author: JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT E. HOWARD, Defendant and Appellant.
    No. 90-305.
    Submitted on briefs Jan. 17, 1991.
    Decided Mar. 4, 1991.
    247 Mont. 370.
    806 P.2d 1038.
    J. Douglas Alexander, Sidney, for defendant and appellant.
    Marc Racicot, Atty. Gen., Joe Thaggard, Asst. Atty. Gen., Helena, Mike Weber, Richland County Atty., Phillip N. Carter, Deputy County Atty., Sidney, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

In the District Court for the Seventh Judicial District, Richland County, defendant Robert Howard, was convicted of two counts of felony sexual assault pursuant to § 45-5-502(3), MCA. Defendant appeals. We affirm.

The sole issue for our consideration is: Did the District Court err in finding the two child witnesses competent to testify -under Rule 601, M.R.Evid.?

Mrs. M’s twin five-year-old daughters, C. B. and K. B., lived with Mrs. M and her husband. Occasionally, the M’s had defendant’s wife, Teresa, babysit the twins.

In May 1989, C. B. and K. B. told Mr. M that defendant had “licked their butts” and showed them his “big thing.” Mr. M informed David Schettine, a Police Detective, about what the girls had said. Mr. Schettine then interviewed each girl separately. Both girls said that defendant “licked their butt” in the presence of the other twin. They both indicated by pointing that what they really meant by “butt” were their vaginas. The girls testified that the assaults took place at Teresa’s home while she was babysitting. Each girl testified that Teresa was not at home when the assaults took place.

Did the District Court err in finding the two child witnesses competent to testify under Rule 601, M.R.Evid.?

Defendant maintains the District Court erred in allowing the testimony of C. B. and K. B. because the girls were not competent to testify. He contends that the girls were “incapable” of telling the truth and are therefore incompetent under Rule 601(b), M.R.Evid.

The State maintains that both girls were proven to be competent prior to testifying. The State points out that after the voir dire of C. B., and upon the State’s motion, the court found C. B. competent to testify. Defendant failed to object to C. B.’s competence or to voir dire her at this point. C. B. then testified. Only after the State’s redirect examination of C. B. did defendant move the court to reconsider C. B.’s competency to testify. The court denied that motion.

Similarly, before K. B. was declared a competent witness, the court invited the defense to voir dire K. B. The defense responded with, “I think I’d prefer to just cross-examine once.” The court then found K. B. competent to testify. After the re-direct examination of K. B., the defense moved the court to reconsider its finding of K. B.’s competence. The motion was denied.

The State further contends that both girls were “capable” of testifying under Rule 601(b), M.R.Evid. It urges that in determining whether the District Court abused its discretion it must be determined that K B. and C. B. possessed sufficient capacity of expression and appreciation of the duty to tell the truth to qualify them as competent witnesses. The State contends both girls were able to vividly recall the assault and relate significant details of what happened.

Rule 601(b) provides:

“Disqualification of witnesses. A person is disqualified to be a witness if the court finds that (1) the witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or (2) the witness is incapable of -understanding the duty of a witness to tell the truth.”

During the settling of instructions, the District Court addressed the pending motions by the defense to reconsider the qualifications of the two girls as to their competency. The court stated:

“The Court has reviewed a number of Supreme Court cases, State vs. Rogers, State vs. DBS, State vs. Phelps, State vs. Elier, and others.
“The Court has also reviewed the testimony and notes that the criteria is set forth in Rule 601 of the Montana Rules of Evidence. And for disqualification of a witness, the person must be — the witness must be incapable of expressing herself concerning the matter so as to be understood by the judge and jury, directly or through interpretation by one who can understand him. I found both girls were capable of expressing themselves.
“And the second, a witness is incapable of understanding the duty of the witness to tell the truth. And the State did lay a foundation as to both girls showing that they knew it to be wrong to lie.
“The cross-examination brought out certain inconsistencies of each witness. Based upon my reading of the Supreme Court cases and my understanding of the Rules of Evidence, those inconsistencies are for the jury to take into consideration in determining the credibility of each witness.
“Therefore, the motion for reconsideration is denied.”

A determination of competency is within the sound discretion of the District Court. State v. Newman (1990), 242 Mont. 315, 790 P.2d 971. Defendant has failed to demonstrate the District Court has abused that discretion.

We hold that the District Court correctly found the two child witnesses competent to testify under Rule 601, M.R.Evid.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, McDONOUGH and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    PAYNE REALTY AND HOUSING, INC, Plaintiff, v. FIRST SECURITY BANK OF LIVINGSTON, A Montana Corporation, Defendant and Respondent, and HARRY JOE BROWN, JR., Defendant and Appellant.
    No. 90-451.
    Submitted on briefs Jan. 17, 1991.
    Decided Mar. 4, 1991.
    247 Mont. 374.
    807 P.2d 177.

      Carl A. Hatch, Small, Hatch, Doubek & Pyfer, Helena, for appellant.
    John T. Jones, Moulton, Bellingham, Longo & Mather, Billings, for respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Corut.

This is an appeal from the Montana Sixth Judicial District Court, Park County involving a real estate transaction. Harry Joe Brown (Buyer) appeals the order of the District Court granting summary judgment to First Security Bank of Livingston (Bank) and ordering that the Buyer forfeit $50,000.00 in earnest money deposited with Payne Realty (Realtor) on the grounds that the Buyer breached a buy-sell agreement. We reverse and remand for further proceedings.

The Buyer raises the following issues on appeal:

(1) Did the District Court err in granting summary judgment to the Bank and ordering a forfeiture of Buyer’s earnest money to the Bank and dismissing all other claims raised by the pleadings?

(2) Did the District Court err in awarding the Bank its attorney fees and costs as prevailing party?

In reviewing a motion for summary judgment, we view the evidence in the light most favorable to the party opposing the motion, the Buyer in this case. See Lorash v. Epstein (1989), 236 Mont. 21, 24, 767 P.2d 1335, 1337; Cerek v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511. The evidence indicates that after reviewing some properties listed with Payne Realty (the Realtor), the Buyer became interested in some real estate known as the Riverside Ranch, located in the Paradise Valley about 15 miles south of Livingston. The Buyer arranged with the owner of Riverside Ranch, First Security Bank of Livingston (the Bank), to view the property. While touring the property, the Buyer was told of another piece of property, the Elkhom Ridge Ranch, located about 32 miles northeast of Bozeman, which the Bank also had for sale. Buyer later viewed a videotape of this property at the Bank.

The Bank and Buyer entered into a buy/sell agreement for the Riverside Ranch on August 29, 1988. Buyer deposited $50,000.00 in earnest money with the Realtor. The agreement provided that the Bank would provide financing for the Buyer. It also provided the Buyer with an option to the buy the Elkhorn Ridge Ranch. The Bank’s sole remedy for breach of the agreement by the Buyer was forfeiture of the earnest money. Finally, the agreement provided for a closing date on the sale on October 1,1988.

At the closing date on October 1, the Buyer allegedly informed the Bank that he was “disenchanted” with the sale. A one-day extension of the closing date was requested by Buyer and granted by the Bank so that the Buyer’s counsel could review the closing documents, including a mortgage proposed by the Bank. A second one-week extension was also granted so that the Buyer could have Montana counsel review the documents. Meanwhile, on October 4, 1988, the Bank provided Buyer with a title commitment. Twenty days after the last extension of the closing date, the Buyer’s attorney requested the return of the earnest money and listed objections to the Bank-furnished mortgage documents. The Realtor eventually filed this inter-pleader action to obtain a court ruling concerning disposition of the earnest money.

After discovery, the Bank and Buyer stipulated to the Realtor’s dismissal from the suit and the realignment of the parties with Buyer as plaintiff and Bank as defendant. The Bank filed a motion for summary judgment requesting forfeiture of the earnest money which the court granted in Bank’s favor on May 23, 1989. The court also awarded the Bank its costs and attorney fees. The Buyer now appeals.

We begin our review by setting forth the standard for summary judgment. Summary judgment is proper only if the record discloses no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Reaves v. Reinbold (1980), 189 Mont. 284, 287, 615 P.2d 896, 898. While it is true that the purpose of summary judgment is to encourage judicial economy, it is also true that the procedure is never to be a substitute for trial if a material factual controversy exists. Reaves, 615 P.2d at 898.

The Buyer contends that the terms of the mortgage offered by the Bank are onerous and excuse him from completing the sale as set forth in the buy/sell. He alleges that there are genuine issues of material fact regarding whether the terms of the mortgage were agreed upon between the parties.

We agree with the Buyer’s contention that the terms of the mortgage are questionable. As such, it is unlikely that there was mutual assent or a “meeting of the minds” necessary to form a binding contract for the sale of Riverside Ranch. See Chadwick v. Giberson (1980), 190 Mont. 88, 92, 618 P.2d 1213, 1215. In this regard, Buyer’s argument that he was denied his right to exercise his option to purchase Elkhom Ridge rather than Riverside Ranch is immaterial. Regardless of whether exercising this option was contingent upon first purchasing Riverside Ranch, the option provides that its terms are the same as those for the Riverside Ranch purchase, and if there was no “meeting of the minds” as to the first transaction, there was likewise no agreement on the option.

The court’s principal ground for granting the motion was that the parties entered an “ordinary, complete and unambiguous buy/sell agreement” which the Buyer was now seeking to avoid. The District Court also correctly concluded that “the contract specifically obligated the Bank to finance the purchase upon certain terms if Brown wished to finance it there ...” Those terms provided as follows:

“First Security Bank to carry a note mortgage over 10 years, interest rate to be prime rate plus -0- with a cap rate of 12%, no cap on floor, & no points. Buyer to pay monthly payments. Prime Rate is fixed by city Bank of New York.
“Said mortgages are assumable on sale of all, or if in part, pro rata on acreage basis.”

At closing, however, the Bank presented the Buyer with a mortgage containing terms different than those set forth in the buy/sell. Specifically, the mortgage contained a “due on sale” clause making the entire balance due upon sale of the property. This effectively precludes the mortgage from being assumable, as required by the buy/sell agreement.

Other alleged onerous terms include: (1) the mortgage provided that the Buyer’s death would be a default, (2) the mortgage allows the Bank to declare a default whenever it deems itself insecure, and (3) the mortgage grants a security interest in all personal property attached to the premises even though no personal property was to be sold by the Bank to Mr. Brown. Furthermore, the financing terms provided in the buy/sell are silent regarding amortization of the payments or equal principal payments on the loan. Thus, there is at least a question of material fact regarding the intent of the parties in the calculation of interest payments.

In reversing the court’s order, we note that the Buyer did not file a cross motion for summary judgment in this case. The interpretation of the buy/sell agreement involves questions of law; upon resolving these questions we conclude that the Bank was not entitled to summary judgment as a matter of law. However, we will not enter summary judgment in favor of the Buyer in addition to reversing this case due to the sparse record before us. Generally, no formal cross-motion is necessary at the district court level for the court to enter judgment for the non-moving party if the law so entitles it. However, the court must be careful that the original movant had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact and the other party is entitled to judgment as a matter of law. Hereford v. Hereford (1979), 183 Mont. 104, 107-08, 598 P.2d 600, 602; 6 Moore’s Federal Practice, § 56.12, pp. 56-331 and 56-334. Accordingly we reverse and remand this case for further proceedings.

In light of our holding above, we need not address the second issue concerning attorney fees and costs raised by the buyer on this appeal. The order of the District Court is

REVERSED.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, TRIEWEILER and WEBER concur.


author: JUSTICE TRIEWEILER

text:
    SPORTCO, INC., d/b/a PETERSON MOTORS, Plaintiff and Respondent, v. DONALD THOMPSON, Defendant and Appellant.
    No. 90-293.
    Submitted on briefs Jan. 24, 1991.
    Decided Mar. 6, 1991.
    247 Mont. 379.
    806 P.2d 1039.
    Thomas W. Frizzell, Tipp, Frizzell & Buley, Missoula, for defendant and appellant.
    Paul Neal Cooley, Skelton & Cooley, Missoula, for plaintiff and respondent.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Donald Thompson appeals from a judgment entered in the District Court, Fourth Judicial District, Missoula County, awarding contract damages, costs and attorney fees. We affirm the District Court.

The sole issue presented on appeal is whether the District Court erred when it, and not the jury, made a determination of the balance due on the contract.

Donald Thompson and Sportco, Inc., d/b/a Peterson Motors, entered into a contract in June, 1984, for the sale and purchase of a 1984 Cadillac El Dorado convertible for the sum of $34,923, to be paid in installments. Thompson subsequently failed to make payments and the car was repossessed in August, 1985. After renegotiation of the agreement for payment, Thompson again took possession. The car was again repossessed in November, 1985, for non-payment, and further negotiation occurred. As a result, Thompson reacquired the car. A similar repossession and renegotiation occurred on September 12,1986. The car was repossessed for the final time in July, 1987, and Thompson was notified that the car was to be advertised for sale pursuant to law and sold to the highest bidder. Thompson was further informed of his responsibility for any deficiency.

Sale of the car was conducted by sealed bids, resulting in its purchase by Sportco for $9,300. Although informed of his right, Thompson did not offer a bid.

Sportco filed its complaint on January 29, 1988, alleging Thompson owed $5,891.19 on the original contract, $26 in publication expenses, reasonable attorney fees and costs of suit. In his answer, Thompson did not deny the amount remaining on the contract obligation after sale of the vehicle. However, he asserted as an affirmative defense that the sale had not been conducted in a commercially reasonable manner, and that, therefore the amount of the deficiency could not be recovered.

Jury trial commenced on January 16, 1990. In the pretrial order, it was agreed that the only issues of fact to be litigated at trial were:

1. Did the Plaintiff repossess and resell the vehicle in a commercially reasonable manner?

2. Is the [Defendant] estopped to deny the commercial reasonableness of the sale because of his failure to complain or participate in the process in 1987?

On January 22, 1990, the jury returned a special verdict, finding that Thompson had breached the contract, and that Sportco had acted in a commercially reasonable maimer in the repossession and resale of the vehicle. The special verdict awarded Sportco $22 associated with the notice of sale publication costs. Notice of Entry of Judgment was entered on January 23, the following day, by counsel for Thompson. It provided for judgment in the amount of $22. Sportco then filed a motion on January 24 to amend the judgment proferred by Thompson due to failure to account for Sportco’s costs and attorney fees. Amended judgment was thereafter entered by the court, awarding Sportco court costs, attorney fees, and $5,891.19 as the balance due under the contract. Thompson subsequently filed a motion to strike the amended judgment. Hearing was held, and the court ultimately ruled that (1) Thompson was estopped from disputing the amount of deficiency; (2) the judgment entered by Thompson erroneously omitted costs, deficiency and attorney fees; and (3) that the court was within the bounds of its authority to amend the judgment to grant the proper relief, thereby denying Thompson’s motion. This appeal ensued.

Thompson asserts that any determination of a deficiency was within the sole province of the jury. Thompson states that Sportco failed to include within its proposed special verdict form any question as to the amount of the deficiency. Since that form was approved by the court, and presented to the jury, Thompson maintains that the court cannot usurp the jury’s role and make further determinations as to a question of fact.

The general rule is that when trial is by jury, all questions of fact are to be decided by the jury and all evidence thereon is to be addressed to it. Section 25-7-103, MCA.

In this case, it was agreed that only two issues of fact were to be decided by the jury: whether Sportco conducted the repossession sale in a commercially reasonable manner, and whether Thompson’s lack of participation in the process estopped his assertion of commercial unreasonableness. The trial court, in its discretion, decided upon the use of a special verdict form pursuant to Rule 49(a), M.R.Civ.P The well- established rule is that the court must structure the form and frame the interrogatories in a manner which enables the jury to determine those factual issues essential to judgment. Glick v. Knoll (1959), 136 Mont. 176, 346 P.2d 987; Kinjerski v. Lamey (Mont. 1981), [_ Mont. _,] 635 P.2d 566. This is what the District Court did. The special verdict presented the contested issues clearly and fairly. It allowed the jury to determine whether the repossession sale was conducted in a commercially reasonable manner, and the jury decided that question in the affirmative. The deficiency itself was not an issue of fact at trial. Once the determination of commercial reasonableness was made, the debtor’s liability for any deficiency followed as a matter of law under § 30-9-504, MCA, and was properly reserved for determination by the court. The court had earlier held that Thompson was estopped to deny the accuracy of sums paid and owing. The evidence was clear and uncontradicted that a deficiency of $5,891.19 was owed Sportco, and the court correctly amended its earlier judgment to include the deficiency as well as costs and attorney fees.

In sum, the court properly directed the jury to find a special verdict upon all factual issues necessary for a fair determination, and thereafter properly predicated its judgment upon the verdict. Coburn Cattle Co. v. Small (1907), 35 Mont. 288, 88 P. 953; Tannhauser v. Shea (1930), 88 Mont. 562, 295 P. 268; Kinjerski v. Lamey (Mont. 1981), [_ Mont. _,] 635 P.2d 566.

Affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


text:
    FRANZ E. LINDEN and PATRICIA K. LINDEN, Plaintiffs and Appellants, v. JASON D. HUESTIS, Defendant and Respondent.
    No. 90-362.
    Submitted on briefs Jan. 24, 1991.
    Rehearing Denied April 4, 1991.
    Decided Mar. 6, 1991.
    247 Mont. 383.
    807 P.2d 185.

      James R. Walsh, Smith, Walsh, Clarke & Gregoire, Great Falls, for plaintiffs and appellants.
    Joseph R. Marra, Marra, Wenz, Johnson & Hopkins, Great Falls, for defendant and respondent.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiffs, Franz E. Linden and Patricia K. Linden sued the defendant to recover damages resulting from injuries that Franz Linden allegedly sustained when the motor vehicle he was operating was struck from behind by the vehicle being operated by the defendant. The defendant admitted liability for the collision, but denied that the plaintiffs were damaged to the extent they claimed. Following a jury trial, a verdict was returned finding that the plaintiffs were not damaged as a result of the defendant’s negligence. Judgment was entered for the defendant. Plaintiffs’ motion for a new trial was denied. From that judgment and order, the plaintiffs appeal. We reverse.

Plaintiffs raise the following issues on appeal:

1. Was there sufficient evidence to support a verdict for the defendant?

2. Should the verdict for the defendant be set aside because of juror misconduct?

3. Did the District Court err when it admitted testimony from the defendant’s expert to the effect that plaintiff was motivated by considerations of secondary gain?

4. Did the District Court err when it admitted evidence that plaintiff had consumed alcoholic beverages prior to the collision in question even though there was no allegation that plaintiff’s conduct contributed to a cause of the accident?

5. Did the District Court err when it admitted evidence of the price plaintiff was asking for the sale of his dental practice?

6. Do comments by defense counsel which may have suggested that the defendant was uninsured require reversal?

7. Did the District Court err when it instructed the jury on a portion of the law pertaining to Patricia K. Linden’s retirement benefits?

Summary of the Facts

On February 12, 1988, the plaintiff, Franz Linden, was operating his motor vehicle in an easterly direction on Tenth Avenue South in Great Falls. After stopping for a red light and before he could resume movement, he was struck from behind by the vehicle operated by the defendant. Plaintiff filed his complaint against the defendant on December 21 of that same year. He claimed that he had been injured, incurred medical expense and that his earning capacity was impaired as a result of his injury.

Defendant originally denied liability and alleged that the plaintiff had been contributorily negligent. However, he later amended his answer and admitted that his negligence caused the collision. He also withdrew his affirmative defense alleging that plaintiff was contributorily negligent.

The complaint was also amended by adding Patricia K. Linden, who claimed damages for loss of consortium.

In the Pretrial Order, plaintiffs alleged that Dr. Linden had sustained muscular, vertebral and intervertebral disc injuries in the area of his neck. They also alleged that as a result of those injuries, he was forced to sell his dental practice and had, therefore, been unemployed since July 1,1989. The defendant conceded that Dr. Linden may have sustained a “minor whiplash injury” but contended that the damages plaintiffs claimed were far in excess of the actual damages they sustained.

At trial, Franz Linden testified that he had experienced neck symptoms since the day following his collision with the defendant and that his symptoms were aggravated by the awkward position in which he was forced to work as a dentist. After working in a great deal of discomfort for I6V2 months, he testified that he quit the practice of dentistry on June 30,1989 and sold his practice to another dentist on August 15 of that year. Plaintiffs called an orthopedic surgeon and two neurosurgeons who had treated or examined Franz Linden for his neck complaints. They testified in person or by deposition and gave various opinions regarding the nature of his injury. It was described as a soft tissue injury, a herniation of an intervertebral cervical disc, and an injury to a cervical facet joint.

The only other medical witness was the defendant’s consultant, Dr. Peter Fisher, from Seattle, Washington. His testimony was internally inconsistent. During direct examination, he expressed the opinion that plaintiff may have sustained a neck sprain when his vehicle was struck by the defendant’s vehicle. However, during cross-examination, he expressed the opinion that Franz Linden was uninjured as a result of his collision with the defendant.

After four days of trial, the jury returned its verdict finding that plaintiffs were not damaged as a result of the defendant’s admitted negligence.

After judgment was entered, plaintiffs filed their motion for a new trial and in support of that motion submitted the affidavit of Jack Stimac, one of the jurors. Mr. Stimac stated in his affidavit that during deliberations, the jury discussed a television show which had been broadcast the night before and which indicated that many dentists were selling their practices because they were having a difficult time making money. He also stated that one of the jurors told the other jurors that she had seen the plaintiff playing golf in Great Falls during the summer of 1989. The testimony at trial had been that he had chosen not to play golf in Great Falls during that summer because of the discomfort he experienced from his injuries.

We reverse the judgment entered for the defendant and the District Court’s order denying plaintiffs’ motion for a new trial based upon the inadmissible testimony of Peter Fisher, M.D., to the effect that Franz Linden’s complaints of pain were motivated by considerations of “secondary gain.” As a result, we remand this case to the District Court for a new trial. Therefore, we do not find it necessary to arrive at a decision regarding the sufficiency of this jury’s verdict or to decide whether this verdict should be reversed based on juror misconduct.

Presuming, however, that some of these same evidentiary and instructional issues which are raised on appeal will again be issues during retrial, we will discuss those issues for the guidance of the parties and the District Court.

I.

Peter Fisher has been a doctor of medicine since 1948. He has specialized training in internal medicine and in a field that he refers to as “automotive medicine,” which he describes as the evaluation of highway injuries. He was engaged in the private practice of medicine in Seattle for 24 years. However, since 1980, his practice has been limited to serving as a consultant to attorneys regarding injuries sustained from automobile accidents. He has testified on over 200 occasions.

Dr. Fisher was called as an expert witness by the defendants during the trial of this case. He had not examined nor treated the plaintiff and in fact had never seen nor met the plaintiff until he walked in the courtroom to testify. Any information he possessed about the plaintiff or his physical condition was based upon a review of other doctors’ depositions, medical records, auto repair bills, photographs of the vehicles, police reports, and various forms of radiological film taken of the plaintiff’s spine. He gave his opinion regarding the extent of the impact when the defendant’s vehicle collided with the plaintiff’s vehicle and he gave his opinion regarding the type of injury plaintiff may possibly have sustained from that impact. He also testified regarding various other medical problems in Franz Linden’s medical history which would have an impact on his future health and life expectancy.

Prior to trial, plaintiffs filed a motion in limine asking the court to rule in advance of trial that Dr. Fisher would not be allowed to testify that there were economic reasons for Franz Linden’s symptoms until after a foundation had been laid, and plaintiffs’ attorney was given an opportunity to object to that testimony. Apparently, although the record on this point is unclear, plaintiffs’ motion in limine was denied.

Dr. Fisher expressed the opinion that plaintiff’s present complaints were a result of “chronic pain syndrome.” When asked during direct examination to describe what he meant by chronic pain syndrome he explained that:

“Chronic pain syndrome is a condition generally recognized by doctors of continuation of pain, long after it would seem logical that it would occur ... associated with what’s called secondary gain on either a conscious or subconscious level where it serves a purpose to help us with work, home or life or other things. It’s one of the biggest problems we have today, chronic pain syndrome, because it’s not physical injury. It’s complaints of pain not explainable any longer on the trauma.” (Emphasis added.)

When asked during cross-examination what he meant by “secondary gain,” he stated,

“I meant secondary gain being changes in our lifestyle, things we feel capable of doing on a conscious level which means they’re doing it purposefully or more commonly on a subconscious level as part of our symptom complex that suddenly solves some of life’s problems, sex, marriage, work, money — I was giving the litany of the usual things, not indicating they specifically apply here.
“But the secondary gain is involved in litigation and being waited on, and its the I’ve got a headache for sex and whatever. Its a pretty common scenario.” (Emphasis added.)

Rule 702, M.R. Evid. regarding testimony by experts provides that:

“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine the fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”

By education, training and experience, Dr. Fisher was qualified as a medical expert. As such he was qualified to explain to the jury what kind of objective signs or subjective symptoms are associated with various injuries. Based upon his review of the plaintiff’s records, he was qualified to give his opinion that those signs and symptoms were not present in this case and that, therefore, plaintiff was not at the present time suffering from an injury. However, he was no more qualified than anyone on the jury to speculate about the plaintiff’s possible motivation for making complaints which Dr. Fisher felt could not be substantiated by his physical findings. This is especially true where, as here, Dr. Fisher had never met nor talked to plaintiff; and, when this conclusion was not suggested by any of the health care providers whose records and testimony he reviewed. He was not qualified as a human polygraph. His testimony in this regard was not an appropriate expert opinion.

We have had one prior occasion to consider opinion testimony regarding “secondary gain.” In Dahlin v. Holmquist (1988), 235 Mont. 17, 766 P.2d 239, this Court was presented with facts similar to those which are present in this case. The plaintiff in that case also claimed to have sustained a neck injury as a result of an automobile accident and prior to trial moved in limine to exclude all testimony regarding “secondary gain” by Dr. James Lovitt. The trial court overruled the motion in limine and admitted that testimony. We remanded that case for a new trial for the following reasons:’

“In this case as in Kuiper v. Goodyear Tire (1983), 207 Mont. 37, 673 P.2d 1208, the failure of the trial court to exclude such evidence prejudicial to the defendant permitted the jury ‘to indulge in improper speculation and guesswork.’ Kuiper, 673 P.2d at 1217. The failure to exclude all secondary gain testimony constituted an error of sufficient magnitude to warrant a new trial. Consequently, the District Court erred in denying plaintiff’s motion for a mistrial.”

Dahlin, 766 P.2d at 241.

In this case, liability was admitted and Dr. Fisher’s testimony was the only testimony which questioned Franz Linden’s injury. Therefore, his unqualified opinion regarding secondary gain did prejudice the jury and in effect plaintiffs’ right to a fair trial. For that reason alone this case is remanded to the District Court for a new trial.

On appeal, the plaintiffs have raised several evidentiary and instructional issues which we will discuss for the guidance of the parties and the District Court during retrial of this case.

II.

During the cross-examination of the plaintiff, Franz Linden, the following dialogue was recorded:

“Q. (By Mr. Joseph Marra) Now, would it be fair to say that you weren’t particularly alert to what was happening because you had been drinking before the accident occurred?
“(Mr. Walsh) Objection, Your Honor. This is totally irrelevant.
“THE COURT: What is the relevancy of this question?
“MR. JOSEPH MARRA: I’ll show you the relevance to see the fact that he didn’t know what was going on around him.
“MR. WALSH: Wait a minute here. That’s an argumentative statement, Your Honor, and I request the jury be instructed to disregard that.
“MR. JOSEPH MARRA: And I will apologize for saying it in that way. I will apologize to you, Dr. Linden.
“THE COURT: The jury is cautioned and instructed not to take into account statements of attorneys and that is to be stricken from the record.
“MR. WALSH: Can we be heard on this outside the jury’s presence, Your Honor? I apologize for this.
“THE COURT: I don’t think so. I want to keep this trial going. You may proceed.
“Q. (By Mr. Joseph Marra): Had you been drinking before the accident occurred?
“MR. WALSH: Objection as irrelevant.
“THE WITNESS: Yes.
“THE COURT: What is the relevancy of this?
“MR. JOSEPH MARRA: To show his capacity to observe and know what was going on at the scene of the accident, Your Honor.
“THE COURT: Counsel, if you would approach the bench.
“(WHEREUPON, a discussion was had at the bench out of the hearing of the juxy)
“Q. (By Mr. Joseph Marra): Had you been drinking before the accident?
“A.: Yes.
“Q.: Did you admit in your deposition you had been in a bar with a friend for about an hour and a half before the accident?
“A.: Yes.
“Q.: Who’s the friend you were with in the bar?
“A.: Gorham Swanberg.”

The plaintiff was never asked how much he had had to drink nor was any independent evidence offered in that regard. Plaintiff was never asked what, if any, effect the consumption of alcohol had had on his physical capacities nor was any independent evidence offered in that regard.

In fact, there was no claim at the time of trial nor any evidence offered that plaintiff’s operation of his motor vehicle in any way contributed as a cause of his collision with the defendant. The plaintiff’s consumption of an unspecified amount of alcohol at some unspecified point in time prior to his collision with the defendant was completely irrelevant to any issue in this case. Therefore, dining any retrial of this case, no further questioning nor comments from defense counsel regarding plaintiff’s consumption of alcohol should be permitted, unless some prior foundation to establish its relevance is laid outside the presence of the jury.

III.

Plaintiff testified that he practiced dentistry from 1963 until June 30, 1989 and that he would have continued practicing for another 10 to 15 years had it not been for his injury. His attorney represented to the jury during his opening statement that up until the date of his accident, Franz Linden had worked fulltime at his profession.

Plaintiff also testified that the position in which he was forced to work aggravated his neck injury and increased his symptomatology. He was advised by his treating physician in mid-May of 1989 that he would have to discontinue his practice unless he wanted to aggravate his condition. He testified that he had difficulty selling his practice but that he eventually did sell it on August 15,1989.

During the cross-examination of Dr. Linden, the defendant offered as an exhibit and cross-examined him with a document that he had prepared and sent to various dental schools during his efforts to sell his practice. It included a description of his offices and equipment, the number of patients he served, his gross income for the past two years and a description of his practice. It also included the price plaintiff was asking for the sale of his practice.

Plaintiff objected to the exhibit on the basis that plaintiff’s practice was an asset that he was entitled to sell prior to the time he was injured and that the sale price should not be considered by the jury to reduce the damages he claimed for loss of future income. Plaintiff, furthermore, contended that the sale price listed was misleading because it was not the sale price that he eventually received.

Considerations of admissibility are left largely to the discretion of the trial court and should be reviewed only in the event of manifest abuse of discretion. Feller v. Fox (1989), 237 Mont. 150, 151-52, 772 P.2d 842, 844.

In this case the exhibit offered by the defendant did include relevant information. Under the description of his practice in that exhibit Dr. Linden stated:

“I have managed to make a good living on a 4-day work week with plenty of time off to ‘smell the roses.’ A young, aggressive dentist, I’m sure, could gross over $200,000 in time.”

Dr. Linden was seeking over $1 million for future impairment to Ms earning capacity. His attorney had told the jury that he worked fulltime during his practice. In arriving at an evaluation of Ms future earning capacity, the jury was entitled to consider that he did not work fulltime; did not consider Mmself to be an aggressive dentist and took plenty of time off to “smell the roses.”

The fact that the asking price was not the price eventually received by Dr. Lmden was pointed out during Ms redirect testimony. The fact that Ms practice was an asset which should not be used to reduce Ms damages for lost earmng capacity was clear from the court’s instructions to the jury. Furthermore, plaintiff’s counsel was free to make that argument when discussing damages with the jury.

We find no error in the admissibility of defendant’s exMbit regarding plamtiff’s asking price for the sale of his dental practice.

IV.

Plaintiffs contend on appeal that efforts by defense counsel to imply to the jury that the defendant was without liability insurance and that either he or Ms family would be personally responsible for the damages in tMs case would also justify reversal of the verdict for the defendant.

During Ms opening statement, the attorney for the defendant told the jury:

“And it would also be in evidence that the Huestises have already paid Ms medical expenses, wMch are $1,723.10. And they’ve paid for all of the repairs to Ms car, wMch amount to $1,979.56.”

Plaintiffs objected to tMs statement for the reason that pretrial discovery had disclosed the defendant was covered by a $1 million liability insurance policy and that the damages had neither been paid by the defendant nor Ms family. The trial court sustamed the objection and at the plaintiffs’ request, the District Court appropriately instructed the jury that they were to disregard comments by counsel that the defendant or his family had personally paid for plamtiffs’ damages.

During closing argument, counsel for the defendant then made the followmg statement to the jury:

“Jason just happened to be the teenage son of an old and prominent and apparently financially successful family who someone would assume would either pay rather than subject Mm and themselves to the ordeal and to the embarrassment of a trial.”

The plaintiffs again objected to the remarks of defense counsel. The District Court sustained the objection and reminded the jury of its prior instruction.

Based upon our reversal for the reason previously given, we need not determine whether counsel’s remarks would warrant reversal in this case. However, during retrial of this case, we admonish both parties to refrain from any further mention of insurance or the absence of liability insurance. In that regard, we wish to draw the attention to counsel to this Court’s decision in Sioux v. Powell (1982), 199 Mont. 148, 647 P.2d 861. In that case, we held that:

“... The admission of evidence showing that the plaintiff Sioux was not insured was improper and constitutes reversible error. Evidence of the absence of insurance can be as prejudicial as evidence of the presence of insurance ...”

Sioux, 647 P.2d at 864.

If evidence that an uninsured plaintiff had no insurance constituted reversible error, certainly the suggestion that an insured defendant has no insurance is impermissible. The parties should be guided accordingly in their future remarks to the jury during any retrial of this case.

V.

The basis for plaintiff’s economic damages was that due to his injury, he could no longer continue to practice dentistry and there were no forms of employment available in the Great Falls area in which he could take advantage of his training as a dentist. Furthermore, plaintiffs could not move from the Great Falls area because Patricia Linden was a teacher in the Great Falls school system with 20 years of experience and her seniority was not transferable. She also testified that if she had to leave her current position sooner than five years from the date of trial, she would lose all of her retirement benefits.

For these reasons, plaintiffs’ economist calculated his future projection of lost earnings based upon the difference in what he could have earned as a dentist and what he could now earn outside of his profession in the Great Falls area.

To counter this evidence, the defendant offered an instruction setting forth a portion of § 19-4-802, MCA. Defendant’s proposed instruction No. 67 read as follows:

“All teachers in Montana are covered by the Montana Teachers Retirement System. A teacher’s rights are vested and cannot be lost after 5 years of teaching. The annual retirement benefit to which a teacher is entitled is an amount equal to V60 of his or her average final compensation multiplied by the number of years of service. Average final compensation is the average of a teacher’s compensation earned during the 3 consecutive years which yield the highest average compensation. The normal retirement age is 60.”

Plaintiffs objected to the instruction on the basis that it was unsupported by the facts in evidence; on the further basis that it was confusing to the jury; and, that it was not relevant to any issue in the case. The objection on that basis was properly overruled and the instruction was given.

On appeal, plaintiffs concede that instruction No. 67 was a correct statement of the law but argues that it was incomplete because it did not indude additional law from the statute which provides that teachers are not eligible for early retirement until they reach the age of 50. Patrida Linden wouldn’t have been eligible for early retirement until June 3,1991. Plaintiffs, on appeal, furthermore state that the instruction was incomplete because it did not set forth the formula which the entire statute includes for reducing the amount of retirement benefits for teachers who retire early.

Any objection to instructions cannot be heard on appeal unless it was initially raised with particularity at trial. State Highway Commission v. Beldon (1975), 166 Mont. 246, 250, 531 P.2d 1324, 1327; Salvail v. Great Northern Railway Co. (1970), 156 Mont. 12, 26, 473 P.2d 549, 557; and Rule 51, M.R.Civ.P.

Since the plaintiffs raised the issue of their immobility due to the fact that Patrida Linden would lose all of her retirement benefits, the District Court did not err by instructing the jury on the law that pertains to early retirement. Furthermore, plaintiffs didnotobjecttodefendantsinstmctionNo. 67 for aproper reason and the District Court was correct in overruling the plaintiffs’ objection.

If during retrial of this case the District Court is again requested to instruct the jury regarding the law that pertains to early retirement and if the plaintiffs propose that that instruction include the elements which the plaintiffs now claim were deleted, then the jury should be instructed on all the legal conditions that pertain to Patricia Linden’s early retirement.

This case is reversed and remanded to the District Court for anew trial.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, McDONOUGH, HUNT and WEBER concur.


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF DONNA LOU PORTER, Petitioner and Respondent, and THOMAS MICHAEL PORTER, Respondent and Appellant.
    No. 89-633.
    Submitted on briefs Oct. 19, 1991.
    Decided Mar. 12, 1991.
    247 Mont. 395.
    807 P.2d 192.

      Don Torgenrud, Harrison & Torgenrud, PC., Missoula, for respondent and appellant.
    Douglas G. Skjelset, Missoula, for petitioner and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

The husband, Thomas Michael Porter (Tom), appeals from the property distributed to the parties by the District Court of the Fourth Judicial District, Missoula County, in this marital dissolution action. We affirm.

The issue raised on appeal is whether the District Court abused its discretion in valuing and distributing the property of the parties.

Tom and Donna Porter were married at Seeley Lake on November 17,1984. Two years later, in November, 1986, they separated for a seven-month period, then reconciled in May, 1987. After the reconciliation, they lived together for over one year before Donna filed the present action for dissolution in September, 1988.

When Tom and Donna married, Tom owned Leisure Lodge Resort in Seeley Lake, which he and his first wife, Lona, had purchased in May, 1983 for $160,000. Tom paid $50,000 in cash at the time of the purchase. The balance was carried by the seller. Lona’s claim on the property was settled at the time of the dissolution of her marriage with Tom.

With the exception of the seven-month separation, Donna worked at the lodge without compensation. She reserved rooms for customers, bought supplies, cleaned rooms, laundered linens and towels, tended bar, pumped gas, rented boats, cooked meals, maintained the yard and kept books. Tom also worked at the resort, helping with many of the tasks performed by Donna.

Tom’s three children of his first marriage, Tom, Jr., Alvin and Christina, who were aged 20, 18 and 13 respectively in 1984, helped out at Leisure Lodge while they resided there. Gradually, all three left the lodge, and by 1985 none were living with Tom and Donna. Lewis, Donna’s son from her prior marriage, worked and resided at the lodge throughout the duration of the marriage.

Thanks to Tom’s and Donna’s efforts, substantial improvements were made to the resort. Among other things, the couple constructed a new roof, rebuilt the main lodge, added a new septic system and remodeled two cabins.

In May, 1988, Tom sold Leisure Lodge for $275,000. The buyer paid $75,000 down, most of which went toward commissions, taxes and other closing costs. In the wrap-around contract for sale, the buyer assumed Tom’s outstanding $85,944 loan on the property and agreed to pay $1,102 per month to First Interstate Bank as escrow agent, which in turn remitted the payments to Tom.

Tom used the remaining proceeds received from the down payment from the sale of the lodge — approximately $29,000 — as a down payment on a house in Seeley Lake for Donna and himself. The total purchase price of the home was $53,500.

About the same time Donna filed this action for dissolution, Tom assigned the monthly payments from the sale of the lodge to his three children. At trial, Tom attempted to prove that, prior to the purchase of Leisure Lodge, he had a verbal agreement with his children that they would receive the proceeds from the sale of the resort. The District Court rejected this testimony and found that no such agreement existed.

After trial, the court issued findings of fact, conclusions of law and decree of dissolution. The court valued the property of the parties and concluded that Donna was entitled to $51,000, one-third of the estate, for her efforts as a homemaker, as well as for her contributions toward maintaining and improving the property. It ruled that her interest would be satisfied by one-half of the equity received from the sale of the Seeley Lake home and by the $7,000 worth of personal property she held in her possession. The balance of her share, seemed by the contract for the sale of Leisure Lodge, was to be paid by Tom at a rate of $350 per month plus 10 percent interest. Tom received the remaining two-thirds of the estate.

Tom appeals, contesting this property disposition.

Tom first argues that the District Court abused its discretion by rejecting his valuations of the parties’personal property and adopting Donna’s instead.

The trial court sits in the best position to judge the credibility of the testimony proffered by the parties to a dissolution action. Because the District Court has had the opportunity to observe the demeanor of the witnesses, we defer to its resolution of any conflicting evidence. Unless an abuse of discretion can be shown, we will not disturb the district court’s findings concerning the valuation of property, even if the evidence conflicts, as long as those findings are based on substantial credible evidence. In Re the Marriage of Milesnick, 235 Mont. 88, 95, 765 P.2d 751, 755 (1988).

In this case, Tom and Donna both testified to the value of the personal property. The District Court chose to adopt Donna’s valuations, specifically noting that her estimates were more credible. The court did not abuse its discretion in rejecting Tom’s estimates over Donna’s.

Tom also contends that the District Court abused its discretion in failing to discount the contract for the sale of the lodge to present value. In Re the Marriage of Summerfelt, 212 Mont. 332, 336, 688 P.2d 8, 11 (1984), we held that “the present day fair market value of a contract for deed, rarely, if ever, equals the principal balance due thereon.” While we still adhere to this rule, it must be balanced against the principle that the valuation of property must be based upon some evidence presented by the parties. See Milesnick, 235 Mont. at 94-95, 765 P.2d at 755.

In this case, the only evidence of the value of the contract for deed was found in the escrow papers, which were appended by stipulation of the parties as a joint exhibit after trial. Tom neglected to offer any evidence of either the present day value of the contract for deed or the rate at which the contract should be discounted. Instead, he claimed that the contract belonged to his children and was not part of the marital estate.

The District Court rejected this contention and based its valuation of the contract on the balance due of the principal as reflected in the escrow papers. Because this was the only evidence presented pertaining to the value of the contract, the District Court did not abuse its discretion in failing to discount the contract to present value.

Next, Tom argues that the District Court erred in its findings regarding his ability to acquire assets in the future.

At trial, Tom testified that he had previously earned $20 per hour as a draftsman with a company in Chicago. He claimed, however, that he was no longer able to continue this line of work because he did not have the education to do so. In spite of this testimony, the District Court found that Tom was “able to make high wages as an electrical draftsman.”

The court did not abuse its discretion in ignoring Tom’s testimony that he could no longer pursue his former profession. Tom’s attitude during the proceedings tainted his credibility. The court could have properly viewed everything Tom said with skepticism in light of his testimony that Donna “used as much as she earned” and was “not entitled to anything further than what she has already taken.”

Finally, Tom claims that the distribution of the property was inequitable.

The district court possesses far-reaching discretion in dividing the property of the parties to a marital dissolution action. This Court will not overturn a property division supported by substantial credible evidence absent a clear abuse of discretion. In Re the Marriage of Stewart, 232 Mont. 40, 42, 757 P.2d 765, 767 (1988).

The evidence reflected that during most of the marriage, Donna worked long, hard horn’s serving guests and improving the resort property. Partially through her efforts, Tom was able to sell the lodge for much more than he paid for it. The District Court distributed the property by giving one-third to Donna and two-thirds to Tom. This was not an abuse of discretion.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, McDONOUGH and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    TOM HIGHAM, d/b/a RED LODGE GARBAGE SERVICE, Plaintiff and Appellant, v. CITY OF RED LODGE, Defendant and Respondent.
    No. 90-471.
    Submitted on briefs Feb. 21, 1991.
    Decided Mar. 19, 1991.
    247 Mont. 400.
    807 P.2d 195.

      Tom Higham, Kalispell, pro se.
    Gary R. Thomas, City Atty., Red Lodge, Rodney T. Hartman and Don M. Hayes, Herndon, Hartman, Sweeney & Halverson, Billings, for defendant and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The District Court for the Thirteenth Judicial District, Carbon County, dismissed plaintiff Tom Higham’s tort and constitutional claims against defendant, in a partial summary judgment. It also denied Higham leave to file a third amended complaint. Higham appeals. We affirm.

Restated, the issues are:

1. Did the court err in granting summary judgment in defendant’s favor on the tort and constitutional claims?

2. Did the court err in denying Higham’s motion to be allowed to file a third amended complaint?

On May 23, 1984, Higham entered a written contract to haul garbage for the City of Red Lodge (City). The contract was to run from June 1,1984, to May 30,1986. At a special meeting of the Red Lodge City Council on June 7, 1984, Higham requested that he be released from the contract and that the City either perform the garbage hauling itself or reopen the contract to competitive bidding. He claimed that the conduct of the city council members toward his business had made it impossible to effectively fulfill the contract terms.

Higham originally filed this action in July 1984, requesting a declaratory judgment that he was released from his garbage hauling contract. Within a month, and acting pro se after his attorney withdrew, Higham amended the complaint to include several additional counts for declaratory relief. Represented by new counsel, Higham filed a second amended complaint in January 1988. The second amended complaint abandoned the request for declaratory relief. It asserted three counts: one for breach of contract, one for breach of the implied covenant of good faith and fair dealing, and one for violations of constitutional rights. Higham’s position in the second amended complaint is that the June 7, 1984, city council meeting was illegal for lack of notice and that the termination of his garbage hauling contract was unlawful and was retaliatory for his expressed political views.

The City moved for summary judgment on all three counts of Higham’s complaint. Higham moved for partial summary judgment on the breach of contract claim. Higham also moved to file a third amended complaint. The District Court dismissed Higham’s constitutional claims and bad faith claim on grounds of immunity and res judicata. It denied Higham leave to file a third amended complaint and denied his motion for partial summary judgment. The court then certified for appeal its rulings on the claims which were dismissed.

I.

Did the court err in granting summary judgment in defendant’s favor on the tort and constitutional claims?

Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. To prevail, the nonmoving party must set forth facts demonstrating that a genuine issue of fact exists. O’Bagy v. First Interstate Bank (1990), 241 Mont. 44, 46, 785 P.2d 190, 191. This Court’s standard of review is the same as that utilized by the trial court. McCracken v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894. We will affirm a correct result regardless of the reasoning used by the lower court. Phillips v. City of Billings (1988), 233 Mont. 249, 252, 758 P.2d 772, 774.

The District Court ruled that Higham’s constitutional and tort claims were barred under the doctrine of sovereign immunity. It also held that the doctrine of res judicata barred Higham from asserting constitutional and tort claims arising from conduct prior to March 16, 1984, because his previous lawsuit based on the same matters was dismissed with prejudice on that date.

The subject of the previous lawsuit referred to by the District Court was Higham’s entitlement to hard garbage for the city dru-ing the period 1983 to 1988. Higham sought damages for wrongfully being denied a contract for that period. The complaint characterized the City’s conduct as fraudulent, arbitrary, and capricious. Higham also alleged in that complaint that the City “did not observe good faith,” did not accord “just and fair consideration,” committed a “personal discriminatory act toward the Plaintiff,” and had “undertaken unfair and discriminatory practices directed against the Plaintiff.” Higham asked the District Court to require the City to award the garbage contract to him and to award him damages including punitive damages.

Res judicata prohibits a party from relitigating a matter that the party has already had the opportunity to litigate. First Bank v. Fourth Judicial Dist. Court (1987), 226 Mont. 515, 519, 737 P.2d 1132, 1134. We conclude that the complaint which was dismissed with prejudice on March 16,1984, raised allegations which raised or fairly could have raised any claims of bad faith or violation of constitutional rights of Higham arising before or during the pendency of that action. Higham had the opportunity to litigate those issues, but in stipulating to a dismissal of the action, he chose not to do so. When that suit was dismissed with prejudice, all such issues were decided. Any entitlement Higham had to a contract to haul garbage for the City or to damages based on conduct which was tortious or in violation of his constitutional rights before the date of that dismissal was thereby determined with finality.

We hold that the District Court did not err in granting summary judgment in favor of defendant on the tort and constitutional claims. Because we have concluded that the court’s action was correct based upon principles of res judicata, we need not decide whether sovereign immunity also bars these claims.

II.

Did the court err in denying Higham’s motion to be allowed to file a third amended complaint?

Higham’s proposed third amended complaint would add as defendants individual city council members, the city attorney, the mayor, Ray Judd, and Ray Judd Ford, Inc. As described in Higham’s motion to be allowed to amend, the added claim apparently would be that negotiations toward a September 11, 1984, lease-purchase contract between the City and proposed defendant Ray Judd Ford, Inc., contributed to the City’s breach of contract and breach of the implied covenant of good faith and fair dealing.

The District Court stated that Higham’s proposed claim would be barred by statutes of limitation unless it would relate back to the filing of earlier complaints. The court determined that the claim did not relate back because the new claim operates on facts different than those set forth in the second amended complaint.

Rule 15(a), M.R.Civ.P., provides that a party may amend pleadings by leave of court and such leave shall be freely given when justice so requires. Rule 15(c), M.R.Civ.P., provides:

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”

We agree with the District Courts statement that Higham’s proposed new claim would add a theory of conspiracy which was not present in the second amended complaint. In particular, Ray Judd and Ray Judd Ford, Inc., would have had no way of predicting from the second amended complaint that the action would be amended to include them as defendants. We conclude that the District Court was correct in determining that this new claim should not relate back to the time of filing the other complaints. We therefore hold that the court did not err in denying Higham’s motion to be allowed to file a third amended complaint.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, WEBER and McDonough concur.