source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE TRIEWEILER

license: Public Domain

text:
    JESSE DURDEN and GRACE ANN DURDEN, individually and as Guardians for APRIL DURDEN, a Minor. Plaintiffs, Respondents and Cross-Appellants. v. HYDRO FLAME CORPORATION, a Utah Corporation, Defendant, and CHIEF INDUSTRIES, INC., d/b/a KING OF THE ROAD, a Kansas Corporation, Defendant, Appellant, and Cross-Respondent.
    No. 97-187.
    Submitted on Briefs January 8, 1998.
    Decided March 10, 1998.
    1998 MT 47.
    55 St.Rep. 198.
    288 Mont. 1.
    955 P.2d 160.

      For Appellant: Gig A. Tollefsen, Berg, Lilly, Andriolo & Tollefsen, Bozeman.
    For Respondents: Monte D. Beck, Beck Law Offices, Bozeman; Joe Bottomly, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 This is an appeal by Chief Industries, Inc., d/b/a King of the Road (Chief) from the December 5, 1996 order of the Sixth Judicial District Court, Park County, granting the motion of Plaintiffs Jesse and Grace Ann Durden, individually and as guardians for their minor daughter, April Durden (Durdens) for judgment notwithstanding the verdict and for new trial. We reverse in part, affirm in part and remand for further proceedings consistent with this opinion.

BACKGROUND

¶2 Because we are remanding this case for a new trial on the issues of causation and, if causation is proven, damages, we will limit our discussion of the background of this case to the extent necessary to address the dispositive legal issues.

¶3 Durdens filed a product liability action against Chief, a trailer manufacturer and against Hydro Flame Corporation, a component manufacturer of the trailer furnace. Durdens alleged that personal injuries to Mrs. Durden and to April were caused by defects in the heating system allowing carbon monoxide, or CO, to enter the trailer. Durdens settled with Hydro Flame prior to trial. Liability was conceded by Chief. Durdens’ action was tried against Chief on September 16 through 26,1996. The jury returned a verdict finding no causation and, thus, did not reach the issue of damages. Thereafter, Durdens moved for judgment as a matter of law based on insufficient evidence to support the verdict and for a new trial based on misconduct of defense counsel. The District Court granted both motions on December 5,1996, and, by a subsequent opinion and order issued December 23,1996, sanctioned Chief by requiring it to pay Durdens’ reasonable attorneys’ fees, costs and expenses incurred during the first trial and in obtaining a new trial.

¶4 Chief appealed from the trial court’s December 5 and December 23 orders. Durdens cross-appealed from the court’s denial of their pretrial motion to strike the testimony of Chief’s medical expert, Dr. Donna Seger, on the grounds that Chief had failed to provide an adequate expert-witness disclosure pursuant to Rule 26(b), M.R.Civ.P.

ISSUES

¶5 At the outset, we note that, while Chief’s notice of appeal encompasses the District Court’s order of December 23, 1996, granting sanctions for defense counsel’s misconduct, that particular matter is neither briefed nor argued on appeal by Chief. Accordingly, we deem Chief’s appeal of the trial court’s imposition of sanctions waived, and we will not address this issue further. Rule 23, M.R.App.P.; In re Marriage of Lee (1997), 282 Mont. 410, 421, 938 P.2d 650, 657; DeVoe v. State (1997), 281 Mont. 356, 370, 935 P.2d 256, 265; Rieman v. Anderson (1997), 282 Mont. 139, 147, 935 P.2d 1122, 1126-27; Whalen v. Taylor (1996), 278 Mont. 293, 302, 925 P.2d 462, 467.

¶6 We will, however, address the following issues in this appeal:

¶7 I. Did the District Court err in granting Durdens’ motion for judgment as a matter of law?

¶8 II. Did the District Court err in granting Durdens’ motion for new trial?

¶9 By way of their cross-appeal, Durdens raise the issue of whether the District Court erred in allowing Chief’s medical expert, Dr. Donna Seger, to testify. We will also address this issue in turn.

DISCUSSION

I.

¶10 Did the District Court err in granting Durdens’ motion for judgment as a matter of law?

A.

¶11 Appealability .of the District Court’s order granting judgment as a matter of law

¶12 Before deciding the merits of this issue we must first address Durdens’ argument that an order granting judgment as a matter of law is not an appealable order. As Durdens point out, Rule 1, M.R.App.P., enumerates the orders from which appeals may be taken, and this rule does not include an order granting judgment as a matter of law. Durdens also cite to our decisions in Weston v. Kuntz (1980), 187 Mont. 453, 610 P.2d 172, and Bostwick v. Department of Highways (1980), 188 Mont. 313, 613 P.2d 997, wherein we held that a court order determining liability only, and reserving the issue of damages is interlocutory, and thus, not an appealable order. Weston, 187 Mont. at 454, 610 P.2d at 172; Bostwick, 188 Mont. at 315, 613 P.2d at 998.

¶13 In response, Chief points out that for several decades this Court has accepted appeals of district court orders granting or denying judgments as a matter of law. In support of this argument, Chief cites Fox Grain and Cattle Co. v. Maxwell (1994), 267 Mont. 528, 885 P.2d 432; Kestell v. Heritage Health Care Corp. (1993), 259 Mont. 518, 858 P.2d 3; Greytak v. RegO Co. (1993), 257 Mont. 147, 848 P.2d 483; Simchuck v. Angel Island Community Ass’n (1992), 253 Mont. 221, 833 P.2d 158; Larson v. K-Mart Corp. (1990), 241 Mont 428, 787 P.2d 361; and Wilkerson v. School Dist. No. 15, Glacier Cty. (1985), 216 Mont. 203, 700 P.2d 617. These cases, however, are distinguishable.

¶14 In Fox Grain, the judgment as a matter of law eliminated a portion of the damages awarded to the defendant; we reversed and ordered the verdict reinstated. Fox Grain, 267 Mont. at 535, 885 P.2d at 437. In Kestell, the court denied the defendant’s motion for judgment as a matter of law and we affirmed. Kestell, 259 Mont. at 528, 858 P.2d at 9. In Greytak, the court denied the plaintiff’s motion for judgment as a matter of law, but ordered a new trial because of claimed instructional error. We reversed the order granting new trial. Greytak, 257 Mont. at 155-56, 848 P.2d at 489. Simchuck involved a case where the court granted judgment as a matter of law in favor of the defendant and denied the plaintiff’s motion for judgment as a matter of law on the issue of negligence. We reversed the court’s granting judgment as a matter of law, ordering the plaintiff’s verdict reinstated, and affirmed the court’s denial of the judgment as a matter of law on negligence. Simchuck, 253 Mont. at 227-28, 833 P.2d at 162. In Larson, we affirmed the court’s denial of the plaintiff’s motion for judgment as a matter of law. Larson, 241 Mont. at 433, 787 P.2d at 364. And, finally, in Wilkerson, we reversed the judgment as a matter of law for the defendant and ordered the plaintiff’s verdict reinstated. Wilkerson, 216 Mont. at 211, 700 P.2d at 623.

¶15 Importantly, in each of the foregoing cases the order granting or denying judgment as a matter of law was in the context of a final, and thus appealable, disposition of the case. Accordingly, the cases cited by Chief do not support its argument here. The mere fact that we have accepted other appeals of orders granting and denying motions for judgment as a matter of law does not resolve the issue raised by Durdens.

¶16 Our recent decision in Ryan v. City of Bozeman (1996), 279 Mont. 507, 928 P.2d 228, is very nearly on point, however. In that case, the trial court granted plaintiff’s motion for judgment as a matter of law on the issue of liability and ordered a new trial on damages. The defendant appealed the order granting new trial and filed a petition for writ of supervisory control with regard to the grant of judgment as a matter of law since, as we pointed out, “the grant of a [judgment as a matter of law] is not subject to appeal under Rule 1, M.R.App.P.” Ryan, 279 Mont. at 509, 928 P.2d at 229. In its petition for the writ, defendant, without opposition from the plaintiff, asked that the two issues be combined. Given the posture of the case and in the interests of judicial economy, we granted the writ and ordered that both the granting of the judgment as a matter of law and the granting of a new trial be combined for briefing. Ryan, 279 Mont. at 509, 928 P.2d at 229.

¶17 In this case Chief did not file a petition for writ of supervisory control requesting review of the order granting judgment as a matter of law in conjunction with its appeal of the order granting new trial. Accordingly, on that basis, we might well dismiss the appeal of the judgment as a matter of law issue. Notwithstanding, we conclude that because this case comes to us from the trial court in a posture procedurally identical to that of the case in Ryan, our same concerns regarding judicial economy and the near certainty that we will likely have to address this issue in another appeal following the trial on damages justifies our addressing the merits of this issue at this time.

¶ 19 Finally, on this latter point and given our decision in Ryan and, now, in this case, it may be proper that we simply consider amending Rule 1, M.R.App.P, to specifically allow for the appeal of an order granting a motion for judgment as a matter of law when that is taken in conjunction with an order also granting a new trial on damages. In this limited class of cases, since the order granting a new trial is already appealable under Rule 1(b)(2), M.R.App.P., considering the two appeals together may save the necessity either for a second appeal or a second trial. In either event, the courts and the parties all save valuable time, money and resources.

B.

¶20 Merits of the District Court’s order granting judgment as a matter of law

¶21 The standard to be used by a district court in deciding a motion for judgment as a matter of law, is well settled; it is the same standard used in resolving motions for directed verdict. As we stated in Kestell.

In considering a motion for a directed verdict or for [judgment as a matter of law], the district court must view the evidence in a light most favorable to the non-moving party. Amotion for directed verdict must be denied if there is any evidence that warrants submission to the jury [Wilkerson, 216 Mont. at 211, 700 P.2d at 622], Amotion for [judgment as a matter of law] must be denied if it appears that the non-moving party can recover upon any view of the evidence, including legitimate inferences to be drawn from it [Larson, 241 Mont. at 433, 787 P.2d at 364].

Kestell, 259 Mont. at 523, 858 P.2d at 6. Moreover, we have stated that motions for directed verdict and for judgment as a matter of law are properly granted only when there is a “complete absence” of any evidence to warrant submission to the jury, such evidence and all inferences being considered in the light most favorable to the party opposing the motion. Jacques v. Montana Nat. Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325 (citations omitted).

¶22 This Court’s standard of review of appeals from district court orders granting or denying motions for directed verdict and judgment as a matter of law is identical to that stated above. Ryan, 279 Mont. at 510, 928 P.2d at 229-30. Furthermore, in Ryan we underscored that:

The courts will exercise the greatest self-restraint in interfering with the constitutionally mandated processes of jury decision. Unless there is a complete absence of any credible evidence in support of the verdict, a [judgment as a matter of law] motion is not properly granted. Barmeyer v. Montana Power Company (1983), 202 Mont. 185, 191, 657 P.2d 594, 597 (overruled on other grounds).

Ryan, 279 Mont. at 510, 928 P.2d at 230.

¶23 In the case at bar, the District Court ruled that Chief did not present “sufficient evidence to raise a substantial conflict in the evidence as to whether or not the Plaintiffs suffered some degree of harm from the malfunctioning furnace.” The court believed this to be the case even considering the evidence and inferences in the light most favorable to Chief. However, as pointed out above, whether a party raises a substantial conflict in the evidence is not the correct standard for considering a motion for judgment as a matter of law. Rather, the trial court properly grants a motion for judgment as a matter of law only where there is a complete absence of any credible evidence in support of the verdict. If there is any evidence in support of the verdict and if the party opposing the motion can recover on any view of the evidence and legitimate inferences, then the court must exercise self-restraint, credit the constitutionally mandated process of jury decision, and deny the motion.

¶24 We conclude that the trial court erred in not following this standard when it granted Durdens’ motion for judgment as a matter of law on the issue of causation. There was credible evidence presented by Chief by which a jury could find or infer that Durdens’ injuries were not caused by the malfunctioning furnace. We decline to exhaustively review this evidence inasmuch as this case is being remanded for a new trial on causation and damages. However, in our review of the record, we note that Chief did present evidence which, when viewed in a light most favorable to it, would support the jury’s verdict.

¶25 For example, an assistant fire chief and Montana Power Company gas foreman both testified that they were qualified to test for carbon monoxide, that they correctly tested for that substance at the time when Durdens alleged they were exposed to CO, and only normal levels were found. Evidence indicated that only Mrs. Durden and April were allegedly afflicted with CO poisoning; some other family members living in the same trailer were not. Mrs. Durden’s physician’s office notes and her medical records indicated that certain of her symptoms which she attributed to the carbon monoxide exposure predated the purchase of the trailer or were not communicated to the doctor by her on visits during the time that she claimed to be suffering severe CO symptoms. Moreover, there was evidence that during this time period, the physician diagnosed ailments unrelated to carbon monoxide exposure. There was evidence that the cracks in the furnace heat exchanger developed over time and would not have been present within days of the purchase of the trailer when Mrs. Durden claimed that her symptoms began. Evidence was presented that another physician tested Mrs. Durden’s and April’s blood, did not find abnormal levels of CO, was not advised by them of various problems that Mrs. Durden and April attributed to carbon monoxide exposure, and did not diagnose CO poisoning. Finally, and without going into detail, there was other medical testimony from which the jury could have inferred that Mrs. Durden’s and April’s medical problems were not caused by CO leaking from the faulty trailer furnace.

¶26 While Durdens presented at trial countervailing witnesses, testimony and evidence of their own and offer on appeal various explanations, interpretations and refutations of the evidence presented by Chief, we cannot conclude on the record of this case that there was a complete absence of any credible evidence in support of the jury’s verdict; that there was not any evidence in support of the verdict; or that Chief could not recover on any view of the evidence and legitimate inferences. Whether the conflict in the evidence was substantial or insubstantial is not the proper standard for assessing the merits of a motion for judgment as a matter of law.

¶27 Weighing and resolving conflicts in the evidence, judging the credibility of the witnesses and finding the facts is uniquely within the province of the jury. Trial courts should invade this domain reluctantly and then only when, in the words of Rule 50(a), M.R.Civ.R, “there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party” on the matter at issue.

¶28 Given the District Court’s analysis of and decision on Durdens’ new trial motion, discussed in the next section of this opinion, it is, perhaps, understandable why the court granted their motion for judgment as a matter of law. In fact, Durdens argue on appeal that judgment as a matter of law is an appropriate sanction for defense counsel’s misconduct. However, we do not read the trial court’s order as granting judgment as a matter of law as a punishment, but rather being based upon the court’s weighing of the relative evidence presented by each side and its finding that Chief’s case was lacking. As will be pointed out, though, the standards for determining a motion for new trial and a motion for judgment as a matter of law are different, the former allowing more discretion to the trial court than the latter. As to their motion for judgment as a matter of law, on the record in the case at bar, the trial court should have exercised self-restraint; should have credited the constitutionally mandated process of jury decision; and should have denied Durdens’motion. We hold that the District Court erred in granting Durdens’ motion for judgment as a matter of law, and we reverse on this issue.

II.

¶29 Did the District Court err in granting Durdens’ motion for new trial?

¶30 Like the standard for considering a motion for judgment as a matter of law, the law regarding a district court’s determination of a motion for new trial is well-established. The general rule is that the decision whether to grant a new trial is committed to the sound discretion of the trial judge and will not be disturbed absent a showing of manifest abuse of that discretion. Jim’s Excavating Service v. HKM Associates (1994), 265 Mont. 494, 512, 878 P.2d 248, 259. We have also stated that an order granting a new trial will be upheld if it can be sustained on any ground stated in the order or opinion accompanying the order, Giles v. Flint Valley Forest Products (1979), 179 Mont. 382, 387, 588 P.2d 535, 538, overruled on other grounds by Shannon v. Hulett (1983), 202 Mont. 205, 656 P.2d 825, and that an order granting a new trial will not be set aside as readily as an order denying a new trial since the latter ends the litigation while the former restores the parties to their respective positions before trial, Tigh v. College Park Realty Co. (1967), 149 Mont. 358, 362, 427 P.2d 57, 60 (citations omitted).

¶31 In granting Durdens’ motion for new trial, the District Court concluded that defense counsel had interjected prejudicial, irrelevant and inflammatory remarks into the proceedings which prevented Dmrdens from having a fair trial of their case. According to the court, a litany of the topics which were referred to by defense counsel, but which were not material or relevant to the issues or which were not substantiated by competent expert testimony included:

a. that Mrs. Durden had a personality change due to her religion and was compelled to approach strangers and discuss Jesus with them;

b. that Mrs. Durden had a flirtatious affair with her husband’s employee;

c. that Mrs. Durden had prior psychological problems;

d. that Mrs. Durden’s sister worked for the law office that represented Durdens and that a witness received a referral from that law office;

e. that a witness had testified for Durdens’ counsel or had worked on similar cases with Durdens’ counsel;

f. that Durdens had marital problems;

g. that April had prior learning problems, disabilities or behavior problems;

h. that home schooling for religious or other reasons is not as good for children as public school and/or causes problems for children;

i. that Durdens’ living environment was the cause of problems for the family;

j. that April had a prior head injury with loss of consciousness;

k. that April had prior genetic abnormalities and that another member of the family is mentally retarded; and

l. that April had hearing problems.

¶32 - The trial court stated that during conferences in chambers, defense counsel was asked what doctor would testify that certain topics were supported by competent proof under the standards required by Montana law, and that counsel would not, or could not, give the court an answer. Moreover, the District Court observed that in his opening statement and by cross-examination throughout the trial, Chief’s attorney interjected matters in front of the jury which were not mere errors of judgment but which were deliberately designed to prejudice Durdens; that this conduct, in fact, left only prejudice against them; and that the intended result of this behavior and conduct was achieved in that the jury found no causation despite Durdens’ evidence (which the trial court characterized as substantial and overwhelming). The court then went on to describe various incidents of defense counsel’s misconduct in greater detail, concluding that these trial tactics were unreasonable and prevented Durdens from having a fair trial.

¶33 Chief argues that where there is substantial evidence supporting the jury verdict, the trial court manifestly abuses its discretion in granting a new trial. Chief points out that in Nelson v. Hartman (1982), 199 Mont. 295, 300, 648 P.2d 1176, 1178, we stated:

A trial court’s denial of a motion for new trial is granted greater deference than a motion which has the effects of nullifying a jury verdict. This Court will not hesitate to reinstate the verdict which is supported by substantial evidence.

¶34 Notwithstanding, in the case at bar, the court did not grant Durdens a new trial solely because Chief did not present substantial evidence. Rather, the court concluded that there was an independent basis for granting a new trial which was grounded in defense counsel’s misconduct. On that basis, we stated in Nelson that improper argument of counsel may be the basis for granting a new trial “only when prejudice has resulted which prevents a fair trial.” Nelson, 199 Mont. at 301, 648 P.2d at 1179. In that case we found no basis for a new trial because the court, unlike the trial judge in the case at bar, made no finding of prejudice.

¶35 However, in Kuhnke v. Fisher (1984), 210 Mont. 114, 683 P.2d 916, we discussed at greater length the effect of attorney misconduct (there, in the form of improper and irrelevant comment and argument to the jury) in a case where there was conflicting but substantial evidence on both sides. Holding that defense counsel’s conduct had prejudiced the plaintiff’s case, we stated:

where it appears that one of the parties was prevented from receiving a fair trial by improper argument in summation, the question of whether substantial, evidence supports the jury verdict in spite of the oral argument does not arise. The acid of the improper argument may have eaten away the substantial evidence presented by the plaintiff and left only prejudice against him. When a party’s right to a fair trial has been materially impaired by improper jury argument, the fact of the imperfect trial transcends the substantial but conflicting evidence that supports the jury verdict.

Kuhnke, 210 Mont. at 125, 683 P.2d at 922.

¶36 As discussed above, it is uniquely the jury’s task to weigh and resolve conflicts in the evidence, to judge the credibility of the witnesses and to find the facts. Nonetheless, even where there is substantial evidence supporting the jury’s verdict, the trial court has an overriding duty to prevent a miscarriage of justice by granting a new trial where the misconduct of counsel prevents the opposing litigant from having a fair trial on the merits. See § 25-11-102(1), MCA; Rule 59(a), M.R.Civ.P. See also Campeau v. Lewis (1965), 144 Mont. 543, 546, 398 P.2d 960, 962 (trial judge has power to sua sponte grant a new trial to prevent a miscarriage of justice). As we noted in Putro v. Baker (1966), 147 Mont. 139, 410 P.2d 717:

The guiding principle of our legal system is fairness. We must tenaciously adhere to the ideal that both sides of a lawsuit be guaranteed a fair trial. Sec. 27, Art. III, Montana Constitution [now sec. 17, Art. II].

Putro, 147 Mont. at 147-48, 410 P.2d at 722.

¶37 Thus, even though Chief may have presented sufficient evidence to prevail against Durdens’ motion for judgment as a matter of law, the District Court was, nevertheless, correct in granting Durdens’motion for new trial where the trial judge found that defense counsel’s misconduct prejudiced Durdens’ right to a fair hearing and resolution of their case. The trial judge is in the best position to determine the prejudicial effect of an attorney’s conduct. Buhr v. Flathead County (1994), 268 Mont. 223, 255, 886 P.2d 381, 400, cert denied, 514 U.S. 1110, 115 S.Ct. 1962, 131 L.Ed.2d 853 (1995) (citations omitted). Based upon the record here and the trial court’s findings, which are supported by that record, we conclude that the trial judge did not manifestly abuse his discretion in granting Durdens’ motion for new trial.

¶38 Without going into detail on each of its twelve specifications of misconduct, the trial judge found that any one of several of those incidents were grounds for reversal of the jury verdict. Specifically, the court ruled that there was no legitimate reason to introduce into evidence the fact that April’s uncle is mentally retarded. The court noted that no doctor or other competent medical evidence established the cause of the uncle’s mental retardation or that it had any connection with April’s condition and that implying that April’s problems may be related to a genetic family history when no such evidence exists to support the implication was improper.

¶39 The court also concluded that defense counsel’s reference to an alleged hearing problem of April not only had no relevance to any injury she suffered from the claimed CO1 exposure, but was unsubstantiated by any competent medical evidence as well. The trial judge also found it extremely prejudicial that defense counsel sought to appeal to the public’s cynicism concerning the legal profession and personal injury victims by repeatedly seeking to introduce evidence that Mrs. Durden’s sister worked for the law offices of one of Durdens’ counsel and by telling the jury that “everything was directed” from that counsel’s law offices. The District Court noted the lack of evidence to support this allegation or that it had any material relevance to the issues being tried.

¶40 The court found that defense counsel mentioned in opening argument and in cross- examination that a number of other patients with legal claims have been referred by Durdens’ counsel to certain of the physicians who testified for Durdens — the implication being that those physicians were unworthy of belief and perhaps were part of a conspiratorial plan to bilk Chief. The trial judge observed that the physicians who appeared at trial were truthful, competent and professional in every respect; that their integrity as medical professionals was impugned by counsel’s statements; and that there was no evidence supporting any conspiracy among those doctors, Durdens and their counsel.

¶41 Finally, the court concluded that Durdens’ case was prejudiced by defense counsel’s presentation of prior personality and psychological problems of both April and Mrs. Durden without any substantiating evidence that religion, personality, living environment, genetic condition or personal family matters had any causal link to April’s and Mrs. Durden’s injury claims.

¶42 Again, the trial court’s findings are supported by the record, and because the trial judge is in the best position to determine the prejudicial effect of an attorney’s conduct, Buhr, 268 Mont. at 255, 886 P.2d at 400, we conclude that the court did not manifestly abuse its discretion in granting Durdens’ motion for new trial. Indeed, the District Court’s ruling was in accord with our recent decisions in Newville v. State, Dept. of Family Services (1994), 267 Mont. 237, 883 P.2d 793 (holding that the trial court committed reversible error in allowing argument and questions regarding a variety of factors, including genetic factors, which “could contribute” to the plaintiff’s injury, when no medical evidence was presented to make the causal connection more probable than not), and in Werre v. David (1996), 275 Mont. 376, 913 P.2d 625 (holding that the trial court did not abuse its discretion in excluding evidence of family conflicts, including an extramarital affair, when there was no evidence of any causal connection with those and plaintiff’s mental disorders).

¶43 Finally, it is necessary that we address Chief’s argument that the District Court manifestly abused its discretion in granting Durdens’ motion for new trial because Durdens failed to object, request an admonition from the court to the jury or request corrective jury instructions with respect to the various testimony and incidents of attorney misconduct on which the court based its decision. Chief cites our decision in Rasmussen v. Sibert (1969), 153 Mont. 286, 456 P.2d 835, for the rule that, with respect to improper testimony and argument, a litigant’s failure to object, move to strike or for mistrial, or to request an admonition or corrective jury instruction constitutes a waiver of objection and cannot be urged for the first time in a motion for new trial. Rasmussen, 153 Mont. at 294, 456 P.2d at 839-40.

¶44 While Chief’s statement of the rule is accurate, its argument that the rule was not followed in this case is incorrect. The record reveals that Durdens’ counsel filed various pretrial motions in limine, made contemporaneous objections, moved to exclude improper evidence and argument during trial and continued to object to Chief’s questioning regarding the same issues throughout the trial. This is not the sort of case that we faced in Rasmussen, where counsel “did nothing.” Rasmussen, 153 Mont. at 295, 456 P.2d at 840.

¶45 Prior to trial, Durdens’ counsel filed motions to exclude evidence of the medical conditions of other Durden family members without proper medical foundation and evidence that these other family members did not file claims; to exclude evidence of comparative or third party negligence; and to exclude evidence of settlement or collateral sources. During a discussion of these matters prior to opening statements, Durdens’ counsel inquired of the judge, “point of clarification, so I don’t jump up, but in terms of medical evidence, we reserve, at least, the adequacy of the medical foundation as it comes in then. Can we make those objections during trial?”

¶46 The litany of topics as described by the District Court were all brought out in Chief’s opening statement at the end of the first day of trial. While Durdens’ counsel did not object during Chief’s opening, counsel did file a motion the following day, prior to the start of that day’s proceedings, to exclude evidence of “possible” sources of symptoms not properly based on relevant medical evidence. At an in-chambers hearing on this matter, Durdens’ counsel referred to Chief’s attempt to attribute the cause of Mrs. Durden’s and April’s problems to, among other things, cramped living quarters, family environment, genetic abnormalities, home schooling, religious beliefs, hearing problems, and developmental delays. The District Court Judge ruled that Durdens’ counsel could object as specific questions were asked by Chief’s counsel.

¶47 An extensive review of the record reveals that Durdens’ counsel did repeatedly object, throughout the course of the trial, to questions posed by Chief’s counsel to both lay and expert witnesses regarding: whether April had hearing and other problems at birth; whether April met the normal developmental milestones while growing up; whether April had any learning disabilities or behavioral problems prior to the CO exposure; whether there was any family history of mental retardation; whether April sustained a head injury in a fall; whether Mrs. Durden had a personality disorder or psychological problems prior to the CO exposure; the nature of Mrs. Durden’s religious beliefs and practices; the fact that Mrs. Durden’s sister worked for Durdens’ counsel’s law firm; and the effectiveness of home schooling children. Furthermore, during the numerous in-chambers hearings on these matters, Chief’s counsel was unable to lay adequate medical foundation that the matters referred to were the cause of Mrs. Durden’s and April’s condition.

¶48 We hold that the trial court did not manifestly abuse its discretion in granting Durdens’ motion for new trial, and we affirm on this issue.

III.

¶49 Did the District Court err in allowing Chief’s medical expert, Dr. Donna Seger, to testify?

¶50 Prior to trial, Durdens filed a motion to exclude the testimony of Chief’s medical expert, Dr. Donna Seger, or in the alternative, to limit her testimony to the facts and opinions that were disclosed prior to the close of discovery on July 31,1996. After hearing argument, the District Court denied Durdens’ motion to exclude Dr. Seger’s testimony, but granted Durdens’ motion to limit her testimony to the disclosures made in Chief’s Rule 26(b)(4)(A), M.R.Civ.P., disclosures.

¶51 On cross-appeal, Durdens argue that the District Judge erred in failing to grant their pretrial motion to exclude Dr. Seger’s testimony. Durdens contend that Chief failed to adequately disclose and supplement Dr. Seger’s opinions and the basis for her opinions, as required by Rule 26(b)(4)(A), M.R.Civ.P, and also failed to live up to its representation that it would provide full disclosure. Finally, Durdens maintain that as a sanction, this Court should preclude Chief from calling Dr. Seger or any similar expert in the retrial of this case on damages. Chief contends that it complied with the expert-witness disclosure rule, with the court’s scheduling order and that its expert-witness disclosure was as detailed as Durdens’ expert-witness disclosure.

¶52 Generally, the district court judge is in the best position to determine good faith discovery efforts, and, absent an abuse of discretion, this Court will not disturb the trial court’s determinations relating to disclosure of experts and discovery in general. Lutz v. National Crane Corp. (1994), 267 Mont. 368, 381, 884 P.2d 455, 462-63. In this case, Chief filed a general disclosure on Dr. Seger on September 27, 1995. Durdens’ expert, Dr. Weaver, was not deposed until July 1996. His opinion and medical records were not obtained for review by Dr. Seger until that time. Subsequently, Chief noticed Dr. Seger’s deposition for August 22, 1996, however, Durdens canceled the deposition. Based on these facts, we hold that the District Court did not abuse its discretion in allowing Dr. Seger to testify.

¶53 Furthermore, as indicated above, this case is being remanded for a new trial on the issue of causation and, if causation is proven, on damages as well. We have stated that, while the grant of a new trial by a district court is not the filing of a new action and while the parties are limited to the contents of their original pleadings, the new trial must be commenced fresh or new and that the evidence and testimony of the previous trial is null and void, except when governed by existing rules of evidence. Town Pump, Inc. v. District Court (1979), 180 Mont. 358, 361-62, 590 P.2d 1126, 1128-29 (citing Waite v. Waite (1964), 143 Mont. 248, 389 P.2d 181). An order granting a new trial restores the parties to the position they occupied before the trial. Waite, 143 Mont. at 254, 389 P.2d at 185 (citation omitted).

¶54 Accordingly, on remand, the court is at liberty to allow discovery to be reopened, to compel discovery, to sanction discovery abuses and, generally, to make whatever other discovery rulings may be required or appropriate under the circumstances and which are consistent with this case being tried anew as to causation and damages.

¶55 Reversed in part, affirmed in part, and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and REGNIER concur.

JUSTICE TRIEWEILER

specially concurring.

¶56 I concur with the majority’s decision to affirm the District Court’s order which granted the plaintiffs a new trial, and to reverse that part of the District Court’s order which granted judgment as a matter of law to the plaintiffs. In light of the decision to remand this case for a new trial, I disagree that it was necessary to discuss whether the testimony of Dr. Donna Seger was properly admitted in the previous trial. However, was I to reach that issue, I would also disagree with the majority’s conclusion that much of her testimony did not violate the rules of discovery and need not have been excluded as a sanction for that violation.

¶57 Because this case is being remanded for a new trial, the admissibility and scope of Dr. Seger’s testimony at that trial will necessarily have to be considered based on the posture of discovery at that time. Except as it relates to issues raised on appeal, whether evidence was or was not properly admitted in the previous trial is irrelevant to any future proceeding, and there is no real point to the majority’s discussion of that issue. Having said that, however, I also conclude that the majority’s discussion of Dr. Seger’s testimony misses the whole point of the plaintiffs’ objection.

¶58 The majority apparently concludes that because the plaintiffs scheduled Dr. Seger’s deposition and then canceled it, the District Court did not abuse its discretion when it allowed Dr. Seger to testify. But it is not the plaintiffs’ contention that the District Court abused its discretion when it allowed Dr. Seger to testify. It is the plaintiffs’ contention that the District Court abused its discretion when it first ordered that Dr. Seger’s testimony would be limited to the disclosures made by the defendant pursuant to Rule 26(b)(4)(A), M.R.Civ.R, and then allowed Dr. Seger to testify as an expert on matters which had not been disclosed.

¶59 For example, the defendant’s expert witness disclosure gave no indication that Dr. Seger would testify regarding the plaintiffs’ psychological disorders, learning disabilities, or possible causes, other than carbon monoxide, of their symptoms. Yet, she was allowed to do so. The defendant’s expert witness disclosure gave no indication that Dr. Seger would be asked to testify as an expert psychological witness regarding the mental health of people that she had never examined, tested, nor seen. Yet, she was allowed to do so. The discovery responses which were provided by the defendant indicated that general statements about Dr. Seger’s opinion and incomplete documentary evidence would be supplemented at a later date. However, supplementation was never provided. In short, the expert witness disclosures made by the defendant regarding the testimony of Dr. Seger were completely inadequate to enable plaintiffs to fully cross-examine Dr. Seger at the time of trial. Furthermore, the rules of discovery anticipate that written interrogatories and requests for production should be sufficient to discover the substance of the opinion of an opposing party’s expert and that person’s basis for his or her opinion. There is no right pursuant to Rule 26(b)(4), M.R.Civ.R, to depose the other party’s expert without court approval. Failure to provide adequate witness disclosure certainly cannot be excused on the basis that the party which sought disclosure did not take a deposition — especially when experts such as Dr. Seger are located so far from Montana and charge fees as high as $500 an hour to share their opinions.

¶60 For these reasons, if I was to reach the issue of whether or not the District Court abused its discretion when it allowed Dr. Seger to testify to matters which had not been disclosed in the defendant’s expert witness disclosure, I would hold that the District Court did abuse its discretion. I conclude that the majority first ventures into an area which is unwarranted by its disposition of the case, and then while doing so, arrives at the wrong conclusion.

¶61 For these reasons, I concur with the result arrived at by the majority, but disagree with its unnecessary discussion of the admissibility of Dr. Seger’s opinions.

      . While Durdens, Chief and the District Court refer to Durdens’ Rule 50, M.R.Civ.P., motion as a motion for judgment notwithstanding the verdict, Rule 50 was amended hy order of this Court, effective March 26, 1993, to do away with the terms “judgment notwithstanding the verdict” and “directed verdict.” The proper term is now “judgment as a matter of law.” Hence, for purposes of clarity, we will refer to Durdens’ motion, and all other such motions, as “motions for judgment as a matter of law.”


author: JUSTICE LEAPHART

text:
    WYMO LAND COMPANY, Plaintiff and Respondent, v. RITA L. LUGGIE and JOSEPH A. LUGGIE, Defendants, Third-Party Plaintiffs and Appellants, and THERESA K. MULLALY, Defendant and Respondent, v. TYRONE D. HULTBERG, d/b/a Real Estate Unlimited, Third-Party Defendant and Respondent.
    No. 97-665.
    Submitted on Briefs February 18, 1998.
    Decided March 10, 1998.
    1998 MT 50.
    55 St.Rep. 208.
    955 P.2d 171.
    288 Mont. 21.

      For Appellants: W, Arthur Graham, Quentin M. Rhoades; Sullivan & Tabaracci, Missoula.
    For Respondents: Martin S. King; Worden, Thane & Haines, Missoula (for Theresa K. Mullaly); William R. Baldassin, Attorney at Law, Missoula (for Wymo Land Company); David T. Markette, Attorney at Law, Hamilton (for Tyrone D. Hultberg).
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellants Rita L. and Joseph A. Luggie (the Luggies) appeal from the order of the Twenty-First Judicial District Court granting summary judgment in favor of Respondents Theresa Mullaly (Mullaly) and Wymo Land Company (Wymo). We affirm.

¶2 The Luggies raise the following issues on appeal:

¶3 1. Did the District Court err in holding that the right of first refusal on parcel 14-10 merged into the subsequent contract for deed on parcel 14-9 and was therefore invalid?

¶4 2. Did the District Court err in holding that the Luggies were given notice of Mullaly’s offer to buy parcel 14-9 and failed to timely exercise any right of first refusal they may have had?

Factual and Procedural Background

¶5 This dispute arises out of the sale of land in Granite Creek Ranches, a subdivision in Ravalli County, Montana. Wymo owned and developed all of the lots in Granite Creek Ranches and began marketing the lots for sale through Respondent Tyrone Hultberg (Hultberg) of Real Estate Unlimited. In 1995, the Luggies began negotiating with Hultberg for the purchase of one of the lots in Granite Creek Ranches, parcel 14-9. Hultberg told the Luggies that Wymo required a minimum purchase price of $30,000 and identical terms on all of the lots in Granite Creek. The Luggies informed Hultberg that if they were to purchase parcel 14-9, they also wanted a right of first refusal on parcel 14-10.

¶6 On September 15,1995, Wymo and the Luggies entered into an agreement to sell and purchase parcel 14-9 (Luggie Buy-Sell). A special provision addendum (Addendum) was attached to the Luggie Buy-Sell. Paragraph 10 of the Addendum states:

Seller To Grant Purchasers A First Right Of Refusal And Not To Exceed 72 Hours On Parcel 14-10 Of Granite Creek Ranches, From The Time A Signed Buy-Sell Agreement Is Produced To The Seller At A Price Of $30,000 And Meets The Sellers Terms.

The parties dispute whether Hultberg or the Luggies drafted the Addendum and, specifically, who supplied the language for the Luggies’ right of first refusal on parcel 14-10 (Right of First Refusal).

¶7 At closing on November 3,1995, Wymo and the Luggies executed a contract for deed on parcel 14-9 (Contract for Deed). The Contract for Deed contains a standard merger clause. The Contract for Deed does not mention the Right of First Refusal, but does incorporate other provisions of the Addendum. The Luggies contend that no mention was made at closing of the Right of First Refusal. However, Hultberg contends that he specifically told the Luggies that the Contract for Deed did not contain the Right of First Refusal and that if they executed the contract, they would risk losing the right.

¶8 In June 1996, upon the Luggies’ request, Hultberg prepared a buy-sell agreement on parcel 14-10. The Luggies did not sign the agreement and, later that month, told Hultberg that they could not afford to purchase parcel 14-10 at that time. In July 1996, Mullaly, the owner of parcel 14-11, approached Hultberg and told him that she was interested in buying parcel 14-10. Hultberg told Mullaly that another party may have a right of first refusal on the property, but that he did not think they were interested in exercising it. On or about July 10, 1996, Hultberg and Mullaly executed a buy-sell agreement (Mullaly Buy-Sell). The Mullaly Buy-Sell did not mention the Right of First Refusal. The same day, Hultberg informed Barbara Glandt, a representative of Wymo, that he had received an offer on parcel 14-10 and mailed her the Mullaly Buy-Sell.

¶9 Hultberg testified that on July 12, 1996, he spoke with Joseph Luggie at the Granite Creek property and informed him of the existence and terms of Mullaly’s offer. Hultberg also testified that he spoke with Rita Luggie on the telephone on July 22 and informed her that the Right of First Refusal had been triggered. On July 24,1996, the Luggies received a certified letter from Hultberg, which stated, in relevant part:

This letter is to advise you that a signed Buy-Sell has been produced to the Seller at the stated selling price of $30,000 and meeting the Sellers terms. Although we have had verbal communication to this affect and evidently some misunderstanding, I am reducing this to written form for everyone’s concern.

Hultberg did not enclose a copy of the Mullaly Buy-Sell.

¶10 The Luggies state that they and their attorney, Randy Lint (Lint), made numerous, unsuccessful attempts to obtain a copy of the Mullaly Buy-Sell. After the Luggies received the certified letter, Lint called Hultberg to request a copy and was informed that the terms of the Mullaly Buy-Sell were identical to those in the Luggie Buy-Sell. Hultberg did not provide Lint with a copy of the Mullaly Buy-Sell, but did fax him a copy of the Luggie Buy-Sell.

¶11 On July 25, 1996, Lint informed Wymo’s attorney, William Baldassin (Baldassin), that he would be out of town until July 30. On July 26, 1996, Baldassin faxed the Mullaly Buy-Sell to Lint’s office. Lint did not read the fax until July 29, 1996 when he returned to his office. On July 31,1996, the Luggies attempted to exercise the Right of First Refusal by sending Baldassin a letter postdated to July 25, 1996 and a $1,000 earnest money deposit.

¶12 On September 6, 1996, Wymo filed a complaint in the District Court seeking a determination of whether it had a contractual obligation with the Luggies or Mullaly. The Luggies and Mullaly filed answers, counterclaimed against Wymo for breach of contract, and cross-claimed against each other seeking a declaratory judgment of whether the Luggies had a valid right of first refusal and for intentional interference with contract. The Luggies also filed a third-party complaint against Hultberg, alleging negligence in the drafting of the Right of First Refusal.

¶13 Mullaly moved for summary judgment, arguing that the Right of First Refusal merged into and was extinguished by the Contract for Deed or, alternatively, that the Luggies failed to timely exercise the right. The Luggies filed a cross-motion for partial summary judgment, arguing that because the Right of First Refusal was a collateral agreement, it did not merge with the Contract for Deed. Hultberg filed a motion to dismiss the third-party complaint.

¶14 The District Court granted Hultberg’s motion to dismiss and granted summary judgment in favor of Mullaly and Wymo. The District Court held that the Right of First Refusal had merged into the fully integrated Contract for Deed and that the collateral agreement exception did not apply. Alternatively, the District Court held that if the Luggies did have a valid right of first refusal, they did not exercise it timely.

Discussion

¶ 15 The Luggies argue that the District Court erred in holding that the Right of First Refusal merged into the subsequent Contract for Deed. However, we determine that the Luggies failed to exercise timely any right of first refusal they may have had. Thus, we need not reach the issue of whether the District Court erred in holding the right was merged into the Contract for Deed.

¶16 The Right of First Refusal gives the Luggies 72 hours “from the time a signed buy-sell agreement is produced to the seller at a price of $30,000 ...” in which to exercise the right. (Emphasis added.) Read literally, the Right of First Refusal does not require Wymo to give the Luggies any notice that an offer has been made; thus, the 72-hour period in which the Luggies had to exercise the Right of First Refusal could have commenced, run, and expired before they ever knew a buyer had made an offer. The Luggies argue that unless the contract language is reformed to give them 72 hours “from the time a signed buy-sell agreement is produced to the buyer ...” the Right of First Refusal is rendered meaningless. We need not decide whether the Right of First Refusal should be reformed because regardless of whether it reads “to the seller” or “to the buyer,” the Luggies still failed to exercise timely the right.

¶17 Hultberg testified that he gave verbal notice of the Mullaly Buy-Sell to Mr. Luggie on July 12 and to Mrs. Luggie on July 22. On July 24, 1996, the Luggies received a certified letter from Hultberg stating that Wymo had received an offer on parcel 14-10 and reciting the terms of that offer. The same day, Hultberg informed the Luggies’ attorney, Lint, that the terms of the Mullaly Buy-Sell were identical to the Luggie Buy-Sell and faxed him a copy of the Luggie Buy-Sell to review.

¶18 Relying on Tribble v. Reely (1976), 171 Mont. 201, 557 P.2d 813, the Luggies argue that the holder of a right of first refusal is entitled to more than actual notice of the existence of an offer. In that case, Tribble owned a right of first refusal in the property he was leasing that had to be exercised “ten (10) days after notice to Lessees in writing of intention or offer to sell to a third party.” Tribble, 557 P.2d at 815. Tribble received no written notice of the sale, but had actual notice that the defendants were attempting to purchase the property. Tribble, 557 P.2d at 817. This Court held:

[T]here is a difference between merely knowing of a sale and knowing all the terms of that sale. Such a distinction is crucial here because without knowing the terms of the sale, the plaintiffs could not meet the offer of defendants Reely and thus could not properly exercise their right of first refusal.

Tribble, 557 P.2d at 817.

¶19 In this case, the Luggies not only knew of Mullaly’s offer, they had actual notice of the terms of the offer. The Luggies argue that “under a reasonable, indeed, under the typical right of first refusal, its holders have a specified time period from receipt of written notice of the terms of an executed competing bid to exercise their rights.” However, they fail to note that they did receive written notice of the terms of Mullaly’s offer in the certified letter that they received on July 24, 1996. Further, the same day, Hultberg explained to Lint that the terms of Mullaly’s offer were identical to those contained in the Luggie Buy-Sell and provided him a copy of the Luggie Buy-Sell. Thus, the 72-hour period began to run, at the latest, on July 24,1996. The Luggies did not attempt to exercise the Right of First Refusal until July 31, 1996. We hold that the District Court did not err in finding that the Luggies failed to exercise timely the Right of First Refusal.

¶20 Based on the foregoing, we affirm the decision of the District Court.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, ex. rel. RANDY KEYES, Relator, v. MONTANA THIRTEENTH JUDICIAL DISTRICT COURT, YELLOWSTONE COUNTY, the Honorable G. Todd Baugh, Presiding, Respondent.
    No. 97-269.
    Heard January 15, 1998.
    Submitted January 20, 1998.
    Decided February 18, 1998.
    1998 MT 34.
    55 St.Rep. 125.
    955 P.2d 639.
    288 Mont. 27.

      For Relator: L. Sanford Selvey, Chief Public Defender, Yellowstone County, Billings; Gary E. Wilcox, Billings (argued).
    For Respondent: Dennis Paxinos, Yellowstone County Attorney, Billings; Chris D. Tweeten, Chief Counsel, Attorney General of Montana, Helena (argued).
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 This is an original proceeding in this Court involving an application for a writ of supervisory control. Randy Keyes (Keyes) is the defendant in a criminal proceeding pending in the Thirteenth Judicial District Court, Yellowstone County, in which he is charged with three alternative counts of deliberate homicide in connection with a shooting incident that occurred on September 30,1994. On that date, Keyes and Dean LaFromboise exchanged gunfire from their respective vehicles in a parking lot in Billings, Montana. Jacine Chapel was a passenger in the vehicle driven by Dean LaFromboise, and in the process of the shoot-out, she was killed. Although the State has evidence that it was a bullet from Keyes’ gun that killed her, its proof is not conclusive. Keyes did not know that Chapel was in the vehicle driven by LaFromboise. However, the State claims that some testimony at trial may establish that Keyes was at least aware that another person was in LaFromboise’s vehicle.

¶2 After the shooting incident, Keyes fled from Montana. He was subsequently apprehended approximately two years later, and was arraigned on August 20, 1996. The information charged Keyes with two alternative counts of deliberate homicide, one by purposely or knowingly killing Chapel and a second based on the State’s theory that Keyes was accountable for the conduct of a second shooter it then believed was in Keyes’ vehicle. It also charged Keyes with two alternative counts of attempt to commit deliberate homicide against LaFromboise.

¶3 Subsequently, on April 16, 1997, the State filed an amended information charging Keyes with three alternative counts of deliberate homicide. The first count charges Keyes with deliberate homicide of Chapel under the felony murder rule, alleging he caused her death while in the course of committing felony assault against LaFromboise. The second count charges him with deliberate homicide by accountability in violation of §§ 45-5-102 and 45-2-302, MCA. The third count charges him with deliberate homicide by accountability under the alternative theory that an unknown person was in his vehicle and fired the shots that killed Chapel.

¶4 It is the State’s theory that LaFromboise and Keyes had for several days engaged in a running gun battle that cumulated in the shoot-out and the death of Chapel. The State filed a “Just-Matt” notice, informing Keyes of its intent to introduce evidence of a prior course of conduct between Keyes and LaFromboise, including LaFromboise’s alleged robbery of Keyes and prior gun battles in the weeks prior to September 30, 1994.

¶5 Keyes filed a motion to dismiss the second count of the amended information and asserted several basis upon which the charge should be dismissed. At a hearing held on May 1, 1997, relating to other pending motions, the State orally moved to dismiss Counts I and III. A hearing on Keyes’ motion to dismiss Count II was held on May 5, 1997. After much discussion, the State withdrew its motion to dismiss Counts I and III. Subsequently, on May 7, 1997, the court denied Keyes’ motion to dismiss Count II.

¶6 On May 23, 1997, Keyes filed an application requesting that this Court issue a writ of supervisory control and assume supervisory jurisdiction over the issue of whether the second count states an offense under Montana law. The State agreed that this Court should accept supervisory control in order to determine the legal issue of first impression presented by the construction of Count II.

¶7 This Court granted Keyes’ application, assumed jurisdiction and ordered the parties to submit supplemental briefs addressing the legal issue of the propriety and sufficiency of the charge contained in Count II of the amended information.

¶8 Upon completion of our review of the parties’ briefs and the parties’ presentation at oral argument, we hold that Count II of the amended information does not state an offense under Montana law. We remand this case to the District Court with instructions to vacate its order denying Keyes’ motion to dismiss Count II and to enter an order granting his motion to dismiss Count II of the amended information.

¶9 The issue we address is whether the second count of the amended information charges an offense under Montana law.

DISCUSSION

I.

¶10 We briefly address the appropriateness of our exercise of supervisory control in this case. The exercise of supervisory control by this Court is authorized by Article VII, Section 2(2) of the Montana Constitution and by Rule 17(a), M.R.App.P. In Plumb v. Fourth Jud. Dist. Court (1996), 279 Mont. 363, 927 P.2d 1011, this Court clarified the standard for determining whether to exercise supervisory control. In that case, we followed the line of authority first enunciated in State ex rel. Whiteside v. District Court (1900), 24 Mont. 539, 63 P. 395 and stated that “supervisory control is appropriate where the district court is proceeding under a mistake of law, and in so doing is causing a gross injustice.” Plumb, 927 P.2d at 1014 (citations omitted). In Whiteside, this Court previously held that one of the functions of supervisory control is to “enable this court to control the course of litigation in the inferior courts where those courts are proceeding within their jurisdiction, but by a mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal, or the remedy by appeal is inadequate.” Plumb, 927 P.2d at 1014 (citing Whiteside, 63 P. at 400).

¶11 In this case, Keyes urged this Court to exercise supervisory control, arguing that he would be prejudiced if the second count were allowed to stand, because the allegations in that count are ambiguous and he is not sure of what offense he is charged. He additionally contended that the second count does not charge an offense under Montana law. It would waste judicial resources if a subsequent conviction were overturned on appeal for that reason. The State similarly maintained that the interests of justice would be promoted by the exercise of supervisory control, because Count II presents a legal issue of first impression in Montana. We agree. Requiring Keyes to stand trial on this novel and ambiguously drafted charge will result in unnecessary expenditures of time and resources should this Court hold, as we do now, that Count II does not state an offense under Montana law. We accordingly accepted supervisory control to determine the legal issue of first impression.

II.

¶12 As noted, the amended information charges Keyes with three alternative counts of deliberate homicide. Although we address solely the issue of whether the second count charges an offense under Montana law, for purposes of our discussion, we examine both Counts I and Counts II of the amended information, which provide as follows:

COUNT I: DELIBERATE HOMICIDE (FELONY)
That Defendant, RANDY E. KEYES, attempted to commit, committed or is legally accountable for the commission of Felony Assault; and in the course of the Felony Assault, he or any person legally accountable for the Felony Assault caused the death of another human being, to-wit: Defendant and/or another person fired a series of gunshots into a vehicle, and while trying to cause reasonable apprehension of serious bodily injury to Dean LaFromboise, shot and killed Jacine Chapel; all of which is in violation of Section 45-5-102(l)(b), Mont. Code Ann., and against the peace and dignity of the State of Montana.
COUNT II: DELIBERATE HOMICIDE BY ACCOUNTABILITY (FELONY)
That the Defendant, Randy E. Keyes either before or during the commission of Deliberate Homicide with the purpose to promote or facilitate such commission, abetted or agreed with some other person in the commission of Deliberate Homicide, to wit: Randy E. Keyes encountered Dean LaFromboise, and the two abetted or agreed to engage in a mutual gun battle with one another; and during the promotion or facilitation of such gun battle, Jacine Chapel received several wounds and died as a result; all of which is contrary to Sections 45-5-102, and 45-2-302, Montana Code Annotated, and against the peace and dignity of the State of Montana.

¶13 The two statutes cited within Count II are Montana’s accountability statute and Montana’s felony murder statute. The relevant portion of Montana’s accountability statute provides:

When accountability exists. A person is legally accountable for the conduct of another when:
(3) either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense. ...

Section 45-2-302, MCA.

¶14 Montana’s felony murder statute provides:

Deliberate homicide. (1) a person commits the offense of deliberate homicide if:
(b) the person attempts to commit, commits, or is legally accountable for the attempt or commission of robbery, sexual intercourse without consent, arson, burglary, kidnapping, aggravated kidnapping, felonious escape, felony assault, aggravated assault, or any other forcible felony and in the course of the forcible felony or flight thereafter, the person or any person legally accountable for the crime causes the death of another human being.

Section 45-5-102, MCA.

¶15 In determining whether the second count charges an offense under Montana law, we examine that count in light of Montana’s accountability statute and Montana’s felony murder statute. When interpreting the statutes, the role of this Court “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. Where the language is clear and unambiguous, no farther interpretation is required.

¶16 We further keep in mind that the purpose of the information is to apprise the defendant of the particular offense with which he is charged. Section 46-11-401(1), MCA, states in part that “[t]he charge must be a plain, concise, and definite statement of the offense charged ....” Indeed, the right of the accused to receive fair notice of both the nature and cause of the accusation is guaranteed by the Sixth Amendment to the United States Constitution, and Article II, Section 24, of the Montana Constitution.

¶17 The State advanced two different theories at various stages of this case as to why Count II does charge an offense, and Keyes, in turn, responds with arguments as to why it does not. We examine each argument and theory individually.

III.

¶18 Keyes paraphrases Count II to allege that he “was in the commission of the offense of deliberate homicide when he and LaFromboise agreed to commit the offense of deliberate homicide by agreeing to commit the offenses of shooting at each other and, during [the] commission of those offenses, another person was killed.” Keyes argues that this count does not allege the violation of a distinct statute under existing Montana law. He contends that instead, the State is attempting to charge Keyes for a crime that it has newly created by combining two statutes: Montana’s accountability statute, § 45-2-302(3), MCA, and Montana’s felony murder statute, § 45-5-102(b), MCA. Specifically, Keyes argues that Count II does not properly charge him with accountability for deliberate homicide, because that statute does not impose joint accomplice liability upon defendants for unintended, foreseeable crimes committed while they are engaged in an intended crime. He maintains that the State apparently recognized this and thus impermissibly combined the accountability statute with the felony murder statute, which provides for transferred intent.

¶19 It appears that at least initially the State did intend to charge Keyes with a crime created by merging the two statutes together. Although the State now contends that the second count alleges a straight-forward felony murder charge, the wording of the second count itself charges Keyes with deliberate homicide by accountability, and the language of that count traces the accountability statute. This is in direct contrast with the language of Count I, which everyone agrees charges Keyes with deliberate homicide under the felony murder rule and which accordingly traces the language of the felony murder statute. Furthermore, at the hearing before the District Court, the State repeatedly stated that in Count II it intended to charge Keyes with deliberate homicide through accountability and not deliberate homicide under the felony murder rule. It stated that the charge combined the accountability statute with the felony murder statute. As the State explained its theory to the District Court pursuant to these two statutes, Keyes, either before or during the commission of the deliberate homicide of Chapel, entered into an agreement with LaFromboise that they would try to kill each other by shooting at each other, which resulted in the death of Chapel.

¶20 We agree with Keyes that Count II does not charge an offense under Montana law. Count II does not properly charge Keyes with accountability for deliberate homicide. In order to be guilty under a theory of accountability, the plain language of Montana’s accountability statute requires that “either before or during the commission of an offense,” a person must agree to aid another person “in the planning or commission of the offense.” See § 45-2-302, MCA. In other words, the offense being committed and the offense that the parties agree to commit must be the same.

¶21 In this case, the offense Keyes is charged with committing differs from the offense he allegedly agreed to commit. The second count charges Keyes with the commission of deliberate homicide of Chapel. However, the facilitation of the commission of that offense was not an agreement between Keyes and LaFromboise to commit deliberate homicide of Chapel, but rather an agreement to engage in a gun battle. Montana’s accountability statute does not extend criminal liability to unintended, yet reasonably foreseeable deaths, such as the death of Chapel, that result as a consequence of committing the agreed upon offense. In other words, Montana’s accountability statute does not provide for transferred intent.

¶22 Because Montana’s accountability statute does not extend criminal liability for the unintended death of Chapel, it appears that the State thus grafted elements of Montana’s felony murder rule to the accountability statute. Unlike the accountability statute, Montana’s felony murder rule specifically provides for transferred intent. Pursuant to the doctrine of transferred intent, the fact that a crime (here, the alleged agreement between LaFromboise and Keyes to shoot each other) was directed at a person other than the person who ultimately was killed (Chapel), does not relieve the perpetrator of criminal responsibility. As that doctrine is embodied in the felony murder rule, a person who causes the death of another during the course of an enumerated felony is criminally responsible for the death. See § 45-5-102, MCA. In this case, the State has combined the elements of transferred intent from the felony murder statute with Montana’s accountability statute in order to charge Keyes for the death of Chapel.

¶23 Charging Keyes for a crime derived by combining elements of two statutes is impermissible. It is a fundamental principle in Montana that conduct does not constitute a criminal offense unless proscribed by statute. Section 45-1-104(2), MCA, states: “No conduct constitutes an offense unless it is described as an offense in this code or in another statute of this state.” In this case, the State did not charge Keyes with an offense in the code, but rather charged him with an offense it newly created by combining elements from two statutes.

¶24 The principle case upon which the State relies in support of its theory, State v. Garza (Kan. 1996), 916 P.2d 9, is distinguishable. In that case, the Kansas Supreme Court held that the defendant could properly be charged as an aider and abettor for the injury of a bystander that occurred when the defendant engaged in a gunfight with another combatant. Garza, 916 P.2d at 15. However, unlike Montana’s accountability statute, the accountability statute in Kansas specifically provides for accomplice liability for any other foreseeable crime committed during the course of the intended crime:

(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.

Section 21-3205, K.S.A. As we have already stated, Montana’s accountability statute does not provide for transferred intent, and the State cannot create a new offense by grafting elements from Montana’s felony murder rule to that statute. Accordingly, we hold that the second count of the amended information does not charge an offense under Montana law.

IV.

¶25 The State asserted a different theory in its briefs to this Court as to why Count II charges an offense under Montana law. The State now contends that the second count charges Keyes with deliberate homicide of Chapel under Montana’s felony murder rule, with the underlying felony being accountability for the attempt by LaFromboise and Keyes to commit deliberate homicide against each other in the gun battle. The State asserts that attempted deliberate homicide constitutes a “forcible felony” within the meaning of Montana’s felony murder rule, § 45-5-102, MCA. At oral argument, the State clarified that the phrase in Count II which states “either before or during the commission of Deliberate Homicide” refers to the death of Chapel.

¶26 Keyes, on the other hand, contends that even under the State’s newly advanced theory, the second count does not allege an offense under Montana law. He disputes the State’s contention that attempted deliberate homicide is a “forcible felony” within the meaning of § 45-5-102, MCA. He argues that deliberate homicide is the most serious offense a person can commit, and that if the legislature had intended to include it as an underlying offense, it most certainly would have specifically enumerated it. Additionally, Keyes contends that the second count does not allege an offense under Montana law, because (1) engaging in a gun battle actually constitutes two offenses, not one; and (2) Keyes, as a victim of LaFromboise’s attempt to kill him, cannot be held accountable under Montana’s accountability statute.

¶27 Finally, Keyes contends that in any event, Count II by its plain language does not allege a violation of deliberate homicide under Montana’s felony murder rule, § 45-5-102, MCA. He argues that if the State had intended to charge him with felony murder, it would have used language similar to that used in Count I. He maintains that the State is bound by the plain language of the count and it cannot switch its theories midstream simply because it realizes that the manner in which it originally charged Keyes is legally insufficient.

¶28 Although we are inclined to accept the State’s view that attempted deliberate homicide does fall 'within the residual clause of the felony murder rule based upon the plain meaning of the statute and the definition of “forcible felony” at § 45-2-101(23), MCA, we need not reach that issue at this time. We hold that the second count does not allege an offense under Montana lav/ for several other reasons.

¶29 First, although the State describes the underlying felony as alleging that Keyes and LaFromboise attempted to kill each other, nowhere in Count II does the State actually charge Keyes with “attempt” to commit deliberate homicide. Each count of the information must give the defendant fair warning of the offense for which he is charged. See § 46-11-401(1), MCA: “The charge must be a plain, concise, and definite statement of the offense charged, including the name of the offense....” (emphasis added). Count II does not put Keyes on notice that the underlying felony is attempt to commit deliberate homicide.

¶30 Second, the express language of the felony murder rule refers to the commission of a single underlying felony offense. Specifically, a person commits “the offense” of deliberate homicide, if he commits a “forcible felony,” and in the course of the “forcible felony” causes the death of another human being. See § 45-5-102, MCA. But, engaging in a “mutual gun battle” does not constitute an offense under Montana law. Montana does not have, for example, a statute that outlaws dueling. At most, the charge that Keyes and LaFromboise engaged in a mutual gun battle can be interpreted to allege the commission of two separate offenses: (1) Keyes attempted to kill LaFromboise, and (2) LaFromboise, in turn, attempted to kill Keyes. However, we have already stated that the count must clearly give notice to Keyes that he is charged with attempt to commit deliberate homicide.

¶31 Even if the charge was interpreted to allege the commission of two criminal offenses, Keyes becomes the victim of LaFromboise’s offense, and LaFromboise becomes the victim of Keyes’ offense. As a victim, neither can be legally accountable for a death caused by the other’s crime. Montana’s accountability statute excludes victims from such accountability. See § 45-2-302(3): “However, a person is not so accountable if: (a) he is a victim of the offense committed, unless the statute defining the offense provides otherwise. ...”

¶32 The State once again points to Garza. It contends that Garza lends support to its argument that where the underlying felony is accountability, a defendant may be held accountable as an aider and abettor where that defendant engaged in a mutual gun fight and created the situation whereby a bystander was killed. Garza, however, is distinguishable for reasons in addition to the reason we already pointed out. In that case, the state charged Garza with aggravated battery, not deliberate homicide, when a bystander was injured during a gun battle. Garza, 916 P.2d at 10. The Kansas Supreme Court held that “[g]iving assistance or encouragement to one who it is known will thereby engage in conduct dangerous to life is sufficient for accomplice liability as an aider and abettor as to crimes defined in terms of recklessness or negligence.” Garza, 916 P.2d at 15 (emphasis added) (citation omitted).

¶33 Unlike the defendant in Garza, Keyes is not charged with a crime defined in terms of recklessness or negligence. For example, the State did not charge him with negligent endangerment for engaging in conduct that created a substantial risk of death to others. Section 45-5-208, MCA. Rather, he is charged with deliberate homicide, a crime whose elements differ substantially. The Garza court did not address whether a person could be accountable in a similar situation for deliberate homicide under the felony murder rule; the court did not interpret Kansas’ felony murder statute; and, of course, the court did not address whether Kansas has a dueling statute. Accordingly, we do not find Garza to be persuasive.

¶34 Finally, we find merit to Keyes’ argument that by its plain language, the second count does not allege deliberate homicide under Montana’s felony murder rule. As written, the charge is ambiguous and difficult to understand. It took the State several briefs and an oral argument to sufficiently apprise this Court of the exact offense with which Keyes is charged. It certainly cannot be held to adequately apprise the defendant of the offense.

¶35 Although the State charged Keyes with novel allegations in the second count, what is strikingly obvious is the fact that the State did not charge Keyes with deliberate homicide under the felony murder rule for causing the death of Chapel while in the course of committing the forcible felony of attempted deliberate homicide against LaFromboise. The State clearly did not want to portray either Keyes or LaFromboise as a “victim.” Its theory is that the two men engaged in a running gun battle over a course of several days with the intent of continuing the battle until one or the other was killed. The State believes both men are responsible for Chapel’s death, and it thus attempted to find a way to charge both with accountability without having to declare either a victim. In so doing, however, it charged Keyes with the second count, which does not allege an offense under Montana law. However frustrated the prosecution may be with the law as it is currently written, it is not the prosecution’s function to fill gaps it perceives exist under the current criminal code by creating new offenses. We hold that the second count does not charge an offense under Montana law.

¶36 For these reasons, the District Court is directed to vacate its order denying Keyes’ motion to dismiss the second count of the amended information, and the court instead is directed to enter an order granting the motion.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER, GRAY, LEAPHART and TRIEWEILER concur.