author: JUSTICE WEBER

text:
    YELLOWSTONE BASIN PROPERTIES, INC., a Montana corporation, and CENTRAL STATES RANCH COMPANY, a Montana corporation, Plaintiffs and Appellants, v. RON BURGESS, SURVCO CO., INC., now known as VALHALIA, INC., and ANY UNIDENTIFIED PERSONS OR ENTITIES WHO MAY BE RESPONSIBLE FOR THE ACTS OR OMISSIONS OF SURVCO CO., INC., Defendants and Respondents.
    No. 91-612.
    Submitted on Briefs August 27, 1992.
    Decided December 10, 1992.
    49 St.Rep. 1051.
    255 Mont. 341.
    843 P.2d 341.

      For Plaintiffs and Appellants: R. Mark Josephson, Josephson & Fredricks, Big Timber.
    For Defendants and Respondents: Karl Knuchel, Livingston.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs Yellowstone Basin Properties, Inc. and Central States Ranch Company appeal the judgment of the District Court of the Eighteenth Judicial District, Gallatin County, Montana. The judgment found in favor of defendants Ron Burgess and Survco Co., Inc. on plaintiffs’ claims of negligence, breach of contract and breach of warranty. We affirm.

The issues for review are restated as follows:

1. Did the District Court correctly determine that the defendants did not breach the standard of care they owed as Registered Land Surveyors?

2. Did the District Court correctly refuse to award damages based on plaintiffs’ reliance upon defendants’ admissions of erroneous surveys?

3. Did the District Court err in declining to determine the true locations of section corners despite the parties’ express request that it make the determinations?

4. Did the District Court fail to determine whether defendants breached their contracts with plaintiffs to provide surveys for tracts of at least twenty acres?

Plaintiffs Yellowstone Basin Properties, Inc. (YBP) and Central States Ranch Company (CSR) are Montana corporations engaged in the development and sale of real property in Montana. Defendant Ron Burgess (Burgess) owned Survco Co., Inc. (Survco) during the time plaintiffs’ claims arose. Burgess is a Registered Land Surveyor. Survco is a company providing professional surveying services to private landowners.

From 1980 to 1983, plaintiffs contracted with defendants to survey the following real property located in Park County, Montana and to divide it into parcels of at least twenty acres for resale:

For Plaintiff CSR: Section 34, T.2S., R.9E.; Section 3, T.3S, R.9E.

For Plaintiff YBP: Sections 31, 32 and 33, T.2S., R.9E.

Survco completed the survey, with Burgess and Mike Foley, a Survco employee and Registered Land Surveyor, ultimately filing numerous Certificates of Survey and Corner Recordations with the Park County Clerk and Recorder on behalf of CSR and YBP.

This dispute centers around the location of the comer common to Sections 3, 4, 33 and 34 (in R.9E between T.2S and T.3S). The corner common to Sections 3,4,9 and 10 (in R.9E, T.3S) and the west quarter corner to Section 3 (in R.9E, T.3S) are also involved. These corners were originally surveyed and monumented in the 1870s by United States government survey crews.

The evidence presented at trial established the following general surveying practices: If original corner monuments cannot be found, surveyors look for other evidence which can assist in determining the original corner location. They use original government field notes obtained from the Bureau of Land Management, county records, and any available field notes and materials from other surveyors who have surveyed the area after the original corner was monumented. If there is some evidence of the comer location, the corner is said to be “obliterated.” An obliterated corner is remonumented from the available evidence. If no such evidence is found, surveyors term the corner as “lost” and position it proportionately from other known corner sections.

Survco surveyors could not locate the original corners at issue here. Believing them obliterated, they remonumented them. Subsequently, a question arose as to whether Survco’s surveyors correctly located the obliterated comer to Sections 3, 4, 33, and 34. United States government surveyors from the Forest Service and later from the Bureau of Land Management (BLM) began to survey these same corners, and subsequently told Burgess in 1986 that they had found the original monuments, casting doubt on the accuracy of Survco’s location.

BLM surveyors testified that they had resurveyed Section 4 but were unable to officially remonument the corners because Section 4 was sold to a private party in 1986. Although the BLM had remonumented the corner to Sections 3, 4, 33 and 34, it later removed the cap signifying an official government survey location because the preliminary resurvey had not been approved prior to the sale.

The evidence established that Survco’s comer location was approximately 374 feet from the location preliminarily established by BLM as the original monument. The plaintiffs concluded that, based upon information from BLM, there was a probable encroachment. As a result, they purchased the acreage necessary to compensate for the possible encroachment on properties as the result of the defendants’ survey. Plaintiffs expended over $80,000 to purchase such properties.

YBP and CSR brought this action against the defendants based on negligence in surveying, breach of contract and breach of warranty. The District Court determined that all three claims hinged on a determination of the standard of care applicable to a land surveyor in his dealings with clients. YBP and CSR appeal the District Court’s decision that Burgess and Survco’s other surveyors did not breach their standard of care.

I.

Did the District Court correctly determine that defendants did not breach the standard of care they owed as Registered Land Surveyors?

The District Court found that the defendants did not breach the standard of care they owed to YBP and CSR. YBP and CSR assign clear error to this finding, claiming the District Court erred by failing to define the proper standard of care and faffing to state how the defendants met the standard. They contend that several of the District Court’s individual findings of fact are completely insupportable, thereby demonstrating that the District Court’s ultimate finding is in error. They further contend that this “shows a lack of understanding to the important distinctions which must be made in this case regarding surveying terms and techniques.”

This Court will not overturn a district court’s finding of fact unless it is clearly erroneous. Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. If substantial evidence in the record supports the findings, they are not clearly erroneous. Interstate Production Credit Ass’n, 820 P.2d at 1287. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a scintilla of evidence and may be somewhat less than a preponderance. Barrett v. Asarco, Inc. (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080.

YBP and CSR first claim that the wording of Finding No. 15 demonstrates clear error, specifically:

15. In surveying property in Sections 31, 32, and 33 for YBP in 1983 Survco utilized and relied upon Ron Burgess’ corner recordation (for the common corner of Sections 33, 34,4, and 3) in locating the SW corner of Section 33 and the SW comer of Section 32, leading to the 1983 filing of Certificates of Survey 713, 714, and 718. (Emphasis added.)

YBP and CSR contend that this finding shows a lack of understanding of the important distinctions which must be made in this case regarding surveying terms and techniques. Although it may be argued that the terms “place” and “locate” have independent significance in surveying, we do not find that difference to be significant here. We conclude that this is not clearly erroneous and has no effect on the real meaning of that finding.

YBP and CSR next claim that, in Finding No. 17, the District Court suggests that the Forest Service created the section corner dispute and possible encroachment to force someone to buy federally-owned Section 4. That finding reads as follows:

17. Sometime in 1986, at the request of the U.S. Forest Service, the Bureau of Land Management (herein BLM), conducted a dependent resurvey in the Wineglass area in an effort to locate and establish the “original” common corner for Sections 33, 34, 4, and 3, and the SW comer of Section 33 and the SW corner of Section 32, along the southern boundary of YBP’s ‘Wineglass Ranch” property, all as part of a resurvey of Sections 4 and 6, Township 3 South, Range 9 East, Park County, Montana. The Forest Service had decided to dispose of public land in Sections 4 and 6 because such land formed an island of National Forest some five miles distant from the main body of the National Forest, and Sections 4 and 6 were land locked. The most likely buyers were adjacent landowners. No interest was shown in purchasing Sections 4 and 6 until the Forest Service notified Plaintiff YBP of a possible encroachment — if the common comer location chosen by surveyor Donald Palmer was, in fact, the true common section corner.

Substantial evidence in the record supports this finding; thus, it is not clearly erroneous. We conclude that this finding does not suggest that the Forest Service had improper motives for surveying this property.

YBP and CSR next contend that Finding No. 18 has many clear errors which are not supported by the record or by law. The language plaintiffs object to from that finding provides:

18. Despite the extensive surveying performed by BLM, the corner common to Sections 3, 4, 33, and 34, was neither officially monumented (nor remonumented), and no certification of Corner Recordation was filed by BLM.. . .

Although it is difficult to discern what plaintiffs claim is incorrect about this finding, their argument seems to be that the District Court did not make it sufficiently explicit by including all available testimony relating to the BLM’s dependent resurvey — particularly, the fact that BLM surveyors cannot legally file comer recordations and certificates of survey. Plaintiffs’ argument focuses on the possible effect of the BLM’s dependent resurvey if the government is required to conduct future surveying in the area. Despite plaintiffs’ argument about the effect of the government survey, the record clearly demonstrates that BLM did not officially remonument the corners of Section 4 and that BLM’s preliminary resurvey had absolutely no legal effect here. Finding No. 17 is not clearly erroneous, nor does it ignore the law.

Plaintiffs also assign clear error to Finding No. 19, which reads as follows:

19. There is no question but that the dependent resurvey conducted by BLM, as involved in this action, had an effect on property boundary locations in regard to Sections 3, 4,33, and 34. However, it appears clear in the evidence that efforts which were made to “correct” boundaries, (and acquisition of property to do so), were accomplished by Plaintiffs on a “preliminary” dependent resurvey made by BLM. Except as noted in Finding of Fact 18, the dependent resurvey was never officially completed so as to justify wholesale invalidation of Defendants’ location of the comer common to Sections 3, 4, 33, and 34, or Certificates of Survey No. 490, 541, 706, 714, 718, and 828.

Again, plaintiffs’ contentions center around their argument that the BLM corner location for Section 3, 4, 33 and 34 is the correct one and that the District Comb did not analyze the evidence according to the law of surveying. The District Court was not required to determine the correct comer location here. Finding No. 19 is supported by the record; therefore, it is not clearly erroneous.

YBP and CSR next argue that Finding No. 20 is clear error because the District Court describes YBP’s in-house surveyor’s recordations (filed shortly before trial) as “illegal and inadequate” without an explanation why they are illegal or inadequate. They contend that this makes it impossible for this Court to consider the validity of Finding No. 20, which provides:

20. Essentially, and despite an illegal and inadequate Certified Corner Recordation (Plaintiffs’ Exhibit 59) recorded shortly before trial, and in line with Findings of Fact 18 and 19, official land corner records with regard to Sections 31, 32 (except the SW corners of these sections), 33, 34, 3, 4, and 5, Townships 2 and 3, Range 9 East remain, after the BLM dependent resurvey and after trial, as they were before trial.

On May 19, 1988, David Albert, plaintiffs’ in-house surveyor, filed Certificate of Survey Addenda to those filed earlier by Burgess and Mike Foley. On these Certificate of Survey Addenda, Albert used the BLM’s comer location from the preliminary dependent resurvey, which was never approved for Section 4. Albert certified that he had performed no field work nor was he making a determination as to which line was correct. The evidence established that a Certificate of Survey must be signed by the Registered Land Surveyor who is responsible for the survey. Albert had nothing to do with either survey and filed documents without doing field work. There is substantial evidence in the record to support the District Court’s reference to an “illegal and inadequate” survey.

Regardless of Albert’s attempts to change them, Burgess’ Certificates of Survey and Corner Recordation remain the only properly certified documents for the corner of Sections 3, 4, 33 and 34. However, a determination of whether or not Albert’s documents are illegal or inadequate has no bearing on Finding No. 20. The substance of Finding No. 20 remains correct — this trial had no effect on corners or boundaries. It addressed negligence, breach of contract and breach of warranty issues.

Plaintiffs attack Finding No. 23 as contrary to law. It provides:

23. The establishment of comers and the filing of Certificates of Survey, as involved in this case, largely depends on efforts by current surveyors to follow field notes of the surveyors who originally surveyed the area. In this case, the original surveyors were William H. Baker and James H. Thomas who surveyed the area on July 4-5, 1873. It is clear to this Court, merely upon momentary reflection of the vast area involved in such survey, that it could not have been accomplished in any reasonably accurate fashion in two days. The best evidence of this fact is that it took the Forest Service and BLM about five years to complete only a minor part of what Baker and Thomas claimed to have accomplished in two days.

YBP and CSR contend that the District Court’s finding that the original government survey could not have been done with reasonable accuracy suggests that the defendants’ surveys and corner positions are more accurate than the original government survey. To support this argument, they cite Goodover v. Lindey’s Inc. (1988), 232 Mont. 302, 310, 757 P.2d 1290, 1295, as holding:

The location of corners and lines established by the government survey, when identified, is conclusive and the trae corner of a government subdivision of a section is where the United States surveyors in fact established it, whether such location is right or wrong, as may be shown by a subsequent survey.

Again, this contention of error relates to the true location of the corner which was not addressed in the plaintiffs’ complaint. Finding No. 23 includes nothing contrary to Goodover, which held that right or wrong, the original corners and lines are conclusive.

YBP and CSR also contend that Finding No. 27 is erroneous. It provides:

27. Defendant Ron Burgess, prior to trial erroneously assumed that BLM personnel had officially completed and filed a survey based upon known monuments, in accordance with accepted standards of practice. For this reason he wrote the letters marked as Plaintiffs’ Exhibits 18 and 22. Federal regulations prohibit reliance on preliminary surveys to alter property boundary lines and disputes arising between government surveyors and private surveyors cannot be decided solely by a federal agency. In any event, final approval of BLM’s survey did not occur until 1990; the approved survey affected only Section 31. Acting on their own initiative, Plaintiffs caused improper Certificates of Survey and a corner recordation certification to be compiled by YBP’s in-house surveyor based wholly on BLM’s unconfirmed preliminary survey, and without such surveyor conducting any field work.

Plaintiffs fault the statement that Burgess erroneously assumed that government personnel had officially completed and filed a survey according to accepted practices. They maintain that the letters speak for themselves. However, the record clearly supports the District Court’s finding. Burgess’ testimony adequately explained his reasons for changing his mind about the accuracy of BLM’s survey. An evidentiary admission as contained in Burgess’ letters is not conclusive and is always subject to explanation or contradiction. 2 J. Strong, McCormick on Evidence Section 254 (4th ed. 1992).

YBP and CSR further argue that the District Court’s statement that the BLM survey only affects Section 31 is incorrect and contradicts a statement in Finding No. 19. They also take issue with the statement relating to YBP’s in-house surveyor’s improper corner recordation and Certificate of Survey. Again, these have no affect on the holdings relating to the negligence, breach of contract and breach of warranty claims.

Plaintiffs contend that Finding No. 26 is not correct. That finding stated:

26. Here, Defendants set monuments and recorded certificates of survey and certified comer recordations between 1980 and 1983. The evidence and testimony establishes that Defendants’ survey work was performed and completed in accordance with standard survey practices, and consistent with the standard of care applicable to surveyors.

The District Court resolved each claim addressed in plaintiffs’ complaint by concluding that each theory of liability (negligence, breach of contract and breach of warranty) depended on the ultimate issue here — whether or not the defendants breached the standard of care owed by a Registered Land Surveyor. Plaintiffs contend that the District Court should have defined the standard of care.

During the course of the trial, seven surveyors testified with regard to the standard of care for surveyors. The District Court effectively consolidated the testimony of these surveyors in Findings No. 24 and 25:

24. ... [T]he land surveyor’s work often involves retracing the footsteps of surveyors who, approximately 100 years previous, performed surveys, kept field notes and set stone monuments to establish and perpetuate section lines and corners. ... While present-day, licensed land surveyors are required to follow local, state, and federal regulations that define present-day standards of practice while searching for ancient monuments, it is a foregone conclusion that present-day surveyors may or may not find a particular ancient monument. If a modern surveyor fails to find the ancient monument, or if he finds that the monument is obliterated, he must certify that he followed the standards of practice to remonument the location of the original surveyor. In such process, the surveyor is held to certify that he followed all of the rules and regulations in monumenting an original corner location ... but it is impossible for him to insure that he is, in fact, standing in the 100-year old footprints of the original surveyor. ... 25. It is possible for two qualified surveyors to meticulously follow the standards of practice for surveying while retracing a 100-year old survey, and disagree on a comer location without either being negligent. ... Locating and remonumenting ancient corner locations is not an exact science, and mere location of a corner, or approval or disapproval of a particular survey does not automatically establish either compliance of [sic] non-compliance with a surveyor’s standard of care.

At the close of the trial, the District Court complimented plaintiffs’ counsel on the manner in which he presented a very difficult technical case. The District Corut’s Findings of Fact and Conclusions of Law, when considered as a whole, demonstrate that the corut carefully considered the evidence and based its findings and conclusions upon the totality of the evidence presented. Although the District Court did not specifically state the standard of care for land surveyors, it cited with approval an earlier Montana case addressing surveying standards, which provides:

In surveying a tract of land according to a former plat or survey, the surveyor’s only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground.

Vaught v. McClymond (1945), 116 Mont. 542, 550, 155 P.2d 612, 616-17, (emphasis original) (quoting 8 Am. Jur. Boundaries, Section 102 (1937).

In Vaught, this Court remanded the case and instructed:

The survey should be made pursuant to the statutes prescribing the rales regulating the survey of government lands and in accordanee with instructions and regulations issued thereunder by the general land office for the guidance of county surveyors and others in ascertaining boundary lines created by the government survey and in relocating corners or monuments theretofore established which may have been lost or obliterated.

Vaught, 116 Mont. at 559, 155 P.2d at 620.

The defendants presented extensive evidence to establish that they complied with rules and regulations as set forth in Bureau of Land Management, U.S. Department of the Interior, Manual of Surveying Instructions (1973). Testimony by defendant Burgess and six other surveyors established that this 1973 manual is the approved source relied on by both government surveyors and Registered Land Surveyors. The surveyors testified in detail as to what was considered the “best evidence obtainable.” The best evidence includes original government field notes, county records and field notes from other surveyors who have surveyed the land, if available. We conclude that a surveyor who complies with rules and regulations as set forth in the approved source, currently the 1973 Manual of Surveying Instructions, and who uses the best evidence obtainable meets the standard of care required for Registered Land Surveyors.

The District Court found that the evidence and testimony established that Survco’s survey was performed and completed in accordance with standard survey practices and, therefore, was consistent with the standard of care. The defendant Burgess was called as a witness and he confirmed the standard of care as being the same as outlined above by the plaintiffs’ witnesses. Our review of the record confirms the presence of substantial evidence to establish that the survey work of the defendants was performed as described in Finding No. 24.

The District Court, as trier of fact, is in the best position to determine the facts by assessing the demeanor of the witnesses, the testimony presented and the totality of the evidence before the court. General Mills, Inc. v. Zerbe Bros., Inc. (1983), 207 Mont. 19, 23, 672 P.2d 1109, 1111. Further, the District Court is not obligated to outline in its findings all of the testimony presented at the trial. McConnell-Cherewick v. Cherewick (1983), 205 Mont. 75, 83-84, 666 P.2d 742, 746. The court concluded that YBP and CSR failed to establish by a preponderance of the evidence that the defendants were negligent or that they did not perform their duties with a reasonable degree of care and skill. Plaintiffs contend that to uphold the District Court’s analysis would overturn decades of established law governing surveyor conduct. This contention is not supported by the court’s findings and conclusions. The record contains substantial evidence to support the ultimate conclusion made by the District Court that the defendants did not breach the standard of care.

We hold that the District Court correctly determined that the defendants did not breach the standard of care they owed as Registered Land Surveyors.

II.

Did the District Court correctly refuse to award damages based on plaintiffs’ reliance upon defendants’ admissions of erroneous surveys?

YBP and CSR contend that they relied on defendant Burgess’ admissions in two letters discussing the possibility that Survco’s survey was erroneous and, therefore, Burgess “must be estopped from reneging on these admissions upon which Plaintiffs detrimentally relied.” Burgess wrote two letters — one to his attorney and the other to Howard Zeman, a BLM employee. In his letter to his attorney, Burgess noted: “It is generally agreed, the line is incorrect and a great number of Yellowstone Basin Properties’ tracts erroneously encroach on about 31.6 acres in Section 4 and 6.7 acres in Section 6.” Burgess’ letter states that he felt a moral obligation to try and resolve the problem created by the erroneous survey done by Survco. He also noted that YBP had blocked the only viable solution that had been discovered. In his letter to Howard Zeman, Burgess stated that Survco failed to find some original stones which BLM surveyors later found. However, Burgess testified that he was led to believe that the government surveyors had followed their own regulations, when in fact they may not have done so. The evidence presented during the trial revealed that no one had found the original corner monument for Sections 3, 4, 33 and 34.

The District Court found, and the testimony confirms, that surveying is not an exact science and surveyors are not insurers of their work. Burgess’ commendable attempts to assist YBP in finding a solution to the possible encroachment illustrate his good faith efforts to correct problems which arose after Survco’s survey. At the time, he believed that government surveyors had found the original corner monument to Sections 3,4,33 and 34. Admissions such as those made by Burgess, even if they subsequently are proven to be supportable by evidence at a trial, do not conclusively establish a breach of the standard of care. The testimony established that two surveyors, both meeting surveying standards, may find different comer locations for obliterated corners with neither of them being negligent.

The BLM conducted a dependent resurvey in the area of Sections 4 and 6 of Township 3 South, Range 9 East. A dependent resurvey is a retracement and reestablishment of the original survey lines in their true original positions according to the best available evidence of the positions of the original comers. Manual of Surveying Instructions, at 145. A dependent resurvey is not official or binding on the United States government until and unless it is approved by the Director of the BLM. Manual of Surveying Instructions, at 149. The government’s dependent resurvey did not ultimately encompass the corner for either Sections 3, 4, 33 and 34 or Sections 3, 4, 9 and 10. The District Court found that federal regulations “prohibit reliance on preliminary surveys to alter property boundary lines and disputes arising between government surveyors and private surveyors cannot be decided solely by a federal agency.” The plaintiffs purchased additional land to correct a possible encroachment without a reliable determination of the accuracy of Survco’s survey or a judicial determination of the comer monument location. They purchased this additional land from a private party after the government no longer owned Section 4. They relied upon representations made by government surveyors prior to an official, binding government resurvey. The regulations state: “No alteration in the position of improvements or claim boundaries should be made in advance of the official acceptance of the resurvey.” Manual of Surveying Instructions, at 149. We cannot say that plaintiffs’ decision to purchase more property was justified as long as the correct corner location remained in dispute.

We also cannot say that plaintiffs were justified in relying on admissions made by Burgess without confirmation from the BLM. Whether or not defendants should be estopped from retracting admissions has no relation to liability. As noted above, surveyors are not insurers — their duty is to complete a survey using the best evidence available to them according to the accepted rales and regulations. Plaintiffs are sophisticated businesses who employed an in-house surveyor who was licensed as a Registered Land Surveyor and familiar with the 1973 Manual of Surveying Instructions. Plaintiffs made a business decision to purchase additional land. We conclude that their reliance upon Burgess’ admissions was not justified and they are not entitled to equitable damages based on such reliance.

We hold that the District Court did not err in refusing to award damages to YBP and CSR based on justifiable reliance upon Burgess’ admissions of erroneous surveys.

m.

Did the District Court err in declining to determine the true locations of section corners despite the parties’ express request that it make the determinations?

YBP and CSR contend that the District Court erred by not determining which of the two surveys should be accepted as the original corner location to Sections 3,4, 33 and 34. The District Court expressly declined to rule on this issue, stating:

The Complaint filed by Plaintiffs does not seek judicial determination of any survey, or any comer location. Rather, it reflects that the sole relief desired by Plaintiffs is monetary damages based upon any of three theories: breach of contract, breach of warranty, and negligence.

Plaintiffs’ in-house surveyor, David Albert, relied on the BLM survey and did no field work prior to filing his addenda to Burgess’ Certificates of Survey. Substantial evidence was presented which cast doubt on the BLM preliminary resurvey. From the record, it does not appear that BLM surveyors followed surveying rules and regulations. Therefore, the District Court only had evidence of one survey which conformed to the required standards — that of Survco. We conclude that the District Court correctly refused to adjudicate the corner location based on the totality of the evidence presented during the trial.

We hold that the District Court did not err by declining to determine the tme locations of section comers despite the parties’ express request that it make those determinations.

IV.

Did the District Court fail to determine whether defendants breached their contracts with YBP and CSR to provide YBP and CSR with surveys of twenty-plus acre tracts?

YBP and CSR contend that the District Court failed to rule on whether the defendants breached their contracts to survey the property. The District Court expressly stated:

... Interestingly enough, to [recover damages] under each theory advanced by Plaintiffs requires establishment of the same basis for liability, (summarized very nicely in Plaintiffs’ Complaint, paragraph 20, page 5):
“Defendants ... failed to follow regular accepted survey standards in failing to exercise accepted standards of care, prudence and skill.”

The District Court held that YBP and CSR failed to produce sufficient evidence for liability based on this standard. YBP and CSR contracted with Survco to provide surveys of twenty-acre tracts. This is what they received. The District Court stated that YBP and CSR

failed to produce, consistent with the noted basis for liability, sufficient evidence upon which Defendants’ liability may be established. The Court views the totality of the evidence as indicating that Defendants’ surveying activities were neither haphazard or arbitrary, nor were they precipitous or based upon a lack of diligence. Rather, the record reflects that Defendants made a careful and studied analysis of circumstances encountered in the course of rendering surveying services, and based decisions upon this same careful and studied analysis, fully consistent with surveyors’ accepted standards of “care, prudence and skill.” The fact that Defendant Burgess may have admitted errors in surveying ... is, essentially, irrelevant to the issue of whether Defendants’ performance met the relevant criteria of the applicable standard of care, prudence and skill upon which Defendants’ liability must be based.

YBP and CSR contend that if the corners are located where the BLM survey located them, there is a breach because some of the lots will be less than the twenty-acre lots they contracted for. The fact remains that Survco provided competent surveys of twenty-acre lots, whether or not those lots encroached upon Section 4. Plaintiffs’ three-paragraph argument on this issue is unconvincing and fails to set forth any authority to support this theory for a breach of contract. We conclude that the contract was not breached.

We hold that the District Court did not err because it did in fact determine that Burgess and Survco did not breach the contracts to provide YBP and CSR with surveys of twenty-plus acre tracts.

We affirm the District Court on all issues presented.

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


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    IN RE THE MARRIAGE OF BEATRICE BECKER, Petitioner and Appellant, and RODERICK R. BECKER, Respondent and Respondent.
    No. 92-143.
    Submitted on Briefs August 20, 1992.
    Decided November 23, 1992.
    49 St.Rep. 983.
    255 Mont. 357.
    842 P.2d 332.

      For Appellant: Karl P. Seel, Bozeman.
    For Respondent: Helene Orenstein, Bozeman.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Beatrice Klein, formerly Beatrice Becker (wife), appeals the final judgment of the District Court for the Eighteenth Judicial District, Gallatin County, entered on November 19, 1991. We affirm the District Court’s decision.

The issues raised on appeal are as follows:

1. Was the District Court correct in limiting testimony on remand to that associated with determining the value of the marital real property?
2. Were the findings of fact and conclusions of law relating to child support and marital property erroneous?
3. Was there a lack of due process and fundamental fairness which would warrant remand of this cause for further consideration by the District Court?

The parties to this appeal were previously before this Court in Cause No. 89-585, In re the Marriage of Becker (1990), 244 Mont. 469, 798 P.2d 124 (Becker I). As the original facts applicable to this litigation are outlined in Becker I, repetition here is unnecessary. Additional facts relevant to this appeal can be summarized as follows.

Four issues were presented to us in Becker I. We held the District Court did not err with regard to three of those issues. As to the fourth, we held the District Court misinterpreted a confusing property appraisal and improperly valued the marital real property at $42,550. We remanded that portion of the case to the District Court for further consideration.

Upon remand, the District Court revalued the marital real property at the time of dissolution. In arriving at its valuation, the District Court considered testimony from two real estate appraisers, Jerry Gossel and Gary France. Based upon this testimony, the District Court concluded the appropriate value of the property at the time of dissolution in June 1984 was $27,500.

The District Court also refused to entertain any testimony, or consider any evidence, pertaining to the valuation of the marital personal property or computation of child support. The District Court concluded, as a matter of law, that its jurisdiction upon remand was limited to the valuation of the marital real property in 1984. It is from the District Court’s refusal to consider the entire property division and the lowered valuation of the marital real property that wife appeals.

I.

Was the District Court correct in limiting testimony on remand to that associated with determining the value of the marital real property?

The wife contends the District Court should have considered all issues pertaining to division of marital property upon remand. However, this contention conflicts with our instructions to the District Court. The issue we remanded reads, “[d]id the District Court abuse its discretion in valuation of the marital real property?” Becker I, 244 Mont. at 475, 798 P.2d at 128 (emphasis added). Moreover, our entire analysis in Becker I addresses this issue from the standpoint of valuation of the marital real property. In light of our instructions, we hold the District Court did not err in limiting testimony to that associated with redetermination of the value of the marital real property.

II.

Was the District Court’s adherence to the prior determination of child support and valuation of marital property erroneous?

The wife next argues the amount of back child support assessed against her and the valuation of marital property were not supported by the record. She claims the District Court erred in its conclusions relating to the value of the marital personal property and the amount of child support.

In Becker I, we addressed these issues in a different context. In responding to the wife’s contention that the District Court had no authority to modify the dissolution decree based upon res judicata, we held that the District Court had sufficient grounds to modify the property settlement agreement reached between the parties because they had circumvented the authority of the District Court. Becker I, 244 Mont. at 472-76, 798 P.2d at 127-28. In addition, we held the District Court did not err in allowing the husband a credit for child support payments rather than his wife’s share of the real property. Becker I, 244 Mont. 474, 798 P.2d at 128.

In addressing issues previously before this Court, we have long held that the doctrine of the law of the case applies to those issues on subsequent proceedings and appeals. When

this Court on appeal affirms in part the judgment of the District Court, and remands for reconsideration other parts of the appeal, those parts of the judgment which are affirmed become the law of the case and are binding upon the trial court and the parties in subsequent proceedings on remand.

City of Missoula v. Mountain Water Co. (1989), 236 Mont. 442, 446, 771 P.2d 103, 105.

Once a decision has been rendered by this Court on a particular issue between the same parties in a case, that decision is binding upon the courts and the parties and cannot be relitigated in a subsequent appeal. In re the Marriage of Gies (1985), 218 Mont. 433, 434-35, 709 P.2d 635, 636.

Implicit in our holding in Becker I, 244 Mont. 474, 798 P.2d at 128, “that the District Court had sufficient grounds to modify the distribution of the assets ... to allow the husband what he would have received if he had been paid child support payments” is agreement with the valuation assigned to the marital personal property and the amount of child support. Whenever the proceedings are sufficiently broad in their character to include the determination of all issues existing, a party may not make continual application for relief upon the same grounds. American Surety Co. of N.Y. v. Kartowitz (1921), 59 Mont. 1, 6, 195 P. 99, 99. We hold the doctrine of the law of the case applies to the valuation of the marital personal property and computation of child support and those issues will not be addressed.

The wife also claims error in the District Court’s revaluation of the marital real property. She contends the District Court’s conclusion which placed a gross value of $27,500 on the real property at the time of dissolution is not in accord with our discussion in Becker I. However, the wife misconstrues our first opinion and instructions on remand.

In Becker I, we held the District Court did not abuse its discretion in placing a value of $37,000 on the marital real property for the year 1988. The error upon which this issue was remanded resulted from the District Court misinterpreting the real estate appraiser’s analysis as to the value of the real property in 1984. Specifically, in attempting to derive a value for the real property at the time of dissolution in June 1984, the District Court concluded the real property had decreased in value from 1984 until 1988. As a result, the District Court improperly concluded the property was worth more in 1984 than in 1988. We held this conclusion was not supported by the record. Becker I, 244 Mont. at 474, 798 P.2d at 128. Accordingly, we remanded this portion of Becker I. Becker I, 244 Mont. at 474, 798 P.2d at 128.

Our instructions on remand were for the District Court to further consider the “valuation of the marital real property consistent with this opinion.” Becker I, 244 Mont. 476-477, 798 P.2d at 129-30. Our opinion did not dictate that the District Court was bound by any particular methodology. Upon remand, the District Court held another hearing to determine the value of the real property. Nothing precluded the District Court from doing so. Where a case is remanded without direction or restriction as to the method to be utilized for determining such an issue, “it is for the trial court to determine in its discretion whether the record before it is sufficient for this purpose or whether additional evidence should be taken to supplement the record.” Lovely and Laubach v. Burroughs Corp. (1976), 169 Mont. 454, 456, 548 P.2d 610, 612.

Because the District Court Judge who heard this case on remand was not involved in the previous proceedings, he felt it necessary to conduct a hearing rather than base his decisions on the record. Although they used somewhat different methodology, the record reveals that both real estate appraisers who testified were in agreement as to the approximate value of the real property in question. When the findings of the District Court are supported by substantial credible evidence and there is no abuse of discretion, we will not disturb the District Court’s findings concerning the valuation of property. In re the Marriage of Porter (1991), 247 Mont. 395, 398, 807 P.2d 192, 194. We hold the appraised value of the real property is supported by substantial credible evidence.

Finally, the wife disputes the amount of debt owing against the real property at the time of dissolution. The record indicates the parties stipulated that the debt against the real property in June 1984, was $20,704. Additionally, petitioner’s exhibit number 3, admitted into evidence, supports this stipulation. However, the District Court concluded the debt against the real property in June 1984, was $21,078. The $374 discrepancy does not affect the conscionability of the property settlement and does not require a remand for further proceedings. In re the Marriage of Hangas (1986), 223 Mont. 343, 347, 725 P.2d 1205, 1208.

III.

WTas there a lack of due process and fundamental fairness which would warrant remand of this cause for further consideration by the District Court?

The final argument advanced by the wife is nothing more than a rehash of issues previously addressed by this Court. Under the guise of due process and fundamental fairness, the wife attempts to reapply arguments previously presented. Moreover, the wife’s brief is devoid of any authority to support her contention that she in some way has been denied due process and fundamental fairness. We hold, contrary to the wife’s contentions, that she has been afforded all applicable procedural safeguards throughout the long lifespan of this litigation. As we have stated previously, “there must be an end to litigation, and in this matter it has been reached.” Carey v. Wallner (1987), 229 Mont. 57, 61, 744 P.2d 881, 884.

There is no error with the decision of the District Court. The judgment is affirmed.

JUSTICES GRAY, TRIEWEILER, HUNT and WEBER concur.


author: JUSTICE HARRISON

text:
    OK CHA MASON, Plaintiff and Appellant, v. JON W. DITZEL and EMPIRE SAND AND GRAVEL CO., INC., Defendants and Respondents.
    No. 92-131.
    Submitted on Briefs September 24, 1992.
    Decided November 24, 1992.
    49 St.Rep. 986.
    255 Mont. 364.
    842 P.2d 707.

      For Appellant: Thomas J. Lynaugh, Lynaugh, Fitzgerald, Eiselein & Eakin, Billings.
    For Respondent: James L. Jones, Dorsey & Whitney, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Ok Cha Mason appeals the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on a unanimous jury verdict in favor of respondents, Jon W. Ditzel and his employer, Empire Sand and Gravel Company, Inc. Mason brought the action to recover damages resulting from an automobile accident in Billings on September 23, 1987. Respondents denied responsibility for the accident, and after a seven-day trial in 1991 the jury decided that the driver, Ditzel, had not been negligent. We affirm.

Mason raises the following issues on appeal:

1. Did the District Court err in allowing Dr. Joseph Rich to testify as a defense witness?
2. Did the District Court err in denying Mason’s motion for mistrial after an officer of Empire Sand and Gravel Company spoke with jurors during the trial?

Ok Cha Mason (Mason) was bom in Korea in 1946. She met her husband, Ted Mason, while he was an air traffic control specialist stationed in Seoul. They were married in Missoula, Montana, in 1973. From 1985, when the couple moved to Billings, -until just before the accident, Mason worked as a part time bakery clerk. She was not fluent in English and was tested in 1991 at a third-grade reading level.

At approximately 9:00 on the morning of September 23, 1987, Mason was driving her Dodge Colt sedan south on Main Street, en route from her home in Billings Heights to a dental appointment in Billings. Ditzel was driving his employer’s Kenworth tractor-trailer truck, or “semi,” southbound in an adjacent lane. It was partly loaded, with an estimated gross vehicle weight of 35,000 to 40,000 pounds. Both vehicles were moving at approximately 35 miles per hour.

Main Street has three southbound lanes. Conflicting evidence was presented as to whether Mason was driving in the curb lane or the center lane at the time of the accident, but in any case, Ditzel’s truck was at the left of Mason’s car just before the collision. The truck and car collided, causing the car to skid across the center and far left southbound lanes and hit the median. It then rolled over onto its top. Mason was taken by ambulance to an emergency room, treated for injuries to her left hand and released the same day.

Police testimony and photographs of the vehicles indicate that Mason’s car was damaged only on the left side and top. The truck sustained minor damage to the left front bumper. Although Mason testified that the truck hit her car from behind, its rear bumper, tail lights, and trunk apparently were undamaged, though scratches appeared on the left rear quarter panel. Mason’s expert witness attributed these scratches to the initial contact between truck and car, but the officer who wrote the accident report suggested that they represented damage done when the car rolled over onto the median.

Mason told a police officer, immediately after the accident, that she was driving in the crab lane when Ditzel’s truck hit her car. At the trial, however, she testified that she had been in the center lane, having changed lanes in front of McDonald’s, nearly two blocks north of the accident scene. Ditzel told officers at the scene that he had been driving in the center lane; this was corroborated by the driver of a wrecker who had been travelling in the left or inside lane, passing Ditzel’s truck just before it collided with Mason’s car. When the officers arrived, shortly after the accident, Ditzel’s truck was in the center lane at the end of parallel skid marks approximately 100 feet long. Mason’s car was lying on its top on the median to the left of the truck.

Both drivers asserted that the other driver had caused the accident. Mason claimed that her car had first been hit from the rear, then pushed in front of the truck and hit again in the left side. Her theory, confirmed in part by a statement Ditzel made to an insurance adjuster six months after the accident, was that Ditzel had been changing lanes from left to right when his truck rear-ended her car.

Ditzel claimed at the trial that Mason pulled in front of him, apparently in the process of changing from the curb lane to the center lane, and that he never saw her car until it was on the left side of his truck. In his 1988 statement to the insurance adjuster, however, he said:

Well, see I was changing lanes. I had my turn signal on and I was gonna change lanes and apparently she didn’t see that or something. I don’t know .... I was changing to the righthand lane.

The point of contention at the trial, then, was whether Ditzel was changing lanes from left to right and in doing so ran into the rear of Mason’s car, or whether Mason was changing from the curb lane to the center lane and in doing so hit the right front bumper of Ditzel’s truck.

Testimony on this point is conflicting. At the trial, Mason said that she had moved from the curb lane to the center lane to avoid traffic going into McDonald’s; then she saw the truck behind her:

Already he’s coming, but I stay my lane. I keep going my center lane and then I feel... just boom.... Then I turn left and just spin. ... I spin but he’s not stop. He just come and hit me; then I roll over upside down.

In the telephone interview recorded by the insurance adjuster in April 1988, Ditzel stated that he hit Mason’s car from behind:

Interviewer: And she struck your vehicle?

Ditzel: No. I hit her from behind.
Interviewer: What part of her vehicle was hit?
Ditzel: Well I... I don’t... I guess right in the back end and she was kind of at an angle. It spun her sideways. ... And I hit her in the back. It spun her sideways and then she went sideways in front of the truck. I was pushing her down the road. Then I realized there was something in front of me, so I hit the brakes on the truck cuz I couldn’t see her car cuz, you know, it was hidden down under my hood.

At the trial, however, Ditzel stated that he actually didn’t know how the accident had happened and that much of what he had told the insurance adjuster was “speculation.” He explained:

I said I was going to change lanes. I didn’t say I did change lanes.... I don’t know what happened. I don’t know where this lady came from, where she pulled out from, if she pulled out .... And from behind, I didn’t mean I hit her .... I thought she came out at an angle and I thought I might have caught her in the back.

Denman Lee, Mason’s accident reconstruction expert, testified at the trial that he believed the accident occurred because Ditzel was changing lanes and ran into the “back left rear bumper” of Mason’s car. Lee explained that Mason’s car had a “shock absorber” built into the rear bumper, which “flexed” when the truck hit it and caused the car to spring ahead of the truck at an angle. The scratches on the left rear quarter panel, he said, occurred when the bumper cover moved forward as the “shock absorber” flexed. Lee had not actually examined Mason’s car, but he had shown pictures of it to the Dodge dealer who provided a parts diagram of the rear bumper.

Harry Towns, a mechanical engineer who testified as an expert witness for the defense, challenged Lee’s explanation. He pointed out that if the truck had hit the left rear end or bumper of Mason’s car, the car would have moved to the right, toward the curb, and not to the left in front of the truck. Towns also said that if the truck had hit the rear end of the car, the rear bumper would have been damaged.

Towns’ theory was that Mason caused the accident by changing lanes:

Mrs. Mason was passing Mr. Ditzel on Mr. Ditzel’s right-hand side. She overtook and was passing the truck. She pulled in front of the truck and attempted a lane change, or started a lane change too soon. ... The car actually ran into the truck. Her left rear door contacted the right side of the right front bumper of the truck. ... That pushed her car because her wheels were steered to the left. ... Her car went into a slight skid to the left.

Mason’s car had sustained a deep scratch on the left rear door, which was consistent with Towns’ theory. Towns also pointed out that Lee had obtained a parts diagram for the wrong model of Dodge, and that the particular model that Mason had been driving did not have a “shock absorber” or “impact absorber” in its rear bumper. Thus, Towns testified, the scratches on the left rear quarter panel could not have been caused by movement of the rear bumper cover because the 1986 Dodge Colt did not have that type of bumper.

Towns testified on the sixth day of the trial. On the seventh day, after final arguments, the jury received its instructions and retired for two hours of deliberation. Its verdict was reported in the following form:

We, the jury in the above-entitled case, find the following special verdict on the issues submitted to us:
Question 1: Was the Defendant Jon W. Ditzel negligent?
Answer: No.

Because the jury found that Ditzel was not negligent, it did not answer any of the questions about damages.

I

Did the District Court err in allowing Dr. Joseph Rich to testify as a defense witness?

Mason first questions the propriety of the District Court’s denial of her motion to exclude the testimony of Dr. Joseph Rich, a psychiatrist. Although Dr. Rich’s testimony ostensibly concerned damages, it was also relevant to Mason’s credibility as a witness and will be considered here in that context.

Trial had originally been set for October 28,1991, and the parties had agreed that the respondents would disclose the identity of their expert witnesses and the subject matter of their expected testimony at least nine weeks in advance of that date, or before August 26,1991. On October 7,1991, the respondents notified Mason for the first time that they intended to use Dr. Joseph Rich as an expert witness. The notice included a three-page report from Dr. Rich, summarizing his analysis of Mason’s medical history and indicating a diagnosis of “somatoform pain disorder.” Mason immediately moved to exclude Dr. Rich’s testimony on the grounds that she had not been given adequate notice in view of the fact that it offered a new theory of the case and went far beyond a rebuttal of Mason’s own psychiatric witness.

The respondents countered by asserting that Mason had not responded adequately to their interrogatories in December 1990 and that they were forced to discover most of her medical records themselves. As a result, the respondents argued, they had not known until September 1991 that psychiatric testimony would be important in determining damages. Mason pointed out in her reply, however, that she had identified her only psychiatric medical provider, Dr. Duncan Burford, in December 1990, and that the respondents had offered no reason for failing to depose Dr. Burford before September 1991. Mason had consulted Dr. Burford after the accident because she was having nightmares and was afraid to drive. Dr. Burford diagnosed post-traumatic stress syndrome.

On October 18,1991, Judge Maurice R. Colberg, Jr. postponed the trial until November 18, 1991. He denied Mason’s motion to exclude Dr. Rich’s testimony, reserving to Mason any objections her counsel might make to the content of that testimony during the trial and indicating that the court would consider further motions for a continuance if Mason needed more time to prepare for trial. Judge Colberg explained in his Order that Mason’s failure to make complete disclosure of past medical providers had “started a sequence of late discovery of medical information,” which “to some degree led to the late disclosure of Dr. Rich as a proposed expert witness by defendants.”

Questions of admissibility of evidence are left to the sound discretion of the trial court, subject to review only in the case of manifest abuse. Britton v. Farmers Insurance Group (1986), 221 Mont. 67, 86, 721 P.2d 303, 315. Further, the testimony and opinions of qualified experts are admissible whenever they will assist the jury in understanding evidence that is beyond the jury’s experience. Wacker v. Park Rural Electric Cooperative, Inc. (1989), 239 Mont. 500, 783 P.2d 360; Rule 702, M.R.Evid. Here, Dr. Rich, as Medical Director of Psychiatric Services at Billings Deaconess Hospital, was qualified as an expert for purposes of evaluating the post-traumatic stress disorder of which Mason complained. Because the trial was continued, Mason had ample time to depose Dr. Rich and prepare for cross-examination. We hold that the District Court did not abuse its discretion in denying Mason’s motion to exclude Dr. Rich’s testimony.

During the trial, Judge Colberg denied Mason’s motion to limit Dr. Rich’s testimony and overruled her objection to admission of her medical records. Although these actions did not rise to the level of error required for reversal, because “a reversal cannot be predicated upon an error in admission of evidence, where the evidence in question was not of such character to have affected the result in the case,” we feel that the circumstances require comment. Lauman v. Lee (1981), 192 Mont. 84, 90, 626 P.2d 830, 834.

Mason’s Motion in Limine concerned her scores on a Minnesota Multiphasic Personality Inventory (MMPI) administered by Richard Agosto, a clinical psychologist hired by Mason. Dr. Agosto had interviewed Mason and reviewed her medical records in October 1991. On November 7 and 8 he administered an MMPI, aided by an assistant who read the 566 questions aloud to Mason. At the trial, Dr. Agosto testified that his primary diagnosis was post-traumatic stress disorder and that he believed that Mason was still suffering from this disorder.

On cross-examination, Dr. Agosto interpreted Mason’s MMPI scores, indicating that Mason had scored at or above the 95th percentile (that is, higher than 95 percent of the total population) on six scales, labelled as follows:

Hypochondriasis
Depression
Hysteria
Schizophrenia
Paranoia
Potential Drug or Alcohol Dependency

Dr. Agosto explained on redirect examination that these terms were developed in 1940 and no longer mean what they meant then (e.g., “schizophrenia” in the MMPI reflects “mental confusion and perhaps memory difficulties, concentration problems” but does not mean that the person taking the test is schizophrenic). He concluded that the MMPI results were consistent with a diagnosis of post-traumatic stress disorder and said that he had found no basis in Masons’ record as a whole to indicate somatoform pain disorder.

After Dr. Agosto testified, the respondents notified Mason that their psychiatrist, Dr. Rich, would testify on the following day to the effect that the results of the MMPI were consistent with and supported his opinions concerning Mason. Mason immediately filed her Motion in Limine, seeking an order that would prevent Dr. Rich from discussing the MMPI results in his testimony on November 26. She argued that she had not had adequate notice and would be unable to prepare for cross-examination. Judge Colberg denied the motion, based on his understanding that “the ultimate conclusion Dr. Rich is making in this case is the same as apparently he made in a deposition and apparently he made in a [pre-trial] report, although I don’t have that information furnished.”

In his pretrial report, however, Dr. Rich stated, for example, “Mrs. Mason appears to have a tendency towards exaggeration,” and that she “has always experienced significant emotional problems.” In contrast, he testified on the sixth day of the trial that his computer analysis of her MMPI responses showed that Mason “has significant hysterical features;” is “immature, egocentric, and dependent;” and is “likely to have a long history of developing functional somatic complaints during periods of stress;” that “mild paranoid features are likely [with] potential for ... projecting blame and hostility onto others;” and that “substance abuse may be a problem.”

Although Dr. Rich stated that the MMPI results were consistent with the opinion he had already reached as to Mason’s psychological condition, that is, that she had a long-term “somatization disorder” rather than post-traumatic stress disorder, his testimony expanded the definitions of Mason’s scale scores and made them directly relevant, not to any injuries that might have been caused by the accident, but to her credibility as a witness. Thus, there is merit in Mason’s argument, in her brief supporting her Motion in Limine, that new conclusions and opinions would emerge from Dr. Rich’s testimony regarding her MMPI scores.

The rest of Dr. Rich’s testimony was based on his review of Mason’s medical and dental records, dating back to 1977, and the depositions of several of her doctors, including Dr. Burford, the psychiatrist. Despite Mason’s objections, Judge Colberg admitted all of these records and depositions, representing approximately thirty-three medical or dental providers, as evidence. Dr. Rich read selections from these records to the jury during direct examination, emphasizing occasions on which the physician either had been unable to resolve her complaint or had prescribed tranquilizers and pain medication. He diagnosed “somatization disorder” and suggested that with patients of this type, “once litigation has begun, it’s extremely difficult to get really good, hard objective data out of a patient.... [I]t’s a matter of saving face.”

Mason had objected before trial to admission of her medical records through the videotaped deposition testimony of Dr. Maurice Smith, a neurologist. In her brief in support of her Motion to Exclude Medical Records, she argued that Dr. Smith’s reading of the records amounted to testimony lacking foundation and calling for hearsay and would expose the jury to irrelevant or prejudicial evidence. The court denied this motion on the grounds that Dr. Smith had reached a conclusion based on the records, and overruled Mason’s objection at trial to Dr. Rich’s reading of the same records.

In the past we have upheld admission of medical records when the testifying physician was also the attending physician who had been responsible for the patient’s care. Klaus v. Hillberry (1971), 157 Mont. 277, 485 P.2d 54; Matter of G.S. (1985), 215 Mont. 384, 698 P.2d 406; Garza v. Peppard (1986), 222 Mont. 244, 722 P.2d 610; Palmer by Diacon v. Farmers Ins. Exchange (1988), 233 Mont. 515, 761 P.2d 401. In Garza, we found that an attending physician’s testimony based on another doctor’s records was within the hearsay exception in Rule 803(4), M.R.Evid., which provides that statements made for purposes of medical diagnosis are excluded from the hearsay rule. Such testimony is also admissible under Rule 703, M.R.Evid., which allows an expert to testify based on inadmissible data if the data are of a type reasonably relied on by experts in that particular field in forming opinions on the subject.

Here, Dr. Rich was not Mason’s attending physician and in fact had never met her, much less examined or treated her. His reading of her medical records therefore was not within the hearsay exception in Rule 803(4), M.R.Evid. Dr. Smith also was not Mason’s attending physician, though he did examine her for approximately two hours. In both cases, however, the records were admissible under Rule 703, because Dr. Rich and Dr. Smith were experts who had followed the practice of medical experts in basing their opinions on medical records. Matter of G.S., 698 P.2d at 409. We hold, therefore, that the District Court did not abuse its discretion in allowing both doctors to read Mason’s medical records aloud.

We will not disturb a jury verdict when substantial, credible evidence exists to support that verdict. Palmer, 761 P.2d at 404; Silvis v. Hobbs (1992), 251 Mont. 407, 824 P.2d 1013. While the disputed testimony tended to confuse the issues and may have misled the jury, the police testimony and photographs alone provide sufficient evidence to support the jury’s verdict. “In making our determination on sufficiency of the evidence, we are constrained to view the evidence in a light most favorable to the prevailing party.” Gass v. Hilson (1990), 240 Mont. 459, 462, 784 P.2d 931, 933.

Further, where the record presents conflicting evidence, as it does here, and the jury resolves that conflict, this Court is precluded from disturbing the verdict. Lauman, 626 P.2d at 833. Here, the jury resolved conflicts between Mason’s and Ditzel’s versions of the accident, and between the parties’ two accident reconstruction experts, in Ditzel’s favor. Viewed in a light most favorable to the prevailing party, the evidence clearly supports that resolution and the jury’s verdict. See Whiting v. State (1991), 248 Mont. 207, 213, 810 P.2d 1177, 1181 (“The credibility and weight given to conflicting evidence is within the jury’s province.”).

II

Did the District Court err in denying Mason’s motion for mistrial after an officer of Empire Sand and Gravel Company spoke with jurors during the trial?

At the noon recess on November 22, 1991, the fifth day of the trial, Mason observed Sandra Reiter, secretary-treasurer and one of the owners of respondent Empire Sand and Gravel Company, Inc., talking with three jurors in the hall near the elevators. She heard Reiter say something like, “Isn’t this incredible,” to which a juror responded “yes” and laughed. Counsel met with Judge Colberg in chambers, and Mason’s attorney moved for a mistrial. Still in chambers, without the lawyers, Judge Colberg questioned Mason, Reiter, and two of the three jurors involved.

Reiter had been sitting at the counsel table throughout the trial and had been introduced to the jury during voir dire. She told Judge Colberg that the exchange in the hall had concerned a suspected rapist thought to be roaming the downtown Billings area. The three jurors had been discussing possible safety precautions in getting to the parking garage, Reiter said, and she had commented, “Yes, it’s kind of incredible, isn’t it? I just learned about it last night.” She also told the judge that earlier in the trial she may have spoken to a juror on the way to the garage, responding to a comment about the weather.

Reiter identified two of the three jurors involved in the conversation about the rapist: Joanne Sheridan, who was to be the jury foreman, and Tana Hansen. Judge Colberg interviewed Sheridan in chambers. She confirmed Reiter’s impression of the noon recess conversation and added that “If one of us talked to her, it was a case of we were talking and she interjected.”

Sheridan had stated in voir dire that she was acquainted with Reiter in a work-related context, which may explain why Reiter was able to identify Sheridan as one of the jurors involved in the conversation. When Judge Colberg questioned Reiter as to the identity of the three jurors, she said, “Joanne Sheridan and I believe it was Mrs. Hansen and I’m not sure who the rest of them [were].” Judge Colberg interviewed another juror, Kay Bums, tentatively identified by Joanne Sheridan as having been in the group near the elevator. Burns remembered the conversation about the rapist but did not recall any exchange with Reiter.

In chambers with counsel, Judge Colberg summarized his interviews with Sheridan and Burns. Mason’s attorney, Michael Eiselein, then moved for a mistrial on the grounds that the conversation in question “may have tended to establish some rapport” between Reiter and the women jurors, “who were discussing a common concern of women.” Judge Colberg denied the motion, based on his perception that any conversation that may have occurred between Reiter and the jurors consisted of a “general comment,” unrelated to the trial, and on his belief that the incident had not prejudiced the jurors.

Mason relies on Putro v. Baker (1966), 147 Mont. 139, 410 P.2d 717, and State v. Eagan (1978), 178 Mont. 67, 582 P.2d 1195, for the proposition that any misconduct tending to injure a party is presumed prejudicial, though the presumption may be rebutted. In those cases we recognized a fundamental right to an unprejudiced jury and emphasized the importance of guarding jury trials from improper influences. We also said, however, that it is for the trial court to decide in each case whether prejudicial misconduct has occurred.

Here, the fact that a juror was acquainted with one of the parties was revealed during voir dire, but Mason did not challenge that juror. When the same juror was later reported to have conversed with the party in question, the court immediately conducted a thorough investigation of the incident. Based on the testimony of the juror and the party, it found no evidence that the juror and the party discussed the case and properly denied Mason’s motion for a mistrial. See State v. Counts (1984), 209 Mont. 242, 248, 679 P.2d 1245, 1248 (any presumption of prejudice arising from the unusual circumstance of a juror inviting a principal witness for lunch was overcome by the testimony of the juror and the witness prior to submission of the case to the jury); Turner v. Louisiana (1964), 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (mistrial justified by continuous, intimate association throughout the trial, as opposed to a “brief encounter” between jurors and witnesses).

Mason points out that Judge Colberg interviewed only two of the three jurors known to have been involved in the exchange with Sandra Reiter and argues that the presumption of prejudice created by the conversation was not overcome, due to this failure to interview the third juror, combined with the possibility of further contact between Reiter and juror Sheridan. We find this argument unpersuasive. The record does not indicate why Judge Colberg did not interview the third juror, but it does show that he would have done so if asked. After Mason’s attorney, Mr. Eiselein, moved for a mistrial, the following conversation took place:

JUDGE COLBERG: Okay, you’ve made your motion for a mistrial. And let me ask you this. Is there any request that I make further investigation with the jurors — the remaining jurors on this panel in any way related to this issue?
MR. EISELEIN: Your Honor, I’m satisfied with the record I’ve made.

Mason’s suggestion that further contact occurred between Reiter and Sheridan is based on Reiter’s statement, quoted above, that “Joanne Sheridan and I believe it was Mrs. Hansen____” Mason concedes that if this statement does represent further contact, nothing is known about any conversation that took place. No evidence was offered to show that Reiter and Sheridan discussed the case or the trial.

We have held that when the district court has considered a motion for mistrial, this Court will not lightly disturb its ruling. “To overthrow it this Court must be shown by evidence that is clear, convincing, and practically free from doubt, of the error of the trial court’s ruling.” Schmoyer v. Bourdeau (1966), 148 Mont. 340, 343, 420 P.2d 316, 317-18. No such evidence has been produced here, and no prejudice to Mason has been established. The appearance of impropriety is not a sufficient basis for reversal. Counts, 679 P.2d at 1249.

AFFIRMED.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES D. PIERCE and WHITNEY H. FERDINAND, Defendants and Appellants.
    No. 92-168.
    Submitted on Briefs October 9, 1992.
    Decided November 24, 1992.
    49 St.Rep. 992.
    255 Mont. 378.
    842 P.2d 344.

      For Appellants: Bradley B. Parrish and Craig R. Buehler, Lewistown.
    For Respondent: Marc Racicot, Attorney General, Paul D. Johnson, Assistant Attorney General, Helena; and James A. Hubble, Judith Basin County Attorney, Stanford.
   JUSTICE HARRISON

delivered the Opinion of the Comb.

This is an appeal from the Tenth Judicial District, Judith Basin County, the Honorable Peter L. Rapkoch presiding. Appellants Charles Pierce (Pierce) and Whitney Ferdinand (Ferdinand) were found guilty of felony burglary and felony theft after a bench trial on September 9,1991. Pierce and Ferdinand appeal on the grounds that the District Court improperly denied their motion for reduction of the burglary charge to criminal trespass and their motion to dismiss the felony theft charge and replace it with a misdemeanor theft charge. We affirm.

On April 10, 1991, Pierce and Ferdinand were traveling west on Montana Highway 87, en route from Billings to Kalispell. Pierce was driving a pickup truck the pair had used to deliver a trailer for Pierce’s family business in Kalispell. At Windham they turned off the highway onto an unpaved lane and drove about a quarter of a mile into the yard of an old farmstead known locally as the Ray place. It was 7:30 in the evening, still light enough for a witness to see the pickup turn off the highway and park in the farmyard. The witness was Ray Sherer, who leased the property and lived in a trailer at the junction of the lane and the highway.

Sherer testified that he saw the truck stop near a bunkhouse. He telephoned the property owner, John Tripp, who also lived at the junction of the lane and the highway, and asked whether he had given anyone permission to drive into the farmyard. Tripp said he had not, so Sherer called the sheriff. Then, watching through binoculars, he saw a man, later identified as Pierce, use an eighteen-inch bar to break the padlock off the bunkhouse door.

By the time Undersheriff John Shilling arrived, five to ten minutes later, Pierce and Ferdinand had removed several items from the bunkhouse and placed them in the pickup. They had also broken the padlock on the back door of the farmhouse, but before they could remove anything from the house, Sherer and Shilling had driven into the farmyard. Shilling testified that he looked into the bed of the pickup truck at that time and saw an old school desk, a box containing several miscellaneous items, and a wall clock. He advised Pierce and Ferdinand of their rights and placed them under arrest. After the sheriff arrived, Pierce acknowledged that the items in the pickup truck, including two items in the cab, had come from the bunkhouse.

Ferdinand’s motion to sever her case from Pierce’s was denied, and the two were tried as co-defendants. The District Court heard the evidence after the two defendants waived jury trial, and on the same day Judge Rapkoch and the three attorneys visited the Ray place. On the basis of the evidence presented at trial and his personal observation, Judge Rapkoch found that the bunkhouse and farmhouse Pierce and Ferdinand had broken into were “occupied structures” and ruled that their offense therefore was burglary under Section 45-6-204(1), MCA. He also ruled that the retail value of $416 assigned to the stolen items by the State’s expert witness was the relevant value for determining whether the defendants were guilty of misdemeanor theft or felony theft, and found them guilty of felony theft under Section 45-6-301(6), MCA.

Pierce, who had a prior burglary conviction and several DUI convictions on his record, received a five-year suspended sentence and was fined $500. Ferdinand, who had no prior criminal history, received a two-year deferred sentence and was fined $250. Both were ordered to pay costs, restitution, and a $20 surcharge.

The issues on appeal are:

1. Whether the State presented sufficient evidence that the buildings Pierce and Ferdinand entered were “occupied structures” so as to support a burglary conviction.

2. Whether the State presented sufficient evidence of the value of the stolen property to support a conviction of felony theft.

I

When sufficiency of evidence is at issue on appeal, our standard of review is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bower (Mont. 1992), [254 Mont. 1,] 833 P.2d 1106, 1110, 49 St.Rep. 586, 588.

Burglary is a felony under Section 45-6-204, MCA, and occurs when a person “knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein.” The first issue on appeal is whether the State presented sufficient evidence that the buildings Pierce and Ferdinand entered were “occupied structures.” Appellants argued that the buildings at the Ray place were not occupied structures, and that their offense therefore was merely criminal trespass, a misdemeanor under Section 45-6-203, MCA. An occupied structure is defined in Section 45-2-101(40), MCA, as

any building, vehicle, or other place suitable for human occupancy or night lodging of persons or for carrying on business, whether or not a person is actually present.

Testimony at the trial established that no one had lived at the Ray place since 1964; that neither the farmhouse nor the bunkhouse had electricity, heat, or running water; and that the house smelled strongly of wild animals and had a leaking roof. Nevertheless, both Sherer and the sheriff testified that they had seen people living in places “a lot worse.”

Tripp, who had owned the Ray place since 1947, lived in the house from 1948 to 1952 and now used both the farmhouse and the bunkhouse to store old furniture and appliances. Sherer used the bunkhouse to store fence posts. Tripp visited the house and bunkhouse about once a month, sometimes to poison mice and sometimes just to look around. No one had stayed overnight in the house or in the bunkhouse since 1964.

In considering the defendants’ motion to reduce the charge against them to criminal trespass, Judge Rapkoch observed that the bunkhouse was tight and of sound construction, though old, and was suitable for storage and safekeeping of antique items. Such buildings, he said, “have unique and personal value in themselves or are used as natural places for the storage of property which itself has real value to the owners. ... The owners of such ‘mini-ghost towns’... are entitled to have them respected.” Therefore, the court concluded, the bunkhouse was an occupied structure at the time of the offenses charged.

Underthe rule we established in State v. Sunday (1980), 187 Mont. 292, 609 P.2d 1188, a structure suitable for carrying on business and used regularly for that purpose is an “occupied structure,” and wrongful entry thereto for the purpose of committing an offense is burglary. Here, the bunkhouse was used regularly by the lessee, Sherer, to store materials needed for his farming business, and by the owner, Tripp, to store household goods. It is an occupied structure, suitable for use in the lessee’s farming business, just as the tack shed in Sunday was an occupied structure suitable for carrying on the owners’ horse rental business.

We hold that any rational trier of fact could have found the essential elements of the crime of burglary in this instance. The two defendants admitted that they had broken into the bunkhouse, an occupied structure, for the purpose of finding and taking away antique objects. The District Court properly found them guilty of burglary under Section 45-6-204, MCA.

II

The second issue is whether the State presented sufficient evidence to sustain a conviction of felony theft. A person commits theft when he “purposely or knowingly obtains or exerts unauthorized control over property of the owner and has the purpose of depriving the owner of the property.” Section 45-6-301(1), MCA. If the property exceeds $300 in value, the theft is felony theft under Section 45-6-301(6)(b), MCA. The value of stolen property is the market value at the time and place of the crime. Section 45-2-101(69)(a), MCA.

Pierce and Ferdinand removed the following objects from Tripp’s bunkhouse:

Seth Thomas wall clock
Two photographs in leather cases
School desk
Oil lamp with chimney
Shaving mug with three brushes
Hand crank telephone
Wall mirror with thermometer
Square glass bottle with cork
Schilling spice can
Boraxo hand cleaner can
Car wash compound

At the trial the State called Patricia Lee Stoos, a school teacher and part time antique dealer who had examined the stolen items in May 1991. She testified that the retail value of these items was $416, though she would pay only $219 if she were to buy them for future resale. If the clock were restored, she said, it alone would be worth $400, though in its present condition its retail value was only $225.

Appellants argue that the relevant value of the stolen items was the wholesale value, or $219, because the owner, Tripp, was not a retail merchant. Appellants distinguish State v. Barker (1984), 211 Mont. 452, 455-56, 685 P.2d 357, 359-60, in which we held that the retail value of a pair of boots stolen from a clothing store was the market value for the purpose of deciding whether the defendant was guilty of felony theft:

It was not error to instruct that the market value of the boots meant their retail price. ... Certainly here the wholesale price of the merchant could not be considered their market value. ... The price at which the merchant offers to sell his merchandise ordinarily is its market value, though not always.

We have applied this rule to property stolen from nonmerchants like Tripp as well as to property stolen from merchants. In State v. Fox (1984), 212 Mont. 488, 689 P.2d 252, for example, we found that testimony by the owner of a retail computer store was sufficient evidence of the value of computer equipment stolen from an apartment. See also State v. Dess (1984), 207 Mont. 468, 674 P.2d 502 (value of bicycles stolen from private owner was established by testimony from retail bicycle shop owners).

The weight of the evidence and the credibility of the witnesses are exclusively the province of the trier of fact. State v. Palmer (1991), 247 Mont. 210, 214, 805 P.2d 580, 582. When conflicting evidence of value is presented, it is for the trier of fact to determine which evidence is dispositive. State v. Ramstead (1990), 243 Mont. 162, 170-71, 793 P.2d 802, 807. Here, any rational trier of fact could have found that the retail value assessed by a local antique dealer was in fact the market value of the stolen goods. The District Court properly adopted that value in denying the appellants’ motion to dismiss the felony theft charge.

AFFIRMED.

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


text:
    IN RE THE MARRIAGE OF DEBORAH ANN ANIBALLI, Petitioner and Respondent, and RANDALL PAUL ANIBALLI, Respondent and Respondent, v. RICHARD ANIBALLI and MARY LOU ANIBALLI, Intervenors and Appellants.
    No. 92-282.
    Submitted on Briefs October 22, 1992.
    Decided November 24, 1992.
    49 St.Rep. 995.
    255 Mont. 384.
    842 P.2d 342.

      For Appellant: Peter S. Dayton and Grant D. Parker, Tawney and Dayton, Missoula.
    For Respondent: Richard A. Volinkaty, and Lori Ballinger, Paulette Ferguson Law Office, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Richard and Mary Lou Aniballi appeal from the denial of their motion to intervene in the dissolution of the marriage of their son and daughter-in-law, entered by the District Court for the Fourth Judicial District, Missoula County. We affirm.

The issue is whether Rule 24(a), M.R.Civ.P, entitles Richard and Mary Lou Aniballi to intervene in this action as a matter of right to protect their interest in the marital home of Randall Paul Aniballi and Deborah Ann Aniballi.

In May 1991, Deborah Ann Aniballi filed a petition for dissolution of her marriage to Randall Paul Aniballi. In their motion to intervene, Randall’s parents, Richard and Mary Lou Aniballi, claimed they loaned $63,630 to Randall and Deborah, primarily to construct and improve Randall and Deborah’s home. Although no notes, mortgages, or other such documents were executed, Richard and Mary Lou maintain it was understood that Randall and Deborah were obligated to pay the loans back eventually, if and when they were financially able to do so, or when the house was sold. They state that Deborah seeks in these proceedings to obtain the home free and clear of any obligation to repay them.

Richard and Mary Lou filed their motion to intervene under Rule 24(a), M.R.Civ.P:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Randall did not oppose the motion to intervene, but stated that he cannot adequately represent his parents’ interests. Deborah opposed the motion.

The District Court ruled that because Richard and Mary Lou have not shown an instrument in writing to support their claim, it is barred by the statute of frauds at Section 71-1-203, MCA. The court also ruled that because the alleged loans were made between 1977 and 1988, a large part of the claim is barred by the five-year statute of limitations applicable to a contract, account, or promise not founded on an instrument in writing. It ruled that Richard and Mary Lou have therefore not met the requirement under Rule 24(a), M.R.Civ.R, of showing “an interest relating to the property or transaction which is the subject of the action.”

Richard and Mary Lou argue that the rule allowing for intervention is to be liberally interpreted and that intervention must be allowed whenever an applicant claims an interest relating to the property or transaction involved in the lawsuit, citing Gammon v. Gammon (1984), 210 Mont. 463, 469, 684 P.2d 1081, 1084. Because they have claimed an interest in Randall and Deborah’s house, they argue, they are entitled to intervene in this action. They contend it was not proper for the District Court to rule on the merits of their claim in the context of the motion to intervene.

Gammon was an action to determine title to real property. An Oregon court awarded title to real property located in Montana to Betty Gammon, in a decree dissolving her marriage to Edward Gammon. After that award was made, Edward Gammon conveyed title to the Montana property to the proposed intervenor, Christiana, Inc., by quitclaim deed and assignment. Betty Gammon brought an action in Montana to enforce the Oregon decree. Edward Gammon defaulted. This Court held that the district court erred in failing to allow Christiana, Inc., to intervene. Gammon, 684 P.2d at 1084.

In Gammon, unlike the present case, the central issue was who held valid title to the property in which the proposed intervenor claimed an interest. While resolution of this action will allocate title to marital property as between Randall and Deborah, any decree entered in this matter will not prohibit Richard and Mary Lou from bringing separate proceedings against Randall, Deborah, or both of them, for the debt allegedly owed. As this Court stated in Gammon, a decree of dissolution resolves rights to the marital property as between the parties seeking dissolution of marriage, but will not determine title in rem. Gammon, 684 P.2d at 1087.

Further, unlike Richard and Mary Lou, the proposed intervenor in Gammon made a prima facie case supporting its claim on the property. There, the proposed intervenor held title to the property at issue through a quitclaim deed and assignment executed by Edward Gammon. In this case, no prima facie case has been shown. A mortgage on real property can only be created by a written instrument. Section 71-1-203, MCA. Richard and Mary Lou have admitted that there is no written instrument documenting their claim on Randall’s and Deborah’s home. The record before this Court contains no writing to evidence the debt.

If intervention must be allowed whenever an applicant makes a claim on property, there would be no reason to require leave of court to intervene. There must be some pin-pose in the rule’s requirement that leave of court be obtained. In applying the federal rule of procedure after which Montana’s Rule 24(a), M.R.Civ.R, is modeled, federal courts have examined the merits of the proposed intervenor’s claim. See, e.g., In re Lopez-Soto (1st Cir. 1985), 764 F.2d 23, 26-27; Lake Investors Dev. Group v. Egidi Dev. Group (7th Cir. 1983), 715 F.2d 1256, 1259. Intervention requires a “direct, substantial, legally protectable interest in the proceedings. [Citation omitted.]” Diaz v. Southern Drilling Corp. (5th Cir. 1970), 427 F.2d 1118, 1124, cert. denied, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115.

We hold that a prima facie showing must be made to support a claim for intervention under Rule 24(a), M.R.Civ.P. We so limit the holding in Gammon. Thus, in ruling on a motion to intervene, a district court properly considers whether a prima facie case has been made to support the claim. This is in accord with the rule in Montana under a previous statute concerning intervention. Equity Co-operative Ass’n. v. Equity Co-operative M. Co. (1922), 63 Mont. 26, 37, 206 P. 349, 352.

We hold that the District Court did not err in denying Richard and Mary Lou Aniballi’s motion to intervene.

Deborah argues that she is entitled to her attorney fees on appeal. The District Court reserved ruling on whether she is entitled to attorney fees incurred in opposing the motion to intervene. It would therefore be premature for this Court to rule on this issue at this time.

Affirmed.

JUSTICES HARRISON, GRAY, TRIEWEILER, McDONOUGH, HUNT and WEBER concur.