*1 119 CORPORATION, OIL SIMMONS Aрpellant, Plaintiff and v. BANK, N.A., FARGO
WELLS
Respondent.
Defendant
No. 95-029.
February 11, 1997.
Heard
25, 1997.
Submitted March
May 28,
Decided
1998.
MT 129.
1998
St.Rep.
55
See C.J.S. S H. Appellant: (argued), For Charles Stahmer Stahmer Law Of- fices, Bozeman; Goetz, James (argued), Dunn, Goetz Madden & Bozeman; Wisch, Wisch, Charles J. Law Offices of Charles J. San Francisco, California. Respondent: Dennis C. (argued),
For Brown Allison B. Stein Hymanson, Olson, Munger, and Marsha Tolies & Los Angeles, Cali- Jardine, fornia; Stephenson, John D. Stephenson, Blewett & Weaver, Great Falls. LARSON, Judge,
HONORABLE District delivered the Opinion of the Court. (hereinafter Simmons) Appellant Corporation Simmons Oil ap- rulings trial and from a
peals post-trial jury November 1993 verdict $2,238,743.00 against it defendant awarded Wells Bank (hereinafter Fargo). expressly permitted This Court has Fargo appeal request attorney denial ofits fees as a sanction 60(b), M.R.Civ.P., a Rule against pursuing Simmons motion dur- affirm the District ing appeal. this We Court. presents following issues on appeal: the District Court erred 1.Whether when it denied Simmons’ mo- concerning expert testimony Wells Fargo’s refinery
tion in limine value; the District Court erred when it instructed the Whether Knudsen, testimony by damage expert, Don con-
disregard (hereinafter cerning Corporation’s Holly) analysis defendant (Exhibit 73); unit at the Black Eagle Refinery a *4 3. Whether the District Court erred when it refused Exhibit ¶5 Holly budget analyzing projected profits 73—a document of the Eagle Refinery; reduction unit at the Black
123 it refused Simmons’ Court erred when the District 4. Whether ¶6 damages; new trial on for motion the set-off erred when it calculated the District Court Whether 5.
¶7 co-defendant, Holly; with a former settlement for the earlier when it refused the District Court erred Whether ¶8 fees. attorney for request post-trial Court, Fargo presents of this Wells permission express With the to the District Court: from our remand following appeal issue on erred when it refused Wells the District Court 7. Whether Rule attorney for Simmons’ fees as sanctions request
Fargo’s 60(b), M.R.Civ.P., motion. History
Procedural and Factual the sale of Simmons’ stemming from appeal This is the third co-defendant, partner and former Fargo to Simmons’ debt Wells sold Fargo that when Wells alleged complaint in its Holly. Simmons Holly to ac- Holly, Fargo knew wanted debt to the Simmons’ Refinery owned Eagle jointly the Black Oil ownership sole of quire Holly, time of the sale to Simmons/Holly рartnership. At the a Fargo refused purchase this debt. Wells Simmons had also offered Holly foreclosed the debt and Holly. the debt to and instead sold refinery. interest in the Simmons lost its 1988, Holly against filed this case in December Simmons 1989, May the District Fargo. In of its subsidiaries and Wells two lack motions to dismiss for of Holly’s and Wells granted Court Corp. in Simmons Oil jurisdiction. ruling This was reversed personal (Simmons I). (1990), P.2d 189 244 Mont. 796 Holly Corp. v. summary judgment in Oc- granted Fargo and Wells were appeal decision on the prior to this Court’s tober 1991. In a settlement (1993), Corp. Holly Corp. Oil v. summary judgment, Simmons of the (Simmons II), cash Holly paid Simmons P.2d 523 258 Mont. forgave *5 awith verdict of in view Holly $0.00 of the settlement which it con- present tended had a value of $3.5 million. Simmons opposed the mo- sought $900,000.00 tion and in excess of attorney fees and costs. Simmons’ motions for new trial and attorney fees were denied in December 1994. The District Court then calculated the set-off for settlement and judgment entered for against Fargo $25,536.94. plus $0.00 costs of Simmons filed its No- tice of Appeal, briefing to this Court commenced. During briefing, Simmons raised an issue concerning new
evidence affecting the value ofthe contingency note which part of the settlement between Simmons and Holly.This Court issued an or- 4, 1996, January der on remanding the matter back to the District Court for consideration of 60(b), the issue under M.R.Civ.P, Rule suspending appeal process pending the District Court’s consider- ation of the issue. In May 1996 the District Court denied the Rule 60(b), M.R.Civ.P, motion, as well as a subsequent request by Wells feеs). (attorney for sanctions Following the District Court rul- 1, 1996, ing May on this Court issued a supplemental briefing order 30, May on 1996. In Simmons’ brief filed pursuant order, to that Simmons withdrew appeal 60(b), from the M.R.Civ.P, Rule issue of the valuation of contingency However, note. Fargo pre- appeal request served for attorney fees from Simmons as sanc- 60(b), M.R.Civ.P, tions for Simmons’ Rule motion.
Standard
Review
of
We review a district
rulings
evidentiary
court’s
issues
for an abuse of discretion.
$23,691.00
In Re Matter
Seizure
of
of
(1995),
474,
148;
273 Mont.
905
(1992),
P.2d
Hansen v. Hansen
254
152, 160, 835
748, 753;
(1979),
Mont.
P.2d
Cech v.State
522,
184 Mont.
question
not adopted that it did address cash capital flow and improvement by issues—also addressed expert Simmons’ do not —we find the District Court by abused its discretion denying Simmons’ motion in limine. Alternative approaches to measure loss are within 401, meaning ofRule up jury M.R.Evid. It is to the to decide which Here, is more or less a probable as measure ofloss. the jury did not ac cept Capers’ testimony valuation, and, thus, concerning the eviden tiary ruling by the District Court does not constitute a manifest abuse of discretion. 2. Did the District Court err it jury when instructed the disregard testimony by damage expert,
to Simmons’ Don Knudsen, concerning Holly’s analysis of a reduction (Exhibit 73)? Eagle Refinery unit at the Black trial, jury During disregard court admonished the “to testimony regarding profits expected the instrument re- from yet (Emphasis supplied.) to that is not in evidence.” ferred the court error argues this instruction from was reversible because M.R.Evid., 703, may rely experts under Rule on matters which are instance, In Fargo not admissible evidence. this submits that Knudsen, expert, did not include the and, thus, analysis unit in his cash flow such was outside for in Rule M.R.Evid. Simmons counters exception provided the door when it examined Knudsen about Fargo opened that Wells unit during cross-examination and that it preju- to ask about the issue as well. The permitted have bеen should out, brought points to is that had this been dice Simmons argued million in lost income could have been $25 an additional jury. response, In notes that the admonition the court document, testimony concerning the Exhibit only
related testimony concerning damages the additional million in $25 later in the trial Simmons on redirect of Knudsen and not elicited objected Fargo. to Wells evidentiary The abuse of discretion standard controls this de- Here, the fact the District Court had re- given
termination as well. document, 73, it was not an admission of the Exhibit fused the disregard for the court to direct the testi- abuse of discretion Further, ofthe mil- mony concerning $25 that document. the evidence elicited without reference to the document and lion cаsh flow loss was Thus, profit million in lost objected to. the additional $25 jury argument. Accordingly, the District available to Simmons for its discretion on this issue. Court did not abuse concerning the urges the dissent the absence of a record While *7 unit, following from the profit future expected instruc- immediately after the court’s and answer occurred question jury: tion to the us, and tell us
Q Sir, you please, can calculate for [By Wisch]: Mr. years times 16 is? what million $3.6 million. just It would be over [By Knudsen]: $58 A Mr. Thus, objection profit the annual jury had before it without
¶28
well as the
its estimated useful life as
unit over
ofthe desulfurization
half. It was
have been entitled to
ofwhich Simmons would
profit,
total
kept
which
this
not the District Court
by Simmons’ counsel
a decision
jury.
argument
final
to
figure from
err when it refused Exhibit
Did the District Court
analyzing
profits
document
of the sul-
Holly budget
73 —a
Eagle Refinery?
at the Black
unit
phur
apply
Issue No. 2 also
arguments presented
703, M.R.Evid.,
addition,
that Rule
Fargo argues
In
this issue.
evidence, does not
allowing
expert
rely
on inadmissible
while
rely
evidence to come in unless it can
on a
permit the inadmissible
106,
hearsay
rule. Simmons cites Rule
exclusion to
separate
M.R.Evid.,
admitting
a basis for
the en
completeness,
the rule of
as
Fargo argues
response
that Rule 106 is not an
tire document. Wells
hearsay
to the
rule. Given the lack ofreliance on
exception
additional
in his
by
expert
opinion
document
Simmons’
of lost cash
the issues or
availability
figures,
jury
the increased cash flow
ar
flow and the
an abuse of discretion for the District Court to
gument, it was not
106,M.R.Evid.,
not au
admissibility
ofExhibit 73.Rule
does
deny
hearsay.
Camp
State v.
thorize admission of otherwise inadmissible
15,
(1978), 178 Mont.
counsel annual including expected profit, the amount of desulfurization life, anticipated profit partnership and total to the with total useful objection Fargo. to the exhibit and without from Wells out reference the fact the record contained the essential features of Exhibit Given in an abuse of discretion for not indulge the District Court did not doctrine. Rule M.R.Evid. admitting completeness it under the argued calculations were available but not damage Additional by solely strategy adopted on trial Simmons’ counsel. based err it refused 4. Did the District Court when damages? for new trial on motion argues granted a new trial should have been offered Wells upon alleged based false
the District Court expert testified Simmons contends Fargo’s expert, Capers. from the sul include an additional million $25 that the income should yield unit the unit would fol calculated phur reduction Fargo’s expert, contends that Wells lowing its construction. Simmons *8 128 falsely concerning operational testified stаtus of the sul-
Capers, and that proj during reduction ect his latest visit his calculations phur Griffin, by refinery manager. Simmons sup- had been verified Capers statements obtained from in a ports position with that the unit deposition Capers wherein revealed reduction post-trial that did not capacity at a reduced Griffin confirm operating was calculation of additional annual income. Simmons contends that this the additional million in supported would have addi- $3.6 Griffin Simmons also contends that Wells counsel tional income. out of trial. falsely represented that Griffin was town false and constituted argues peijury these statements were Simmons justify a new trial. which should only testified that the sul- Fargo Capers counters fully and that had operational reduction unit was not Griffin
phur negative an status would have a im- operational confirmed that such Fargo argues expert, Capers, also that its did pact on income. Simmons, argued by as but instead represent position not Griffin’s testifying hearsay objection by because of a precluded from by additional cross-examination Fargo suggests Simmons. Wells matters and that a trial is would have clarified these new Simmons unwarranted. governs standard of review this the abuse of discretion Again, the denial of a new trial. Morris v. Corcoran consideration of
Court’s (1970), 468, 465 Mont. P.2d 827. The District Court Co. Pulpwood false about the reduc- Capers’ alleged on decision cannot be said to be an abuse of operational unit and its stаtus tion damage expert lack ofreliance Simmons’ Again, the discretion. together with any income from additional income from the testimony of the estimated million) ($25 period cash flow over the impact unit and —which jury by to the argument to and available for objected it Simmons’ trial strat- us to the conclusion that was Simmons—lead kept these matters from be- ruling, the District Court egy,not jury. argued or ing fully developed err when it calculated the District Court 5. Did Holly for the settlement? set-off (verdict) that Simmons’ loss would provides Pretrial Order from have and will receive plaintiffs the funds against
“be offset that the loss in value refinery.” argues Simmons the sale of the Oil and Simmons Refining Company stock—Simmons implementing be taken into account in the settle- Company—should ($3.5 ment, simply rather than the dollar-for-dollar set-off of cash million) million verdict. Wells against responds $2.2 stock is alternative but not cumulative dam- the loss value only and that Simmons can age suffered recover once for *9 a loss. (cash flow) theory by of advanced Given the loss Simmons
¶39 Order, in the Pretrial this Court provision above cannot find the by setting-off Court abused its discretion dollar-for-dollar the District against by settlement the verdict received Simmons. 6. Did the District Court err when it refused Simmons’ ¶40 attorney for fees? post-trial request fees, $900,000 sought approximately attorney Simmons in ¶41 upon request by Fargo based Wells post-trial, attorney for fees in pleadings. undisputed It is that the Pretrial Order contained no attorney referenсe to fees. There is no also indication that the issue of attorney 28-3-704, fees was raised trial. MCA, Under § argues attorney fees should be reciprocal and awarded. Finalco, (1992), Fargo Wells cites Leasing 89, v. Inc. 254 Mont. Naftco 728, controlling attorney 835 P.2d as when fees are not contained or implicit pretrial Again, order. we cannot find the District Court abused denying request its discretion since it was not con Order, and, thus, tained in the Pretrial not before Nentwig the court. v. (1992), 134, Industry, 99; United Inc. 256 Mont. 845 P.2d Ducham v. (1994), 436, 440, 1002, Tuma 265 Mont. 877 P.2d 7. Did the District Court err when it ¶42 refused Wells fees) Fargo’s request (attorney sanctions based on 60(b), M.R.Civ.P., Simmons’ Rule motion? 4,1996, Following January remand order for
¶43 consider 60(b), M.R.Civ.P, of request ation under Rule Fargo Wells sanctions sought against Simmons for its motion. The District 1,1996, May spеcifically attorney Court’s order of did not address the fees which are deemed denied. Simmons has not pursued ruling however, underlying appeal; on the motion in this Wells Fargo per seeking sists in sanctions. attorney Awards of fees in Montana must be based on stat (1992),
utory
authority.
Lindey’s
v.
or contractual
Goodover
Inc.
255
430,
(citing authority).
CHIEF JUSTICE JUSTICES LEAPHART and REGNIER concur.
JUSTICE TRIEWEILER dissenting. majority’s I dissent from the judgment decision to affirm the the District Court. I conclude that evidentiary based on erroneous rulings, combination with false offered witness, expert plaintiff, Corporation, Simmons Oil was denied a damages, fair trial on the issue of and that a trial new limited to the should, therefore, of damages granted. issue have been fully impact To understand the of the District Court’s eviden- *10 tiary rulings and the false of J. Capers, David it is neces- sary carefully to consider the evidence more than is done in the ma- jority opinion. It contention that was Simmons’ because ofWells sale of Fargo’s promissory Holly Corporation, Holly notes to able was to foreclose (a Refining Company wholly
on the stock of Simmons owned subsid- iary Corporation) acquire of Simmons Oil and one hundred percent Refinery. ownership Eagle damages of the Black Simmons’ claim for that partnership was based on its contention because ofthe loss ofits refinery, fifty percent in the it lost a share of interest the cash flow refinery the and would produced produced that had been be in the attempted prove the that through future. Simmons value of loss Knudsen, public the of Don a certified accountant who had industry with oil experience working partnerships. extensive partnership Knudsen arrived at his estimation oflost income ana- refinery operation financial statements derived from the dur- lyzing (trial 31,1993 January 1,1988, ing period through August the from 1993). required adjustments in He then made the occurred November figures during projected that time and cash flow to arrive at cash flow because, partnership agree- to the pursuant date after that figures on actual cash flow. were based ment, distributions partnership partnership oper- the would have assumption that Based on an (the twenty years partnership for at least another refinery the ated fifty years), he esti- period for a operation agreement provided had partnership and futurе income past loss of that Simmons’ mated million. $59 $53.5 a value of between that it testimony on basis objected to Knudsen’s refinery had testi- that no one from for the reason speculative was Al- past performance. reflect would performance that future fied overruled, then Knudsen was objection was though that adequately he had consid- extensively about whether cross-examined necessary be which would capital improvements ered the cost were based on the as- projections that his He testified the future. paid be for from improvements would capital that future sumption for its new sul- refinery’s projections and used profits additional He that based on the facility example. explained аs an phur reduction Refining Com- the Montana prepared for budget worksheet capital facility would 1,1992, require October pany million, from that investment but $10.7 an investment year pe- million over a per a net return of anticipated $3.6 company years. riod of sixteen improvements would capital income from assumption His attor- challenged by Fargo’s capital expenditures
exceed where, company’s pro- of the out ney, point and he was asked to At that the com- point, estimates were corroborated. jections, his reduction unit was for the capital budget worksheet pany’s at and was discussed No. 73 for identification as Exhibit marked attorney. He was of Wells at the insistence length by Knudsen аlkylation the actual cost of the document to relate from asked and relate to refer to the document He was asked unit. finally, he asked
cost of employees of did not consult with why he cross-examination income. He of future lost his estimate arriving at Corporation when relied on their necessary he had because it had not been explained capital improve- from cash flow projections and their budgets *11 in Exhibit ments, as reflected such impeach attempted Fargo repeatedly for Wells Counsel that more by pointing out lost income of future projections
Knudsen’s had pro- than he capital improvements on spent to be have would jected by suggesting that the of capital cost needed improve- ments exceed anticipated would revenue. Exhibit 73 was critical to major Knudsen’s contention that the capital improvement, the sul- unit, only itself, would not phur pay reduction but increase net in- However, after cross-examining extensively come. Knudsen regard- ing and, of future capital improvements the effect particular, in the sulphur referring after extensively reduction to Exhibit 73 which opinions, corroborated Knudsen’s not only ob- to the admission of Exhibit moved jected but to strike Knudsen’s testimony which was on the figures based which the document in- listening arguments cluded. After to the the about document’s admis- sibility, the District Court instructed jury as follows: “The is to disre- testimony the gard regarding the profits expected frоm the unit the desulphurization from instrument referred that yet is not in evidence.” logical meaning of court’s instruction that the jury was company’s projected profits
was not to consider evidence of the in the unit from investment over next six- years, testimony directly teen all ofthat based or indirectly since was on the excluded worksheet. correct, It in majority opinion, is not as stated that evidence anticipated profit future from the unit was jury’s regard
admitted for the consideration without to Exhibit 73. All company’s regarding projected of Knudsen’s future from the reduction unit based on profit was his examination and the would have logically of Exhibit 73 inferred from the in regard instruction that none his was court’s to be considered. states, majority оpinion Neither is the correct when it in rela- on in rely arriving to Issue that Knudsen did not Exhibit 73 at
tion flow, of the future opinions. projection company’s his His cash damages, large claim for part the basis Simmons’ based be assumption capital expenditures paid his future would expenditures. income which resulted from those increased His were, assumptions large part, upon company’s pro- based own by Exhibit 73. That corroboration was essen- jections, as illustrated light arguments case in of the defense’s to the plaintiff’s tial he had consulted contrary, personnel and its criticism that from company. refining *12 testimony, Furthermore, and Knudsen’s which both Exhibit 73 ¶58 exhibit, to the Montana pursuant on that were admissible was based M.R.Evid., provides, part, in rеlevant Evidence. Rule Rules of that:
(a) by introduced a writing party: [a] When of... ... is part (1) at that time of may require the introduction party an adverse ought thereof which in fair- of such item or series any part other time; at or ness to be considered (2) introduce other may inquire an adverse into or party item evidence or series thereof. part of such attorneys by Knudsen was cross-examined Wells When ¶59 refining company effort demonstrate that the from Exhibit 73 an to improve- expenditures capital future anticipated substantial ments, 73 to demonstrate Simmons was entitled to offer all Exhibit that increased income refining company’s expectation that it was the a provide from the would exceed their cost and capital improvements inference long-term profit. permit negative net To substantial in- produced by positive that was the cross-examination without simply unfair. formation that was included in the same document addition, provides: In Rule 703 an particular upon expert The facts or data in a case by inference may perceived an or be those or made opinion bases reasonably expert hearing. type known to the at or before the If of a by forming opinions field in or upon experts particular relied in a upon subject, inferences the facts or data need not be admissi- ble in evidence. refining was entitled his about future opinion Knudsen to base pro- cash flow on the own businеss records and
company company’s his testi- jections. proper during A foundation was laid the course of Therefore, mony for him to do so. the District Court instructed when testimony regarding that it was not to consider Knudsen’s Court erred and profits expected if based on Exhibit the District theory of extremely prejudicial plaintiff’s its instruction was damages. by evidentiary rulings compounded of these impact attempted by Fargo.
nature of evidence offered Wells The defendant claim the testi- disprove through of lost future income mony expert, Capers. of its J. David in the experience extensive Capers engineer is a chemical with $40,000, the to- industry. he testified that refining
oil For a fee of over present refinery tal valuе of the was about one-fourth of the net in- refinery come that the generated had previous year, only twice what the refinery generated had as net income in the two immediately months preceding trial. Capers testified that refining company was unlikely pro-
duce income in the future similar to what had been produced in the past capital because of expenditures he anticipated would be neces- which, sary opinion, in his greatly exceeded the cost estimated Knudsen. He testified that even after the sulphur reduction unit was he complete, anticipated profits would decline million an- $3 nually due to its additional cost. sum, Capers In testified that a refining operation which had *13 sixty years,
been еxistence for which according to the partnership agreement expectancy had a life fifty years, another and which dur- the ing previous years five and one-half produced had net income of million, present had a only However, $28 value of $2.2 million. one of principal the bases for his opinion was that the necessary ex- capital penditures, including the cost sulphur unit, of the reduction would greatly any exceed additional income that could be expected to result expenditures. from those Because the defendant made that argument simultaneously and inferred that the plaintiffs expert had not taken into mining company’s consideration the own projections in this re- gard, proof contrary, Exhibit which was especially criti- cal. prejudiced by Simmons was the District Court’s refusal to admit it, and prejudiced further the District Court’s instruction to the any that it should not consider testimony of the plaintiff’s expert alone, which was based on that document. For these reasons I would judgment reverse the of the District Court remand this case for a new trial limited to damages. the issue of However, I disagree majority’s also with the conclusion that prejudiced by Simmons was not Capers’ false regarding his conversation with Leland Griffin. It was Simmons’ that it position had lost future income as a re-
sult of loss of its partnership its interest in the refining company. A basis for future expectation income was its contention that fu- capital expenditures ture would increase income in an amount than the greater expenditure. refining company’s projections for sulphur the reduction unit corroborated position. hand, It Fargo’s position, was Wells on the other that due to new regulations capital expenditures, sulphur such as those for the reduc- and reduce the likeli- than future income greater be tion would any profit. future hood of Refining Com- manager of the Montana was the Leland Griffin to of a install preparation proposal in the He involved
pany. Refining “Montana had prepared units and units related to those Budget Worksheet” which Capital Company Exhibit 73. marked as and had been examination, that he had consulted Capers testified During his oрinion confirmed his clearly inferred that Griffin
with Griffin of the new units. He construction would result from profit that no net day prior to his refining plant that he had visited also testified operational, yet unit was not testimony, that the require substantial additional operational make it would and that to company profit additional would consume expense which year. year following and the expect during could verify pessimistic his anything if he did to whether When asked correct, those that had been made opposed as calculations were company, he answered: Mr. Griffin Yes, a named Mr. Leland Griffin. I interviewed fellow reduction unit. He originator of the AFE for the was the many the cal- that to the board. He did proposed was the one that He did some of the de- that related to the unit itself. even culations put be in. going that was sign equipment work on some of him, refinery manager over I interviewed he was When discrep- I chance to ask him about this across the river. And had a And what things. into I calculated ancy kept running that I when he did is confirm .... *14 testimony made to objection Capers’ that there was an point, At
¶72 hearsay. plaintiff’s attor- that he was about to relate on the basis Griffin, testimony from he if defendant wanted ney argued that attorneys plaintiff’s were as a witness. The court and should be called the not available. When counsel that Griffin was by advised defense contin- courtroom, Capers of the the examination returned to parties refinery, any- he learned if, asked when he visited ued. He was refinery’s es- that the change him to his assessment that caused thing nothing “I learned to achieved. He stated: profits timated could be opinion.” that change following in following response answers gave He then
questions:
Q. your opinion? you And receive confirmation did Yes,
A. I did. — — Q. anybody And did did find you anybody did there disagree your with assessment?
No,A. ma’am. testimony, in This combination with previous his Griffin, very that he had interviewed refinery’s author ofthe pro- jections, definitely inferred to the that repudiated Griffin his and projection supported Fargo’s own theory that no or little net anticipated that, income could be in the future. topOn the court by Fargo’s attorney was advised Wells that Griffin was unavailable. However, trial, subsequent to Griffin was located the plain- attorney deposition tiff’s and his was taken. He testified that the sul- phur units were give refinery constructed to ability in percentage reduce the diesel fuel and to reduce sul- phur refinery from the in order emissions to conform to the Clean Air Amendment of 1990 EPA Act. He testified the company that an- $10,750,000, ticipated an investment of but that investment would be years anticipated profit operation recovered in 3.83 based on from the they hoped of the and that to have a net return from the unit of $3,633,000 year for a of time per period that could exceed sixteen years. although Griffin testified that he had met Capers Sep- with
tember, Capers disputing he did not recall his projections during that conversation, that Capers and if had advised he disagreed him that disagreed with he projection, Capers. his would have with He testi- fied that also present working refinery he was and at the on Tuesday, 9, 1993, day Capers testified, November before and that he had anytime date, Capers not been contacted at on that nor to his Capers knowledge, premises had come to the date. contrary testified Capers’ representations, Griffin also desulphurization operational 9,1993, unit was on November per 1500 barrels producing day. oflow diesel fuel He also testify stated that he had been available to the week during of No- (the 8,1993 during Fargo vember week which counsel Wells said unavailable), no he would bе but that one from Wells had con- acknowledge tacted him that week. He did that he had antici- that week had known to pated being gone made that attorneys prior sometime to that week. many respects. critical He Capers’ false testi- necessary fied that a reduction unit was because of federal *15 1,1993, regulations became on which effective October and which re- that fuel have a decreased quired percentage sulphur. diesel He 9, 1993, that November the refining company testified as of had no unit, operational sulphur reduction was therefore in a bind to oper- ate, future necessary complete and that the investment the unit that expected exceed additionаl income the unit be would could company’s that generate. projections He testified the earlier of a sulphur error, from the reduction unit were in and that that profit er- in very person charge ror had been confirmed the who was of con- ected structing pr oj profit the unit who had Griffin. —Leland sulphur Other than the fact that a unit reduction neces- sary, Capers none ofwhat said was true. He had not plant been day testimony, his nor premises the before had he talked to Griffin on date. partially that reduction unit was sulphur operational at the testified, agree Capers’ time that he and Griffin did not with conclu- that sulphur profitable. sion reduction unit would not be How- ever, plaintiffs hampered their Capers’ were effort to rebut mis- attorney Fargo’s represented statements when Wells that Griffin was representation unavailable as a witness. Whether that was innocent otherwise or is irrelevant. The effect was the same. present grounds These circumstances for trial a new that are
squarely anticipation 25-11-102(4), MCA, within the pro- § which may that a granted “newly vides new trial be for discovered evidence party making application not, material for the he which could diligence, produced with reasonable have discovered and at the trial.” The majority opinion dismisses this issue the same reason previous that it simply concluding dismissed two issues did not damage expert rely because Simmons’ on additional income unit, from the reduction and because there was unit, from the sulphur about income the District Court However, the majority opinion did abuse its discretion. is incor- projected rect. The income from the reduction unit corrobo- rated Simmons’ contention that there would be future cash flow from partners paid. light would be It was even more critical capital contention cross-examination ex- Finally, exceed penditures would future income. there was no testi- mony jury from which the could cash from the sulphur consider flow Court reduction unit because District instructed to disre- any testimony gard derived from Exhibit All related to except Capers’ from the future cash flow derived Exhibit 73. misrepresentations, was from reasons, I also conclude that the District Court erred For these *16 new mis- Capers’ it Simmons’ motion for a trial based when denied I that inaccuracy.of conclude representations. rep- upon have been known trial based defendant’s could not unavailable, resentation that Griffin was Griffin’s subse- newly justi- testimony was discovered material evidence which quent damages. a new trial limited to issue of fied District exclusion of Ex- cumulative effect Court’s The re- completely was to distort the Capers’ false hibit and, therefore, minimize prospects profit for future fining company’s right flow had a of future cash from the likelihood result, with jury’s totally verdict was inconsistent paid. be As a history only and the credible evidence company’s past earnings earnings. prospects for future judgment is to only way to correct these errors vacate lim- case to that court retrial Court and remand this District reasons, ma- For I dissent from the damages. issue of these ited opinion. jority dissenting opinion. the foregoing HUNT joins
JUSTICE notes $18 note worth million promissory $3.5 and a action. dismissal from the of Simmons and in return for stock million a trial was appeal, in the second opinion Pursuant cove- 1-12,1993, implied of the on the issue of breach held November jury awarded Simmons dealing. faith and fair good nant of First, Simmons activity followed. $2,238,743.00. post-trial Extensive Leland deposition for the approval court and received requested had commit- Fargo’s expert that Wells allegation on the Griffin based alleged on the Next, sought a trial based new perjury. ted judgment entry then moved Capers. of Mr. perjury