozzie who had not been previously interviewed. The people interviewed by Kerins testified to the same essential facts attributed to them in the Report. ¶8 Initially, the Hearing Examiner admitted into evidence only those portions of the Report pertaining to the due process issue. However, after the hearing, he requested supplemental briefing on the admissibility of the Report to determine the merits of the just cause issue. Over Cozzie’s objection, the Hearing Examiner ruled that the entire Report was admissible on the merits. However, the Hearing Examiner’s recommended findings stated that he relied only on the portions of the Report corroborated by live hearing testimony, and that, even if the Report had been excluded, there was sufficient evidence to conclude that the MDOT had just cause to discipline Cozzie by demoting her. The Hearing Examiner entered 47 findings of fact, seven conclusions of law, and recommended that Cozzie’s grievance be denied. ¶9 Cozzie appealed to the full BOPA. Based on Cozzie’s arguments, the BOPA held it was “grossly unfair” and a violation of Cozzie’s due process rights for the Hearing Examiner to have admitted the Report on the merits. The BOPA held that the Report was “not substantial evidence on the question of whether Cozzie merited discipline.” Reasoning that the Report “was the only evidentiary basis” for the Hearing Examiner’s two findings of fact about the Report, the BOPA struck those findings. The BOPA also expressed its disagreement with the Hearing Examiner’s conclusion that the evidence supported just cause for Cozzie’s demotion. The BOPA voted unanimously to grant Cozzie’s grievance and, in November 2014, issued a final decision reinstating Cozzie and ordering that she receive back pay. ¶10 The MDOT appealed to the District Court, which determined that BOPA acted outside the scope of its review, reasoning that “[the] BOPA is not free to conduct a [de novo] review of the [HJearing [EJxaminer’s decision or make an independent judgment regarding a personnel action.” The District Court reversed the BOPA’s decision, holding that the BOPA improperly struck findings of fact and incorrectly modified conclusions of law, and that, “Itlaken as a whole, [the] BOPA’s actions were arbitrary, capricious, and a clearly unwarranted exercise of discretion.” ¶11 Cozzie appeals. STANDARDS OF REVIEW ¶12 Section 2-4-704, MCA, sets forth the standards for judicial review of an administrative decision. A court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may reverse or modify an agency decision if the substantial rights of the appellant have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are in violation of constitutional or statutory provisions; in excess of statutory authority; made upon unlawful procedure; based upon an error of law; clearly erroneous in light of the evidence as a whole; or arbitrary, capricious, or characterized by abuse of discretion. Section 2-4-704(2)(a), MCA. Pursuant to this provision, the standard for reviewing findings of fact is clearly erroneous. Findings of fact not supported by substantial, credible evidence are clearly erroneous. Conclusions of law are reviewed for correctness. Ulrich v. State ex rel. Bd. of Funeral Serv., 1998 MT 196, ¶ 13, 289 Mont. 407, 961 P.2d 126 (citing Erickson v. State ex rel. Bd. of Med. Exam., 282 Mont. 367, 371, 983 P.2d 625, 628 (1997); Steer, Inc. v. Dept. of Rev., 245 Mont. 470, 474, 803 P.2d 601, 603 (1990)). ¶13 When reviewing a hearing examiner’s recommended order, an administrative agency is governed by § 2-4-621(3), MCA, which states, in relevant part: The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the proposal for decision but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record and states with particularity in the order that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the finding were based did not comply with essential requirements of law. When an agency has utilized a hearing examiner rather than personally hearing and observing the evidence, the agency may not reject or modify the examiner’s findings of fact unless they are clearly erroneous. Core-Mark Int’l, Inc. v. Mont. Bd. of Livestock, 2014 MT 197, ¶ 19, 376 Mont. 25, 329 P.3d 1278. The rejection of a hearing examiner’s finding of fact in violation of § 2-4-621(3), MCA, constitutes an abuse of discretion pursuant to § 2-4-704(2)(a)(vi), MCA. Ulrich, ¶ 14 (citing Brander v. Dir. Dept. of Inst., 247 Mont. 302, 308, 806 P.2d 530, 533 (1991)). DISCUSSION ¶14 1. Did the District Court err by affirming, on evidentiary or due process grounds, the evidentiary ruling made by the Hearing Examiner? ¶15 Cozzie argues the Hearing Examiner should not have admitted the Report because it is hearsay and was admitted after she had rested her case, when she had no chance to rebut it. Although acknowledging that the BOPA proceedings are not governed by the Montana Rules of Evidence, Cozzie cites Bean v. Montana Board of Labor Appeals, 1998 MT 222, 290 Mont. 496, 965 P.2d 256, for the proposition that due process is required before a government benefit is taken away. Cozzie argues that admission of the Report was a denial of her constitutional right to due process. ¶16 Bean arose from the denial of an unemployment insurance benefit. Administration of those benefits is governed by Title 39, chapter 51, MCA, and claims are handled by the Unemployment Insurance Appeals Board (UIAB). The UIAB, like many other boards and agencies, is “bound by common law and statutory rules of evidence.” Section 2-4-612(2), MCA. In Bean, the Court held that “substantial evidence must consist of admissible evidence” in proceedings before the Board of Labor Appeals, Bean, ¶ 14, and concluded that critical evidence about Bean’s discharge presented only by way of a written report constituted inadmissible hearsay under the governing Montana Rules of Evidence, Bean, ¶ 29. ¶17 As part of its overall responsibilities, the BOPA has been statutorily assigned duties related to employees of the MDOT who are “aggrieved by a serious matter of employment ....” Section 2-18-1001(1), MCA; see generally §§ 2-18-1001, -1002, -1003, MCA (detailing the grievance procedure). The BOPA’s statutory authorization provides that it is not governed by the Montana Rules of Evidence. Section 2-18-1002(2), MCA, explicitly states, “In a hearing, the [BOPA] is not bound by statutory or common-law rules of evidence.” Consequently, the Hearing Examiner committed no evidentiary error by admitting the Report. ¶18 Cozzie argues the admission of the Report violated her due process rights because, had she known the Report would be admitted in its entirety, then she would have altered her strategy and more aggressively cross-examined the witnesses about their statements in the Report. Cozzie cites the analysis from Bean, which concluded the grievant’s due process rights were violated by the admission of inadmissible hearsay in the proceeding. Bean, ¶¶ 31-41. The BOPA was likewise offended by the process used by the Hearing Examiner to admit the Report for merits purposes after the close of evidence. ¶19 We share the BOPA’s concern over the Hearing Examiner’s decision to admit the Report for broader purposes after Cozzie had rested her case. Such a procedure could well undermine the fairness of the proceeding and require a determination that due process had been violated. However, under the circumstances here, we conclude any error by the Hearing Examiner in admitting the Report was harmless. First, the Hearing Examiner, although admitting the Report, clarified that “the hearsay evidence of [the] interviewees [in the Report] who did not testify at the hearing... cannot and has not been given any weight in reaching any finding of fact or conclusion of law ....” Further, in Bean, “all of the evidence ... introduced to prove Bean’s alleged misconduct was based on inadmissible hearsay reports.” Bean, ¶ 43 (emphasis added). Here, in contrast, testimony about the serious assertions against Cozzie was presented by the witnesses at the hearing, in addition to their statements provided in the Report. Those witnesses were subject to, and underwent, extensive cross-examination by Cozzie’s counsel. While Cozzie argues that the Report attributed certain additional words or statements to the witnesses that were not specifically addressed during cross-examination, it is clear the substance of their testimony was covered at length during the hearing. ¶20 Due process is not a rigid concept; instead, it is “flexible and calls for such procedural protections as the particular situation demands.” Bates v. Neva, 2013 MT 246, ¶ 14, 371 Mont. 466, 308 P.3d 114 (citing State v. West, 2008 MT 338, ¶ 32, 346 Mont. 244, 194 P.3d 683). Despite the admission of the Report, we conclude Cozzie received full due process and that the District Court correctly concluded her due process rights were not violated. ¶21 2. Did the District Court err by reversing the BOPA’s just cause decision? ¶22 Cozzie takes issue with the District Court’s reasoning that “[the] BOPA is not free to conduct a [de novo] review of the [H]earing [Efeaminer’s decision or make an independent judgment regarding a personnel action” to the extent that it implies the BOPA is not free to make a conclusion of law different than the hearing examiner’s. Cozzie also argues that the District Court extended too far the holding of Montana State Board of Personnel Appeals v. Montana Department of Highways, 189 Mont. 185, 615 P.2d 844 (1980), if it is to be “extrapolated to mean that a state agency has essentially unreviewable discretion in matters of discipline.” Cozzie raises valid points, but we do not take the District Court’s statements to go that far. ¶23 The District Court was addressing the BOPA’s statements discussing alternative disciplinary options the MDOT should have explored for Cozzie, that “would have entailed corrective counseling, performance management, or some other notice to Cozzie that her performance was deficient.” While the BOPA may correct a hearing examiner’s incorrect conclusions of law, § 2-4-621(3), MCA, the District Court correctly stated that, pursuant to the statutory standards of review, the BOPA does not have authority to take the record compiled by a hearing examiner and exercise its independent judgment about the proper remedy. See generally Mont. State Bd. of Personnel Appeals, 189 Mont. at 189, 615 P.2d at 846 (“[W]e conclude the [BOPA] made an independent judgment as to which man was more qualified for the job rather than determining whether the [Montana Highway] Department abused its discretion in selecting [the winning job applicant].”). While Cozzie correctly notes that the statement in Montana State Board of Personnel Appeals should not be extrapolated to mean agencies have unreviewable discretion in matters of discipline, the holding there is more properly understood as referring to the deference to be given by the BOPA, as an appellate body, to the hearing examiner under the clearly erroneous standard of review. The BOPA “may reject the [hearing] [efeaminer’s findings only if they are not based on competent, substantial evidence.” Ulrich, ¶ 14. ¶24 Having resolved the evidentiary and due process issues concerning the hearing conducted by the Hearing Examiner, we conclude there was competent, substantial evidence presented in the hearing, even without the Report, to support the Hearing Examiner’s findings of fact and his conclusions of law (“[T]he [H]earing [Examiner] finds that the testimony of [several witnesses] is credible and that their observations regarding Cozzie’s conduct at work and while representing MDT[,] at MDT sponsored functionsf,] provided just cause for demoting Cozzie ....”). Here, Cozzie was a senior management employee whose position, as found by the Hearing Examiner, “requireldl a high level of discretion and professionalism.” When the BOPA failed to consider the other evidence in the record before the Hearing Examiner after it rejected the Report, it improperly reversed the Hearing Examiner’s findings of fact and conclusions of law. Its actions were an “unwarranted exercise of discretion.” Section 2-4-704(2)(vi), MCA; Ulrich, ¶ 14. ¶25 Affirmed. CHIEF JUSTICE McGRATH, JUSTICES COTTER, McKINNON and SHEA concur. The Unemployment Insurance Appeals Board was formerly known as the Board of Labor Appeals. The name change became effective on July 1, 2015. Section 2-15-1704, MCA, (compiler’s comments). The BOPA has similar duties with regard to the Department of Fish, Wildlife, and Parks. Section 87-1-205, MCA.

JUSTICE SANDEFUR delivered the Opinion of the Court. ¶1 Plaintiffs Monte R. and Wilhelmine S. Davis (Davises) appeal from an order of the Montana Eleventh Judicial District Court, Flathead County, denying the portion of their motion for partial summary judgment seeking an order compelling Defendants Douglas L. Westphal and Kathy L. Wilson (Westphals) to immediately remove trespassing encroachments on Davises’ property and to restore the property to its prior condition subject to Davises’ right to do so at Westphals’ expense if they fail to timely act. Westphals cross-appeal the District Court’s underlying grant of summary judgment declaring their shop building and underground septic system to be trespassing encroachments on Davises’ property. We affirm and remand for further proceedings. ISSUE ¶2 The restated issue is: Did the District Court erroneously deny summary judgment for immediate removal of Westphals’ trespassing encroachments and restoration of Davises’ land? BACKGROUND ¶3 The parties are owners of adjoining tracts of rural property along Five Deer Lane in Flathead County near Bigfork, Montana. The Westphals own a 10.01-acre tract to the west known as Five Deer Lakes Lot 1. The Davises own an 8.562 tract to the east known as Five Deer Lakes Lot 2. Without verification or inquiry, the Westphals mistakenly assumed that a line of pink survey flags running across the ground from a corner survey marker delineated the boundary line between Lots 1 and 2. As a result, Westphals cut down several trees on Davises’ property in 2013. In 2014-15, Westphals built a 40’x60’ shop building, and installed an accompanying septic system drain field, near their property line, both which mistakenly encroached on Davises’ property. ¶4 In September 2015, while visiting their undeveloped land from California, Davises first noticed the Westphals’ progressing improvements and suspected that they encroached on Davises’ land. By that time, the septic system drain field and concrete foundation for the shop were in place and Westphals were in the process of erecting the metal shop building on the foundation. After retaining a licensed surveyor and confirming that the shop building and drain field encroached across the property line onto their lot, Davises notified Westphals of the encroachments and requested that they remove them immediately. Westphals did not immediately respond. After they finished enclosing the shop in advance of the oncoming winter, Westphals responded, by correspondence dated November 13, 2015, wherein they acknowledged the encroachments, admitted fault for their mistake, apologized, and stated their desire to resolve the problem amicably. ¶5 Six months later, with no agreement or abatement effort underway or imminent, the Davises filed a district court complaint on June 10, 2016, asserting four unspecified causes of action seeking: (1) “an order of ejectment, deconstruction and removal of’ the “encroachments, and reasonable restoration of [the] property;” (2) compensatory damages, trebled by statute, for the wrongfully felled trees; (3) relocation of the non-encroaching portions of the shop and septic system in compliance with county zoning setback requirements; and (4) punitive damages. The complaint separately prayed for judgment declaring the encroachments as trespasses, “ejecting” the encroachments, “ordering [their] immediate deconstruction and removal,” ordering restoration of the property, “enjoining [Westphals] from constructing any improvements on their own property in violation of ... zoning ... setback requirements;” and for compensatory and punitive damages “proximately caused by [Westphals’] conduct.” The District Court issued a temporary restraining order on Davises’ accompanying ex parte motion and set a hearing on their motion for a preliminary injunction for June 22, 2016. At the hearing, upon notice that the parties had reached an informal agreement for Westphals to remove the encroachments and restore the property in return for the Davises dropping their request for a preliminary injunction, the District Court denied the motion for preliminary injunction as moot. ¶6 On September 12,2016, with abatement of the encroachments still not underway or imminent, Davises moved for summary judgment for: (1) declaratory judgment declaring the encroachments as trespasses on their property; (2) an order “ejecting” the encroachments and “ordering [their] immediate ... removal” with restoration of the property; (3) “a permanent injunction” enjoining “any further trespass” and enjoining Westphals from “constructing any improvements on their own property in violation of’ county “zoning regulations or setback requirements.” For the first time and without reference to mandatory injunctive relief, Davises characterized their claims as claims for declaratory judgment of trespass, common law “ejectment,” and prohibitive injunctive relief. Westphals opposed the motion on the asserted ground that no legal trespass had occurred because they had not intentionally encroached on Davises’ property. Westphals requested an additional year to remove the encroachments and restore the property in the face of the upcoming winter. Westphals filed a supporting affidavit describing the difficulty and cost of removing the encroachments and restoring the property. The affidavit described the Westphals’ financial limitations and asserted that Davises’ need for immediate abatement was not urgent because they lived in California, only occasionally visited the land, and had no immediate plans to build on the undeveloped property. ¶7 On October 24, 2016, the District Court granted Davises’ summary judgment on the briefs without a hearing declaring that the Westphal encroachments and tree-felling constituted civil trespasses. However, the court denied Davises’ requests for “immediate ejection... and removal of all encroaching improvements,” site restoration, and a permanent injunction enjoining any further intrusion on Davises’ property or noncompliance with county zoning setback requirements. The court reasoned that: (1) the authority cited by Davises did not “order ejection, adopt the remedy of ejection, or otherwise establish standards for an ejection claim;” (2) § 27-1-318, MCA, “generally provides for money damages for wrongful occupation of real property;” (3) though “ejection is a possible remedy” under § 27-8-313, MCA (declaratory judgment supplemental relief provision), and Goodover v. Lindey’s, 246 Mont. 80, 802 P.2d 1258 (1980) (affirming discretionary grant of supplemental mandatory injunction for removal of encroachments to afford complete relief to declaratory judgment of trespass), Davises presented “insufficient information to determine whether coercive supplemental relief, i.e., ejection, deconstruction, and restoration,” is necessary “as a matter of law” to remedy the trespasses “in addition to money damages” (emphasis in original); and (4) Davises “offered no factual basis or legal argument that [the requested prohibitive] injunctive relief is necessary at this point in time.” The court noted further that Westphals “informally agreed to remove the encroaching structures in exchange for dismissal of the action,” a result the court observed to be “the most expeditious way to resolve the dispute.” The court thus encouraged the parties “to negotiate a date certain for removal of the structures.” ¶8 Davises subsequently moved the District Court pursuant to M. R. Civ. P. 59(e) and 60(a) to “correct” its summary judgment ruling by granting their request for an order compelling immediate removal of the encroachments and site restoration on the asserted ground that the failure to grant such relief was irreconcilably inconsistent with its declaration of trespass and erroneously failed to provide complete relief. The District Court denied the motion on the stated ground that its denial of mandatory injunctive relief was not a final judgment and that Davises “failed to raise any new evidence” or show that the denial was erroneous as a matter of law. Davises appeal the court’s denial of their request for an order compelling immediate removal of the encroachments and site restoration. Westphals cross-appeal the court’s underlying declaratory judgment of trespass. STANDARDS OF REVIEW ¶9 We review summary judgment rulings de novo for conformance to M. R. Civ. P. 56. Dick Anderson Constr., Inc. v. Monroe Prop. Co., 2011 MT 138, ¶ 16, 361 Mont. 30, 255 P.3d 1257. Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). The questions of whether a genuine issue of material fact exists or whether a party is entitled to judgment as a matter of law are conclusions of law subject to de novo review for correctness. Ereth v. Cascade County, 2003 MT 328, ¶ 11, 318 Mont. 355, 81 P.3d 463. ¶10 The grant or denial of injunctive relief is a matter within the broad discretion of the district court based on applicable findings of fact and conclusions of law. Shammel v. Canyon Resources Corp., 2003 MT 372, ¶ 11, 319 Mont. 132, 82 P.3d 912; Walker v. Warner, 228 Mont. 162, 166, 740 P.2d 1147, 1149-50 (1987). The standard of review of a grant or denial of injunctive relief is whether the court manifestly abused its discretion. Shammel, ¶ 12. A manifest abuse of discretion is an “obvious, evident, or unmistakable” abuse of discretion. Shammel, ¶ 12. The standard of review of lower court findings of fact and conclusions of law is whether the findings of fact are clearly erroneous and whether the conclusions of law are correct. We review district court rulings on motions for post-judgment relief under M. R. Civ. P. 59 and 60 for an abuse of discretion. Folsom v. Montana Pub. Employees Ass’n, 2017 MT 204, ¶ 18, 388 Mont. 307, 400 P.3d 706. DISCUSSION ¶11 At issue on Davises’ appeal and Westphals’ cross-appeal are summary judgment rulings that are also the predicate for Davises’ related appeal of the court’s subsequent denial of their Motion to Correct summary judgment rulings. Orders granting or denying summary judgment are generally interlocutory orders not subject to immediate appeal. Trombley v. Mann, 2001 MT 154, ¶¶ 6-10, 306 Mont. 80, 30 P.3d 355; M. R. App. P. 6(5)(b). In this case, the District Court has not entered a “final judgment,” as defined by M. R. App. P. 4(1)(a), or certified its interlocutory summary judgment rulings as suitable for immediate appeal pursuant to M. R. Civ. P. 54(b) and M. R. App. P. 6(6). However, “provided that the order is the court’s final decision on the referenced matter,” orders granting or denying injunctive relief are immediately appealable. M. R. App. P. 6(3)(e). Rule 6(3)(e) thus allows immediate appeal of an order granting or denying a preliminary injunction. Montana Cannabis Indus. Ass’n v. State, 2012 MT 201, ¶ 13, 366 Mont. 224, 286 P.3d 1161. Because Davises’ appeal irreconcilably conflates relief available at law on a common law ejectment claim with preliminary and final injunctive relief available as supplemental relief on a common law ejectment claim or on a statutory declaratory judgment, we accept their appeal on the above-restated issue pursuant to M. R. App. P. 6(3)(e) and § 3-2-204(5), MCA (mandatory review of all questions of fact and questions of law implicated on record in equity cases). However, we decline Westphals’ cross-appeal without prejudice as a premature appeal of an uncertified interlocutory ruling. ¶12 Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). A genuine issue of material fact is an issue of inconsistent fact, material to the elements of a claim or defense at issue, and not amenable to judgment as a matter of law. Mountain West Bank, N.A. v. Mine & Mill Hydraulics, Inc., 2003 MT 35, ¶ 28, 314 Mont. 248, 64 P.3d 1048; see also § 25-7-103, MCA (exclusive domain of finder of fact); Weinberg v. Farmers State Bank, 231 Mont. 10, 27, 752 P.2d 719, 730 (1988) (exclusive domain of finder of fact to resolve questions of fact upon which reasonable people may differ). The party seeking summary judgment has the initial burden of showing a complete absence of any genuine issue of material fact on the Rule 56 record and that the party is thus entitled to judgment as a matter of law. Weber v. Interbel Tel. Coop., Inc., 2003 MT 320, ¶ 5, 318 Mont. 295, 80 P.3d 88; accord, Ereth, ¶ 11. The burden then shifts to the opposing party to show either the existence of a genuine issue of material fact or that the moving party is not entitled to judgment as a matter of law on the facts of record not subject to genuine material dispute. Osterman v. Sears, Roebuck & Co., 2003 MT 327, ¶ 17, 318 Mont. 342, 80 P.3d 435 (citing Bruner v. Yellowstone Cnty., 272 Mont. 261, 264, 900 P.2d 901, 903 (1995)); Ereth, ¶ 11. While the court must view the Rule 56 factual record in the light most favorable to the non-moving party and draw all reasonable inferences against summary judgment, Weber, ¶ 5, the court has “no duty to anticipate or speculate” regarding contrary material facts. Gamble Robinson Co. v. Carousel Properties, 212 Mont. 305, 312, 688 P.2d 282, 287 (1984). ¶13 Did the District Court erroneously deny summary judgment for immediate removal of Westphals’ trespassing encroachments and restoration of Davises’ land? ¶14 Davises assert on appeal that the District Court erroneously refused to order Westphals to remove the subject encroachments and restore the property within 60 days of judgment with the proviso that Davises could remove the drain field and shop building at Westphals’ expense if they failed to timely comply. Apart from their base request for a declaratory judgment of trespass, the Davises sought summary judgment “ejecting” the encroachments, “ordering [their] immediate ... removal” and restoration of the property, and permanently enjoining “any further trespass” or violation of applicable zoning setback requirements. Without reference to mandatory injunctive relief in the District Court and in contrast to their request for prohibitive injunctive relief, Davises sought an order compelling removal of the encroachments and restoration of the property as forms of relief available on the common law claim of ejectment. On appeal, Davises now assert that, in addition to common law ejectment, they are also entitled to mandatory injunctive relief compelling Westphals to remove the encroachments and restore the property. Davises’ conflation of the torts of common law trespass and ejectment, declaratory judgment of trespass, and supplemental preliminary and permanent equitable relief requires that we sort out these causes of action and remedies as a prelude to addressing their assertion of error. ¶15 Modern common law trespass is an intentional tort claim for damages caused by an unauthorized entry or holdover upon real property of another. Tags Realty, LLC v. Runkle, 2015 MT 166, ¶ 15, 379 Mont. 416, 352 P.3d 616; Tally Bissell Neighbors, Inc. v. Eyrie Shotgun Ranch, LLC, 2010 MT 63, ¶ 38, 355 Mont. 387, 228 P.3d 1134; Slater v. Shell Oil Co., 137 P.2d 713, 715 (Cal. App. 1943). The essential elements of a modern common law trespass claim are: (1) an intentional entry or holdover (2) by the defendant or a thing; (3) without consent or legal right. Branstetter v. Beaumont Supper Club, Inc., 224 Mont. 20, 24, 727 P.2d 933, 935 (1986); Restatement (Second) of Torts §§ 158 and 163 (1965). Because the legal harm is the interference with another’s right to exclusive possession of property, an unauthorized tangible presence on the property of another constitutes a trespass regardless of whether the intrusion caused any other harm. Tally, ¶¶ 37-38 (distinguishing “tangible” invasion of property by person or thing from an “intangible” invasion, e.g., invasion of sound, light, odor, gas, or electromagnetic field, requiring proof of actual harm beyond mere infringement of right); Restatement (Second) of Torts § 163 cmt. d. A civil trespass encompasses both the initial unauthorized entry upon the property of another and the subsequent failure to cease or abate the intrusion. Branstetter, 224 Mont. at 24, 727 P.2d at 935; Restatement (Second) of Torts §§ 158 and 163. ¶16 While civil trespass is an intentional tort, Miller v. Nat’l Broadcasting Co., 232 Cal. Rptr. 668, 677 (Cal. App. 1986), intentional trespass does not require proof of specific intent, i.e., that the tortfeasor intended to enter or remain upon property owned or controlled by another. Restatement (Second) of Torts §§ 163 cmt. b, c and 164 cmt. a. The intent element of civil trespass only requires proof that the tortfeasor intentionally entered or remained, or caused a third party or thing to enter or remain, upon the property of another regardless of the tortfeasor’s knowledge, lack of knowledge, or good faith mistake as to actual property ownership or right. Luoma v. Donohoe, 179 Mont. 359, 365, 588 P.2d 523, 526 (1978; Miller, 232 Cal. Rptr. at 677; Restatement (Second) of Torts §§ 163, cmt. b, c and 164 cmt. a; W. Page Keeton and William Prosser, Prosser & Keeton on the Law of Torts § 13, 67-68 and 73-75 (5th ed. 1984) (“interest of the landowner is protected at the expense of those who make innocent mistakes”) ¶17 Though related tort claims of common origin for enforcement of an owner’s right to exclusive possession of real property, common law trespass and common law ejectment are technically distinct causes of actions providing distinct remedies. Tally, ¶ 38; Slater, 137 P.2d at 715; 28A C.J.S. Ejectment § 1 (2008). In contrast to a common law trespass claim for damages and a modern statutory claim for judgment declaring a trespass as a predicate for supplemental legal or equitable relief, common law “ejectment” is an independent cause of action of ancient origin and greatly evolved purpose and scope. Sofer v. Beech, 409 A.2d 337, 339-43 (Pa. 1979); Dice v. Reese , 21 A.2d 89, 92 (Pa. 1941); Caperton v. Schmidt, 26 Cal. 479, 496-512 (Cal. 1864); Cincinnati v. Lessee of White, 31 U.S. 431, 441-43 (1832); Black’s Law Dictionary 630 (10th ed. 2014). In modern form, common law ejectment is an action at law brought against a trespasser in possession of all or a portion of real property for immediate possession of the property based on proof of superior title and the right to immediate possession. Sofer, 409 A.2d at 339-40; Heroux v. Katt, 68 A.2d 25, 26-28 (R.I. 1949) (recognizing ejectment as action at law to remedy encroaching improvements); Slater, 137 P.2d at 715; Butler v. Frontier Telephone Co., 186 N.Y. 486, 488-92 (N.Y. 1906) (recognizing ejectment as an action at law to remedy vertical encroachment by overhanging wires); Agar v. Winslow, 56 P. 422, 423 (Cal. 1899); 25 Am. Jur. 2d Ejectment § 19 (2014); 28A C.J.S. Ejectment §§ 1-3 and 5-6; accord, Kootenai Corp. v. Dayton, 184 Mont. 19, 24, 601 P.2d 47, 49-50 (1979) (distinguishing common law ejectment from statutory forcible detainer action); Miner v. Cook, 87 Mont. 500, 502-03, 288 P. 1016, 1017 (1930); Baker v. Butte Water Co., 40 Mont. 583, 585; 107 P. 819, 820(1910); Billings v. Sanderson, 8 Mont. 201, 204, 19 P. 307, 307-08 (Mont. Terr. 1888). ¶18 Long predating modern declaratory judgment Acts, the primary relief available on an ejectment claim is a judgment declaring that the plaintiff has the right to immediate possession of the property. 25 Am. Jur. 2d Ejectment §§ 1 and 44; 28A C.J.S. Ejectment §§ 1-2 and 6. A successful plaintiff may also recover damages in ejectment as compensation for the loss of use of the property during the duration of the trespass, § 27-1-318, MCA (reasonable rental value as general measure of damages for wrongful occupation of land); Pritchard Petroleum Co. v. Farmers Coop. Oil & Supply Co., 121 Mont. 1, 7, 190 P.2d 55, 58-59 (1948) (mesne profits) Equitable defenses were not available to counter ejectment claims at common law. 25 Am. Jur. 2d Ejectment § 20. However, with the modern merger of law and equity, see M. R. Civ. P. 1-2, equitable defenses, and even affirmative relief, may be available, as equitable, to counter or ameliorate a common law ejectment claim. Pritchard, 121 Mont. at 15-16; 190 P.2d at 62-63 (good faith trespasser who placed permanent improvements on land may counterclaim in equity for damages setoff to “recoup the value of the improvements” to the extent they “enhanced the value of the land” regardless of limitations of § 70-28-110, MCA (right to damages setoff for improvements made by good faith withholding of land under color of title)): 25 Am. Jur. 2d Ejectment § 20. ¶19 Due to its limited nature as a mere declaration of right to possession, a judgment of ejectment is not self-executing. Page v. Luhring, 178 S.E.2d 527, 529 (Va. 1971). The remedy available at law to effect a judgment of ejectment is execution under a special writ known at common law as a writ of possession or ejectment, commanding the sheriff or levying officer to deliver possession of the property to the plaintiff by removing the defendant and personalty from the property. Sections 25-13-201, -301(1)(d), and -307, MCA; Page, 178 S.E.2d at 529; Dodd v. Simon, 113 Mont. 536, 541-42, 129 P.2d 224, 228 (1942); Long v. Neville, 291 Cal. 131, 135-36 (Cal. 1865); 9 Am. Jur. Pl. & Pr. Forms Ejectment §§ 70-71 (2017); 25 Am. Jur. 2d Ejectment § 48; 28A C.J.S. Ejectment §§ 6 and 216; see also, Fuller v. Gibbs, 122 Mont. 177, 183, 199 P.2d 851, 854 (1948); Baker, 40 Mont. at 585-86; 107 P. at 820-21. Though ejectment technically lies to remedy a real property encroachment, a writ of possession commanding the sheriff to remove the defendant and personalty will generally not abate a substantial physical encroachment affixed to land. While a writ of possession could conceivably command a sheriff or levying officer to enter onto real property and affirmatively remove a trespassing encroachment, see Heroux, 68 A.2d at 27-28, and Butler, 186 N.Y. at 492-93, our general execution statutes govern writs of possession under Montana law. Dodd, 113 Mont. at 542, 129 P.2d at 228. Davises did not raise the question of whether §§ 25-13-201, -301(1)(d), and -307, MCA, would permit issuance of such an extraordinary writ of execution before the District Court and the issue is not properly before us at this time. ¶20 Independent of common law trespass and ejectment claims, a modern declaratory judgment action is also available to determine the “rights, status, and other legal relations” of the parties on any matter in dispute. Sections 27-8-201 and -301, MCA. Statutory declaratory judgment claims merely supplement other claims and remedies independently available at law or in equity. See M. R. Civ. P. 57; 26 C.J.S. Declaratory Judgments §§ 1-2 (2011). Prohibitive and mandatory injunctive relief are forms of supplemental relief available where “necessary or proper” to effect or enforce a declaratory judgment. Section 27-8-313, MCA; Lindey’s, 246 Mont. at 82-83, 802 P.2d at 1260. As an alternative or supplemental remedy to preexisting common law trespass and ejectment claims, a party may seek redress of a trespassing real property encroachment by seeking a declaratory judgment of trespass, supplemental damages as otherwise provided by law, and supplemental injunctive relief for abatement of the encroachment as otherwise authorized in equity. See Lindey’s, 246 Mont. at 82-83, 802 P.2d at 1260. ¶21 Here, Davises obtained summary judgment declaring that Westphals’ tree-felling and encroaching building and drain field constituted civil trespasses. As far as it goes, that declaratory judgment was the substantive equivalent of a judgment of ejectment declaring Davises’ right to exclusive possession of their property to the exclusion of the subject encroachments. Thus, Davises successfully obtained an interlocutory judgment, prevailing on their alternatively pled declaratory judgment and common law ejection claims. Except for as yet undetermined damages not at issue on appeal, and in contrast to any supplemental injunctive relief otherwise appropriate in equity, no other relief at law is currently available to Davises on their common law ejectment claim prior to final judgment. ¶22 To the extent that Davises assert that the District Court erred by failing to further order ejectment of the subject encroachments, their “immediate removal,” and restoration of the property, they seek forms of relief that are either premature or beyond the scope of relief available on a common law ejectment claim. The parties and the District Court have yet to consider whether a writ of possession executed by a sheriff or levying officer is available or adequate under §§ 25-13-201, -301(1)(d), and -307, MCA, to abate the subject encroachments and restore possession of the property to Davises. Even if so, a writ of execution enforcing a judgment of possession still may not issue until the judgment is final. See M. R. Civ. P. 58 and 70(d); §§ 25-13-101, -201, and -307, MCA. Davises do not assert that the District Court erred by failing to enter final judgment. Except as supplemental equitable relief, an order compelling a trespasser to remove an encroachment and to restore the property to its prior condition is not a cognizable form of relief available at law on a common law ejectment claim. We hold that the District Court did not err in declining to grant relief at law other than a declaration of trespass on Davises’ common law ejectment claim. ¶23 As to injunctive relief, it is unclear whether Davises assert that the District Court erred by failing to grant injunctive relief pursuant to § 27-8-313, MCA (relief supplemental to declaratory judgment), or as equitable relief supplemental to their common law ejectment claim. More significantly, it is further unclear from their briefing whether Davises assert that the court erroneously denied preliminary injunctive relief, permanent injunctive relief, or both. Regardless of whether requested pursuant to § 27-8-313, MCA, or as supplemental equitable relief necessary to afford complete relief on a common law claim, temporary and permanent injunctive relief are equitable remedies governed by general principles of equity codified in Montana in Title 27, ch. 19, MCA. Talley v. Flathead Valley Comm. College, 259 Mont. 479, 491, 857 P.2d 701, 708 (1993); State ex rel. Stewart v. District Ct., 77 Mont. 361, 369, 251 P. 137, 139 (1926); see also, M. R. Civ. P. 65. Contrary to Davises’ assertion, injunctive relief is an extraordinary remedy not available as a matter of right. Paradise Rainbows v. Fish & Game Comm’n, 148 Mont. 412, 420, 421 P.2d 717, 721 (1966). The grant or denial of permanent or preliminary injunctive relief is highly discretionary and critically dependent on the particular facts, circumstances, and equities of each case. Shammel, ¶ 12; Citizens for Balanced Use v. Maurier, 2013 MT 166, ¶¶ 11 and 28, 370 Mont. 410, 303 P.3d 794; Knudson v. McDunn, 271 Mont. 61, 65, 894 P.2d 295, 297-98 (1995); Montana Tavern Ass’n v. State, 224 Mont. 258, 265, 729 P.2d 1310, 1315 (1986). Where necessary to afford complete relief, injunctive relief may be available either as an alternative or supplemental remedy to those ordinarily available by statute or at common law. City of Whitefish v. Troy Town Pump, 2001 MT 58, ¶ 35, 304 Mont. 346, 21 P.3d 1026 (court sitting in equity “empowered to grant all relief necessary to the entire adjustment of the subject matter”); Restatement (Second) of Torts § 951 cmt. a (under modern merger of law and equity all forms of legal and equitable relief are available to provide complete relief as necessary on a case basis). Thus, where appropriate on balance of the equities, injunctive relief is available as a supplemental remedy to afford complete relief on a common law ejectment claim. See Jeppeson v. Montana Dept. of State Lands, 205 Mont. 282, 287, 667 P.2d 428, 431-32 (1983); Blinn v. Hutterische Soc’y of Wolf Creek, 58 Mont. 542, 553, 194 P. 140, 142 (1920); King v. Mullins, 27 Mont. 364, 368, 71 P. 155, 156 (1903); Heinze v. Kleinschmidt, 25 Mont. 89, 105, 63 P. 927, 933 (1901); Williams v. Long, 61 P. 1087, 1088 (Cal. 1900); Natoma Water & Mining Co. v. Clarkin, 14 Cal. 544, 552 (Cal. 1860). ¶24 District courts have broad discretion to grant preliminary injunctive relief on any of the five grounds enumerated in § 27-19-201, MCA. Sandrock v. DeTienne, 2010 MT 237, ¶ 16, 358 Mont. 175, 243 P.3d 1123; Sweet Grass Farms, Ltd. v. Bd. of County Comm’rs, 2000 MT 147, ¶ 27, 300 Mont. 66, 2 P.3d 825. On evidence or competent affidavit considered upon hearing, a court may issue a preliminary injunction at any time before final judgment. Section 27-19-303, MCA. In considering whether to issue a preliminary injunction on any of the grounds enumerated in § 27-19-201, MCA, the court must exercise its discretion only in furtherance of the limited purpose of preliminary injunctions to preserve the status quo and minimize the harm to all parties pending final resolution on the merits. Porter v. K & S Partnership, 192 Mont. 175, 183, 627 P.2d 836, 840 (1981). The “status quo” is generally “the last actual, peaceable, I un Icontested condition” preceding the controversy at issue. Porter, 192 Mont. at 181, 627 P.2d at 839. “If a preliminary injunction will not accomplish [its limited] purposes, then it should not issue.” Porter, 192 Mont. at 183, 627 P.2d at 840. Thus, even on proof of any grounds enumerated in § 27-19-201, MCA, a preliminary injunction should not issue absent an accompanying prima facie showing, or showing that it is at least uncertain, that the applicant will suffer irreparable injury prior to final resolution on the merits. Porter, 192 Mont. at 181, 627 P.2d at 839; Rea Bros. Sheep Co. v. Rudi, 46 Mont. 149, 160, 127 P. 85, 87 (1912). ¶25 Inter alia, Davises assert that, upon granting summary judgment declaring the encroachments as trespasses, the District Court erred by failing to go further and issue a preliminary injunction for their removal pursuant to § 27-19-201(3), MCA (preliminary enjoinder of wrongful conduct “tending to render judgment ineffectual”). However, preliminary injunctions may not issue except upon evidence or affidavit considered at a duly noticed hearing. Section 27-19-303, MCA. Davises abandoned their initial motion for a preliminary injunction by stipulation long before they moved for summary judgment, did not clearly articulate a renewed request for a preliminary injunction in their summary judgment motion, and in any event failed to request a preliminary injunction hearing on or incident to their motion for summary judgment. Moreover, though they requested that the court “order ejectment” of the encroachments, compel Westphals to remove the encroachments, provide for “forcible” removal if necessary, and conditionally authorize them to remove them if Westphals failed to act, nowhere in Davises’ conflated summary judgment motion and briefing was any reference to § 27-19-201(3), MCA, much less a factual showing that the failure to grant a preliminary mandatory injunction would render ineffectual any subsequent final judgment that might include, as appropriate, final injunctive relief. We will not hold a district court in error for failing to address an issue that parties did not timely raise. McDunn v. Arnold, 2013 MT 138, ¶ 14, 370 Mont. 270, 303 P.3d 1279. We hold that the District Court did not err in declining to issue a preliminary injunction for removal of the subject encroachments upon granting summary judgment declaring them as trespasses. ¶26 Permanent injunctive relief, also known as final injunctive relief, see § 27-19-102, MCA, is available only where necessary to prevent irreparable injury in the absence of a plain, speedy, and adequate statutory or common law remedy. Ducham v. Tuma, 265 Mont. 436, 442, 877 P.2d 1002, 1006 (1994), overruled on other grounds by Shammel, ¶ 12 (clarifying standard of review of grant or denial of injunctions); Jeffries Coal Co. v. Industrial Acc. Bd., 126 Mont. 411, 413, 252 P.2d 1046, 1047 (1952); Santa Rita Oil & Gas Co. v. State Bd. of Equalization, 112 Mont. 359, 366-67, 116 P.2d 1012, 1016 (1941); Bullard v. Zimmerman, 82 Mont. 434, 446-48, 268 P. 512, 517-18 (1928); accord, § 27-19-102, MCA. Irreparable injury is a harm or wrong: (1) not fully or effectively remedied by compensatory damages; (2) in regard to which adequate, non-speculative compensation is difficult to determine; or (3) of a recurring or continuous nature such that full and effective redress would otherwise require a multiplicity of successive actions at law. Wind v. Herbert, 8 Cal. Rptr. 817, 822 (Cal. App. 1960); see also, § 27-19-102, MCA. A statutory or common law remedy may be inadequate to fully or effectively remedy a harm or wrong either due to the nature of the cause of action or the form of relief ordinarily available thereon. Bullard, 82 Mont. at 446-48, 268 P. at 517-18. ¶27 Injunctive relief is generally not available to remedy a trespass where an action at law for damages or ejectment will provide complete relief. Jeppeson, 205 Mont. at 287, 667 P.2d at 431-32; King, 27 Mont. at 368, 71 P. at 156; Musselshell Cattle Co. v. Woolfolk, 34 Mont. 126, 132-33, 85 P. 874, 875-76 (1906). However, compensatory damages are generally inadequate to fully remedy a continuous or recurring encroachment on real property. Ducham, 265 Mont. at 443, 877 P.2d at 1006; Allman v. Stuart, 158 Mont. 402, 409-12, 492 P.2d 909, 913-14 (1972); Gibbons v. Huntsinger, 105 Mont. 562, 574-76, 74 P.2d 443, 449-50 (1937); Musselshell Cattle Co., 34 Mont. at 132-33, 85 P. at 875-76; Nellie Gail Ranch Owners Ass’n v. McMullin, 209 Cal. Rptr. 3d 658, 675 (Cal. App. 2016); Hoffman v. Bob Law, Inc., 888 N.W.2d 569, ¶¶ 10-11 (S.D. 2016); Amkco, Ltd., Co. v. Welborn, 130 N.M. 155, ¶¶ 10-11 (N.M. 2001); Warsaw v. Chicago Metallic Ceilings, Inc., 676 P.2d 584, 588 (Cal. 1984); Arnold v. Melani, 437 P.2d 908, 911 (Wash. 1968); see also, Jeppeson, 205 Mont. at 287, 667 P.2d at 431-32; King, 27 Mont. at 368, 71 P. at 156. ¶28 Accordingly, Davises cite Ducham and Olsen v. Milner, 2012 MT 88, 364 Mont. 523, 276 P.3d 934, for the proposition that it is reversible error for a court to refuse to grant a mandatory injunction compelling removal of a continuous or recurring encroachment upon determining the encroachment as a trespass. In Olsen, upon determining that the defendant knowingly built a shop building partially on his neighbor’s property, the district court issued a mandatory injunction compelling the defendant to remove the trespassing encroachment within 60 days subject to the plaintiffs right to remove it at the defendant’s expense if he failed to timely do so. Olsen, ¶ 15. However, the narrow issues on appeal in Olsen were whether res judicata barred the plaintiffs trespass claim and whether the court correctly determined that the encroachment was a trespass, not whether the court properly granted mandatory injunctive relief. Olsen, ¶¶ 18-38. In Ducham, the district court denied a request for permanent injunctive relief based on a determination that the defendant’s recurring discharge of water across the plaintiffs property did not constitute a trespass. Ducham, 265 Mont. at 438, 877 P.2d at 1004. On appeal, we held only that the court erroneously concluded that the water discharges were not a recurring trespass and that the plaintiff was thus entitled to a permanent injunction enjoining any further discharges across his property. Ducham, 265 Mont. at 440-43, 877 P.2d at 1005-07. Apart from the threshold issue of trespass, the equities of permanent injunctive relief were not otherwise at issue on appeal. Ducham, 265 Mont. at 440-43, 877 P.2d at 1005-07. Neither Ducham nor Olsen support Davises’ assertion that a plaintiff is entitled to a mandatory injunction compelling abatement of a trespassing encroachment as a matter of right in every case. ¶29 To the contrary, regardless of a determination of a trespass, the grant or denial of mandatory injunctive relief remains highly discretionary dependent on the unique facts and circumstances of each case. Tally, ¶ 43 (flexible rules of equity require consideration of “exigencies” of each “particular case”). Though legal title must generally prevail if the equities are equally balanced or balance against the trespasser, Bonding Co. v. State Sav. Bank, 47 Mont. 332, 339, 133 P. 367, 368-69 (1913), the court must carefully weigh and balance the equities in each case when exercising its broad discretion to grant or deny injunctive relief. Four Rivers Seed Co. v. Circle K Farms, 2000 MT 360, ¶ 12, 303 Mont. 342, 16 P.3d 342. Thus, though often appropriate on abalance of the equities in particular cases, mandatory injunctive relief is not available to remedy a trespassing real property encroachment as a matter of right in every case. ¶30 Here, unlike in Ducham and Olsen, the District Court has yet to grant or deny permanent injunctive relief upon entry of final judgment following full consideration of the equities. The court’s grant of summary judgment declaring the subject encroachments as trespasses was merely an interlocutory order. Trombley, ¶ 7. Permanent injunctions are available only upon entry of a final judgment. Compare § 27-19-102, MCA (final injunctions), with §§ 27-19-201 and -303, MCA (preliminary injunctions). In its summary judgment order, the District Court did not make a final determination precluding mandatory injunctive relief upon further proceedings prior to entry of final judgment. The court merely concluded that Davises presented “insufficient information” in support of their motion for summary judgment “to determine whether coercive supplemental relief’ is “necessary or appropriate” in addition to money damages “at this point in time.” In narrowly concluding that Davises “have provided no evidence upon which” to conclude, “as a matter of law that money damages” will be “insufficient to remedy the harm,” the District Court merely concluded that Davises failed to satisfy their initial burden under M. R. Civ. P. 56 of showing a complete absence of any genuine issue of fact material to their requested equitable relief. ¶31 The parties fully submitted Davises’ summary judgment motion to the court on their briefs. In support of the motion, Davises submitted only a one-page map prepared by a surveyor showing the boundary line encroachments, a copy ofWestphals’ November 13,2015 letter accepting responsibility and apologizing for the encroachments, and the affidavit of Plaintiff Monte R. Davis regarding the nature, discovery, and continued existence of the encroachments. Though sufficient for the court to adjudicate the existence of continuing or recurring trespasses as a matter of law, this limited evidentiary record was insufficient to show a complete absence of any genuine issue of fact material as to whether the balance of the equities warranted the extraordinary remedy of a mandatory injunction compelling removal of the encroachments. This deficiency was particularly manifest when juxtaposed against the affidavit of Defendant Kathy L. Wilson and, as noted by the District Court, Westphals’ stated willingness to remove the encroachments upon determination or negotiation of a reasonable deadline for removal. The summary judgment record was devoid of any evidence sufficient for the District Court to assess the urgency of removal and restoration, the burden and cost of removal and restoration, Westphals’ means and ability to effect removal and restoration on the timeline requested, or any other relevant equitable consideration. Under these circumstances, we hold that, at this stage of the proceeding, the District Court’s interlocutory denial of preliminary or final mandatory injunctive relief was neither irreconcilable with its summary judgment declaring a trespass nor a manifest abuse of discretion. ¶32 Davises failed to make any additional factual showing warranting injunctive relief in their subsequent M. R. Civ. P. Rule 59(e) or 60 Motion to Correct. Even if they had, Rule 59 and 60 motions may not serve as a vehicle to raise matters that the party reasonably could and should have earlier raised. Lee v. USAA Cas. Ins. Co., 2001 MT 59, ¶ 76, 304 Mont. 356, 22 P.3d 631 (construing M. R. Civ. P. 59(e)); Orcutt v. Orcutt, 2011 MT 107, ¶ 11, 360 Mont. 353, 253 P.3d 884 (construing M. R. Civ. P. 60). We hold that the District Court did not abuse its discretion in denying Davises’ subsequent motion to correct its prior summary judgment ruling. CONCLUSION ¶33 We hold that the District did not err at this stage in the proceedings in: (1) declining to grant other relief at law on Davises’ common law ejectment claim; (2) declining to grant preliminary or final injunctive relief compelling immediate removal of the encroachments and restoration of the property; or (3) denying Davises’ Motion to Correct those rulings. We hereby affirm the District Court’s interlocutory rulings and remand for further proceedings in the ordinary course. JUSTICES WHEAT, McKINNON, BAKER and RICE concur. Neither party requested a hearing, thus waiving a hearing pursuant to M. R. Civ. P. 56(c)(2)(A). Davises do not challenge the District Court’s denial of their request for prohibitive injunctive relief enjoining Westphals from any further trespass and from relocating or constructing improvements on their own property except in compliance with applicable zoning restrictions. The summary judgment record includes “the pleadings, the discovery and disclosure materials on file, and any affidavits.” M. R. Civ. P. 56(c)(3). See also, Olsen v. Milner, 2012 MT 88, ¶¶ 35-40, 364 Mont. 523, 276 P.3d 935 (applying Restatement (Second) of Torts § 165 (1979) reckless/negligent trespass theory to boundary line encroachment); but see Restatement (Second,) of Torts § 165 cmt. b, c (in contrast to intentional trespass under §§ 158-64, reckless/negligent trespass theory narrowly pertains to unintentional entry upon land distinguished from intentional entry upon land under mistaken belief of ownership or right and further requires proof of harm beyond mere interference with owner right to exclusive possession). Ejectment was originally an action at law in trespass against a landlord to restore a wrongfully ousted tenant to possession of a leasehold for the remainder of the term. Sofer, 409 A.2d at 339-43; Dice, 21 A.2d at 92; Caperton, 26 Cal. at 496-512; Cincinnati, 31 U.S. at 441-43; Black’s Law Dictionary 630 (10th ed. 2014). Early Montana ejectment cases reference historical common law requirements for proof that the plaintiff actually entered upon and possessed the land and that the defendant unlawfully ousted the plaintiff from possession and remained in unlawful possession. See, e.g., Miner, 87 Mont. at 502-03, 288 P. at 1017; Baker, 40 Mont. at 585, 107 P. at 820; Billings, 8 Mont. at 204, 19 P. at 307-08; compare Safer, 409 A.2d at 339-40 (abandoning rigid common law requirements for proof of complete ouster from the property and actual entry or possession by defendant). Declaratory judgments are a modern statutory remedy unknown at common law or in equity. 26 C.J.S. Declaratory Judgments § 2 (2011). Depending on the facts and relief sought, restoration damages may also be available as an alternative measure of compensatory damages at law to remedy damage to real property. See Lampi v. Speed, 2011 MT 231, ¶¶ 22-24, 31, and 37-39, 362 Mont. 122, 261 P.3d 1000; Sunburst School Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶¶ 32-38 and 43-45, 338 Mont 259, 165 P.3d 1079. In this context, an affidavit is competent only if “verified” and “the material allegations ... setting forth the grounds for the [preliminary injunction] are made positively and not upon information and belief.” Section 27-19-303(2), MCA. To that end, other jurisdictions recognize an equitable “relative hardship” doctrine to assess whether, regardless of a legal trespass, equity may yet preclude issuance of mandatory injunctive relief in favor of pecuniary damages at law in certain limited circumstances, thereby effecting an equitable easement in favor of an unintentional, non-negligent trespasser. See, e.g., Minnwest Bank v. RTB, LLC, 873 N.W.2d 135, 145-46 (Minn. App. 2015); Nellie Gail Ranch, 209 Cal. Rptr. 3d at 675-78; Graham v. Jules Inv., Inc., 356 P.3d 986, ¶¶ 32-41 (Colo. App. 2014); Warsaw, 676 P.2d at 588 (Cal.); Wojahn v. Johnson, 297 N.W.2d 298, 307 (Minn. 1980); Arnold, 437 P.2d at 914-15 (Wash.); Dundalk Holding Co. v. Easter, 137 A.2d 667 (Md. App. 1958); Christensen v. Tucker, 250 P.2d 660, 665-67 (Cal. App. 1952); Amkco, Ltd., Co., ¶¶ 12-17 (N.M.); Golden Press, Inc. v. Rylands, 235 P.2d 592, 595 (Colo. 1951 ); Hoffman, ¶¶ 12-21 (S.D.); Owenson v. Bradley, 197 N.W. 885, 887-89 (N.D. 1924); see also, Restatement (Second,) of Torts § 941 cmt. c, d (1979). We have yet to consider the application and merits of the equitable doctrine of relative hardships under Montana law and state no view on it here. See Penland v. Derby, 220 Mont. 257, 260, 714 P.2d 158, 160 (1986) (declining to consider equitable easement theory first raised on appeal); compare Allman, 158 Mont. at 409-11, 492 P.2d at 913-14 (reversing order in equity compelling joint sale and division of proceeds to separate owners of building and land severed by separate foreclosure sales in favor of mandatory injunction compelling purchaser with notice to remove the resulting trespass).

JUSTICE SHEA delivered the Opinion of the Court. ¶1 Defendant Kerstyn Jade Old Bull appeals from the sentence and judgment of the Twenty-Second Judicial District Court, Big Horn County. The District Court sentenced Old Bull to ten years in the Montana Women’s Prison (MWP), parole restricted for the entire term, on her conviction for criminal endangerment in violation of § 45-5-207, MCA; and ten years in MWP, parole restricted for seven and one-half years, on her conviction for obstructing justice in violation of § 45-7-303, MCA, to be served consecutively to her criminal endangerment sentence. ¶2 We address the following issues: Issue One: Whether the District Court erred by imposing a parole eligibility restriction on Old Bull’s sentence for obstructing justice. Issue Two: Whether the District Court erred by requiring Old Bull to register as a violent offender. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On March 2, 2015, Old Bull and her boyfriend Clint Hogan took Hogan’s unresponsive six-year-old daughter, K.H., to Hardin Hospital. K.H. was then transported to Denver Children’s Hospital where she died from her injuries. When interviewed separately, Hogan and Old Bull independently reported that K.H. was in good health when Hogan left to go to the store, that she was unresponsive when Hogan returned, and that she never regained consciousness. According to the Presentence Investigation Report (PSI) ordered by the District Court, Old Bull and Hogan waited roughly two hours before seeking medical attention for K.H. During the State’s investigation into K.H.’s death, Old Bull told law enforcement that K.H. fell in the shower, which led to her injury. This account conflicted with the treating hospital assessment that K.H.’s injuries resulted from a traumatic forceful blow to the head and blunt force trauma that could not have been caused by an accidental fall. K.H. also “had evidence of both fresh and historical bruising over her entire body, consistent with habitual abuse.” Old Bull later admitted that she provided false information to law enforcement regarding Hogan’s involvement in the crime because she was scared to stand up to Hogan. ¶4 The State initially charged Old Bull with deliberate homicide of K.H. On November 13, 2015, the State amended these charges, pursuant to a plea agreement, to criminal endangerment and obstructing justice. Old Bull pled guilty to these charges. As part of the plea agreement, Old Bull admitted that she “engaged in conduct that created a substantial risk of death or serious bodily injury to another, specifically [K.H].” She also admitted to providing the police with false information regarding Hogan’s role in K.H.’s death. At sentencing, Old Bull never disputed that K.H. died due to blunt force trauma; however, Old Bull did dispute whether she had been the cause of K.H.’s injury. ¶5 Due to what the District Court characterized as Old Bull’s “heinous” conduct that resulted in K.H.’s death, the Court restricted Old Bull’s parole eligibility for the entire ten-year sentence for criminal endangerment and for seven and one-half years of the consecutive ten-year sentence for obstructing justice. Hogan received a ten-year suspended sentence for obstructing justice during the investigation into K.H.’s death. ¶6 At Old Bull’s sentencing, the District Court stated on the record—without distinguishing between the criminal endangerment charge and the obstructing justice charge—its rationale for the parole restrictions. The Court stated: “You have a child who is dead here; [she] has passed away. And there is evidence that this child endured habitual abuse. The Court will not turn a blind eye to that.” The Court further stated that it could see no “justification for treating a child the way this child was treated or engaging in conduct that would allow for such treatment” and found it “appropriate ... [to] impose an equally severe sentence.” The Court also emphasized the lasting trauma to the family and community caused by K.H.’s death. Further, the District Court stated that the parole restrictions would ensure that Old Bull have access to programs while in MWP to help address anger and emotional issues and, therefore, have a chance at rehabilitation. The District Court specified that the rationale for imposition of the sentence and judgment were also “the reasons for ineligibility for parole,” reemphasizing that the death of K.H., a young child, required a “sufficient level of punishment and accountability.” ¶7 Old Bull argued against any parole restriction on the basis that it would limit the Parole Board’s exercise of authority and discretion. Old Bull made no other specific objections to the parole restrictions. ¶8 In its written judgment, the District Court enumerated thirty-three recommended terms and conditions for “any period of community based supervision” for the felony obstructing justice conviction, including the requirement that Old Bull register as a violent offender. The Court also restated its reasons for restricting Old Bull’s parole; specifically, the “heinous nature” of Old Bull’s criminal conduct that “resulted in severe bodily injury to the child victim, [K.H.], from which the child ultimately died,” evidence in the PSI indicating habitual abuse of K.H., justice for the horrific circumstances of the crime, and, finally, that sufficient time, in confinement would allow Old Bull to engage in rehabilitative programming. Old Bull appeals the District Court’s parole eligibility restriction on her sentence for obstructing justice and the parole condition that she register as a violent offender. STANDARDS OF REVIEW ¶9 We review for legality a district court’s restrictions on parole eligibility and sentencing on criminal sentences that include at least one year of incarceration. State v. Ariegwe, 2007 MT 204, ¶ 174, 338 Mont. 442, 167 P.3d 815. Whether a restriction or sentence is legal is a question of law, and our review is de novo. Ariegwe, ¶¶ 174-75; see also State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, 179 P.3d 1164; State v. Paulsrud, 2012 MT 180, ¶ 9, 366 Mont. 62, 285 P.3d 505. If a sentencing condition is legal, we then review the challenged condition for abuse of discretion. City of Bozeman v. Cantu, 2013 MT 40, ¶ 11, 369 Mont. 81, 296 P.3d 461; State v. Blake, 274 Mont. 349, 908 P.2d 676, 677 (1995). DISCUSSION ¶10 Issue One: Whether the District Court erred by imposing a parole eligibility restriction on Old Bull’s sentence for obstructing justice. ¶11 Generally, we will not review on appeal an issue that a party failed to preserve through objection at trial. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892; see also Ashby, ¶ 22 (explicitly refusing to review an unchallenged condition in light of a defendant’s failure to object in district court). We will, however, review a criminal sentence alleged to be illegal or in excess of statutory mandates even absent a defendant’s raised objection in district court. State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979). A sentencing condition is illegal “if the sentencing court lacked statutory authority to impose it, if the condition falls outside the parameters set by applicable sentencing statutes, or if the court did not adhere to the affirmative mandates of the applicable sentencing statutes .” State v. Heddings, 2008 MT 402, ¶ 11, 347 Mont. 169, 198 P.3d 242 (citing State v. Stephenson, 2008 MT 64, ¶ 15, 342 Mont. 60, 179 P.3d 502) (internal citations omitted). Conversely, a sentence that is merely disparate does not rise to the level of illegality. State v. Webb, 2005 MT 5, ¶ 8, 325 Mont. 317, 106 P.3d 521; see also State ex rel. Greely v. District Court, 180 Mont. 317, 327, 590 P.2d 1104, 1109-10 (1979) (holding that a defendant has the right to have a sentence reviewed for equality or disparity by the Sentence Review Board and citing §§ 46-18-901-905, MCA); see also State v. Simtob, 154 Mont. 286, 288, 462 P.2d 873, 874 (1969) (clarifying that sentence disparity and equality should be reviewed by a sentencing board, whereas this Court reviews a sentence to determine legality). A district court’s failure to abide by a statutory requirement may rise to an objectionable sentence, though not necessarily an illegal one. Kotwicki, ¶ 13; see also State v. Bullplume, 2013 MT 169, ¶ 17, 370 Mont. 453, 305 P.3d 753. Thus, when a district court, “if provided the opportunity to consider the error now asserted on appeal, could nevertheless have imposed the same sentence, the illegality requirement of the Lenihan exception has not been met.” Bullplume, ¶17. ¶12 Old Bull argues that her parole restriction of seven and one-half years for obstructing justice is illegal, and therefore reviewable by this Court under Lenihan because: (1) it led to an unreasonably disparate sentence as compared to Hogan’s sentence; (2) the District Court failed to orally pronounce the reasons for the parole restriction specifically as to the obstructing justice conviction as required by § 46-18-115(6), MCA; and (3) the District Court exceeded its statutory authority under § 46-18-202(2), MCA, when it restricted parole as to obstructing justice based on conduct punished by Old Bull’s criminal endangerment sentence. The State counters that the District Court legally imposed parole restrictions on the obstructing justice sentence, and that Old Bull waived any other challenges as to the reasonableness of the restrictions when she failed to raise specific objections at the time of sentencing. ¶13 Old Bull’s first argument fails because a sentence or restriction within the statutory parameters that is merely disparate or different than a co-defendant or other charged defendant does not rise to the level of illegality. Webb, ¶ 8. Old Bull and Hogan were separately convicted of obstructing justice in violation of § 45-7-303, MCA; Old Bull was sentenced to serve ten years with a parole restriction for the first seven and one-half years of the sentence. Hogan received a ten-year suspended sentence. Both sentences fell within the statutory maximum sentence of imprisonment of ten years. Section 45-7-303, MCA. Any challenge to the sentence or parole restriction based on disparate treatment is best directed toward the Sentence Review Division. Sections 46-18-901 et seq., MCA; Simtob, 154 Mont. at 287-88, 462 P.2d 574-75; see also State v. Rickman, 2008 MT 142, ¶¶ 11, 16, 20, 343 Mont. 120, 183 P.3d 49. ¶14 Second, Old Bull asserts that the parole restriction is illegal because the Court failed to orally pronounce its rationale for the restriction. Section 46-18-115(6), MCA, provides: In felony cases, the court shall specifically state all reasons for the sentence, including restrictions, conditions, or enhancements imposed, in open court on the record and in the written judgment. This argument also fails because the parole restriction neither exceeds the statutory authority of ten years imprisonment, § 45-7-303, MCA, nor falls outside the affirmative mandates of the sentencing statutes; the restriction is therefore legal, Heddings, ¶¶ 11, 20. The District Court orally detailed its rationale for imposing parole restrictions on Old Bull’s sentence during the sentencing hearing. The District Court stated that its aim was to provide appropriate punishment for Old Bull’s admitted criminal conduct, with an emphasis on the extremely tragic results of such conduct, as well as to protect the community from any such conduct in the future. Finally, the District Court stated the restriction would provide Old Bull with the opportunity to engage in rehabilitative and self-improvement programs while in confinement. Although the District Court did not specifically reference which conduct was attributable to which count, the Court articulated its reasons for the sentence and legally sentenced Old Bull within statutory parameters. See Bullplume, ¶ 17. ¶15 Third, Old Bull argues that the District Court’s parole restriction as to the obstructing justice conviction was illegal because the restriction was based on conduct more reasonably attributed to her criminal endangerment conviction. We disagree. Old Bull’s obstructing justice sentence, including the parole restriction, was within the statutory power of the District Court. See Heddings, ¶ 11. District courts may limit parole eligibility under § 46-18-202(2), MCA, which provides: Whenever the sentencing judge imposes a sentence of imprisonment in a state prison for a term exceeding 1 year, the sentencing judge may also impose the restriction that the offender is ineligible for parole and participation in the supervised release program while serving that term. If the restriction is to be imposed, the sentencing judge shall state the reasons for it in writing. If the sentencing judge finds that the restriction is necessary for the protection of society, the judge shall impose the restriction as part of the sentence and the judgment must contain a statement of the reasons for the restriction. State v. Branham, 2012 MT 1, ¶ 27, 363 Mont. 281, 269 P.3d 891; see alsoPaulsrud, ¶¶ 15-16. As detailed above, the District Court provided its rationale for the parole restrictions both in its oral pronouncement and in its written judgment. The Court legally imposed restrictions on Old Bull’s eligibility for parole for obstructing justice and acted within the scope of its statutory authority under §§ 46-18-202(2), 115(6), and 45-7-303, MCA. See Lenihan, 184 Mont. at 343, 602 P.2d at 1000. ¶16 District courts have broad discretion to consider various factors and holistically fashion sentences, including parole restrictions. Paulsrud, ¶¶ 15-16 (reiterating that a district court retains broad discretion to make parole eligibility decisions, consider all relevant facts and circumstances, including evidence relating to the crime, the “defendant’s character, background history, mental and physical condition, and any other evidence the court considers to have probative force”). The District Court’s parole restriction on Old Bull’s obstructing justice sentence was not illegal. At sentencing, Old Bull objected only generally to the imposition of any parole restriction because of the limitation it would place on the Parole Board’s future exercise of discretion. She did not make the objections she now wishes us to consider on appeal. Because Old Bull failed to preserve her objections to what is otherwise a legal sentence, our review is limited under Lenihan. See Kotowicki, ¶¶ 8, 13. ¶17 We affirm the District Court’s imposition of a seven and one-half year parole restriction on Old Bull’s obstructing justice sentence. ¶18 Issue Two: Whether the District Court erred by requiring Old Bull to register as a violent offender. ¶19 Violent offender status is “determined purely by statute.” State v. Miller, 1998 MT 177, ¶ 41, 290 Mont. 97, 966 P.2d 721 (1998). A district court lacks statutory authority to require violent offender registration for a conviction not listed among the “ Violent offenses’ ” that require registration. State v. Rowe, 2009 MT 225, ¶¶ 32-33, 351 Mont. 334, 217 P.3d 471. Neither of the crimes of which Old Bull was convicted are included among the crimes requiring violent offender registration. See Rowe, ¶ 33. Old Bull therefore argues that the violent offender requirement imposed by the District Court’s judgment is illegal, and reviewable under Lenihan. The State concedes this issue and agrees the condition should be stricken from the judgment. Therefore, we remand for the sole purpose of striking the condition requiring Old Bull to register as a violent offender. CONCLUSION ¶20 We affirm the District Court’s imposition of a seven and one-half year parole restriction on Old Bull’s obstructing justice sentence. We remand for the sole purpose of striking the condition that Old Bull register as a violent offender. CHIEF JUSTICE McGRATH, JUSTICES WHEAT, SANDEFUR and RICE concur.

Affirmed Dist. 18 (Gallatin)

JUSTICE BAKER delivered the Opinion of the Court. ¶1 Dr. Rodney D. Brandt performed surgery to repair Yvonne Wilson’s torn ACL in February 2008. She began to experience new and excruciating knee pain shortly after surgery. On November 5, 2012, Wilson filed a claim with the District Court asserting that Dr. Brandt negligently performed surgery on her knee. The District Court granted summary judgment to Dr. Brandt, holding that Wilson’s claim was filed after the three-year statute of limitations had run. Wilson appeals, arguing the District Court erred in concluding as a matter of law that her claims were barred by the applicable statute of limitations. We reverse. PROCEDURAL AND FACTUAL BACKGROUND ¶2 On October 30,2007, Wilson twisted her left knee while removing a pool cover at work. An MRI showed a medial meniscus tear of her left knee. Dr. Brandt, an orthopedic surgeon at Flathead Valley Orthopedic Center, P.C. (FVOC), performed a medial meniscus resection on December 13, 2007, to repair the tear. During surgery, Dr. Brandt discovered that Wilson’s ACL was partially torn, but did not repair the tear, noting that the chance of needing additional surgery was less than 50 percent. Wilson’s symptoms of knee instability and buckling continued, however, and Dr. Brandt performed ACL reconstruction surgery on February 4, 2008. The ACL reconstruction procedure involved drilling a hole through the tibia bone, known as a “tibial tunnel.” ¶3 In follow-up appointments from March through May 2008, Dr. Brandt noted that Wilson was “doing absolutely fabulous,” “extremely well,” and was “approaching maximum medical improvement.” His notes after the May 2008 appointment indicate that Wilson was having “some pes anserinus pain.” The pes anserinus refers to the area where three tendons insert into the tibia bone located at the inner part of the knee. Dr. Brandt gave her a local injection of cortisone to help ease the pain. ¶4 Contrary to Dr. Brandt’s impressions, Wilson testified that in the weeks following surgery, she experienced new and excruciating pain at the site of the tibial tunnel, as well as popping and cracking and continued knee buckling. She testified that during this time she “didn’t know” if the “pain ... was related to the hole that had been drilled in [her] knee,” and that she did not ask why she was having the new pain because she had had “two different types of surgeries, one was more aggressive than the other, like the ACL is more aggressive than the meniscus. And so [she] thought it all joined together.” During her deposition, in response to the question whether she thought there was something new wrong, she said she was “concerned” and that she “knew there was something wrong” with her knee during this time. In July 2008, Dr. Brandt performed a third knee surgery on Wilson after she fell and reinjured her left knee meniscus. ¶5 Dr. Brandt’s notes from a September 2008 appointment state that Wilson was “starting to have some nerve type pain.” The notes go on to say that he told Wilson that she would “get better and the nerve pain will burn out.” At Wilson’s appointment on October 8, 2008, Dr. Brandt noted that Wilson “continueldl to struggle” and that “I have discussed with the patient that I am really not certain what is going on” and that she was “not within the bell curve of normalcy” for recovery after an ACL surgery. He ordered an MRI to rule out “internal derangement.” In his notes reviewing the October 2008 MRI, Dr. Brandt stated that he “continueldl to diagnose this as complex regional pain syndrome”—also known as reflex sympathetic dystrophy (RSD)—that “will eventually burn out.” Wilson testified that sometime during this period Dr. Brandt told her that RSD developed because “he did too many surgeries in a short period of time.” ¶6 Over the next several months, Wilson met with Ann Ingraham, a nurse practitioner at FVOC, and continued to report knee pain to her. On January 13, 2009, Ingraham ordered another MRI to investigate the pain. Upon review of the MRI, Dr. Brandt noted that Wilson continued to report a “significant amount of nerve pain,” but he saw “no interval change” since the last MRI. He believed additional surgical intervention would be inappropriate based on what he saw in the MRI. Wilson, meanwhile, continued to report pain to her healthcare providers. After another MRI on June 25, 2009, Dr. Brandt repeated his recommendation that further surgical intervention would be inappropriate. In September 2009, Wilson’s workers’ compensation insurance stopped authorizing further treatment from FVOC providers. She was referred from FVOC to Montana Center for Wellness & Pain Management on November 3, 2009, to manage her pain. ¶7 In June 2010, providers at the Montana Center referred Wilson to Dr. James Blasingame, an orthopedic surgeon with Northwest Orthopedics and Sports Medicine, for a second opinion about her continuing knee pain. Dr. Blasingame wrote in his notes from her initial appointment that he did not think Wilson had RSD and ordered another MRI. At the July 26, 2010 appointment to discuss the results of the MRI, Dr. Blasingame noted “a somewhat unusual tibial tunnel” and a possible need for surgical intervention. After gathering other opinions, Dr. Blasingame met with Wilson again on September 10, 2010, and recommended surgical intervention to bone graft the tibial tunnel. He noted he was “unclear as to the exact reason for her knee discomfort. Certainly, the patient’s study is quite abnormal with the course of the graft and the subchondral support being compromised by the graft.” On December 7, 2010, he noted: “The thought of bone grafting [the tibial tunnel] was an effort to decrease her pain, obviously, but the pain may well be multifactorial as fully outlined in the chart.” ¶8 The Montana State Fund sent Wilson to get another opinion from Dr. Michael J. Schutte on January 25, 2011. Upon review of her MRI and medical records, Dr. Schutte noted an “anterior impingement of ACL graft tissue related to aberrant tunnel placement” and suggested a two-stage surgical intervention. Wilson attested in an affidavit: “I did not know that Dr. Brandt messed up my surgery until I met with Dr. Schutte.” Dr. Blasingame agreed with Dr. Schutte’s recommendation for a two-stage procedure and performed the first stage of the surgical intervention in April 2011. ¶9 On May 7, 2012, Wilson filed her complaint with the Montana Medical Legal Panel (MMLP), claiming that Dr. Brandt negligently performed surgery on her knee on February 4,2008, by drilling a tibial tunnel in the wrong location. The MMLP issued its decision on August 21, 2012, and Wilson filed her complaint with the District Court on November 5,2012. Dr. Brandt moved for summary judgment, arguing that Wilson’s claims were barred by the three-year statute of limitations contained in § 27-2-205, MCA. ¶10 The District Court reviewed the evidence submitted and held that Wilson discovered the fact that she was injured and tied that injury to Dr. Brandt’s ACL surgery within two months of the February 2008 surgery. The District Court held that the injury was not self-concealing, citing Wilson’s testimony that she experienced new pain in the place where she knew Dr. Brandt had drilled a hole in her bone, as well as other new symptoms, shortly after her ACL surgery. The court emphasized further that Wilson said she “knew there was something wrong.” The District Court entered summary judgment in favor of Dr. Brandt. STANDARD OF REVIEW ¶11 We review a district court’s grant of summary judgment de novo. Dvorak v. Mont. State Fund, 2013 MT 210, ¶ 15, 371 Mont. 175, 305 P.3d 873. We apply the criteria of M. R. Civ. P. 56(c)(3) to determine whether there is a “genuine issue as to any material fact” and whether “the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3); see also Dvorak, ¶ 15. In evaluating a motion for summary judgment, we review the record independently and afford no deference to the district court’s decision. Siebken v. Voderberg, 2012 MT 291, ¶ 20, 367 Mont. 344, 291 P.3d 572. We view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences from the evidence in favor of the party opposing summary judgment. Siebken, ¶ 20. DISCUSSION ¶12 Wilson argues that the District Court erred in granting summary judgment because the date on which she discovered or reasonably should have discovered her injury involves disputed issues of material fact. She argues that the District Court ignored facts that demonstrate genuine issues for trial, such as Dr. Brandt’s diagnosis of RSD to explain her pain. She argues that under Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 136, 345 Mont. 12, 192 P.3d 186, “questions of fact may be determined as a matter of law on summary judgment if ‘reasonable minds could reach but one conclusion’ on the issue.” (quoting Seeley v. Davis, 284 Mont. 517, 523, 946 P.2d 119, 122 (1997)). Wilson maintains that reasonable minds could reach different conclusions about when she discovered or reasonably should have discovered her injury. ¶13 Dr. Brandt counters that the statute of limitations begins to run when a plaintiff discovers or through reasonable diligence should discover (1) her injury, and (2) that the injury “may have been caused” by the defendant medical provider. Wisher v. Higgs, 257 Mont. 132, 144, 849 P.2d 152, 159 (1993), overruled on other grounds by Blackburn v. Blue Mt. Women’s Clinic, 286 Mont. 60, 75, 951 P.2d 1, 10 (1997). He argues that the disputed facts that Wilson raises are irrelevant to this determination, because her testimony and the testimony from two of her friends establish that within a few months of her ACL surgery Wilson discovered (1) her injury, and (2) that it may have been caused by Dr. Brandt’s actions—more than three years before she filed her claim with the District Court. ¶14 Since 1971, the limitations period for medical malpractice has been governed by its own statute, separate from the general statute of limitations for other torts. 1971 Mont. Laws ch. 328, § 1. In adopting § 27-2-205, MCA, the Legislature codified language from this Court’s discovery doctrine case law. Compare 1971 Mont. Laws ch. 328, § 1 (tolling the statute of limitations until “the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury”); with Johnson v. St. Patrick’s Hosp., 148 Mont. 125, 132, 417 P.2d 469, 473 (1966) (holding that, when a surgeon negligently leaves a foreign object in a patient’s body, the statute of limitations is tolled “until the patient learns of, or in exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body”). Section 27-2-205, MCA (2007)—the statute in effect at the time of Wilson’s ACL reconstruction surgery in 2008—provides, in relevant part, that actions for medical malpractice “must ... be commenced within 3 years after the date of injury or within 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs last.” (Emphasis added.) ¶15 Our jurisprudence around the medical malpractice statute of limitations borrows both from prior case law and from the general tort statute of limitations. Section 27-2-205, MCA, codified a specific version of the discovery doctrine for medical malpractice cases. Some of our prior decisions applying § 27-2-205, MCA, rely on cases that are not governed by § 27-2-205, MCA, to interpret the statute. The parties repeat this framework of analysis in their briefing on appeal, discussing at length whether Wilson’s injury was “concealed or self-concealing.” But when the Legislature amended the general statute of limitations for torts, it adopted different language for the discovery doctrine applicable to torts other than medical malpractice. See 1987 Mont. Laws ch. 441, § 1; § 27-2-102(3), MCA. By adopting different statutes, the Legislature has made clear that, for purposes of tolling the statute of limitations, medical malpractice is treated differently from other torts. See § 27-2-102(4), MCA (“Subsection (3) [prescribing the discovery doctrine exceptions to the general tort statute of limitations] does not apply to actions involving the limitations contained in 27-2-205 [the medical malpractice statute of limitations].”); Gregg v. Whitefish City Council, 2004 MT 262, ¶ 38, 323 Mont. 109, 99 P.3d 151 (“Different language is to be given different construction.”). Here, we apply to the facts of this case the language of § 27-2-205, MCA, in the context of the Legislature’s adoption of somewhat different language when it later codified the discovery doctrine in § 27-2-102(3), MCA, for all other torts. ¶16 Before the enactment of § 27-2-205, MCA, this Court had adopted the discovery doctrine in medical malpractice cases. Johnson, 148 Mont. at 132, 417 P.2d at 473. Under this doctrine, the statute of limitations was tolled “until the patient learns of, or in exercise of reasonable care and diligence should have learned of,” his or her injury. Johnson, 148 Mont. at 132, 417 P.2d at 473. Making this determination required “lookfing] carefully at the facts of each case presented, for the problems presented in each is how and when the patient discovered the negligence.” Johnson, 148 Mont. at 128, 417 P.2d at 470. The doctrine was based on equitable considerations of “giving full scope to the statute of limitations on the one hand and according a reasonable measure of justice to the plaintiff on the other.” Grey v. Silver Bow Cnty., 149 Mont. 213, 217, 425 P.2d 819, 821 (1967) (quoting Owens v. White, 342 F.2d 817, 820 (9th Cir. 1965)). In summing up the development of the discovery doctrine in our early case law, we explained in Bennett v. Dow Chem. Co. that the discovery doctrine allowed the statute of limitations to be tolled until a plaintiff discovered that his injury “may have been caused” by the defendant, but not “beyond discovery of the cause of an injury.” Bennett, 220 Mont. 117, 121, 713 P.2d 992, 995 (1986). ¶17 Between the 1971 enactment of § 27-2-205, MCA, and the 1987 amendment of § 27-2-102, MCA, this Court continued to use and develop the discovery doctrine outside the medical malpractice context. See, e.g., Bennett, 220 Mont. at 121-22, 713 P.2d at 995 (discussing application of the discovery doctrine to negligence and products liability claims). During this time, we clarified limitations on use of the discovery doctrine, applying the doctrine only if the injury was self-concealing by its nature or if the defendant concealed the facts of the injury from the injured party. See Monroe v. Harper, 164 Mont. 23, 27, 518 P.2d 788, 790 (1974), overruled on other grounds by Blackburn, 286 Mont. at 75, 951 P.2d at 10. In 1987, the Legislature incorporated these developments into the general statute of limitations for torts. 1987 Mont. Laws ch. 441, § 1. In enacting these amendments, the Legislature also changed the requirement from discovery of the “injury” to discovery of “the facts constituting the claim,” after hearing testimony that this was a better reflection of this Court’s discovery doctrine case law. Senate Judiciary Committee Report, January 29, 1987, p. 8. Section 27-2-205, MCA, however, has not been amended to reflect these developments. Despite this, this Court has relied on cases outside medical malpractice without distinction or clarification when called on to interpret the medical malpractice statute of limitations in § 27-2-205, MCA. See, e.g., Wisher, 257 Mont. at 140, 849 P.2d at 156-57. ¶18 Although it is not improper for us to look to these developments in the law to aid our interpretation of the statute, we must do so with the role of the judge in mind. When interpreting a statute, it is our role “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. The plain language of § 27-2-205, MCA, does not call for a separate determination that an injury be “self-concealing” or that the defendant took “action which prevents the injured party from discovering the injury or its cause” in order to toll the statute of limitations. The express exclusion of medical malpractice from the general discovery statute, § 27-2-102(4), MCA, reinforces this. The terms of § 27-2-205, MCA, instead allow the tolling of medical malpractice claims until the time that a plaintiff “discovers or through the use of reasonable diligence should have discovered the injury.” ¶19 We have interpreted the statute of limitation provision contained in § 27-2-205, MCA, on three occasions: Major v. N. Valley Hosp., 233 Mont 25, 759 P.2d 153 (1988), overruled on other grounds by Blackburn, 286 Mont. at 75, 951 P.2d at 10; Wisher, 257 Mont. at 132, 849 P.2d at 152; and Runstrom v. Allen, 2008 MT 281, 345 Mont. 314, 191 P.3d 410. In these cases, we have held that the statute of limitations begins to run when a plaintiff discovers or through reasonable diligence should have discovered both (1) the injury; and (2) that the injury “may have been caused” by the defendant medical provider. Wisher, 257 Mont. at 144, 849 P.2d at 159; Major, 233 Mont. at 30, 759 P.2d at 156. But the statute of limitations is not tolled until a plaintiff discovers her legal right to bring an action for known injuries. Wisher, 257 Mont. at 140, 849 P.2d at 157; Major, 233 P.2d at 30, 759 P.2d at 156-57. Nor is the statute tolled until a plaintiff “learns the facts out of which a known cause of action arose.” Wisher, 257 Mont. at 140, 849 P.2d at 157. ¶20 In Major, the plaintiffs daughter suffered from a form of lupus, which included episodes of throat swelling and breathing difficulty. Major, 233 Mont. at 26-27, 759 P.2d at 154. On the day of her daughter’s death in March 1982, the plaintiff called the hospital to inform the staff that her daughter’s throat was closing and that she and her daughter were en route from Kalispell to the hospital in Whitefish. Major, 233 Mont. at 26, 759 P.2d at 154. Upon their arrival, the hospital staff had not yet called the doctor. Major, 233 Mont. at 27, 759 P.2d at 154. The plaintiffs daughter died in the hospital several hours later. Major, 233 Mont. at 27, 759 P.2d at 154. The plaintiff consulted with an attorney shortly thereafter, who advised her she should acquire her daughter’s medical records. Major, 233 Mont. at 27, 759 P.2d at 154. The plaintiff was unable to acquire the records until October 1984. Major, 233 Mont. at 27, 759 P.2d at 154. She filed her complaint in April 1985, more than three years after her daughter’s death. Major, 233 Mont. at 27, 759 P.2d at 154. The district court granted summary judgment on the statute of limitations, and we affirmed. The plaintiff argued on appeal that the statute of limitations should have been tolled until she received the medical records and could thus discover the facts that provided “a causal connection between her daughter’s death and the acts, errors, or omissions of her daughter’s health care provider.” Major, 233 Mont. at 30, 759 P.2d at 156. After reviewing the record, we rejected her argument and held that the plaintiff s testimony demonstrated that on the day of her daughter’s death, the plaintiff thought her daughter’s treatment was inadequate. Major, 233 Mont. at 30, 759 P.2d at 156. We held that under the circumstances, her lack of knowledge of the facts contained in the medical record did not prevent her from discovering the injury at issue in the case. Major, 233 Mont. at 30, 759 P.2d at 157. ¶21 In Wisher, the plaintiff underwent left facial nerve decompression surgery to treat Bell’s palsy. Wisher, 257 Mont. at 135, 849 P.2d at 153-54. Immediately after surgery she began to have new symptoms of pain, nausea, dizziness, loss of equilibrium, vomiting, and buzzing in her left ear. Wisher, 257 Mont. at 135, 849 P.2d at 154. Her surgeon attributed these symptoms to the side effects of anesthesia and a condition called post-operative labyrinthitis. Wisher, 257 Mont. at 135, 849 P.2d at 154. The plaintiff s initial symptoms seemed to improve for about two years, but she continued to have problems both related and unrelated to the surgery over the ensuing years. Wisher, 257 Mont. at 143, 849 P.2d at 159. Several years and multiple diagnoses later, another doctor discovered that the surgeon had perforated the plaintiff s inner ear during the nerve decompression surgery. Wisher, 257 Mont. at 137-38, 849 P.2d at 155. We held that there was no evidence that the plaintiff knew or suspected that she suffered from an injury as a result of her surgery or that she could have discovered this through the use of due diligence. Wisher, 257 Mont. at 143-44, 849 P.2d at 159. We relied on Johnson and Grey, the cases in which we first enunciated the doctrine of discovery. We distinguished Major, holding that in Major the wrongful act “was easily identifiable and the injury simultaneous and obvious.” Wisher, 257 Mont. at 140, 849 P.2d at 157. We held that substantial evidence did not support the jury verdict that the statute of limitations had run. Wisher, 257 Mont. at 144, 849 P.2d at 159. ¶22 In Runstrom, the plaintiffs sixteen-year-old son broke his femur in an all-terrain vehicle accident and died the next day in the hospital. Runstrom, ¶ 7. The day of his son’s death, the plaintiff requested an autopsy and confronted the doctor because, “[in t loday’.s time, you know, people don’t usually die from a broken leg.” Runstrom, ¶¶ 7, 33. Within weeks, he obtained his son’s autopsy report and medical records and consulted with an attorney, but no suit was filed at that time. Runstrom, ¶ 7. Four years later, the local paper ran an article reporting on administrative proceedings regarding the doctor. Runstrom, ¶ 8. Although his son was not named in the article, the plaintiff believed that his son was one of the unnamed patients discussed in the article. Runstrom, ¶ 8. Several months after the newspaper article was published, the plaintiff filed a malpractice suit against the doctor. Runstrom, ¶ 9. The plaintiff argued that he did not discover his son’s injury until he read the newspaper article. Runstrom, ¶ 34. We rejected this argument because the newspaper article contained no new information. Runstrom, ¶ 37. The autopsy report and medical records in his possession since shortly after his son’s death contained all of the information upon which the plaintiff later based his medical malpractice suit. Runstrom, ¶ 37. ¶23 Some of these opinions borrowed language from the non-medical malpractice context to interpret the language of § 27-2-205, MCA. But despite those references to terms used in the general tort statute, we conclude that both § 27-2-205, MCA, and our jurisprudence since its enactment accord with our prior medical malpractice case law applying the discovery doctrine when the “patient does not know of his own condition ... until some time later when he learns of, or in the exercise of reasonable care and diligence he should have learned of it.” Grey, 149 Mont. at 216, 425 P.2d at 820. As we noted in Johnson, this may require “lookfing] carefully at the facts of each case presented.” Johnson, 148 Mont. at 128, 417 P.2d at 470. Summary judgment is proper only when there is no genuine issue of material fact. See M. R. Civ. P. 56(c)(3). When reasonable minds can reach more than one conclusion on the accrual of a plaintiffs claim, a jury may consider the nature of the injury and other surrounding circumstances in resolving the factual dispute over discovery. ¶24 Our de novo review of the record reveals the following material facts: ¶25 Drilling a hole in Wilson’s bone was part of the ACL repair. Wilson was informed of this and consented to it. Wilson testified in her deposition that she had new pain after the ACL surgery. Wilson knew that Dr. Brandt drilled a hole in her knee and that she had pain—a common occurrence after a surgery. She “didn’t know” if the “pain ... was related to the hole that had been drilled in [her] knee,” in the months after surgery. She stated she did not ask why she was having the new pain because she had had “two different types of surgeries, one was more aggressive than the other, like the ACL is more aggressive than the meniscus. And so [she] thought it all joined together.” When asked whether she thought there was something new wrong, she said she was “concerned” and that she “knew there was something wrong” with her knee during this time. She testified that Dr. Brandt attributed her pain to RSD. Dr. Brandt’s records confirm his impression of RSD and his belief that more surgery was not needed. In Wilson’s submitted affidavit, she attested that she did not know Dr. Brandt “messed up” until meeting with Dr. Schutte. Even striking any possible hearsay statements from the affidavit, Wilson’s claim of her own personal knowledge and impression after her meeting with Dr. Schutte are consistent with her deposition testimony. ¶26 Tammy Munroe, a friend of Wilson, testified in a deposition that she knew about only two of Wilson’s six knee surgeries. She testified that a month or two after the ACL surgery Wilson told her that the “ACL just wasn’t working, and it hurt her a lot.” Munroe said that after the second surgery, when discussing her pain, Wilson “didn’t tell me different, but she described it different] ly I” from her pain before the ACL surgery. ¶27 Another of Wilson’s friends, Shannon Penney, testified in a deposition on November 10, 2016, about Wilson’s knee pain and surgeries. Penney testified that within six months to a year after the ACL surgery, Wilson told Penney that “[s]he knew there just wasn’t something right with her knee after that surgery, and she’d go to doctors, and then they’d send her to physical therapy. And she would constantly say, you know, There’s something wrong. And she’d show me like her knee was indented really weird, just it looked deformed, and it would ache.” When asked when Wilson first thought about hiring an attorney, Penney stated “It’s—was it four years ago? Five years ago?” When asked how soon after Dr. Brandt’s second surgery Wilson considered hiring an attorney, Penney answered that Wilson was in a lot of pain right after surgery, but “I guess I couldn’t give you an exact time frame, because I don’t know.” ¶28 Wilson’s medical records show that Wilson continued to report pain to her medical providers, including Dr. Brandt, after the surgery. They show that Dr. Brandt diagnosed Wilson with RSD and concluded that it explained the pain she was having. It was not until Wilson’s June 2010 appointment with Dr. Blasingame that Wilson’s pain was attributed to something besides RSD or nerve pain that would burn out. ¶29 Upon review of the full record, we conclude that the material facts are not undisputed that, before June 20, 2009, Wilson both recognized that she was injured and that her injuries may have been caused by Dr. Brandt or, alternatively, that through reasonable diligence she should have discovered her injury and its cause. Rather, there is more than one permissible inference that could be made based on Wilson’s testimony and medical records. From the evidence, we conclude that the finder of fact reasonably could infer that Wilson discovered her injury and that Dr. Brandt’s surgery may have been the cause of that injury soon after the ACL surgery. As in Major, it could be inferred that Wilson’s lack of knowledge of the facts connecting her pain to the aberrant tibial tunnel did not prevent her or should not have prevented her from discovering the injury at issue because she knew that her pain was new and excruciating. But drawing all reasonable inferences in favor of Wilson as the non-moving party, as required in considering a summary judgment motion, we conclude that the finder of fact alternatively could infer that she knew only that she was having pain from her surgeries, but not that the surgeries had injured her or that any new injury may have been caused by Dr. Brandt’s actions. As in Wisher, it could be inferred that Wilson did not and could not discover her injury because pain can be expected after surgery and her symptoms were attributed to another cause. ¶30 Thus, more than one inference could be drawn from this evidence about whether Wilson discovered or should have discovered her injury and whether it may have been connected to Dr. Brandt’s actions during this time. Objective evidence supports both inferences. Weighing this evidence and determining when Wilson discovered or reasonably should have discovered her injury is an issue for the jury to decide. See Nelson v. Nelson, 2002 MT 151, ¶ 24, 310 Mont. 329, 50 P.3d 139 (“The rule in Montana, and in the majority of jurisdictions, is that when there is conflicting evidence as to when a cause of action accrued, the question of whether an action is barred by the statute of limitations is for the jury to decide.”). Based on our review of the record, we conclude that there are questions of material fact about when Wilson was aware of—or should have been aware of—sufficient facts to believe she was injured by Dr. Brandt’s alleged actions during surgery. ¶31 Just as in Siebken, “[w]e reverse the decision of the District Court not because we conclude [Wilson] did file a timely action, but because we conclude the matter should not have been decided on summary judgment.” Siebken, ¶ 20. Wilson is entitled to have a jury decide when she discovered or through reasonable diligence should have discovered her injury and that it may have been caused by Dr. Brandt. CONCLUSION ¶32 The District Court’s order granting summary judgment is reversed and the case is remanded for further proceedings consistent with this Opinion. CHIEF JUSTICE McGRATH, JUSTICES McKINNON, SANDEFUR and SHEA concur. The statute of limitations is tolled from the filing of an application with the MMLP until 30 days after the panel renders its decision. Section 27-6-702, MCA. Wilson’s statute of limitations was tolled from May 7, 2012, to August 21, 2012, plus 30 days. Taking this tolled period into account, the applicable three-year statute of limitations for Wilson’s complaint filed on November 5, 2012, bars recovery for any injury discovered before June 20, 2009. In 2015, the Legislature amended § 27-2-205, MCA, from 3 years to 2 years. See 2015 Mont. Laws ch. 368, § 21. The second sentence of § 27-2-205, MCA, allows tolling “for any period during which there has been a failure to disclose any act, error, or omission upon which an action is based.” We held in a prior case that this sentence applies exclusively to toll the five-year statute of repose and does not apply to the statute of limitations. Blackburn, 286 Mont. at 75, 951 P.2d at 10. This language is thus inapplicable in the current case. Dr. Brandt argues that to the extent Wilson relies on her affidavit to argue that she was not aware of her injury until meeting with Dr. Schutte, the affidavit is contrary to her sworn deposition testimony. We disagree. She testified during her deposition that she experienced “new” and “excruciating” pain after her surgery. She did not testify that she recognized that she had been injured or that she believed any new injury may have been caused by Dr. Brandt’s actions.

JUSTICE McKINNON delivered the Opinion of the Court. ¶1 Richard G. Anderson (Anderson) and Limegrove Overseas, Ltd., (Limegrove) appeal from an Eleventh Judicial District Court, Flathead County, order granting HSBC Bank USA, N.A.’s (HSBC) two motions for summary judgment and motion to exclude Anderson’s expert. We affirm. ¶2 Anderson presents the following issues for review: 1. Did the District Court abuse its discretion in excluding Anderson’s expert witness? 2. Did the District Court err when it concluded Montana law governs HSBC’s underlying foreclosure and New York law governs any defenses and counterclaims? 3. Did the District Court err in granting HSBC summary judgment to foreclose? 4. Did the District Court err in granting HSBC summary judgment on Anderson’s counterclaims? FACTUAL AND PROCEDURAL BACKGROUND ¶3 Anderson, a Canadian citizen, is the Chairman and Chief Executive Officer of Wilton Resources, Inc., a publicly traded oil and gas exploration company, headquartered in Calgary. Limegrove is a corporation organized under the laws of the British Virgin Islands. Anderson informally runs the day-to-day operations of Limegrove and its sole shareholder is the Karesmay Trust, an irrevocable offshore trust organized under the laws of Jersey, Channel Islands. Anderson’s two adult children are the only beneficiaries of the Karesmay Trust. Limegrove’s only asset is a vacation property located at 3542 East Lakeshore Drive, Whitefish, Montana (the Limegrove Property). The Limegrove Property consists of “nine (9) cultivated acres of land situated on Whitefish Lake and includes a 10,000-plus square foot vacation home, a four-bay garage, 538 feet of lakeshore, and a 2-boat docking system.” Anderson may use the Limegrove Property under an oral lease agreement. The ownership arrangement was set up for tax and estate planning purposes at Anderson’s attorneys’ suggestion. Anderson is not a shareholder in Limegrove and does not own property in Montana. Anderson spends no more than 90 days per year at the Limegrove Property. ¶4 HSBC is a federally chartered bank with offices in various cities throughout the United States, primarily New York City. Anderson contacted HSBC in the spring of2006 looking for financing to facilitate the $17.5 million acquisition of the Limegrove Property. Anderson worked with Frank Drury, an HSBC domestic private banking “Relationship Manager” specializing in customers with high net-worth. After negotiating, HSBC and Anderson agreed to a two-year loan for $15.5 million with a $2 million down payment. The loan required Anderson pay down the balance by half during the first year so the outstanding principal would be no more than $8.75 million. Trust indentures on the Limegrove Property, the Roxbury Property, and 750,000 shares in First Calgary Petroleum secured the loan as collateral. ¶5 In accordance with these terms, three loan documents were drafted and executed. The loan documents consisted of (1) a Promissory Note (Note); (2) a Term Loan Agreement (TLA); and (3) a Trust Indenture Security Agreement and Fixture Filing, and Assignment of Leases, Rents and Agreements (Trust Indenture). The TLA, executed on May 9, 2006, stated a maturity date of May 8, 2008. ¶6 The Note and TLA contained choice of law provisions indicating New York law governed the agreements. The Trust Indenture is the only loan document containing a provision indicating Montana law governed the agreement. HSBC and Limegrove are the parties to the Trust Indenture and Limegrove’s director signed the agreement. Anderson was not a party to or signatory of the Trust Indenture. The Trust Indenture pledged the Limegrove Property as collateral for the obligations under the Note and TLA. The Trust Indenture provided for certain events of default including if Anderson failed to pay any obligation or if the closing price of a share of First Calgary Petroleum fell below $6 Canadian (CAD). An event of default entitled HSBC the right to take possession or foreclose on the Limegrove Property. ¶7 Two events of default occurred by August 16, 2007. Anderson failed to pay down the outstanding principal amount of the loan by half and the value of a First Calgary Petroleum share fell below $6 CAD. HSBC transferred Anderson’s loan to its Special Credit Unit and assigned it to Salvatore Gullo (Gullo) to manage. Anderson and Gullo discussed entering a forbearance agreement to give Anderson additional time to perform the loan obligations. HSBC does not have formal policies concerning forbearance agreements, although they are “common practice.” On May 6, 2008, two days prior to the loan’s maturity date, Anderson and Gullo executed a Forbearance Agreement, in which HSBC agreed to forbear exercising its rights due to existing defaults until February 9,2009, and Anderson agreed to pay down the principal by $2,750,000 and pledge 400,000 additional shares of First Calgary Petroleum as collateral. ¶8 In the Forbearance Agreement, Anderson reaffirmed the obligations under the TLA, Note, and Trust Indenture. The Forbearance Agreement was subsequently amended seven times, each time allowing Anderson additional time, ranging from two to nine months, to perform his obligations. In between the second and third amendments, on September 15,2009, Anderson signed a Replacement Promissory Note (Replacement Note) subject to the terms and conditions of the TLA. The Replacement Note contained a choice of law provision indicating New York law governed the agreement. ¶9 Most of the seven amendments to the Forbearance Agreement required Anderson to make a payment toward the outstanding principal in exchange for HSBC extending the maturity date of the loan. Two amendments required Anderson pay an extension fee, one for $100,000 and another for $5,000. Each of the seven amendments contained a choice of law provision indicating New York law governed the amendment. Before the seventh amendment, Anderson had paid down the principal to $9 million. The seventh and final extension required several payments be made by specific deadlines and matured completely on January 15, 2012. ¶10 During the seventh amendment’s extension period, Anderson and Gullo discussed an eighth amendment. However, in an email Gullo sent to Anderson, Gullo indicated he did “not have credit approval to extend” Anderson’s loan. Anderson failed to make one of the required payments and did not pay off the loan by its January 15, 2012, maturity date. Anderson acknowledged he had not fulfilled his obligations and that he withheld payment because he assumed he would get another extension. ¶11 On February 16, 2012, HSBC sent Anderson a formal default letter and demanded payment in full by February 29, 2012. Anderson did not pay. On June 8, 2012, HSBC initiated a judicial foreclosure action against Anderson and Limegrove in Montana’s Eleventh Judicial District Court, Flathead County. Anderson and Limegrove asserted affirmative defenses of estoppel and waiver and counterclaimed breach of the implied covenant of good faith and fair dealing, breach of implied contract, and violation of the Montana Consumer Protection Act. ¶12 The District Court entered a scheduling order and set the close of discovery for November 24, 2015. At Anderson’s request, the parties informally agreed to delay expert disclosures from the original deadline of November 13, 2015, by eleven days to coincide with the close of discovery on November 24, 2015. On that date, HSBC disclosed two expert witnesses, a banking expert and an appraiser. Anderson disclosed one, an appraiser. On January 19, 2016, pursuant to a stipulation between the parties, Limegrove dismissed its affirmative defenses and counterclaims, leaving only Anderson’s. Prior to trial, HSBC moved for summary judgment on the foreclosure, Anderson’s affirmative defenses, and Anderson’s counterclaims. ¶13 On March 11, 2016, after the discovery deadline, Anderson filed a supplemental expert disclosure disclosing an additional expert witness, a banking expert, James Shires (Shires). Anderson also filed Shires’s declaration. Anderson did not ask for leave to file the supplemental expert disclosure or declaration. On March 21, 2016, HSBC filed a pretrial motion to exclude Shires’s testimony at trial and strike his affidavit. HSBC relied on M. R. Civ. P. 37(c)(1) and argued Anderson’s late disclosure of Shires’s testimony merited its exclusion. Anderson responded and argued the late disclosure was “substantially justified due to HSBC’s late disclosure of certain written policies.” ¶14 On March 22, 2016, the District Court held a hearing on the pretrial motions. The District Court found that Anderson’s “failure to timely disclose Shires[] as an expert witness was not substantially justified and was not harmless.” Further, the District Court found Anderson “did not move for or suggest an alternative sanction.” The District Court, relying on Doherty v. Fannie Mae, 2014 MT 56, ¶ 15, 374 Mont. 151, 319 P.3d 1279, concluded that absent substantial justification, harmlessness, or a motion for a lesser sanction, Shires’s testimony must be excluded and his affidavit stricken. ¶15 The District Court granted HSBC’s three pretrial motions in a 42-page order dated August 30, 2016. On October 12, 2016, the District Court entered its final judgment and decree of foreclosure. The District Court awarded judgment to HSBC against Anderson for “$6,434,971.86 in principal, $1,885,689.62 in interest (for a base total amount owing of $8,320,661.48), together with additional interest accruing (at a rate of $1,340.62 per day) from January 4, 2016 until the present [October 12, 2016,] and HSBC’s reasonable out-of-pocket expenses (including attorneys’ fees)....” ¶16 Anderson appeals. STANDARDS OF REVIEW ¶17 A district court’s exclusion of expert witness testimony is reviewed for an abuse of discretion. Sunburst School Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 68, 338 Mont. 259, 165 P.3d 1079. A court abuses its discretion if it acts “arbitrarily without conscientious judgment or exceed[s] the bounds of reason.” Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, 154 P.3d 561 (quoting Lopez v. Josephson, 2001 MT 133, ¶ 14, 305 Mont. 446, 30 P.3d 326). This Court reviews decisions on choice of law de novo. Masters Group Intl., Inc. v. Comerica Bank, 2015 MT 192, ¶ 33, 380 Mont. 1, 352 P.3d 1101 (citation omitted) (hereinafter, Comerica). A motion for summary judgment should be granted, “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3). “We review de novo a district court’s ruling on summary judgment, applying the criteria of M. R. Civ. P. 56(c)(3).” Mt. Water Co. v. Dept. of Revenue, 2017 MT 117, ¶ 7, 387 Mont. 394, 394 P.3d 922 (citations omitted). DISCUSSION ¶18 1. Did the District Court abuse its discretion in excluding Anderson’s expert witness? ¶19 The parties initially dispute the appropriate standard of review for this issue. Relying on Lorang v. Fortis Insurance Company, 2008 MT 252, ¶ 53, 345 Mont. 12, 192 P.3d 186, Anderson contends that this Court reviews decisions to exclude evidence de novo. HSBC argues that the correct standard of review for M. R. Civ. P. 37(c) sanctions is for an abuse of discretion. “A district court possesses broad discretion in ruling on the admissibility of expert testimony, and without a showing of abuse of discretion, the district court’s ruling will not be disturbed on appeal.” Sunburst, ¶ 68 (citing State v. Vernes, 2006 MT 32, ¶ 14, 331 Mont. 129, 130 P.3d 169); see also McCulley v. U.S. Bank, 2015 MT 100, ¶ 22, 378 Mont. 462, 347 P.3d 247 (“We review a district court’s discovery ruling for an abuse of discretion.”); Serrania v. LPH, Inc., 2015 MT 113, ¶ 12, 379 Mont. 17, 347 P.3d 1237 (“This Court reviews sanctions orders for abuse of discretion.”); Doherty, ¶ 12 (“We review a district court’s decision regarding the imposition of sanctions for alleged discovery abuse to determine whether the district court abused its discretion.” (citation omitted)). We review the imposition of sanctions pursuant to M. R. Civ. P. 37(c) for an abuse of discretion. ¶20 On appeal, Anderson argues disclosing Shires late was substantially justified by HSBC’s late production of certain policies and entries in its online Credit and Accounts Receivable Management System (CARMS). Anderson argues the District Court inappropriately relied on dicta from Doherty to conclude Shires’s information must be excluded and its exclusion of Shires was “extremely harsh.” Instead of Doherty, Anderson argues this Court should apply the three-part test outlined in Maloney v. Home & Investment Center, Inc., 2000 MT 34, ¶ 35, 298 Mont. 213, 994 P.2d 1124, used to determine the appropriateness of excluding witnesses. Relying on Maloney, Anderson argues this Court should reverse the District Court’s decision to exclude Shires. ¶21 HSBC responds by arguing that its late production of credit policies and CARMS does not provide Anderson “substantial justification.” HSBC points out that Anderson initially asked for HSBC’s credit policies in January 2013, and HSBC objected to the disclosure on the basis that the request was “overly broad, vague and unlimited in scope or time” and sought “proprietary, trade secret and/or confidential business information.” Anderson never responded to HSBC’s argument that the credit policies were undiscoverable, but three years later, on January 18,2016, requested the policies again. On appeal, HSBC argues that by then it decided to just provide the policies in order to avoid a discovery dispute. Further, HSBC argues that the late-disclosed policies do not provide any justification for Anderson’s late expert disclosure because the policies were not identified, quoted, or analyzed in Shires’s disclosure and only mentioned once in his declaration. HSBC argues the CARMS were produced multiple times and for the first time in March 2013, well before the close of discovery. At Anderson’s request, they were reproduced after. HSBC distinguishes Maloney and asserts that its test is no longer applicable because M. R. Civ. P. 37 was amended in 2011 and is now self-executing, meaning the sanction of exclusion is automatic. HSBC argues the District Court correctly excluded Shires’s testimony. ¶22 During discovery, litigants can be required, by scheduling order, to disclose their expert witnesses, their opinions, and the basis for those opinions. M. R. Civ. P. 26(b)(4)(A)(i); Sunburst, ¶ 70. If a party fails to provide information requested in accordance with these rules or fails to disclose information regarding opinions of a witness as required by Rule 26(b)(4), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. M. R. Civ. P. 37(c)(1). On motion, the court may impose other appropriate sanctions in addition to exclusion or instead of exclusion. M. R. Civ. P. 37(c)(1)(C). “If the court does not find the failure substantially justified or harmless, and if there is no motion for alternative sanctions, the information must be excluded.” Doherty, ¶ 15, (citing M. R. Civ. P. 37(c)(1); accord Fed. R. Civ. P. 37(c)(1); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F. Supp. 3d 1101, 1106 (9th Cir. 2001) (describing Fed. R. Civ. P. 37(c)(1) as self-executing and automatic); Olson v. Mont. Rail Link, Inc., 227 F.R.D. 550, 552 (D. Mont. 2005) (noting exceptions to automatic sanctions under Fed. R. Civ. P. 37(c)(1) if failure is substantially justified or harmless)). ¶23 Here, Anderson does not argue that the late expert disclosure was harmless and did not move the District Court for an alternative sanction. Anderson contends the late disclosure was substantially justified by HSBC’s late production. We disagree. HSBC produced CARMS and credit policies after the close of discovery; however, the CARMS were also timely produced and HSBC timely objected to producing the credit policies. Further, Anderson does not explain why he could not disclose Shires until HSBC produced the CARMS and credit policies. He does not, for example, claim that Shires’s examination of those documents was somehow critical and, without them, he would not have selected or required an expert. We conclude the District Court did not abuse its discretion in excluding Shires’s information and testimony. ¶24 Anderson asserted affirmative defenses of estoppel and waiver and counterclaimed breach of the implied covenant of good faith and fair dealing, breach of implied contract, and violation of the Montana Consumer Protection Act. Anderson bore the burden of proving these affirmative defenses and counterclaims. The District Court found, “It is reasonable to think that Anderson should have anticipated, from the outset, that in a case such as this, the opinions of an expert on banking practices would be required.” We agree with the District Court. Even excluding the evidence provided by HSBC in January 2016, Anderson should have known that he would need a banking expert and timely disclosed one. The District Court did not abuse its discretion in concluding that Anderson’s late disclosure was not substantially justified. The District Court did not err in excluding Anderson’s expert witness. ¶25 2. Did the District Court err when it concluded Montana law governs HSBC’s underlying foreclosure and New York law governs any defenses and counterclaims? ¶26 The parties agree Montana law governs the foreclosure action. The parties disagree on which state’s law governs Anderson’s defenses and counterclaims. The District Court applied the Comerica choice of law test and concluded New York law governed Anderson’s affirmative defenses and counterclaims. Comerica, ¶ 55. On appeal, Anderson argues Montana law was the parties’ choice in the Trust Indenture, which allowed HSBC to foreclose, and his defenses and counterclaims are “part and parcel” to the foreclosure action. Montana law should, Anderson argues, govern the entire dispute despite the choice of law provisions in the other loan documents. HSBC argues Anderson’s defenses and counterclaims arise from the other loan documents, which Anderson is a party to and all contain New York choice of law provisions. Further, HSBC argues Anderson cannot rely on the Trust Indenture because he was not a party to or signatory of it. Additionally, HSBC indicates that Limegrove was a party to the Trust Indenture; however, in a document filed on January 19, 2016, Limegrove dismissed its affirmative defenses and counterclaims with prejudice. ¶27 Statute dictates choice of law as to real property. “Real property within this state is governed by the law of this state ....” Section 70-1-107, MCA. “A court may not act directly upon the title to real property in a foreign jurisdiction.” Aetna Life Ins. Co. v. McElvain, 221 Mont. 138, 147, 717 P.2d 1081, 1086 (1986). Judicial foreclosures must occur in the jurisdiction where the property is located. Here, Montana law must govern the Trust Indenture in order to allow foreclosure of the Limegrove Property as a remedy. ¶28 “We recognize and enforce a clear and unambiguous contract term, unless that term Violates public policy or is against good morals.’ ” Comerica, ¶ 54 (quoting Youngblood v. Am. States Ins. Co., 262 Mont. 391, 395, 866 P.2d 203, 205 (1993)). In the construction of an instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. Section 1-4-101, MCA. ¶29 In Comerica, we recognized the test Montana courts apply to choice of law disputes. We apply the law of the state chosen by the parties to govern their contractual rights unless the following three factors are met: (1) but for the choice of law provision, Montana law would apply under [Restatement (Second) of the Conflict of Laws § 188]; (2) Montana has a materially greater interest in the particular issue than the parties!’] chosen state; and (3) application of the chosen state’s law would contravene a Montana fundamental policy. Comerica, ¶ 55 (quotation and citations omitted). All three factors must be met and if a clear choice of law provision does not violate Montana public policy, there is no reason to analyze factors (1) and (2). Comerica, ¶ 55 (citations omitted). If the parties’ chosen state’s law does not contravene Montana public policy, it will be applied. ¶30 To determine whether the terms in the loan documents are clear and unambiguous, we first examine the provisions. Ten contracts explicitly state New York law governs them. The TLA states: Section 8.5. Governing Law. This Agreement and the Loan Documents shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflicts of law principles thereof (other than Section 5-1401 of the New York General Obligations Law), and except as otherwise specifically set forth in the Mortgages with respect to each Mortgage and the Mortgaged Premises (in which event the laws of the jurisdiction in which the Mortgaged Premises is located shall apply). (Emphasis in original.) The Note states “THIS PROMISSORY NOTE SHALL BE GOVERENED BY THE LAWS OF THE STATE OF NEW YORK.” (Emphasis in original.) The Replacement Note states “THIS REPLACEMENT PROMISSORY NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.” (Emphasis in original.) Each of the seven amendments to the Forbearance Agreement include the same provision stating, “[t]his Amendment shall be governed by, and construed under, the internal laws of the State of New York, without regard to principles of conflicts of law.” These contracts clearly and unambiguously indicate the parties agree to the application of New York law. ¶31 The Trust Indenture is the only document indicating Montana law governs it. Section 13. Law Governing. This Indenture of Trust shall be governed by and construed in accordance with the laws of the jurisdiction in which the Land is located. (Emphasis in original.) It is undisputed the land at issue, the Limegrove property, is located in Montana. This provision is clear and unambiguous. The Forbearance Agreement does not contain a choice of law provision but does contain a provision reaffirming the obligations set forth in the TLA and other loan documents. If possible, our goal will be to give effect to each choice of law provision in each instrument. Section 1-4-101, MCA. ¶32 The District Court found it significant that Anderson was not a party to the Trust Indenture, the only contract selecting Montana law, and was a party to each of the loan documents selecting New York law: Although they relate to the foreclosure, none of Anderson’s defenses or claims raise questions or issues that concern or directly affect interest in the property. Rather Anderson’s defenses and counterclaims are based on allegations concerning HSBC’s conduct with respect to the underlying debt. Issues which do not affect interest in the land, although they relate to the foreclosure, are determined by the law which governs the debt for which the mortgage was given. Restatement (Second) of Conflict of Laws [§] 229 cmt. e. Anderson’s affirmative defenses and counterclaims arise out of the contracts that establish the underlying debt—the Note, Replacement Note, TLA, Forbearance and forbearance amendments (extensions). Anderson is a party to all of these contracts and all of these contracts either contain or incorporate New York choice of law provisions. ¶33 Litigants lack standing to enforce obligations of a contract if they are not a party to, or third-party beneficiary of, that contract. See Turner v. Wells Fargo Bank, N.A., 2012 MT 213, ¶ 15, 366 Mont. 285, 291 P.3d 1082. Anderson is not a party to the Trust Indenture and cannot enforce its choice of law provision. Anderson asserted affirmative defenses and counterclaims. However, Anderson’s defenses and counterclaims cannot arise from the Trust Indenture he is not a party to. ¶34 Anderson is a sophisticated businessperson and CEO of a publicly traded corporation. He has experience orchestrating similar ownership arrangements for other vacation properties in order to accomplish his tax and estate planning goals. Multiple attorneys represented Anderson during the formation, review, and execution of the loan documents between Anderson, Limegrove, and HSBC. Based on Anderson’s sophistication, experience, and access to legal representation, the District Court found “[i]t is reasonable to interpret Anderson’s and HSBC’s action of including a choice of (New York) law provision in the contracts as their intention that the provision apply to claims and affirmative defenses arisingfrom those contracts.” (Citation omitted.) We agree with the District Court. Anderson agreed, ten separate times, to the application of New York law, and was not a party to the only instrument indicating Montana law applied. He cannot now invoke a provision of a contract he was not a party to in order to avoid a choice of law selection he explicitly, and repeatedly, agreed to unless that provision contravenes Montana public policy. ¶35 We now consider whether New York law contravenes Montana public policy. Comerica, ¶ 55. The District Court found “Anderson has not identified any aspect of [] either his affirmative defenses or claims to which application of New York law would somehow contravene Montana’s public policy.” On appeal, Anderson does not suggest New York law contravenes Montana’s public policy, he maintains only that the parties chose Montana law. We disagree that the parties chose Montana law. Instead, we believe the parties chose New York law, as evidenced by the ten separate and explicit provisions. New York law was generally the parties’ choice, but they were required by statute to include a Montana choice of law provision in the Trust Indenture to facilitate foreclosure within the state. ¶36 The District Court found New York and Montana law comparable as it relates to Anderson’s defenses and counterclaims. The District Court found “there is no substantive difference between Montana and New York law on the defenses of equitable estoppel” or waiver. In Montana, a prima facie claim of equitable estoppel is established by six elements outlined in Turner, ¶ 30. Likewise, in New York, courts recognize six similar elements to establish equitable estoppel (three elements concerning the party estopped and three concerning the party asserting the doctrine). Wallace v. BSD-M Realty, LLC, 142 A.D.3d 701, 703 (N.Y. App. Div. 2016). In both Montana and New York, waiver is a voluntary and intentional relinquishment of a known right. Comerica, ¶81; Nassau Trust Co. v. Montrose Concrete Products Corp., 56 N.Y.2d 175, 184 (N.Y. 1982). ¶37 As to Anderson’s counterclaims, the District Court found, “[l]ike Montana, New York recognizes claims for breach of the implied covenant and breach of implied contract and also has its own consumer protection statute.” Citing 19 Recordings Ltd. v. Sony Music Enter., 97 F. Supp. 3d 433, 438 (S.D.N.Y. 2015) (implied covenant); Maas v. Cornell Univ., 721 N.E.2d 966, 970 (N.Y. App. Div. 1999) (implied contract); N.Y. Gen. Bus. Law § 349 (footnote omitted). The law governing Anderson’s defenses and counterclaims are similar in Montana and New York and the District Court held “application of New York law to Anderson’s affirmative defenses and claims would not contravene Montana public policy.” ¶38 We agree with the District Court. Based on the similarity between New York and Montana law relating to Anderson’s defenses and counterclaims we conclude that applying New York law does not offend Montana public policy. Further examination of the remaining two factors is not required. Comerica, ¶ 55. The District Court did not err in concluding Montana law governed HSBC’s judicial foreclosure action and New York law governed Anderson’s defenses and counterclaims. ¶39 3. Did the District Court err in granting HSBC summary judgment to foreclose? ¶40 “The party moving for summary judgment bears the initial burden of establishing the absence of any genuine issue of material fact and entitlement to judgment as a matter of law.” Semenza v. Kniss, 2008 MT 238, ¶ 18, 344 Mont. 427, 189 P.3d 1188 (citation omitted). If met, “the burden shifts to the non-moving party” to avoid summary judgment by “establish[ing] with substantial evidence, as opposed to mere denial, speculation, or conclusory assertions, that a genuine issue of material fact does exist or that the moving party is not entitled to prevail under the applicable law.” Semenza, ¶ 18 (quotation and citations omitted). The evidence must be viewed in the light most favorable to the non-moving party and all reasonable inferences are to be drawn in favor of the party opposing summary judgment. Redies v. Attys. Liab. Protec. Socy., 2007 MT 9, ¶ 26, 335 Mont. 233, 150 P.3d 930 (quotation and citations omitted). ¶41 In Montana, “[t]o make a prima facie case for foreclosure, the bank is obligated to prove the following three elements: (1) the debt of defendants [Anderson and Limegrove]; (2) non-payment of the debt; and (3) ownership of the debt by the complaining party [HSBC].” Farm Credit Bank v. Hill, 266 Mont. 258, 264, 879 P.2d 1158, 1161 (1993) (citing First Natl. Bank v. Quinta Land and Cattle Co., 238 Mont. 335, 339, 779 P.2d 48, 50 (1989). The District Court concluded HSBC, the moving party, proved all three elements. At the District Court, Anderson argued against summary judgment, claiming principles of equitable estoppel and waiver precluded HSBC’s foreclosure. On appeal, Anderson argues HSBC failed to prove the second element—non-payment of the debt—because HSBC waived its right to payment. ¶42 Waiver is a relinquishment of a known right. Nassau, 56 N.Y.2d at 1269. Anderson argues HSBC waived its right to payment by continuing to give him extensions. Anderson argues he did not pay off the loan at the end of the seventh extension because he assumed he would get another extension. However, evidence provided to the District Court indicated HSBC only waived its rights as to maturity of the debt for the defined period indicated in the Forbearance Agreement and its amendments and had not waived its right to full, eventual payment. Each amendment to the Forbearance Agreement stated a specific maturity date, that it was the parties’ “entire agreement,” and that it could not be modified except by a signed, written agreement. Anderson acknowledged he was never promised an eighth extension period. Additionally, email correspondence between Anderson and Gullo indicated Gullo told Anderson he did not have credit approval to extend the loan again. ¶43 The District Court found, “Anderson has not submitted any evidence which raises a question of material fact as to the second element, non-payment of the debt. In his deposition testimony, Anderson acknowledged that, although he was making payments on the interest, he had not paid off the principal.” The District Court also found, “Anderson has not provided any evidence that raises a question of fact as to whether HSBC waived its rights for all time or for any period of time after the January 15, 2012 maturity date under the Seventh Forbearance Amendment.” Viewing the evidence in Anderson’s favor, we conclude no issue of material fact existed to dispute or excuse Anderson’s non-payment of the debt. The District Court did not err in granting HSBC summary judgment to foreclose. ¶44 4. Did the District Court err in granting HSBC summary judgment on Anderson’s counterclaims? ¶45 At the District Court, Anderson asserted three counterclaims. On appeal, Anderson argues the District Court erred in granting summary judgment to HSBC regarding only two: breach of the implied covenant of good faith and fair dealing and violation of the Montana Consumer Protection Act. Like at the District Court level, Anderson cites only to Montana authority to support his contentions on appeal because he disagrees that New York law governs his counterclaims. However, New York law governs Anderson’s counterclaims. ¶46 Anderson argues HSBC breached the implied covenant of good faith and fair dealing by acting dishonestly in negotiating and granting him extensions. On appeal, Anderson does not cite to any specific dishonest action, instead arguing generally that he had “presented more than sufficient evidence to show that Gullo’s actions displayed actual dishonesty and HSBC’s actions were outside of accepted commercial practices.” The District Court granted HSBC summary judgment because Anderson failed to present admissible evidence to raise an issue of fact regarding his breach of implied covenant claim. ¶47 Evidence considered for summary judgment purposes must be admissible. Hiebert v. Cascade Co., 2002 MT 233, ¶ 29, 311 Mont. 471, 56 P.3d 848. A party opposing summary judgment cannot create an issue of material fact by contradicting prior sworn statements. Kaseta v. N.W. Agency, 252 Mont. 135, 138, 827 P.2d 804, 806 (1992) (citation omitted). Referring to its exclusion of Shires’s testimony, the District Court cited M. R. Civ. P. 56(e)(2) and held “Anderson cannot rely on inadmissible evidence to raise a question of fact in opposition to a motion for summary judgment.” Additionally, the District Court refused to consider a sworn statement of Anderson because it directly contradicted an earlier sworn statement. ¶48 The covenant of good faith and fair dealing “embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” 19 Recordings Ltd., 97 F. Supp. 3d at 438 (quoting Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389 (N.Y. 1995)). “The implied covenant cannot be used to create independent obligations beyond the contract.” 19 Recordings Ltd., 97 F. Supp. 3d at 438 (quotation omitted). Anderson does not argue HSBC destroyed or injured his right to receive the fruits of any of the contracts he entered into. Anderson’s argument that HSBC breached the implied covenant by failing to grant an eighth extension must fail because the implied covenant does not create obligations beyond the contract. See 19 Recordings Ltd., 97 F. Supp. 3d at 438. HSBC was not obligated by the implied covenant of good faith and fair dealing to amend the forbearance agreement an eighth time. Therefore, HSBC did not breach the implied covenant of good faith and fair dealing. ¶49 Anderson also counterclaimed HSBC violated the Montana Consumer Protection Act, a Montana specific statute. On appeal, Anderson cites § 30-14-103, MCA, which prohibits “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ....” As set forth above, New York law, not Montana law, governs Anderson’s counterclaims. The District Court noted New York law also prohibits “deceptive acts or practices” under N.Y. Gen. Bus. Law § 349(a). However, Anderson did not allege a violation of New York law. Anderson does not allege HSBC violated an applicable law. The District Court did not err in granting HSBC summary judgment on Anderson’s counterclaims. CONCLUSION ¶50 The District Court did not abuse its discretion in excluding Shires’s expert testimony pursuant to M. R. Civ. P. 37(c). The District Court did not err in its conclusion on choice of law. The District Court did not err in granting HSBC summary judgment to foreclose and did not err in granting HSBC summary judgment on Anderson’s counterclaims. ¶51 Affirmed. CHIEF JUSTICE McGRATH, JUSTICES SANDEFUR, SHEA and RICE concur. All references to dollar amounts are in USD unless otherwise indicated. The Roxbury Property was another piece of property located on Whitefish Lake with an ownership arrangement similar to the Limegrove Property, that is, it was owned by a foreign corporation with its sole shareholder an offshore trust and Anderson’s children as the trust’s beneficiaries. At the time it was pledged as collateral, its estimated value was $6.5 million. Anderson does not argue he is a third-party beneficiary to the Trust Indenture. He does argue he owes obligations under the Trust Indenture and is named as “borrower,” but fails to develop this argument. Anderson also claims “HSBC was first to breach the TLA,” but does not explain how this would excuse Anderson’s payment. It is not this Court’s job to conduct legal research on Anderson’s behalf, to guess as to his precise position, or to develop legal analysis that may lend support to that position. See Johansen v. Dept. of Nat. Resources & Conserv., 1998 MT 51, ¶ 24, 288 Mont. 39, 955 P.2d 653 (citations omitted). We do not consider this argument.

JUSTICE RICE delivered the Opinion of the Court. ¶1 The State of Montana appeals the order entered by the First Judicial District Court, Lewis and Clark County, reversing the Helena Municipal Court’s order denying Christopher Brown’s motion to suppress evidence related to his arrest for driving under the influence of alcohol (DUI). We reverse the District Court’s order, addressing the following issue: Did the District Court err by concluding that particularized suspicion did not exist for the investigatory stop? FACTUAL AND PROCEDURAL BACKGROUND ¶2 On March 4, 2015, at around 2 a.m., Officer Noal Petty initiated a traffic stop near the walking mall on Last Chance Gulch in Helena. While engaged in the stop, Officer Petty heard a vehicle excessively revving its engine in the small parking garage located on the walking mall and became concerned that the driver’s intention was to squeal its tires or to exit the garage unsafely at a high rate of speed. Because he was occupied with a traffic stop, Officer Petty radioed to see if another officer was available to investigate. ¶3 Officer John Cook was already en route to provide backup to Officer Petty for the initial traffic stop. As Officer Cook was arriving, Officer Petty saw a pickup truck exit the parking garage and pull up to the intersection between the parking garage and Officer Petty’s location. As both parties acknowledge, Officer Petty again heard the revving of an engine, but this time seeing the source vehicle. Officer Petty pointed out the truck to Officer Cook and told Officer Cook to stop the vehicle. ¶4 Officer Cook headed toward the pickup truck and saw the truck emit a large quantity of smoke as it pulled away from the intersection, and suspected from the excessive smoke that Brown was operating a non-compliant vehicle. Officer Cook initiated a stop of the truck based on the directive he received from Officer Petty and his own observation of excessive smoke. The driver of the vehicle was Christopher Brown, who acknowledged revving the engine. The stop thereafter ripened into a DUI investigation, resulting in Brown’s arrest on that charge. ¶5 In the Municipal Court, Brown moved to suppress evidence obtained from the traffic stop, arguing Officer Cook did not have particularized suspicion of wrongdoing to justify the traffic stop. The Municipal Court denied the motion, reasoning that particularized suspicion for Officer Cook’s stop arose “because of the excessive smoke,” but that, even if Officer Cook did not have the requisite particularized suspicion based upon his own observations, “the stop may nonetheless be made if the [] officer receives from another officer a request to stop the vehicle if the other officer from whom the request was received possessed a reasonable suspicion that a criminal conduct had occurred, was occurring, or was about to occur.” ¶6 Brown appealed to the District Court, which reversed the Municipal Court, reasoning that: The trial court’s finding that Brown was apprehended under Mont. Code Ann. § 61-9-403, for a mechanical violation because he had a faulty muffler or poorly adjusted engine, is clearly erroneous. Brown was stopped for alleged behavior. As stated repeatedly by the testifying officers, Brown was believed by the reporting officer to have excessively revved his engine and by the arresting officer to have produced excessive smoke due to revving. However, even if it was assumed that the same truck both revved loudly and created a cloud of smoke, the law of Montana furnishes no basis upon which to conclude that there had been any wrongdoing. (Emphasis in original.) The State of Montana appeals. STANDARD OF REVIEW ¶7 In an appeal from a municipal court, the district court functions as an appellate court and the appeal is confined to a review of the record and questions of law. Section 3-10-115(1), MCA. We review a district court’s grant of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether the court’s interpretation and application of the law are correct. State v. Seaman, 2005 MT 307, ¶ 10, 329 Mont. 429, 124 P.3d 1137 (citations omitted). We review the case as if the appeal was originally filed in this Court and we examine the record independently of the district court’s decision. Stanley v. Lemire, 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643. A court’s determination that particularized suspicion exists is a question of fact, which we review for clear error. State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the lower court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made. State v. Wagner, 2013 MT 159, ¶ 9, 370 Mont. 381, 303 P.3d 285 (citing State v. Cooper, 2010 MT 11, ¶ 5, 355 Mont. 80, 224 P.3d 636). DISCUSSION ¶8 Did the District Court err by concluding that particularized suspicion did not exist for the investigatory stop? ¶9 The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution prohibit unreasonable searches and seizures. These protections extend to investigative stops of vehicles. State v. Flynn, 2011 MT 48, ¶ 7, 359 Mont. 376, 251 P.3d 143. Before effectuating a stop, a police officer must observe circumstances that create “a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.” Section 46-5-401(1), MCA. The State bears the burden of proving that an officer had particularized suspicion to stop a vehicle by showing: (1) objective data and articulable facts from which an experienced officer can make certain inferences, and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity. State v. Larson, 2010 MT 236, ¶ 19, 358 Mont. 156, 243 P.3d 1130 (citing Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842). The focus is on objective data and our precedent has established that an “inquiry into the subjective motivations of law enforcement... is inappropriate in assessing the validity of an arrest.” State v. Crawford, 2016 MT 96, ¶ 21, 383 Mont. 229, 371 P.3d 381. ¶10 “Particularized suspicion does not require certainty; it depends on the totality of the circumstances in which the officer is making the determination.” City of Missoula v. Sharp, 2015 MT 289, ¶ 9, 381 Mont. 225, 358 P.3d 204 (citing Larson, ¶ 19). This Court has held that an officer who is unaware of the factual basis for a particularized suspicion may make an investigatory stop upon a directive or request for action from another officer. State v. Gouras, 2004 MT 329, ¶ 22, 324 Mont. 130, 102 P.3d 27 (citing State v. Olmsted, 1998 MT 301, ¶ 34, 292 Mont. 66, 968 P.2d 1154). ¶11 In its challenge to the District Court’s order, the State analogizes this case to Larson, where two officers were engaged in a traffic stop when they heard screeching tires at a nearby intersection. Both officers observed a truck spin its tires and cross the intersection with its engine revving. One officer followed the truck for a short distance and observed that the truck had oversized tires and lacked mud flaps, which was a potential vehicle code violation. Larson, ¶ 9. We determined that these circumstances, taken together with rational inferences, reasonably justified the traffic stop. Larson, ¶ 23. ¶12 In response, Brown relies on Grinde v. State, 249 Mont. 77, 813 P.2d 473 (1991). In Grinde, officers observed a vehicle lawfully drive down a street and turn the corner. When the vehicle was out of sight, the officers heard a revving engine and tires squealing. Grinde, 249 Mont. at 78, 813 P.2d at 474. We held that particularized suspicion did not exist because the officers’ personal observations were limited to the car operating in a “safe and prudent manner.” Grinde, 249 Mont. at 80, 813 P.2d at 475. ¶13 Unlike in Grinde, the observations of the officers here were not limited to a vehicle operating in a safe manner. Officer Petty heard an engine revving inside the parking garage, and had concerns that, at 2:00 a.m., the vehicle may exit into the walking mall unsafely. Petty then observed a pickup truck leaving the same parking garage, with an engine that was revving. Responding to Officer Petty’s instruction, Officer Cook approached the same truck and observed it emitting excessive smoke, a potential vehicle code violation. Section 61-9-403, MCA. As in Larson, when these observations are taken together with rational inferences, they constitute objective data that reasonably warranted the stop and support a finding of particularized suspicion. Larson, ¶ 23. ¶14 In reversing the Municipal Court, the District Court posited that on a cold night “it may likely be difficult to distinguish unnecessary exhaust smoke with water vapor emitted from the tailpipe.” However, Officer Cook need not have been certain that Brown had actually violated a vehicular statute for the purpose of initiating a traffic stop, only particularized suspicion about such a violation. See Sharp, ¶ 9; State v. Britt, 2005 MT 101, ¶ 12, 327 Mont. 1, 111 P.3d 217. The excessive smoke emitting from the vehicle supported a reasonable suspicion that Brown was operating a noncomplying vehicle. Officer Cook was also entitled to rely on the directive from Officer Petty based on Petty’s earlier observations. See Gouras, ¶ 22. From his observation and those of Officer Petty, Officer Cook had particularized suspicion to stop Brown’s vehicle. ¶15 On review from a municipal court of record, a district court is confined to review of the record and questions of law. Section 3-10-115(1), MCA. Here, the District Court erroneously found from the evidence that Brown was stopped for “alleged behavior,” which required its own assessment and speculation about the record. Rather, there was substantial evidence in the record to support the Municipal Court’s findings of fact about the reasons that Brown’s vehicle was stopped. We conclude the District Court erred in reversing the Municipal Court’s denial of the motion to suppress. ¶16 Reversed. CHIEF JUSTICE McGRATH, JUSTICES BAKER, WHEAT and SHEA concur.

CHIEF JUSTICE McGRATH delivered the Opinion of the Court. ¶1 This is an appeal from the Water Court’s August 30, 2016 “Order Regarding Danreuther Ranches Water Right Claims.” We affirm in part and reverse in part. ¶2 We restate the issues on appeal as follows: Issue One (Canal Companies): Whether the Water Court erred in its orders regarding Danreuther Claim Nos. 410 156802-00; 410 156804-00; 410 156805-00; and implied Claim No. 30106965. Issue Two (Danreuther cross-appeal): Whether the Water Court erred in its orders regarding Danreuther Claim No. 410 156804-00. PROCEDURAL AND FACTUAL BACKGROUND ¶3 The following facts are taken from the Water Court’s decision. This appeal concerns certain water rights of the Danreuther Ranch, located along the Teton River north of Carter, Montana. Lands in that area generally require irrigation to produce crops and the Teton River is the only reliable source of surface water with the exception of a spring in Captain Nelse’s Coulee. Danreuther Ranch raises crops, hay and livestock, and seeks to irrigate 182.8 acres north of the River and 69.7 acres south of the River. The Ranch also claims stockwater from the River and from the Coulee spring. ¶4 The Danreuther Ranch was part of the Edward Reichelt ranch that began in 1888 with the acquisition of land and water rights along the Teton River. In 1935 Edward divided his ranch between his two sons, Dan and Bruno, and Danreuther is the successor in interest to Dan. Danreuther filed statements of claim in the water adjudication process, for irrigation and stockwater. The claims are based upon an 1874 claim statement by Nelson Vieux; notices of appropriation filed in 1914 by Horace Hibbard and Helen Hibbard; and a notice of appropriation filed in 1921 by Clara Lamphear. ¶5 Danreuther’s most senior water claims are based upon activity beginning in 1874 by an early settler named Nelson Vieux, who came to the Fort Benton area in the 1860s and settled on land along the Teton River. Vieux’s settlement was about 20 miles west of Fort Benton and became a regular second-night stop for freight wagons traveling the Whoop-Up Trail to Canada. It was located at the mouth of the Nelse Coulee (named for Vieux) that provided the heavy freight wagons a passage out of the Teton River valley. The peak activity on the Trail was between 1874 and 1883, and the Water Court found that there was “significant development” at the Vieux ranch during this time. Vieux applied for a homestead in 1882. ¶6 On February 19, 1874, Vieux filed a written notice with Teton County stating that he intended to “claim and appropriate” water from the Teton River “for irrigating and agricultural purposes.” He also claimed the right to float logs down the River to his settlement, unimpeded by any dams or obstructions upstream. The 1874 Vieux filing did not provide any other information about the intended use of water. According to Chouteau County tax records, Vieux did not claim any improvements on his land until 1881, but he paid taxes on “over 100 head of livestock every year.” The Water Court found that the evidence did not support a conclusion that Vieux was irrigating crops until “the 1880s” and that there was no “compelling evidence” that Vieux was irrigating at an earlier date. ¶7 The Water Court found that the “best evidence” that Vieux was irrigating came in his May 7,1887 homestead claim filing. Vieux stated that he moved his family to the Teton River land in 1880, when he “established a permanent residence, and took up farming.” The 1887 filing states that Vieux farmed nine acres in 1880 and farmed 50 acres by 1887. The Water Court determined that since “cultivation in this area is pointless without irrigation,” the evidence of cultivation is “a strong indication of irrigation.” In addition, Vieux claimed ownership of farming equipment including plows, harrows, scythes, a rake and a mowing machine. The homestead claim filings also support ownership of 100 open range cattle and 60 open range horses, with four horses, three cows and some chickens and hogs “on the homestead.” The Water Court found that this was consistent with the tax records showing that Vieux was keeping livestock and using the Teton River for their water source. Vieux received a homestead patent on 160 acres that is now part of the Danreuther Ranch. ¶8 The Water Court concluded that the preponderance of the evidence showed that Vieux appropriated stockwater from the Teton River and from a spring in Nelse’s Coulee as early as 1874. The Water Court also concluded that the preponderance of the evidence showed that Vieux was irrigating nine acres by 1880; that he had increased that to 50 acres by 1887; and that these water appropriations were made on his settlement on the Teton River. ¶9 The Water Court found that in 1888 Edward Reichelt acquired a homestead on the Teton River downstream from Nelson Vieux. Reichelt developed his own water rights and acquired property and water rights from others including Vieux, Horace Hibbard, Helen Hibbard, and Clara Lamphear. In 1904 Reichelt secured rights of way for ditches over neighboring lands and on January 25, 1905, he filed a notice of appropriation for 10 cubic feet of water per second (cfs) from the Teton River. The “Reichelt Ditch” has since been the only ditch on the north side of the Teton River capable of carrying water from the River to Reichelt’s various parcels of land. Reichelt acquired the Vieux property and water rights by 1914. He combined the Vieux rights with other rights and ran them through the Reichelt Ditch for irrigation. By 1922 Reichelt acquired the Hibbard properties and water rights. ¶10 In 1935 Reichelt split his ranch between his sons Dan and Bruno. Dan’s upstream parcel later became the Danreuther Ranch after succession to his daughter Janet who married into the Danreuther family. Danreuthers later filed statements of claim for the Vieux, Horace Hibbard (4 cfs) and Helen Hibbard (1 cfs) water rights for use on the upper ranch. Bruno’s part of the Reichelt Ranch is still in the Reichelt name, and it claims water rights developed by Edward Reichelt. These Danreuther and Reichelt water rights are all distributed for irrigation through the Reichelt Ditch. ¶11 The Water Court reviewed the conflicting testimony by opposing experts concerning the amount of land that the Danreuthers irrigated through the Reichelt Ditch system. While much of the testimony was based upon analysis of aerial photographs from the 20th century, Danreuther’s expert additionally conducted field examination of the ditches. Based upon the aerial information and the field inspection, Danreuther’s expert determined that “182.80 acres is within the historical range of irrigation on the Danreuther property.” The Water Court determined that the combination of aerial photograph survey with field examination of the sites was important and “provides additional credibility” to the conclusions. The Department of Natural Resources and Conservation (DNRC) review of Danreuther’s claims also supported the conclusion that 182.80 acres were under irrigation. The western part of the ranch, including the Vieux homestead, is sprinkler irrigated from the Reichelt Ditch, while the eastern part is flood irrigated from the same source. ¶12 Danreuther’s water claims for irrigation arising from this history are No. 410 156804-00, based upon the 1874 filing and subsequent use by Nelson Vieux; and Nos. 410 156805-00 and 410 156806-00, based upon the 1914 notices of appropriation by Helen Hibbard and Horace Hibbard. All three claims specify the Teton River as their source and the Reichelt Ditch as the means of diversion. The statements of claim by Danreuther Ranches claimed a flow rate of 6.9 cfs and a place of use of 182.8 acres for each of the three rights. The Water Court noted that the source for the claimed 6.9 cfs flow rate “is a mystery.” ¶13 The Water Court carefully examined the available evidence on the Danreuther claim for the right to sprinkler irrigate 69.7 acres south of the Teton River based upon a 1921 notice of appropriation filed by Clara Lamphear. The evidence showed that there was little likelihood that the land covered by the Lamphear notice was ever irrigated because it is steep, broken and not irrigable. The evidence showed that Dan Danreuther developed his sprinkler system for the land south of the Teton River in 1972. This is Claim No. 410 156807-00. ¶14 Danreuther Ranch also filed two claims for stock water use directly from the water source. Claim No. 410 156801-00 was a use right for 201 animal units from a spring in Captain Nelse’s Coulee with a priority date of 1870 (changed by rule to December 31, 1870). Claim No. 410 156802-00 covers the right to use stockwater for 201 animal units from the Teton River based upon the 1874 filing by Nelson Vieux. ¶15 The Water Court also noted a stipulation entered between Danreuther and Reichelt to amend certain statements of claim. The stipulation provides that a portion of Danreuther’s Claim No. 410 156804-00 should be transferred to Reichelt so that the right to use 5.64 cfs to irrigate 149.4 acres remains with Danreuther, while 1.26 cfs goes to Reichelt to irrigate 33.4 acres. This stipulation resolved the issue of whether Danreuther’s claim to 6.9 cfs from the Teton River was a single claim or was three separate claims for that amount of water. As a result, Danreuther’s Claim Nos. 410 156804-00, 410 156805-00, and 410 156806-00 represent claims to a total flow from the Teton River of 6.9 cfs. ¶16 The Water Court reached conclusions of law based upon these facts. The Court concluded that Danreuther’s properly-filed statements of claim are prima facie evidence that the information in them is true, § 85-2-227(1), MCA. As a result, Objectors have the burden to show by a preponderance of the evidence that any challenged claim elements “do not accurately reflect the beneficial use of the water rights as they existed prior to July 1,1973.” Weinheimer Ranch, Inc. v. Pospisil, 2013 MT 87, ¶ 21, 369 Mont. 419, 299 P.3d 327. The Water Court generally upheld the water rights claimed in Danreuther’s statements of claim, with modifications. ¶17 The Canal Companies (Farmers, Teton, and Eldorado) appeal and Danreuther cross-appeals. STANDARD OF REVIEW ¶18 This Court reviews the Water Court’s findings of fact under the clearly erroneous standard. Skelton Ranch v. Pondera County Canal & Reservoir Co., 2014 MT 167, ¶ 26, 375 Mont. 327, 328 P.3d 644. Under this standard a finding of fact may be clearly erroneous if it is not supportedby substantial evidence; if the Water Court misapprehended the effect of the evidence; or if a review of the record demonstrates that a mistake has been made. Skelton Ranch, ¶ 27. “Substantial evidence” is evidence that a reasonable person would accept as adequate to support a conclusion, even if the evidence is weak or conflicting. Skelton Ranch, ¶ 27. This Court reviews the Water Court’s conclusions of law to determine whether they are correct. Skelton Ranch, ¶ 26. DISCUSSION ¶19 Issue One (Canal companies): Whether the Water Court erred in its orders regarding Danreuther Claim Nos. 410 156802-00;410 156804-00; 410 156805-00; and implied Claim No. 30106965. ¶20 Danreuther Claim No. 410 156804-00 represents a claim to the right to divert water from the Teton River for irrigation, based upon Nelson Vieux’s 1874 filing with Chouteau County. While the Water Court found sufficient evidence that Vieux was raising and watering stock by 1874, it found that there was insufficient evidence that Vieux was also irrigating crops by that time. The Court noted that by 1888 Vieux had been on the property 20 years; established a freight station; farmed the homestead; and raised cows. Based upon the declarations in Vieux’s homestead claim filings, the Water Court concluded that Vieux was irrigating 9 acres of crops by 1880 and that he was irrigating an additional 41 acres by 1887. Based upon this evidence of water use, and the fact that crops would not grow there without irrigation, the Water Court determined that Vieux had perfected those rights to irrigate out of the Teton River. ¶21 The Canal Objectors dispute the validity of the Water Court’s decision, arguing that Vieux’s 1874 filing with Chouteau County was insufficient to establish a water right. The Objectors correctly note that prior to 1885 the sole method for perfecting a water right was to actually put water to a beneficial use. Gilcrest v. Bowen, 95 Mont. 44, 51, 24 P.2d 141, 144 (1933). That is why the Water Court dated the priority of the two Vieux appropriations from the date of the first evidence of actual water use in 1880 and 1887. Those would have been the priority dates for these two rights whether or not the 1874 filing was ever made. ¶22 Objectors also point to the absence of evidence of when Vieux commenced his ditches; when he completed the ditches; the volume of water diverted; or the actual beneficial use of water. Certainly, the record would be clearer if it included precise information as to Captain Vieux’s activities in the 1870s and 1880s. This Court has recognized that proof of precise facts as to persons’ activities over one hundred years ago is often not possible, even where written records are kept. In cases where the existence of a public road is at issue, for example, we have examined the record as a whole rather than focusing on strict compliance with statutory requirements, recognizing that otherwise there would be an unjustifiable burden to prove the existence of a public road 100 years later. Leticia Land Co. v. Anaconda-Deer Lodge County, 2015 MT 323, ¶ 15, 381 Mont. 389, 362 P.3d 614; Sayers v. Chouteau County, 2013 MT 45, ¶ 26, 369 Mont. 98, 297 P.3d 312 (citing Reid v. Park County, 192 Mont. 231, 627 P.2d 1210 (1981)). ¶23 In this case, not only do we recognize the difficulty of proving precise facts and dates of activities that took place over 140 years ago, but also the express requirement noted above that the contents of a statement of claim are to be presumed true unless overcome by a preponderance of the evidence. Section 85-2-227(1), MCA; Weinheimer Ranch, ¶ 21. Here the objectors rely primarily upon an absence of evidence showing exactly what Vieux did and when he did it. However, the evidence that Vieux was cropping a precise number of acres in 1880 and in 1887, coupled with the unassailable fact that crops will not grow in that area without irrigation, firmly support the Water Court’s conclusion regarding Claim No. 410 156804-00. The Water Court properly concluded that the Objectors failed to show by a preponderance of the evidence that the claim should be rejected. ¶24 Objectors have not demonstrated that the Water Court’s findings or conclusions are clearly erroneous, or that the Court misapprehended the evidence, or that a clear mistake was made. To the contrary, the Water Court carefully noted and weighed the evidence to reach the decision and we find no error. ¶25 Danreuther Claim No. 410 156802-00 is a right to water stock directly from the Teton River, based upon the claims and activities of Nelson Vieux. The Water Court determined that the evidence, particularly Vieux’s declarations filed in support of his homestead entry, showed that he had a stockgrowing operation on the Teton River by 1874, and that the River was one of the few reliable water sources in the area. The Water Court further concluded that evidence of historical accounts of the Whoop-Up Trail, newspaper articles, tax records and homestead documents support Danreuther’s statement of claim to the right to water 201 animal units from the Teton River. Vieux listed the precise number of animals kept at his homestead, along with additional animals that he allowed to openly graze. These stock numbers, plus the fact that the Teton River was the primary reliable source of stock water then, supported the Water Court’s determination of the extent of this water right. ¶26 The Water Court concluded that the Objectors’ arguments failed to overcome the statutory presumption in favor of the truth of the elements set out in Danreuther’s statement of claim. On appeal, they again point to the absence of precise facts as to Vieux’s stock numbers in the 1870s and of their watering habits, but this absence of evidence does little to dilute the actual numbers supplied by the historical record cited by the Water Court. ¶27 Danreuther Claim No. 410 156805-00 is a right to irrigate on 182.8 acres north of the Teton River based upon a September 8, 1914 notice of appropriation filed by Helen Hibbard. Danreuther initially claimed a flow rate of 6.9 cfs, but the Water Court reduced the claim to 1.0 cfs to match the appropriation claimed by Hibbard. ¶28 Canal Objectors contend that the Water Court should have rejected this claim because the lands that Hibbard originally listed as the place of use are now owned by the State of Montana, and because there is no evidence in the record that the Hibbard claim was ever transferred to Danreuther. The Water Court concluded from the evidence that Danreuther and predecessors had used the Helen Hibbard right along with other rights on the 182.8-acre parcel of land, and that this aspect of the right should remain as claimed. The Water Court reduced the flow rate to 1 cfs to reflect the original appropriation by Hibbard. ¶29 Danreuther points out that the issue concerning the chain of title to the Hibbard water right was not raised below and so there was no cause to present evidence on that point. In addition, the contents of the Danreuther claim are presumed true unless overcome by a preponderance of the evidence. Objectors have not demonstrated that the Water Court’s findings or conclusions are clearly erroneous, or that the Court misapprehended the evidence or that a clear mistake was made. To the contrary, the Water Court carefully noted and weighed the evidence to reach the decision and we find no error. ¶30 Issue Two (Danreuther cross-appeal): Whether the Water Court erred in its orders regarding Danreuther Claim No. 410 156804-00. ¶31 Danreuther cross-appeals from the Water Court’s decisions regarding Claim No. 410 156804-00, the right to irrigate from the Teton River based upon the original Vieux appropriations. The Water Court altered Danreuther’s claim for a single irrigation right with an 1874 priority date, recognizing instead two separate rights dated 1880 and 1887. Danreuther argues it is entitled to the presumption of truth of the matters stated in the original statement of claim with an 1874 priority. In addition, Danreuther points to the evidence that Vieux was in fact irrigating by 1880 and argues that it is entitled to relate the irrigation right priority date back to 1874 when Vieux filed notice of his intent to appropriate. ¶32 The Water Court reviewed the history of the claim based upon the 1874 Vieux declaration of intent, concluding that at that time there was no statutory procedure for posting notice of appropriation of water. At that time, the law required that a claimant initiate work on a diversion of water and then complete the work in a reasonable amount of time. If so, then the claimant could date the water right from the time the work began on the diversion. Gilcrest, 95 Mont. at 51, 4 P.2d at 144. By contrast, the Water Court determined that Vieux’s 1874 notice established only that he had an intention to use water at some time in the future. ¶33 The Water Court determined that while Danreuther’s evidence did not show that Vieux irrigated in 1874, it supported a conclusion that he was irrigating by 1880. The Water Court found that there were no tax records or crop yields from 1874 and that evidence of Vieux’s involvement with the “Whoop-Up Trail is too speculative to have any credibility.” The Water Court found that the most credible evidence of irrigation on the Vieux property came from his homestead filings, newspaper accounts from the time and the testimony of Dan Danreuther. The Water Court concluded that this evidence showed that Vieux was “cultivating land and harvesting crops by 1880” and that he “produced sufficient yields to indicate irrigation.” ¶34 The Water Court determined that it was “more likely than not” that Vieux was irrigating 9 acres in 1880 and that he “brought an additional 41 acres under irrigation by 1887.” The Water Court concluded that this evidence showing an increase in cropped acres between 1880 and 1887 supported an “implied” second water right, with the 1887 priority date. Danreuther contends that this was not a second separate appropriation, but rather that the evidence shows a continued development of the irrigation begun by at least 1880. ¶35 While Danreuther claimed a flow rate of 6.9 cfs, the Water Court also determined that there was “no evidence supporting a specific flow rate based on [Vieux’s] historical use.” The Water Court applied guidelines from the DNRC that establish a “17 gpm [gallon per minute] (1.5 miner’s inches) flow rate per acre guideline to all use and filed rights.” The Water Court noted that the DNRC did not reduce Danreuther’s flow rate below the claimed 6.9 cfs because applying the DNRC guideline to 182.8 acres results in a flow rate of 17 gpm per acre. Nonetheless, the Water Court decided that Danreuther’s claim should be measured by the 17 gpm per acre flow rate, as applied to the acreage of the two Vieux appropriations (1880 for 9 acres and 1887 for 41 acres). Under this calculation the Water Court concluded that Danreuther was entitled to total Vieux rights of 850 gpm per acre, or 1.9 cfs. Danreuther objects to the Water Court’s rejection of the claimed flow of 6.9 cfs. ¶36 The Water Court found that the evidence established that Edward Reichelt acquired Vieux’s water rights, combined them with other rights, and used that water “throughout the irrigated portion of his property.” When Reichelt split the ranch in 1935, his successors “continued to share the water rights to some extent.” Subsequently, “Danreuther marshaled the rights it received from Edward on a total of 182.8 acres” and did so “well before 1973.” ¶37 The Water Court concluded that prior to 1973 appropriators could change their point of diversion, or the place or purpose of use, as long as it did not harm other appropriators. At the same time, such a change could not increase the flow rate or total volume of water used. The Water Court found that while Danreuther’s irrigation of 182.8 acres was a significant increase over Vieux’s 50 acres, there was no evidence that Danreuther or its predecessors increased the diversion rate or total volume of water over that used by Vieux. Additionally, the irrigation of the 182.8 acres was assisted by the use of other rights in addition to the Vieux appropriations. ¶38 Therefore, the Water Court affirmed Danreuther’s right to use the Vieux rights, along with other rights, to irrigate the 182.8 acres. ¶39 We agree with the Water Court’s analysis of the evidence to conclude that the flow rate for Danreuther’s irrigation right should be based upon the acres that Vieux irrigated beginning in 1880. As the Water Court concluded, there was no actual evidentiary support for a diversion rate of 6.9 cfs. ¶40 However, we find that the Water Court misapprehended the effect of the evidence showing that Vieux’s irrigated acreage increased from 9 in 1880 to 50 in 1887. We agree with Danreuther that, considering all the circumstances, and recognizing the passage of time and the scant records, this increase actually represents evidence of Vieux’s continued work to consummate the diversion he began by 1880. ¶41 Danreuther’s Vieux-based claims are governed by the law in effect at the time of the appropriation. Marks v. 71 Ranch, 2014 MT 250, ¶ 15, 376 Mont. 340, 334 P.3d 373. When Vieux started irrigating in 1880, Montana had not yet adopted the subsequent (1885) statutes which allowed an appropriator to post and file a notice of appropriation and then complete the diversion and use of water. When an appropriator did so, the priority date of the right related back to the date the notice was posted. Montana DNRC v. Intake Water Co., 171 Mont. 416, 430, 558 P.2d 1110, 1118 (1976). ¶42 Before 1885, however, the primary way to appropriate water was to put it to beneficial use. Axtell v. M.S. Consulting, 1998 MT 64, ¶ 26, 288 Mont. 150, 955 P.2d 1362. The law allowed an appropriator to commence work on the headgate and ditches, and upon completion of the system to relate the appropriation back to the date the appropriation work was actually commenced. Gilcrest, 95 Mont. at 51, 4 P.2d at 144. The question of whether an appropriator diligently worked on the means of diversion was made on a case-by-case basis considering all the facts and circumstances of the situation. Intake Water Co., 171 Mont. at 434, 558 P.2d at 1120. ¶43 We recognize that in this case Danreuther is entitled to the presumption that his properly-filed statements of claim are prima facie evidence that the information in them is true, § 85-2-227(1), MCA. Weinheimer Ranch, ¶ 21. We also recognize that the Objectors had the burden to prove by a preponderance of the evidence that this information in the claim is incorrect. Teton Co-Op Canal Co. v. Teton Coop Reservoir Co., 2015 MT 344, ¶ 21, 382 Mont. 1, 365 P.3d. 442. ¶44 The Objectors did not prove, by a preponderance of the evidence, that Vieux made or intended to make two separate appropriations dated to 1880 and 1887. In fact, on appeal, the Objectors contend that Vieux never made any valid appropriation and that Danreuther’s claim should be voided. While the Water Court construed the evidence as establishing two separate water rights (one an implied right), we conclude that the Water Court misapprehended the evidence and that in this water rights context it shows a continuation of the irrigation effort begun in 1880 and completed in 1887, with a single priority date in 1880. ¶45 Examining the record as a whole, we agree with Danreuther’s argument of entitlement to a single irrigation right from the Teton River based upon Vieux’s water use in the 1880s. This claim should have a priority date of 1880 when Vieux commenced the irrigation project, and should encompass water sufficient for irrigation on 50 acres. We therefore agree with the Water Court’s determination as to the flow rate of 1.9 cfs provided by this right. CONCLUSION ¶46 The Water Court’s decision is affirmed in part, reversed in part and remanded for further proceedings. JUSTICES WHEAT, BAKER, SHEA and RICE concur. See the attached diagram of the Whoop-Up Trail. Vieux’s settlement is labeled “Capt Neis’ Leavings.” In 2009 Objector Farmers Co-op Canal sought summary judgment to invalidate Danreuther’s Vieux-based claim. The Water Court Master concluded that the 1874 Vieux filing was not a valid notice of appropriation and therefore could not support the claimed priority date. The Water Court reviewed this decision and in 2013 concluded that the Vieux filing could be used to support the claimed priority date and that the burden of proof to support the contents of the Danreuther statement of claim had not shifted to the claimant. Because the flow rate of the Vieux right was decreased from 6.9 cfs to 1.9 cfs, the Water Court determined that the 2009 Danreuther-Reichelt stipulation dividing the 6.9 cfs should no longer be enforceable.

Denied Original Proceeding Habeas Corpus

Affirmed Dist. 3 (Deer Lodge)