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State v. Klundt

Supreme Court of Montana

April 26, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
ZACHARY JORDAN KLUNDT, Defendant and Appellant.

          Submitted on Briefs: March 29, 2017

         APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 14-104 (A) Honorable Ted O. Lympus, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, Chad R. Vanisko, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

          Ed Corrigan, Flathead County Attorney, Stacy Boman, Deputy Flathead County Attorney, Kalispell, Montana

          Beth Baker Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Zach Klundt appeals his sentence from the Eleventh Judicial District Court requiring him to pay Susan Cahill over $640, 000 in restitution for ransacking and destroying her business. We affirm in part and reverse in part.

         ¶3 Cahill is a physician's assistant who owned and worked at All Families Health Care-a family medicine practice that offered among its healthcare services first trimester abortions. In March 2014, Klundt broke into All Families Healthcare and damaged the business extensively. The police officer who investigated the incident testified that it was the most property damage that he had ever seen. Klundt pled guilty to burglary, criminal mischief, and theft-all felonies.

         ¶4 At Klundt's sentencing hearing, Cahill testified that she had practiced for nearly forty years and that she was planning to retire in three years. She explained that two nurse practitioners were interested in taking over the practice and that she planned to slowly transition her patients to their care. She had solicited a business valuation analysis in anticipation of the future sale, and the accountant who conducted the analysis testified at the hearing.

         ¶5 After Klundt destroyed her business, Cahill considered reopening her practice, but realized that she would have had to "start all over again" because "the destruction was so overwhelming." She testified that landlords were wary of renting to her. She explored other employment opportunities, but as of the hearing she had not found a job that suited her needs. Ultimately, Cahill retired three years earlier than she anticipated and began drawing Social Security three years sooner than she had planned.

         ¶6 Cahill requested restitution for three years of lost income, the value of her business, the value of damaged property at the business, six months' rent for a small office while she closed out her practice and transferred her patients' care, reductions in IRA contributions and earnings, reductions in Social Security benefits, salary for her assistant, counseling costs, and other various costs and expenses. The District Court awarded the entire request, approximately $642, 000.

         ¶7 The appropriate measure of restitution is a question of law that we review for correctness. State v. Aragon, 2014 MT 89, ¶ 9, 374 Mont. 391, 321 P.3d 841. A district court's finding of fact as to the amount of restitution is reviewed for clear error. Aragon, ¶ 9. A finding of fact is clearly erroneous if it is not supported by substantial evidence, the court misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Aragon, ¶ 9. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence, but less than a preponderance. Aragon, ¶ 9.

         ¶8 On appeal, Klundt contends that Cahill failed to mitigate her damages because she made no attempt to sell her business and its remaining intangible assets and because she turned down job opportunities. He alleges that the District Court abused its discretion in awarding Cahill her requested business valuation because the valuation was speculative, that the business retained value after the incident, and that the methodology used to value the business was erroneous. Klundt contends further that Cahill's claimed income and retirement losses were necessarily included in the business valuation. He thus argues that awarding Cahill both the value of the business and her lost income and retirement produced a double recovery. Klundt next claims that the District Court ...


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