Montana Code Annotated

Mont. Code Ann. § 27-1-221 (2026)

Punitive Damages -- Liability -- Proof -- Award

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TITLE 27. CIVIL LIABILITY, REMEDIES, AND LIMITATIONS

CHAPTER 1. AVAILABILITY OF REMEDIES -- LIABILITY

Part 2. Damages

Punitive Damages -- Liability -- Proof -- Award

27-1-221. Punitive damages -- liability -- proof -- award. (1) Subject to the provisions of 27-1-220 and this section, reasonable punitive damages may be awarded when the defendant has been found guilty of actual fraud or actual malice.

(2) A defendant is guilty of actual malice if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and:

(a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or

(b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff.

(3) A defendant is guilty of actual fraud if the defendant:

(a) makes a representation with knowledge of its falsity; or

(b) conceals a material fact with the purpose of depriving the plaintiff of property or legal rights or otherwise causing injury.

(4) Actual fraud exists only when the plaintiff has a right to rely on the representation of the defendant and suffers injury as a result of that reliance. The contract definitions of fraud expressed in Title 28, chapter 2, do not apply to proof of actual fraud under this section.

(5) A request for an award of punitive damages may not be contained within an initial pleading filed by a party with the court. At any time after the initial pleading is filed and discovery has commenced in the lawsuit, a party may move the court to allow the party to amend the pleading to assert a claim for punitive damages. The party making the motion may submit affidavits and documentation supporting the claim for punitive damages. A party opposing the motion may submit opposing affidavits and documentation. The court may not allow a party to assert a claim for punitive damages unless the affidavits and supporting documentation submitted by the party seeking punitive damages set forth specific facts supported by admissible evidence adequate to establish the existence of a triable issue on all elements of a punitive damages claim.

(6) All elements of the claim for punitive damages must be proved by clear and convincing evidence. Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. It is more than a preponderance of evidence but less than beyond a reasonable doubt.

(7) Liability for punitive damages must be determined by the trier of fact, whether judge or jury.

(8) (a) Evidence regarding a defendant's financial affairs, financial condition, and net worth is not admissible in a trial to determine whether a defendant is liable for punitive damages. When the jury returns a verdict finding a defendant liable for punitive damages, the amount of punitive damages must then be determined by the jury in an immediate, separate proceeding and be submitted to the judge for review as provided in subsection (8)(c). In the separate proceeding to determine the amount of punitive damages to be awarded, the defendant's financial affairs, financial condition, and net worth must be considered.

(b) When an award of punitive damages is made by the judge, the judge shall clearly state the reasons for making the award in findings of fact and conclusions of law, demonstrating consideration of each of the following matters:

(i) the nature and reprehensibility of the defendant's wrongdoing;

(ii) the extent of the defendant's wrongdoing;

(iii) the intent of the defendant in committing the wrong;

(iv) the profitability of the defendant's wrongdoing, if applicable;

(v) the amount of actual damages awarded by the jury;

(vi) the defendant's net worth;

(vii) previous awards of punitive or exemplary damages against the defendant based on the same wrongful act;

(viii) potential or prior criminal sanctions against the defendant based on the same wrongful act; and

(ix) any other circumstances that may operate to increase or reduce, without wholly defeating, punitive damages.

(c) The judge shall review a jury award of punitive damages, giving consideration to each of the matters listed in subsection (8)(b). If after review the judge determines that the jury award of punitive damages should be increased or decreased, the judge may do so. The judge shall clearly state the reasons for increasing, decreasing, or not increasing or decreasing the punitive damages award of the jury in findings of fact and conclusions of law, demonstrating consideration of each of the factors listed in subsection (8)(b).

(9) (a) The judge shall divide the award of punitive damages equally between the prevailing party and the state and shall enter judgment accordingly.

(b) Upon entry of a judgment awarding punitive damages, the prevailing party shall provide written notice of the judgment to the state through the attorney general.

(c) The costs of litigation related to the award of punitive damages may be deducted from the full award of punitive damages.

(d) Reasonable attorney fees related to the award of punitive damages may be deducted from the full award of punitive damages after costs, but attorney fees deducted from the state's share may not exceed 20% of the state's share of the award of punitive damages after costs.

(e) The award to the state must be deposited in the general fund.

(f) The state has no interest in or right to intervene at any stage of a judicial proceeding pursuant to this subsection (9) except to enforce or execute a judgment entered in favor of the state.

(g) This subsection (9) does not apply to an award of punitive damages of $200,000 or less.

(10) The jury may not be advised of the requirements under subsection (9) concerning the allocation of money received in payment of an award of punitive damages.

(11) This section is not intended to alter the Montana Rules of Civil Procedure governing discovery of a defendant's financial affairs, financial condition, and net worth.

(12) Subsections (9) and (10) do not apply to actions in which the state is a party.

History: En. Sec. 4290, Civ. C. 1895; re-en. Sec. 6047, Rev. C. 1907; re-en. Sec. 8666, R.C.M. 1921; Cal. Civ. C. Sec. 3294; Field. Civ. C. Sec. 1839; re-en. Sec. 8666, R.C.M. 1935; R.C.M. 1947, 17-208; amd. Sec. 2, Ch. 507, L. 1985; amd. Sec. 2, Ch. 627, L. 1987; amd. Sec. 33, Ch. 16, L. 1991; amd. Sec. 1, Ch. 328, L. 1997; amd. Sec. 1, Ch. 121, L. 2003; amd. Sec. 1, Ch. 658, L. 2023.

Notes of Decisions
Cited in 235 cases (33 in the last 5 years), 1979–2026 · leading case: Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 165 P.3d 1079.
Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 165 P.3d 1079. · cites it 61× “Whether Sunburst established that Texaco acted with actual fraud or actual malice as required by § 27-1-221, MCA, to support a punitive damages award.”
Malcolm v. Evenflo Co., Inc., 2009 MT 285, 217 P.3d 514. · cites it 49× “Sunburst, ¶ 81; § 27-1-221, MCA. The District Court acted within its discretion when it determined that evidence surrounding the recall and testing of the OMW model 206 was relevant for the purposes of determining punitive damages.”
Finstad v. W.R. Grace & Co., 2000 MT 228, 8 P.3d 778. · cites it 63× “While this information may be relevant to demonstrate the existence of actual malice or actual fraud in determining whether an award of punitive damages is appropriate, it is not relevant to the jury's determination of the amount of punitive damages.”
Jacobsen v. Allstate Ins., 2009 MT 248, 215 P.3d 649. · cites it 24× “In other words, Allstate was required to show that Jacobsen failed to present sufficient evidence to satisfy the statutory elements of malice set forth in § 27-1-221, MCA: (2) A defendant is guilty of actual malice if the defendant has knowledge of facts or intentionally…”
Czajkowski v. Meyers, 2007 MT 292, 172 P.3d 94. · cites it 40× “¶ 14 We review a district court's punitive damages findings made pursuant to § 27-1-221, MCA, under the three-part test set forth in Interstate Production Credit v.”
Sherner v. Conoco, Inc., 2000 MT 50, 995 P.2d 990. · cites it 56× “¶ 55 I respectfully dissent from the Court's opinion, which adopts entirely new standards for determining whether the exception to the exclusive remedy provision contained in § 39-71-413, MCA, applies and also adopts the § 27-1-221, MCA, definition of malice.”
Seltzer v. Morton, 2007 MT 62, 154 P.3d 561. · cites it 18× “1989) and in Mont. Code Ann. § 27-1-221 (1989). Haslip, 499 U.”
Folsom v. Montana Pub. Employees' Ass'n, 2017 MT 204, 400 P.3d 706. · cites it 21× “” On the ground that “all of attorney Picotte’s conduct related exclusively to his handling of Folsom’s grievance,” MPEA asserts that Folsom’s common law fraud claim is legally and factually subsumed in his DFR claim and thus not independently cognizable in this action.”
Emmerson v. Walker, 2010 MT 167, 236 P.3d 598. · cites it 27× “" In turn, § 27-1-221(1), MCA, provides that punitive damages "may be awarded when the defendant has been found guilty of actual fraud or actual *607 malice.”
Cartwright v. Equitable Life Assurance Soc'y of the United States, 914 P.2d 976 (Mont. 1996). · cites it 31× “Did the District Court err by its award of punitive damages made pursuant to § 27-1-221, MCA? The issue raised by the plaintiffs’ cross-appeal is whether the District Court erred when, pursuant to its statutory obligation to review the jury’s punitive damage awards, it reduced…”
Dees v. Am. Nat'l Fire Ins., 861 P.2d 141 (Mont. 1993). · cites it 33× “Section 33-18-242, MCA, also provides for exemplary damages assessed in accordance with § 27-1-221, MCA. In an action under § 33-18-242, MCA, a plaintiff is not required to prove that the violations were of such frequency as to indicate a general business practice.”
Blythe v. Radiometer Am., Inc., 866 P.2d 218 (Mont. 1993). · cites it 40× “Section 27-1-221, MCA, defines "actual malice" as follows: Punitive damages — liability — proof — award.”
Mont. Code Ann. § 27-1-221(1): 24 cases
Folsom v. Montana Pub. Employees' Ass'n, 2017 MT 204, 400 P.3d 706. “” On the ground that “all of attorney Picotte’s conduct related exclusively to his handling of Folsom’s grievance,” MPEA asserts that Folsom’s common law fraud claim is legally and factually subsumed in his DFR claim and thus not independently cognizable in this action.”
Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 165 P.3d 1079. “Whether Sunburst established that Texaco acted with actual fraud or actual malice as required by § 27-1-221, MCA, to support a punitive damages award.”
Seltzer v. Morton, 2007 MT 62, 154 P.3d 561. “1989) and in Mont. Code Ann. § 27-1-221 (1989). Haslip, 499 U.”
Est. of Gleason v. Cent. United Life Ins., 2015 MT 140, 350 P.3d 349.
Emmerson v. Walker, 2010 MT 167, 236 P.3d 598. “" In turn, § 27-1-221(1), MCA, provides that punitive damages "may be awarded when the defendant has been found guilty of actual fraud or actual *607 malice.”
Mont. Code Ann. § 27-1-221(1)(2007): 1 case
McCollough v. Johnson, Rodenberg & Lauinger, 645 F. Supp. 2d 917 (D. Mont. 2009).
Mont. Code Ann. § 27-1-221(2): 52 cases
Sherner v. Conoco, Inc., 2000 MT 50, 995 P.2d 990. “¶ 55 I respectfully dissent from the Court's opinion, which adopts entirely new standards for determining whether the exception to the exclusive remedy provision contained in § 39-71-413, MCA, applies and also adopts the § 27-1-221, MCA, definition of malice.”
Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 165 P.3d 1079. “Whether Sunburst established that Texaco acted with actual fraud or actual malice as required by § 27-1-221, MCA, to support a punitive damages award.”
Blythe v. Radiometer Am., Inc., 866 P.2d 218 (Mont. 1993). “Section 27-1-221, MCA, defines "actual malice" as follows: Punitive damages — liability — proof — award.”
Jacobsen v. Allstate Ins., 2013 MT 244, 310 P.3d 452.
Mont. Code Ann. § 27-1-221(2)(a): 4 cases
Jacobsen v. Allstate Ins., 2009 MT 248, 215 P.3d 649. “In other words, Allstate was required to show that Jacobsen failed to present sufficient evidence to satisfy the statutory elements of malice set forth in § 27-1-221, MCA: (2) A defendant is guilty of actual malice if the defendant has knowledge of facts or intentionally…”
Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 165 P.3d 1079. “Whether Sunburst established that Texaco acted with actual fraud or actual malice as required by § 27-1-221, MCA, to support a punitive damages award.”
Emmerson v. Walker, 2010 MT 167, 236 P.3d 598. “" In turn, § 27-1-221(1), MCA, provides that punitive damages "may be awarded when the defendant has been found guilty of actual fraud or actual *607 malice.”
Mckay v. Wilderness Dev., 2009 MT 410.
Mont. Code Ann. § 27-1-221(3): 8 cases
Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 165 P.3d 1079. “Whether Sunburst established that Texaco acted with actual fraud or actual malice as required by § 27-1-221, MCA, to support a punitive damages award.”
Folsom v. Montana Pub. Employees' Ass'n, 2017 MT 204, 400 P.3d 706. “” On the ground that “all of attorney Picotte’s conduct related exclusively to his handling of Folsom’s grievance,” MPEA asserts that Folsom’s common law fraud claim is legally and factually subsumed in his DFR claim and thus not independently cognizable in this action.”
Hallenberg v. Gen. Mills Operations, Inc., 2006 MT 191, 141 P.3d 1216.
Harrell v. Farmers Educ. Coop. Union, 2013 MT 367, 314 P.3d 920.
Mont. Code Ann. § 27-1-221(3)(a): 1 case
Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 165 P.3d 1079. “Whether Sunburst established that Texaco acted with actual fraud or actual malice as required by § 27-1-221, MCA, to support a punitive damages award.”
Mont. Code Ann. § 27-1-221(3)(b): 1 case
Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 165 P.3d 1079. “Whether Sunburst established that Texaco acted with actual fraud or actual malice as required by § 27-1-221, MCA, to support a punitive damages award.”
Mont. Code Ann. § 27-1-221(4): 4 cases
Morrow v. Bank of Am., N.A., 2014 MT 117, 324 P.3d 1167.
Hallenberg v. Gen. Mills Operations, Inc., 2006 MT 191, 141 P.3d 1216.
Marsillo v. Nat'l Sur. Corp., 112 F.R.D. 692 (D. Mont. 1986).
Gonzales v. Montana Power Co., 2010 MT 117, 233 P.3d 328.
Mont. Code Ann. § 27-1-221(5): 32 cases
Jacobsen v. Allstate Ins., 2009 MT 248, 215 P.3d 649. “In other words, Allstate was required to show that Jacobsen failed to present sufficient evidence to satisfy the statutory elements of malice set forth in § 27-1-221, MCA: (2) A defendant is guilty of actual malice if the defendant has knowledge of facts or intentionally…”
Emmerson v. Walker, 2010 MT 167, 236 P.3d 598. “" In turn, § 27-1-221(1), MCA, provides that punitive damages "may be awarded when the defendant has been found guilty of actual fraud or actual *607 malice.”
Czajkowski v. Meyers, 2007 MT 292, 172 P.3d 94. “¶ 14 We review a district court's punitive damages findings made pursuant to § 27-1-221, MCA, under the three-part test set forth in Interstate Production Credit v.”
Seltzer v. Morton, 2007 MT 62, 154 P.3d 561. “1989) and in Mont. Code Ann. § 27-1-221 (1989). Haslip, 499 U.”
Dees v. Am. Nat'l Fire Ins., 861 P.2d 141 (Mont. 1993). “Section 33-18-242, MCA, also provides for exemplary damages assessed in accordance with § 27-1-221, MCA. In an action under § 33-18-242, MCA, a plaintiff is not required to prove that the violations were of such frequency as to indicate a general business practice.”
Mont. Code Ann. § 27-1-221(6): 11 cases
Finstad v. W.R. Grace & Co., 2000 MT 228, 8 P.3d 778. “While this information may be relevant to demonstrate the existence of actual malice or actual fraud in determining whether an award of punitive damages is appropriate, it is not relevant to the jury's determination of the amount of punitive damages.”
Jacobsen v. Allstate Ins., 2009 MT 248, 215 P.3d 649. “In other words, Allstate was required to show that Jacobsen failed to present sufficient evidence to satisfy the statutory elements of malice set forth in § 27-1-221, MCA: (2) A defendant is guilty of actual malice if the defendant has knowledge of facts or intentionally…”
Malcolm v. Evenflo Co., Inc., 2009 MT 285, 217 P.3d 514. “Sunburst, ¶ 81; § 27-1-221, MCA. The District Court acted within its discretion when it determined that evidence surrounding the recall and testing of the OMW model 206 was relevant for the purposes of determining punitive damages.”
DeBruycker v. Guar. Nat'l Ins., 880 P.2d 819 (Mont. 1994).
Winslow v. Montana Rail Link, Inc., 2005 MT 217, 121 P.3d 506.
Mont. Code Ann. § 27-1-221(7): 14 cases
Malcolm v. Evenflo Co., Inc., 2009 MT 285, 217 P.3d 514. “Sunburst, ¶ 81; § 27-1-221, MCA. The District Court acted within its discretion when it determined that evidence surrounding the recall and testing of the OMW model 206 was relevant for the purposes of determining punitive damages.”
Finstad v. W.R. Grace & Co., 2000 MT 228, 8 P.3d 778. “While this information may be relevant to demonstrate the existence of actual malice or actual fraud in determining whether an award of punitive damages is appropriate, it is not relevant to the jury's determination of the amount of punitive damages.”
Dees v. Am. Nat'l Fire Ins., 861 P.2d 141 (Mont. 1993). “Section 33-18-242, MCA, also provides for exemplary damages assessed in accordance with § 27-1-221, MCA. In an action under § 33-18-242, MCA, a plaintiff is not required to prove that the violations were of such frequency as to indicate a general business practice.”
Corp. Air v. Edwards Jet Ctr., 2008 MT 283, 190 P.3d 1111.
McKay v. Wilderness Dev., LLC, 2009 MT 410, 221 P.3d 1184.
Mont. Code Ann. § 27-1-221(7)(a): 9 cases
Finstad v. W.R. Grace & Co., 2000 MT 228, 8 P.3d 778. “While this information may be relevant to demonstrate the existence of actual malice or actual fraud in determining whether an award of punitive damages is appropriate, it is not relevant to the jury's determination of the amount of punitive damages.”
Malcolm v. Evenflo Co., Inc., 2009 MT 285, 217 P.3d 514. “Sunburst, ¶ 81; § 27-1-221, MCA. The District Court acted within its discretion when it determined that evidence surrounding the recall and testing of the OMW model 206 was relevant for the purposes of determining punitive damages.”
Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 165 P.3d 1079. “Whether Sunburst established that Texaco acted with actual fraud or actual malice as required by § 27-1-221, MCA, to support a punitive damages award.”
Cartwright v. Equitable Life Assurance Soc'y of the United States, 914 P.2d 976 (Mont. 1996). “Did the District Court err by its award of punitive damages made pursuant to § 27-1-221, MCA? The issue raised by the plaintiffs’ cross-appeal is whether the District Court erred when, pursuant to its statutory obligation to review the jury’s punitive damage awards, it reduced…”
Murphy Homes, Inc. v. Muller, 2007 MT 140, 162 P.3d 106.
Mont. Code Ann. § 27-1-221(7)(b): 14 cases
Maulding v. Hardman, 847 P.2d 292 (Mont. 1993).
Czajkowski v. Meyers, 2007 MT 292, 172 P.3d 94. “¶ 14 We review a district court's punitive damages findings made pursuant to § 27-1-221, MCA, under the three-part test set forth in Interstate Production Credit v.”
Rocky Mountain Enter., Inc. v. Pierce Flooring, 951 P.2d 1326 (Mont. 1997).
v. Smith-Cote (In re Cote), 2019 MT 10, 433 P.3d 221.
DeBruycker v. Guar. Nat'l Ins., 880 P.2d 819 (Mont. 1994).
Mont. Code Ann. § 27-1-221(7)(b)(i): 6 cases
Czajkowski v. Meyers, 2007 MT 292, 172 P.3d 94. “¶ 14 We review a district court's punitive damages findings made pursuant to § 27-1-221, MCA, under the three-part test set forth in Interstate Production Credit v.”
Cartwright v. Equitable Life Assurance Soc'y of the United States, 914 P.2d 976 (Mont. 1996). “Did the District Court err by its award of punitive damages made pursuant to § 27-1-221, MCA? The issue raised by the plaintiffs’ cross-appeal is whether the District Court erred when, pursuant to its statutory obligation to review the jury’s punitive damage awards, it reduced…”
Osman v. Cavalier, 2011 MT 60, 251 P.3d 686.
McCollough v. Johnson, Rodenberg & Lauinger, 645 F. Supp. 2d 917 (D. Mont. 2009).
Mont. Code Ann. § 27-1-221(7)(b)(iii): 1 case
Osman v. Cavalier, 2011 MT 60, 251 P.3d 686.
Mont. Code Ann. § 27-1-221(7)(b)(iv): 2 cases
Czajkowski v. Meyers, 2007 MT 292, 172 P.3d 94. “¶ 14 We review a district court's punitive damages findings made pursuant to § 27-1-221, MCA, under the three-part test set forth in Interstate Production Credit v.”
Adams v. Roberts, No. 9:18-cv-00148 (D. Mont. May 18, 2021).
Mont. Code Ann. § 27-1-221(7)(b)(ix): 3 cases
Finstad v. W.R. Grace & Co., 2000 MT 228, 8 P.3d 778. “While this information may be relevant to demonstrate the existence of actual malice or actual fraud in determining whether an award of punitive damages is appropriate, it is not relevant to the jury's determination of the amount of punitive damages.”
Czajkowski v. Meyers, 2007 MT 292, 172 P.3d 94. “¶ 14 We review a district court's punitive damages findings made pursuant to § 27-1-221, MCA, under the three-part test set forth in Interstate Production Credit v.”
Maloney v. Home & Inv. Ctr., Inc., 2000 MT 34, 994 P.2d 1124.
Mont. Code Ann. § 27-1-221(7)(b)(v): 1 case
Maurer v. Clausen Distrib. Co., 912 P.2d 195 (Mont. 1996).
Mont. Code Ann. § 27-1-221(7)(b)(vi): 1 case
Mont. Code Ann. § 27-1-221(7)(b)(vii): 1 case
Maloney v. Home & Inv. Ctr., Inc., 2000 MT 34, 994 P.2d 1124.
Mont. Code Ann. § 27-1-221(7)(b)(viii): 1 case
Czajkowski v. Meyers, 2007 MT 292, 172 P.3d 94. “¶ 14 We review a district court's punitive damages findings made pursuant to § 27-1-221, MCA, under the three-part test set forth in Interstate Production Credit v.”
Mont. Code Ann. § 27-1-221(7)(c): 9 cases
DeBruycker v. Guar. Nat'l Ins., 880 P.2d 819 (Mont. 1994).
Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 165 P.3d 1079. “Whether Sunburst established that Texaco acted with actual fraud or actual malice as required by § 27-1-221, MCA, to support a punitive damages award.”
Rocky Mountain Enter., Inc. v. Pierce Flooring, 951 P.2d 1326 (Mont. 1997).
Onstad v. Payless Shoesource, 2000 MT 230, 9 P.3d 38.
Dees v. Am. Nat'l Fire Ins., 861 P.2d 141 (Mont. 1993). “Section 33-18-242, MCA, also provides for exemplary damages assessed in accordance with § 27-1-221, MCA. In an action under § 33-18-242, MCA, a plaintiff is not required to prove that the violations were of such frequency as to indicate a general business practice.”
Mont. Code Ann. § 27-1-221(8): 1 case
Duffy v. Kaman Aerospace Corp., No. 2:21-cv-00071 (D. Mont. Apr. 3, 2025).
Mont. Code Ann. § 27-1-221(8)(b): 1 case
Workman v. Stainthorpe, 2025 MT 38N, 564 P.3d 854.
Mont. Code Ann. § 27-1-221(b): 2 cases
Adams v. Roberts, No. 9:18-cv-00148 (D. Mont. May 18, 2021).
Adams v. Roberts, No. 9:18-cv-00148 (D. Mont. Aug. 11, 2021).
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