Folsom v. City of Livingston
381 P.3d 539
Mont.2016Background
- In 1990 Recreational Leasing (predecessor to the Folsoms) constructed water/sewer lines and entered a Reimbursement Agreement with the City of Livingston under which Livingston would collect "payback fees" from new hookups and remit them to Recreational Leasing/the Folsoms.
- Eagle’s Rest developed Eagle’s Landing Condominiums (Buildings A, B, and clubhouse K) and connected them to the lines; Livingston initially calculated payback fees but did not collect or remit them. The Folsoms sued Livingston and Eagle’s Rest for breach of contract, negligence, unjust enrichment, and quantum meruit.
- Livingston later tendered $25,693.70 (offer of judgment amount) to the Folsoms in 2014; the Folsoms returned the check uncashed. The District Court instructed the jury that Livingston breached as to Buildings A and B but cured that breach by the 2014 tender.
- On the eve of trial the District Court excluded the Folsoms’ disclosed appraiser (Bridwell) and also excluded plaintiff David Folsom from testifying as an expert because neither had been timely disclosed as expert witnesses.
- The jury found no breach as to the clubhouse, apportioned negligence (Livingston 60%, Folsoms 40%), awarded $17,742 (60% of $25,000 error plus travel), and found no implied contract or unjust enrichment. Post-trial the court required an election of remedies; the Folsoms elected breach of contract. The court awarded contract damages ($25,436.40 for Buildings A and B), $2,742 travel expenses, $2,571 for clubhouse payback fees, and $140,980 in attorney fees.
- The Folsoms appealed the evidentiary rulings and instructions; Livingston cross-appealed the awards of negligence damages and attorney fees. The Supreme Court affirmed in part, reversed in part, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abused discretion by excluding professional appraiser Bridwell for failure to disclose as an expert | Folsoms: Bridwell had been disclosed in other ways and defendants had notice; exclusion was untimely and prejudicial | Eagle’s Rest: Bridwell was not disclosed as an expert until pretrial materials; exclusion was proper | Court: No abuse of discretion; exclusion proper because Bridwell had been presented as a lay witness not disclosed as an expert (Superior Enters. reasoning) |
| Whether David Folsom could testify as an expert about property value without being disclosed as an expert | Folsoms: Folsom’s familiarity and land-development experience permitted lay testimony on value | Eagle’s Rest: Folsom’s proposed testimony was expert in nature and not disclosed as such | Court: No abuse of discretion; Folsom’s testimony was beyond ordinary lay knowledge and properly excluded as undisclosed expert testimony |
| Whether jury instructions on unjust enrichment and related quantum meruit were erroneous | Folsoms: Instructions omitted necessary restitution element and improperly required misconduct; also argued quantum meruit could stand separate from unjust enrichment | Eagle’s Rest: Instructions adequately stated elements and quantum meruit is the measure of unjust enrichment damages | Court: Affirmed instructions as a whole; jury found no unjust enrichment so related nuances were not outcome-determinative |
| Whether district court erred by awarding negligence damages and attorney fees after Folsoms elected contract remedy | Folsoms: Election of remedy preserved some jury awards (e.g., travel), and clubhouse award justified | Livingston: Election should bar duplicative tort recovery; travel and clubhouse awards conflicted with election; attorney fee award excessive because recovery approximated pretrial offer | Court: Affirmed $2,742 travel award (not duplicative); reversed $2,571 clubhouse award (no jury basis); affirmed entitlement to fees but reversed and remanded for reduction as unreasonable |
Key Cases Cited
- Meek v. Mont. Eighth Judicial Dist. Court, 379 Mont. 150, 349 P.3d 493 (discretionary review of motions in limine and evidentiary control)
- Norris v. Fritz, 364 Mont. 63, 270 P.3d 79 (review standard for admissibility of expert testimony)
- Superior Enters. LLC v. Mont. Power Co., 310 Mont. 198, 49 P.3d 565 (lay witness testimony that becomes expert must be disclosed as expert)
- Boise Cascade Corp. v. First Sec. Bank, 183 Mont. 378, 600 P.2d 173 (tort may coexist with contract liability only when independent duty exists)
- Storms v. Bergsieker, 254 Mont. 130, 835 P.2d 738 (quantum meruit is the measure of unjust enrichment damages)
- Plath v. Shonrock, 314 Mont. 101, 64 P.3d 984 (factors for assessing reasonableness of attorney fees)
- Houden v. Todd, 375 Mont. 1, 324 P.3d 1157 (attorney fees must be reasonable and reviewed for abuse of discretion)
- Renville v. Taylor, 301 Mont. 99, 7 P.3d 400 (deference to jury verdicts in civil cases)
- Sandman v. Farmers Ins. Exchang., 291 Mont. 456, 969 P.2d 277 (appellate reluctance to overturn jury findings)