*1 ROCKY MOUNTAIN ENTERPRISES, INC., Corporation,
Montana Business SUSAN A. individually BLACK, and as Guardian Ad Litem for Veronica her Black, minor child; and
DAVID A. BLACK, Appellants, Plaintiffs and v. PIERCE CARPET FLOORING, BARN, THOMAS ESTATE OF HUGGINS, GEORGE R. AND
PIERCE, G. RON PIERCE, sp D ef end ant s/Re ondent s/ Cross-Appellants. No. 95-367. August Submitted 1997.
Decided December
1997.
St.Rep.
1410.
For Calvin J. & Se; Huggins; Billings. Thomas Pro Opinion delivered the of the Court.
JUSTICE REGNIER Black, Black, individually, guardian .Susan and as ad litem David Black, child, Rocky Enterprises, her minor and Mountain for Veronica Inc., Court, appeal from a Thirteenth Judicial District Yellowstone and orders. The defendants County, jury subsequent post-trial verdict affirm. cross-appeal. We are restated as follows: appeal
The issues on justify the case 1. Did the District Court commit error remand of only upon: damages for retrial based testimony Rocky as to Moun- opinion A. Exclusion of David Black’s value; projected profits tain’s lost business Black; testimony of Susan deposition B. Refusal to admit Black; child, Veronica against verdict the minor C. The directed verdict; Inadequacy D. domestic regarding the Blacks’ police reports
E. Admittance evidence; into disputes witnesses; plaintiffs’ expert
F. Exclusion argument. Improper G. and the Blacks also raise the follow- Enterprises Mountain appeal: issues on
ing Rocky Mountain and the denying 2. Did the District Court err in untimely? memorandum of costs as Blacks’ imposing abuse its discretion in sanctions 3. Did District Court plaintiffs’ counsel? against summary judgment err in granting
4. Did the District Court claim civil against plaintiffs conspiracy? on the cross-appeal: are raised on following issues failing complaint err in to dismiss the 1. Did the District Court 41(e), to Rule M.R.Civ.P.? pursuant *6 granting Court err in not either the defendants’
2. Did the District summary judgment or later motion for a directed verdict motion for liability negligence? claims based on vicarious plaintiffs’ on BACKGROUND FACTUAL Rocky David Black Mountain In June and Susan started Inc., closely-held engaged in the wholesale Enterprises, corporation covering products and other floor carpeting distribution and sales carpet made an with a manu- Billings. arrangement The Blacks in very representative pricing which allowed them a favorable facturer’s 1986, they began advertising campaign In March an structure. steadily improved. and their business good response received a nuisance receiving hang-up Black started In October Susan day and at the Blacks’residence during at the business calls both were 26,1986, the tires on Susan’s vehicle evening. in the On October 2,1986, tires on her vehicle were Again on December all four slashed. 17,1986, On December parked it was at her residence. slashed while vehicle and broke into Susan’s slashed the tires on David’s someone seats, Finally, on headrests, and interior. vehicle and slashed 24, 1986, porch an intruder came on the of the Blacks’ up December bulb, vehicle, residence, light slashed a tire on Susan’s unscrewed security and a essence of skunk into the vehicle. David and threw intruder, unable to catch him. chased the but were guard Billings Department Police on December After the incident telephone put place. in telephone wiretap that a be suggested Flooring Inc., Billings. Pierce Flooring, were traced to Pierce calls by Mountain, owned and rim Rocky and is competitor was a The Pierce individually named as defendants. family who are Pierce family Carpet Bam, also owns and runs a Montana corporation engaged in the carpeting retail sale of and other floor coverings. Tom an Huggins, employee Carpet Barn, admitted to having made the nuisance calls to the Blacks but insisted that he made all the calls from Carpet Barn.
Upon questioning by the Billings police, Huggins admitted that his against activities the Blacks were carpet related to the business. He emphasized that no other person associated family with the Pierce businesses knew what he doing and denied anyone else ever assisted him with his against actions April 17, Blacks. On all charges were dismissed against Huggins based his accep- tance into a deferred prosecution program. 21, 1988,
On Black, October David and Susan their minor child , Veronica Black and Mountain Enterprises, Inc., filed a com- plaint against George Pierce, Inc.; R. Pierce Flooring; Carpet Barn; George Pierce; Pierce; Dorothy L. G. Ron Pierce; E. and William D. (the Pierce defendants); Pierce and Thomas Huggins. In the com- plaint, Rocky Mountain and the Blacks sought recovery for damages against the defendants as a result of the criminal conduct committed by Huggins in 1986 employed by while Carpet Barn. 29,1994,
On December the Pierce defendants summary moved for judgment on some of the plaintiffs’ claims. The District Court re- turned an memorandum order and January 10,1995. on order, In its the District Court granted partial summary judgment Pierce defendants on the Blacks’ claim. conspiracy civil The District Court granted partial summary judgment to Pierce Flooring, Estate of George Pierce, L. and G. Ron Pierce as to the respondeat issue of superior. The District Court denied summary judgment on the issue of respondeat superior as to Carpet Barn. The District Court ulti- *7 mately dismissed the case as to Pierce Flooring, Estate of George L. Pierce, and G. Ron Pierce. Although unclear record, from the around time, this the defendants George Pierce, Inc., R. Dorothy Pierce, E. and William D. Pierce were either dismissed the District Court or voluntarily dismissed plaintiffs. Thus, remaining defen- dants in Carpet this case were Barn Huggins. and Thomas
jury A trial began January 30, 6, 1995, on 1995. On February jury special returned a jury verdict. The found that the acts of Huggins were committed within the scope employment of his Carpet Barn and that those acts were a cause in fact and proximate damages jury cause of to the The plaintiffs. Carpet also found Barn negligent, negligence and that was a cause in fact and proximate damages plaintiffs. jury damages cause of to The awarded in the $35,000 Rocky jury nothing amount of Mountain. The awarded Finally, jury Black. Huggins Susan or David found that acted with implied plaintiffs malice that entitled the actual or to an award of punitive damages. 7, 1995, February punitive
On awarded damages in favor Rocky against Huggins Mountain and the amount of $51. judgment District Court entered on March 1995. The District post-judgment Court also entered several orders.
Rocky appeal Mountain and the Blacks and defendant Carpet cross-appeals judgment Barn from the orders of the District Court.
ISSUE 1 justify Did the District Court commit error to remand of the case only damages upon: for retrial for based testimony David opinion Rocky A. Exclusion Black’s as to Moun- projected profits tain’s lost business value?
Rocky argue Mountain and the Blacks that the District Court by precluding testifying abused its discretion David Black from as to loss, Mountain. profits, Rocky the economic lost and future income of contend, Rocky Mountain and Blacks and the defendants do not testimony necessary is not dispute, expert establish economic profits However, such as lost or lost income. Barn losses properly precluded some of David argues testimony regarding projected profits lost and income after Black’s qualified Mountain went out of business because he was not and, therefore, expert offering speculative opinion as an he would be testimony representing profits Rocky as to an amount future lost Mountain. M.R.Evid., states: testimony by lay If the
Opinion witnesses. witness is not testifying expert, testimony as an the witness’ in the form of opinions opinions or inferences is limited to those or inferences (a) rationally are based on the ofthe witness and perception which (b) testimony clear helpful understanding to a witness’ a fact in the determination of issue. in the admittance of great
A district court has discretion and we will not overturn a court’s decision unless court evidence its discretion. Miranti v. Orms abused
235, 833 P.2d 164, 166. *8 concerning evidence trial, attempted to introduce plaintiffs
At Rocky through Mountain and income of profits lost projected objected to that testi- Black. Barn testimony owner David of expert not an witness this matter that Black was mony, arguing testify profits lost projected to about and, therefore, unqualified was and income. jury, Black was examined both presence
Outside whether Black the District Court to determine in order for parties alleged opinions opinions are that expert as an or if was “qualified by non-expert.” given can be testify that David Black could not about Court ruled
The District The District Court stated: profits lost and income. projected project to lost being requested [Black] that is opinion [T]he the time that his business went out of business into profits from lay testimony opinion, appropriate is not expert the future as an that happened company to have been a stockholder of because he it out of business. at the time went rule that the ruling going I’m to witness is not Having made testify projec- as an in economics to make the expert to qualified intended to be made here. tions that are any testimony by David Black Court also stated The District expert and income as an witness profits lost regarding projected subject 26, M.R.Civ.P, Rule excluded because it was not to would be Furthermore, day allowed on the if disclosure was disclosure. (See testimony untimely to be allowed into evidence. it would be infra.) regarding expert witnesses discussion testifying to matters generally is limited to Anonexpert witness 132, 144, 818 P.2d v. State of fact. Walden the witness’s own given must be based Any lay opinions 1197. understanding of the witness’s to a clear helpful perceptions M.R.Evid. of á fact at issue. testimony or a determination Mountain, was entitled to Black, Certainly, as an owner the value of the business opinion regarding his provide however, instance, Black In this profits. of lost his estimate and even testimony his as to economic present scientific attempting was because his economist apparently profits, future lost business’s trial, granted the court testify. During being allowed testimony but did not this leeway presenting Black in significant he was not testimony since economic scientific give him to allow to mimic the attempting Essentially, Black was so. to do qualified testimony expert. of his excluded economic The District Court cor- rectly testimony only presented ruled that such scientific could be and there through expert specialized an was no evidence of Black’s as an economist. skill transcript, a review of the record and trial we
After conclude that did not abuse its discretion in precluding David *9 testifying proffered in the manner Black from about the value of Rocky profits Enterprises. lost of Mountain projected deposition testimony B. to admit the Susan Black? Refusal of minute, At Black refused to the last Susan attend the trial. At trial, living time of Susan and Veronica were in San Diego, the trial, During Rocky attorney California. David and Mountain’s re stating she, faxed declaration from Susan that neither ceived a nor child, Veronica, David and Susan’s would attend the trial. In her declaration, not appear Susan stated that she would at trial because daughter placed and her would be in jeopardy she feared she of and that her at trial would “create appearance harm more physical the very people begin over, for these sick to harassment all or reason myself my family jeopardy.” in put physical or Mountain declaration, David and attempted Based the jury. Carpet the of Susan to the Counsel for Barn deposition to read up by taken the District Court objected and the matter was outside jury’s presence. the deposition The District Court would not allow of Susan Black this, said, for the District Court was that to be read. The reason “she unavailability [declaration] that this does not indicate an party, is a trial, only time of but a disinclination and refusal to appear to at Furthermore, time trial.” the District Court stated that appear at of and then let her up deposition allow Susan “to not show it could not testimony ability to cross-examine.” as her without stand governed is under Rule depositions proceedings of in court The use 32(a)(3)(B),provides: Rule 32, M.R.Civ.R witness, party, may or not a be used of a whether deposition (B) if the court finds: ... that the any purpose for by party the place distance than miles from greater is at a witness States, appears the United unless it is out of hearing, trial or procured party offering was of the witness that the absence .... deposition argue that the District Court erred Rocky Mountain David and Black, as offered on their behalf. of Susan excluding deposition more than 100 question that Susan was there is no They contend that they met Moreover, they assert that had trial. place miles from showing that Susan was proof to their burden jurisdiction. from the absent ruling preclude that the District Court’s argues Barn
Carpet her conscious decision not because of deposition use of Susan’s under the proper its discretion and was well within the trial attend Marriage on In re Barn relies circumstances. facts and proposition P.2d for (1988), 231 Mont. Powell 32(a)(3)(B),M.R.Civ.P, in discretion under court has a district entered into trial as deposition be or not to allow ruling whether evidence. hearing personal to attend a Powell, decided not party
In
court,
from the district
more than 100 miles
Because he was
reasons.
as
of his
deposition
his
evidence
attorney attempted to offer
his
32(a)(3)(B).
Court
the district
upheld
This
testimony under Rule
hearing.
at the
We
as evidence
deposition
to admit the
court’s refusal
hearing,
not to attend the
“but
decision
party’s
that it was
stated
testimony
cannot be verified or
which
cannot later introduce
he
75,
C. The directed granting Carpet District Court erred in argue that the The Blacks Carpet Veronica Black. against a directed verdict Barn’s motion for directed a verdict properly argues Barn there was no emotional distress because claim for against Veronica’s rights invasion ofher suffered a substantial to show she evidence in turn person her which significant impact upon as to cause so granted District Court distress. The in severe emotional resulted the evidence does not “on the basis that directed verdict motion for a Black.” damages to Veronica emotional distress justify M.R.Civ.P, may grant party’s court 50(a), a district Under evidentiary legally no sufficient verdict if “there is motion for directed respect party for that jury to have found for a reasonable basis record, simply there is no evidence Having reviewed to that issue.” distress. We for severe emotional to Veronica justify an award granting was correct in therefore, that the District Court conclude, on the claim of severe directed verdict Barn’s motion for a Carpet Black. on behalf of Veronica damages distress emotional jury verdict? Inadequacy D. its verdict favor 6,1995, jury returned February On awarded Huggins. Bam and against Mountain *11 and nothing to David jury awarded The $35,000 Rocky Mountain. to Black. Susan or alter a motion to amend 1995, filed 16, plaintiffs the March
On the They argued that M.R.Civ.P. 59(g), judgment pursuant and District Court denied the motion inadequate. The jury award was undisturbed. jury left the award jury verdict argue and the Blacks was
Rocky Mountain damages to award them for jury failed inadequate because They contend that the property damage. also distress and emotional Huggins inadequate. was damages against punitive as $51 award jury’s verdict is whether there is of review of a The standard support record to it. Tanner v. credible evidence in the substantial Island, (1996), 913 P.2d 646. We Inc. Dream prevailing party to the light in the most favorable review the evidence (1977), 172 Mont. City v. Bozeman in the district court. Noll exists, credibility weight evidence and conflicting 1296. If 564 P.2d and we will not disturb jury’s province is in the given to the evidence they inherently to believe. findings impossible unless are jury’s 407, 411-12, 824 1013, 1015-16. P.2d v.Hobbs Silvis First, jury failing that the erred in to award the Blacks assert denying plain In its order damages them for emotional distress. reconsider, District Court stated that there “is tiffs’ motion to require damages evidence to an award of for emotional insufficient pain suffering or mental to ... Susan or David Black.” distress presented the District Court. The Blacks evidence agree We damages. Carpet for emotional distress Barn also offered jury to the contradictory evidence which included the Blacks’ marital troubles reasonably time found Huggins’ jury acts. The could have at the than emotional distress resulted from factors other that the Blacks’ Huggins Barn. the acts of jury Second, Rocky Mountain and the Blacks contend that the damage. appeal, plaintiffs On do not property failed to award them why inadequate regard property the award was clearly state judgment, plaintiffs amend ask damages. In their motion to alter or the evidence showed “that David to be altered because judgment as damage to their automobiles property and Susan Black sustained slashing.” slashing tire and interior a result of 25, 1995, the District Court stated: In order April its specific there was no Concerning damages to the motor vehicles there was evidence that concerning although title evidence jury could and David Black. were owned Susan vehicles these items to damages and awarded confused have been Enterprises. Mountain corporation, wholly Blacks’ owned awarding damages such mistaken in not if the Even is harmless. individually, the mistake David Black Susan and *12 Huggins testified in the punitive damage phase of the trial that he had $4,687.64 made restitution to Susan Black in the amount of as a his part of criminal deferred prosecution agreement with the County Attorney. Although Yellowstone requested to do so this Court declined to offset that damages amount from the awarded Rocky in favor of Mountain If Enterprises. damages would have been Blacks, awarded favor of the such damages would have been offset the restitution. The effectively Blacks have recov- ered damages. vehicle
We agree jury’s with the District Court that the award was not inadequate regard any damages property with that Moun- attempting tain and the Blacks are to claim.
Lastly, Rocky Mountain and the Blacks that jury contend inadequate respect award was to the award in punitive of $51 damages against Huggins. 27-l-221(7)(c), MCA, a
Pursuant district court judge § If, jury reviews a award of punitive damages. review, after the judge jury punitive damages determines award of should be decreased, judge may 27-l-221(7)(c), increased or do so. Section MCA.It is within the district court’s or discretion increase decrease jury’s punitive damages. of a award See Dees v. American National (1993), 141; Ins. Fire Co. 861 P.2d Ins. Co. v. Safeco Ellinghouse P.2d 217. Under 27-1- § 221(7)(c),MCA, following a district judge court considers the factors MCA, 27-l-221(7)(b), forth in reviewing jury’s set when award of § damages: punitive
(i) the nature and the defendant’s reprehensibility wrongdo- ing;
(ii) the of the wrongdoing; extent defendant’s (iii) of the in committing wrong; the intent defendant (iv)the ofthe if profitability wrongdoing, applicable; defendant’s (v) damages jury; the amount of actual awarded (vi) worth; the defendant’s net
(vii) previous punitive exemplary damages against awards of or wrongful act; based the same upon the defendant (viii) prior against criminal sanctions the defendant potential wrongful act; the same based (ix) may operate to increase or other circumstances reduce, wholly defeating, punitive damages. without 27-l-221(7)(b), MCA. Section record, it
Upon appears review that the was properly punitive damages instructed on the issue of and made its decision considering after presented. evidence District Court reviewed the award and decided to leave it intact. Since the District' Court 27-l-221(7)(b), MCA, considered the factors in and concluded that § an appropriate punitive damages against amount for Hug- $51 their gins, we will disturb decisions. We conclude that the District Court did not abuse its discretion in upholding jury’s award against punitive damages Huggins. $51 police reports E. Admittance regarding Blacks’ domestic disputes into evidence? argues
David Black that the District Court violated his rights *13 by to privacy allowing investigative into evidence materials and testimony police regarding from officers domestic disturbances or domestic violence complaints involving disputes between him and his wife. David Black contends that the District Court did not make a finding right privacy that his outweighed by Carpet Barn’s He “right argues to know.” also the probative value of this outweighed by evidence was prejudicial jury. its effect on the 403, M.R.Evid., may Under Rule a district court exclude relevant probative evidence if its substantially value is outweighed by the danger prejudice. of unfair 44-5-303(1), MCA, provides,
Section in part: relevant justice [Dissemination of confidential criminal information is justice restricted to criminal agencies, to those by authorized law it, to receive and to those authorized to it by receive a district court finding a written that the demands of privacy individual do clearly not public exceed the merits of disclosure.
A transcript review of the trial reveals that the District Court correctly exercised its discretion under Rule M.R.Evid. February 1, 1995,
On proceedings held in regarding police chambers documents on David Black. The Dis- trict Court stated:
I’m to make required inspection the in camera of the documents. making inspection required weigh my In that in camera I’m in right privacy any own mind whether the constitutional indi- right public viduals would exceed the constitutional of the to know I am considering related to those files also case considering. I’ve done that....
In the context of this case—and I’m ruling on admissi- bility issues, of evidence but in reviewing files, those I believe that portions of two the file which relates to alleged domestic abuse Black, occurrences between David Black and Susan both sub- sequent to the question case, incidents that are in in very this but case, close to the time of this I think they’re year within a in the year 1987, ’88, it was I’ve decided I will allow those documents to inspected by be each copied parties. of the However, the District Court did find that some of the information in police file should not be disclosed. The District stated, Court are “[t]here other documents I am not allowing I disclosure. find that right privacy does exceed the right public to know.” trial, the During District Court allowed Carpet Barn to introduce evidence of the domestic disputes. Blacks’ conclude that the
We District Court did not abuse its discretion in allowing this evidence. The Blacks claimed that Carpet Bam and Huggins caused them entitling emotional distress damages. them to regarding The evidence disputes Blacks’ domestic was relevant it claims by because contradicted the Blacks’ showing that the Blacks’ may emotional distress have been caused factors other than the actions of defendants.
Although the District Court did not make a written finding as required by 44-5-303(1), MCA, we find this error to § be harmless. The District finding Court made its parties, chambers before both stating its reasons for the disclosure of police documents regarding David Black.
F. Exclusion plaintiffs’expert witnesses? Rocky Mountain and the argue Blacks that the District Court abused its discretion prohibiting expert certain witnesses from *14 testifying at trial. The prohibited witnesses included Ann Adair, Dr. Billings economist, Lee, Dr. Ned Tranel and Dr. Sandra both crisis In January 27, 1995, order, counselors. its plaintiffs ruled that the comply had failed to scheduling with the respect order in to the expert disclosure of granted witnesses and defendants’ motion in limine to exclude certain witnesses for the plaintiffs.
Our standard of granting review from orders or denying discovery (1994), is abuse of discretion. In re Marriage Caras 263 377, 384, 615, Mont. 868 P.2d 619. “The District Court has inherent discretionary power discovery power to control and that upon is based authority the District Court’s to control trial administration.” State Ins. Co. Court Eighth ex rel. Guarantee v.District Judicial Dist. 64, 648, 650; (1981), 67-68, 194 Mont. 634 P.2d see also Montana Rail (1993), 331, 337, 121, Byard Link v. 860 P.2d 125. scheduling The record reveals that the last order dated January 1995, 18, 1994, January 23, trial date and required set the all at plaintiffs expert to disclose witnesses least twelve weeks before Therefore, plaintiffs’ trial. witness were due disclosures before 1994, However, 28, plaintiffs October 1994. on December at- tempted supplemental designations witnesses, of expert to file one month before the trial date. Court plaintiffs’
The District ruled that the disclosures under Rule 26(b), M.R.Civ.P., inadequate untimely. were We conclude that discretion; therefore, the District Court did not abuse its we will not ruling relating disturb its to disclosure of See J.L. v. experts. Kienen 848 P.2d berger 476. argument? Improper
G. argue Plaintiffs improperly defendants com mented, argument, jury to the that there was any no evidence from any psychologist, or other that would expert, support plaintiffs’ Also, plaintiffs case. contend that improperly defendants commented upon any testimony the absence evidence or from Susan Black. Plaintiffs that it suggest was unfair for the defendants to comment in front they these issues of the because had obtained rulings excluding from the District testimony Court both the experts deposition. and the use of Susan Black’s plaintiffs’ argument argument
We find the as to improper regard- ing the expert unpersuasive. above, witnesses As it discussed was the plaintiffs’ properly failure to their expert disclose witnesses as re- Thus, quired the District Court. properly defendants could comment on their lack of expert witnesses. above,
As stated failure of District Court allow the deposition Black into of Susan to be entered evidence was harmless any argument error. We conclude that made the defendants testimony Susan relating to the absence evidence from Black plaintiffs did not in this trial. prejudice
ISSUE denying Rocky Mountain and the Did the District Court err in untimely? Blacks’ memorandum of costs as 25-10-501, MCA, states: Section *15 judgment in whose favor is rendered and who claims party
The his upon party, must deliver to the clerk and serve the adverse costs days after the verdict or notice ofthe decision of the within 5 court or, entry if of the on the verdict or judgment or referee the decision made, stayed, entry then before such is memorandum the be his in the action necessary items of costs and disbursements or oath which memorandum must be verified the proceeding, attorney agent, attorney, the clerk of party, stating his or or his the the knowledge the best and belief items are correct that to of his necessarily that the have been incurred the and disbursements proceeding. or action compensatory damage and filed on the jury signed
The verdict was the February 6, jury punitive The verdict on issue of issue on 1995. 7, signed February was and filed on 1995. damages February filed a to tax 21,1995, Mountain motion costs On objection After a memorandum of costs was verified. Barn, the motion tax costs with by Carpet plaintiffs filed refiled to March February memorandum of costs on 1995. On verified plaintiffs’ District struck memorandum of costs as 1995, the Court days untimely it not filed within five of the verdict. because was although judgments entered on argue that the were Plaintiffs uncertainty as to February 6 and there was the form the against an offset be allowed and whether should judgment damage $35,000 compensatory judgment. plaintiffs’ prop- memorandum of costs was
We determine that
rendered,
judgment
at the
Although,
time
erly stricken.
regarding
there
still issues
Court stated that
were
District
resolved,
judgment
form
of the
to be
amount
Thus,
staying
entry
to
judgment.
issued an order
never
25-10-501,
days from
MCA,
plaintiffs
under
had five
§
claim costs
party
file
and serve
the adverse
the date of
verdict
Grover,
Flynn
costs.
R.H.
Inc. v.
Ins.
memorandum of
See
a verified
case,
plaintiffs
We conclude untimely. as of costs tiffs’ memorandum
ISSUE 3 sanc imposing its discretion in Did the District Court abuse counsel? against plaintiffs’ tions trial,
At the close of Carpet Bam filed a motion for sanctions against plaintiffs plaintiffs’ counsel, Stephens. Robert L. attorney District Court $500, awarded fees in the amount of under authority 37-61-421, MCA, provides: which § attorney An party who, court proceeding in the determi- *16 court, multiplies nation of the the proceedings any in case unrea- sonably vexatiously and may required by be the court to satisfy costs, the personally attorney excess and expenses, reasonably fees incurred because of such conduct.
It is within the discretion of a district court to award costs and
attorney
37-61-421,
fees under
MCA. See Tigart
Thompson
§
v.
(1990), 244
Plaintiffs’ counsel argues that the District Comb abused its discre- tion in sanctioning First, him for two reasons. counsel duty has a to zealously and vigorously represent Second, his client’s interests. the imposition of sanctions has a chilling effect on the legitimate zeal of counsel, especially penalties when dispensed any are opportu- after nity by for remedial measures counsel has passed. light In of these principles, plaintiffs’ counsel contends that a review of the record will support findings the of the District Court.
The District Court made findings numerous about the conduct of plaintiffs’ during counsel the trial. In its order 7, 1995, dated March the District provided examples Court justify reasons to the imposition of sanctions: example
For after a few Stephens’ minutes of Mr. opening state- ment trial was recessed at again which time the Court reviewed rulings its on preliminary matters and attempted to establish parameters for counsel in handling the remainder of trial. These rulings ignored by were Stephens Mr. to a substantial degree. At least once and perhaps more than once Mr. Stephens ques- in tioning merely or in making during statements the course of the by trial was cut off in mid-sentence the objection Court when an was sustained. He to improper continued finish the statement in jury. front of the The final and most blatant act improper of Mr. very occurred at the Stephens end of trial. This occurred in his argument rebuttal the punitive damages concerning on issue of In the Huggins. argument, Stephens rebuttal Mr. made a state- jury everyone ment to the to the effect that going knew what was here, punitive on that a diminution of a award would be to the Barn and that Barn Carpet benefit of was covered liability losses in the case. pay insurance The Court imme- the diately argument terminated directed to deliber- say prejudicial It that statement was since ate. is difficult only in the aihount of At the time $51.00. award was punitive damages punitive statement the amount of to be awarded only issue. The Huggins remaining statement was against Mr claims that had clearly improper. Stephens matter been arguments [opposing in the in opened punitive arguing counsel] punitive wealthy corpo- difference against between award ration, Company, Insurance example opposed for State Farm as This is Huggins individual like without assets. a lame excuse an Stephens Stephens’ improper Mr. statements. Mr. knows that be liability coverage matter insurance cannot mentioned in jury. like a case this before Stephens’ Mr. conduct did increase the Court is of a view that attempting to admit inadmissible inappropriately
trial time difficult to It estimate additional time but conser- evidence. is *17 least vatively Stephens’ probably Mr. conduct at increased trial day. by one-half time “the stating concluded conduct Mr.
The District Court in this case cannot be condoned.” Stephens transcript, the record and the trial we conclude After a review of to the District Court’s discretion award costs and it was within pursuant Bam to attorney $500 fees in the amount of 37-61-421, find of discretion here. MCA. We no abuse §
ISSUE
summary
against
granting
judgment
err in
Did the District Court
conspiracy?
on the claim of civil
plaintiffs
genuine
no
issues of
judgment
proper
is
when
Summary
as
judgment
a
moving party
is entitled
fact exist and
material
grant
a district court’s
56(c),
We review
law. Rule
M.R.Civ.R
matter of
56(c),
novo,
the same
summary
applying
de
judgment
(1995), 270
In Estate
Lien
by that court.
re
M.R.Civ.R, criteria used
that we
requires
Such a review
530, 532.
295, 298, 892 P.2d
met its burden of estab
moving party
determine whether
first
fact and
of material
genuine issues
absence of
lishing both the
judgment
entitlement to
as a matter of law. See
Lien,
Estate
298,
Mont. at
To civil the following elements required: are (1) persons, two or more and for this purpose, corporation ais (2) (3) person; object an accomplished; to be meeting of the minds (4) object on the or action; course of one or more acts; unlawful overt (5) damages proximate as the result thereof. Grenz v. Medical Northwest, Management (1991), 58, 62, Inc. 250 Mont. 817 P.2d 1154;Duffy v. Butte Teachers’ Union No. 332 541 P.2d 1202.
The District Court stated probably “there is sufficient evidence of 1,2,4, elements and 5 quoted as in Grenz. There is a failure on the part of the plaintiffs to genuine raise a issue of material fact concerning ” element meeting 3 ‘a ofthe object minds on the or course of action.’
This Court has reviewed motions, depositions, and affidavits that were filed with respect to the civil conspiracy issue. review, In our we have also considered the evidence that the plaintiffs allege was untimely produced by the defendants and constituted the basis for their motion for summary reconsideration of ruling on civil conspir- acy, alternatively motion for Rule 54 certification.
This Court concludes that the District Court was correct in grant- ing summary judgment to all defendants on the conspiracy civil issue. agree We with the District Court’s conclusion that the plaintiffs had failed to genuine establish a issue ofmaterial fact concerning whether “a meeting of the object minds on the or course of action” was reached Huggins between other of the Pierce defendants.
CROSS-APPEAL ISSUE 1 Did the District Court err in failing to dismiss complaint pursuant 41(e), to Rule M.R.Civ.P?
Carpet Bam cross-appeals, challenging the District Court’s refusal the plaintiffs’ dismiss 41(e), claims under Rule M.R.Civ.P.
The District Court declined defendants, to dismiss the con *18 cluding any that defect in the serving upon summons the Pierce by defendants was serving cured each of the defendants with the original summons which year was issued within one ofthe commence ment of the action. Our reviewing standard in a district court’s conclusion oflaw is to interpretation determine whether the of law is 304 Steer, (1990), 470, Revenue Department
correct. Inc. v. of 474-75, 601, 803 P.2d 603. M.R.Civ.R, 41(e), provides as follows: summons. No action heretofore or hereafter
Failure serve any prosecuted commenced shall be further as defendant who or in action appeared in action been served as has provided years within after the action has been com- herein 3 therein, had menced, proceedings further shall be and all and no commenced shall be dismissed actions heretofore or hereafter commenced, the same shall have been on its the court which any party therein, motion, or on motion interested own not, party as a or summons complaint named in unless whether year, 1 unless summons issued have been issued within or shall year one have served and filed with the clerk of within shall been action, years 3 after the commencement said or the court within has made the defendant or defendants appearance unless been years. 3 one therein within said When more than defendant has action, may named in an the action within the discretion of been against trial further defendant who prosecuted court be years, 3 which appeared has within whom summons has year 1 and filed the clerk been issued within has been served years as herein required. within M.R.Civ.R, 41(e),
The ofRule is to ensure that actions purpose Call, Service, timely prosecuted. Capital Answering First Inc. v. are (1995), 425, 96, 427, requires Mont. 898 P.2d 98. rule Inc. year is where summons not issued within one dismissal an action Indeed, previously ofthe we have stated ofthe commencement action. time entitles to issue summons within that frame a failure Gas, Sooy Petrolane to dismissal. v. Steel Inc. defendant 418, 423-24, 708 P.2d 1018. case, Rocky original Mountain and the Blacks filed their In this Huggins the Pierce defendants and October against on complaint the Pierce defendants naming parties The summons as 1988. day. on subsequent A summons was issued on same issued 23, 1989, it not served. Yet another summons was but was October defen- February 28, 1990, which was served on the Pierce on issued summons, of this Upon receipt in March 1990. sometime dants brief supporting to dismiss and filed motion Pierce defendants 41(e) they were contending that March on Rule on based year after issued more than one had been served with summons filing complaint. their
305 After the Pierce defendants’ motion to filed, dismiss was plaintiffs attempted any to cure deficiencies in service of summons by serving original 21, summons issued on October 1988. That was summons served on the Pierce April 16, defendants on 1990. 17, 1990, On September the District Court ruled on the motion to dismiss. The District Court stated that at the time original motion filed, to dismiss was the Pierce defendants had been served with a summons, February 28,1990, dated that had been issued more than year one from the commencement of the time, action. At that However, motion to dismiss had merit. the District Court ruled that serving February 28, defect in 1990, by summons was cured serving the Pierce defendants the original 21, with 1988, October summons that had been issued on the date this action commenced.
Carpet argues Barn in its cross-appeal that the District Court failing erred in to dismiss this It action. contends that it could not be “re-served” with the original summons after it had appeared in court 41(e) and filed its motion pursuant to dismiss to Rule based upon the being error of served with the subsequent summons. Carpet Barn Call, relies on 425, First 271 96, 898 P.2d for the proposition that the District Court should granted have their motion and that the dismissal should have been prejudice. with
This Court concludes that the District Court did not err in denying
41(e).
the Pierce defendants’ motion to
pursuant
dismiss
to Rule
In
Call,
First
we held that
the failure to serve a summons within the
required
years
three
meant
the complaint must be dismissed
prejudice.
Call,
First
428,
ISSUE 2 Did the District Court err in granting not either the defendants’ summary judgment motion for or later motion for a directed verdict on plaintiffs’ claims based on liability vicarious negligence? and above,
As stated
we review a district
grant
summary
court’s
novo,
de
judgment
applying
56(c),
the same Rule
M.R.Civ.P., criteria
Lien,
used
that court.
Estate
be considered Architects, 97, 107, 890 P.2d P.S. v. ALSO (1982), 199 Mont. National Guard v. Montana (citing Jacques 1319). deny a motion for a directed A court must 493, 649 P.2d district Fox in the evidence exist. Grain conflicts if substantial verdict 528, 533, P.2d (1994), 267 Mont. Maxwell Co. v. Cattle (1992), 253 Mont. Community Ass’n Angel v. Island Simchuk (quoting 160). 221, 225, 833 P.2d granting erred argues Barn claims based on plaintiffs’ on the summary judgment motion for
its they argue that there liability negligence. Specifically, vicarious in further- Huggins was that the criminal conduct no evidence *20 thus, could not Barn, and, Carpet Barn employer, Carpet his ance of superior. theory respondeat the of liable under be held concludes that evidence, this Court After a review motions. The denying the defendants’ not err in Court did District Barn’s Carpet following regarding facts cited the District Court met Susan Black Huggins liability Huggins’ for actions: possible Pierce; Jon the Blacks with business; discussed Huggins through hours from during business the tortious acts occurred some harm that his acts could understood Bam; Huggins and Court concluded The District activities. Mountain’s business jury concerning for the material fact issue of genuine there was a scope employment. of his within the Huggins acted whether Court was evidence, the District on the that based We conclude summary judgment defendants’ motions denying in correct liability and on vicarious claims based plaintiffs’ on directed verdict negligence.
Affirmed. TRIEWEILER, HUNT, TURNAGE, JUSTICES JUSTICE
CHIEF for JUS- sitting JUDGE SHERLOCK and DISTRICT LEAPHART concur. TICE GRAY dissents.
JUSTICE NELSON Rather, I would appeal. addressed on the issues not reach I would on the basis dismissed cause of action Plaintiffs’ and order reverse Court that the District I hold would cross-appeal. on the issue raised basis on the prejudice with action dismissing Plaintiffs’ in not erred 41(e), Rule under to dismiss motion Defendants’ the Pierce M.R.Civ.P.
307
majority
notes,
As the District Court stated and as the
opinion
at
time
original
filed,
their
motion to dismiss was
the Pierce Defen-
dants had not been served with a summons that had been issued
year
was,
within one
commencement of
action. Their motion
thus, clearly
Accordingly,
time,
meritorious.
at that
in
point
under
unambiguous requirements
plain language
41(e),
of Rule
as
interpreted in our decision in First
v.
subsequently
Capital
Call
Serv.,
(1995),
Answering
Inc.
P.2d
Plaintiffs’
have been
complaint
prejudice
i.e.,
should
dismissed
never to
—
Call,
prosecuted
allowing
be
further. First
865 P.2d
we held that Rule
does not allow the District Court
prosecution
discretion to allow
further
of an action where sum-
year
within one
mons is not issued
of the commencement of the suit
mandatory language
and that
of the rule requires dismissal.
Sinclair,
P.2d at
266-67. In that case we reversed the District
substance,
doing,
Court for
what the court did here. We stated:
Notwithstanding
timely,
failure to issue the summonses
determined
District Court
that it could allow the
proceed
action to
because the non-BBMC
had
an appearance.
defendants
made
It is
may
that an action
prosecuted
41(e),
true
be further
under Rule
*21
M.R.Civ.P,
years
if a defendant appears within three
of the com-
summons
though
mencement of the action even
has
been
not
timely
However,
only
appearance
issued.
the
made
the non-
12(b),
prior
ruling
BBMC defendants
to the court’s
was the Rule
M.R.Civ.P,
41(e),
asserting
M.R.Civ.P,
motion to dismiss
the Rule
41(e), M.R.Civ.P.,
proceedings.
specifically
bar to further
Rule
party
requires
allows a
to move
dismissal
the action and
the
for
of
Thus,
not properly
district court to do so summons was
issued.
if
the non-BBMC
motion to dismiss does not serve as a
defendants’
[Emphasis added.]
the action.
prosecution
basis
further
of
for
Sinclair, at 267.
P.2d
41(e)
language
the
of Rule
nor our decisions
unambiguous
Neither
“curing”
mechanism for
a Rule
provide
in Sinclair or First Call
41(e)
has
At
point,
defect once the defendant
moved
dismissal.
that
obligation
simply
prejudice.
the court is
to dismiss with
the
of
bar,
briefing
the case at
we handed down our decision
Following
in
County (1997),
494],
[285
v. Glacier
948 P.2d
Yarborough
granting
In
case we reversed a decision of the trial court
1181.
that
41(e)
distinguish-
case is
defendant’s Rule
motion to dismiss. That
the
facts;
support
majority opinion
is
it
not
the
limited
its
does
able
Yarborough,
plaintiff
a summons issued the same
In
the
had
here.
July
complaint,
her
1993.
defendant declined
day she filed
complaint
service of the summons and
mailed within
acknowledge
action. The
year
original
of the commencement
the
summons
one
the
year
lost.
one
from the
filing
complaint,
Over
subsequently
was
“duplicate”
identical
of the
the clerk of court issue an
had
plaintiff
was titled as such and bore
duplicate
summons. This
summons
original
prior
the bottom
to the clerk of court’s
following statement
at
ISSUED this 23rd
“NOTE: DUPLICATE SUMMONS
signature line:
on
June,
duplicate
personally
summons was
served
day of
1995.” This
facts,
1182. On those
we held
Yarborough,
defendant.
948 P.2d at
purpose
had
with the substance and literal
plaintiff
complied
41(e).
Significantly, Yarborough
I dissent.