author: JUSTICE HARRISON

text:
    In Re the MARRIAGE OF TOM GERHART, Petitioner and Respondent, and B.J. GERHART, Respondent and Appellant.
    No. 90-188.
    Submitted on Briefs Oct. 3, 1990.
    Decided Nov. 8, 1990.
    800 P.2d 698.

      Daniel L. Falcon, Matteucci & Falcon, RC., Great Falls, for respondent and appellant.
    Keith Tokerud, Scott & Tokerud, Great Falls, for petitioner and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

In December of 1989, the Cascade County District Court entered a decree of dissolution of the marriage of Tom Gerhart and B.J. Gerhart. B.J. appeals from the property settlement. We affirm.

The issues for review are:

1. Whether the District Court clearly abused its discretion by failing to offer a coherent plan regarding distribution of the marital property.

2. Whether the District Court created a reversible inequity by failing to value or divide interest accumulated from the parties’joint investments between the date of valuation and the date of actual division.

3. Whether the District Court abused its discretion by accepting valuations which were erroneous and inaccurate.

4. Whether it is appropriate for the District Court to consider temporary maintenance as an asset of the marital estate.

Tom filed a petition for dissolution and a hearing was held on January 16, 1989. The District Court issued its findings of fact, conclusions of law, and order on December 7, 1989. In this order, the District Court awarded B.J. (1) all of her pre-marital assets; (2) all of the inheritances she received during the marriage; (3) all the gain realized during the marriage on her premarital assets and inheritances; and (4) forty percent of the gain during the marriage from the ranching operation that Tom brought to the marriage. The District Court also awarded B.J. maintenance of $250 per month for five years and $7,500 for attorney’s and accountant’s fees. B.J. entered post-trial motions with the District Court December 26,1989, citing numerous alleged errors by the District Court. A hearing was held on March 2, 1990 on B.J.’s post-trial motions. All motions were denied except one which cited a typographical error. Thereafter, on March 5, 1990, the District Court entered its final judgment and decree from which B.J. now appeals. We affirm.

Tom and B.J. were married in Great Falls, Montana, April 10, 1976. No children were born during the marriage nor was B.J. pregnant at the time of the dissolution proceeding.

B.J., age 60 at the date of dissolution, is of average good health. B.J. completed high school and two years of college. She most recently worked in the pharmacy of the Great Falls Clinic for fifteen years. Prior to that job she had worked in commercial establishments in Portland, Oregon.

Tom was 54 at the date of dissolution. Tom had begun ranching south of Belt, Montana in 1963 and has continued ranching to the present date.

Tom testified that the parties had been separated on and off for several years before 1987, when they did finally separate on September 30,1987. Tom filed a petition for dissolution in June, 1987.

In its findings of fact, the District Court considered the parties’ health and station in life. The District Court also considered the parties’ property on the date of the marriage as well as the parties’ property acquired during the marriage and said property on their date of separation.

B.J.’s accountant testified at trial that the marital estate had gained $221,800 during the marriage. The District Court rejected this value because the analysis was not based on the change in fair market value of the assets nor did it consider B.J.’s income or inheritance during the marriage. Tom’s accountant, on the other hand, contended that the marital gain was $100,882.98. The District Court found the gain in the marital estate during the marriage to be $154,986.

Additional facts will be discussed as needed.

As her first assignment of error, B. J. claims the District Court abused its discretion in distributing property of the marital estate. Specifically, B.J. claims the “division fails to have any reasonable clarity and is plagued by internal conflicts and discrepancies. As a result it is not possible to determine how the marital estate was in fact divided.”

Conflicting evidence was before the District Court in the present case. When confronted with conflicting evidence, the court must use its fact-finding powers to determine which evidence is more credible. Having had the opportunity to observe the witnesses, the trial court is in a position superior to that of the appellate court to judge the credibility of the testimony. In re the Custody of Holm (1985), 215 Mont. 413, 418, 698 P.2d 414, 417. Absent a clear abuse of discretion by the trial judge, this Court will not overturn the distribution of marital property. In re the Marriage of Dirnberger (1989), 237 Mont. 398, 401, 773 P.2d 330, 332.

Section 40-4-202, MCA, sets forth factors which the court must consider when making a distribution of marital property. However,

“While articulation of these factors is encouraged, the absence of specific findings does not automatically warrant remand:
“ Tt is not the lack of specific findings which constitute reversible error, but the lack of substantial evidence to support the judgment. We look both to the District Court’s express reasoning and the evidence in the record to determine whether ample evidence exists.’ ”

In re the Marriage of Hundtoft (1987), 225 Mont. 242, 244, 732 P.2d 401, 402, quoting In re the Marriage of Peterson (1984), 211Mont. 118, 683 P.2d 1304. The lower court need not articulate each factor separately as long as the findings are sufficient to allow nonspeculative review by this Court.

“Our ultimate test for adequacy of findings of fact is whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and whether they are supported by the evidence presented.”

In re the Marriage of Jensen (Mont. 1981), [___ Mont. ___,] 631 P.2d 700, 703, 38 St.Rep. 1109, 1113. On review, this Court examines both the trial court’s express reasoning as well as the evidence in the record.

B.J. contended the gain in the marital estate was $221,800 while Tom contended the gain to be $100,882.98. The court considered the testimony from each party’s expert, rejected both valuations and found the gain in the marital estate to be $154,986. The court then awarded B.J. forty percent of this gain to be paid out of a joint investment fund made up of proceeds from the sale of cattle from the ranch. We have held that a district court is free to find a value for marital property within the range of evidence submitted. In re the Marriage of Kramer (1987), 229 Mont. 476, 747 P.2d 865. Here the District Court valued the marital gain to be $154,986. The value is well within the range of evidence submitted and was thoughtfully arrived at by the District Court.

We find no error. The District Court valued the marital gain, awarded B.J. forty percent of this gain and provided her a way to get it, namely out of the joint investment fund. We find that this valuation and distribution is equitable and quite coherent. The record reflects the fact that the District Court considered the factors set out in § 40-4-202, MCA, when making the distribution of marital assets. Furthermore, the distribution plan is plain, simple, short and clear. Upon review, it is apparent that the trial judge attempted to value the marital estate and to distribute the property equitably and to support his distribution with adequate findings. We find no abuse of discretion and uphold the District Court’s valuation and distribution of the marital gain.

As her second assignment of error, B.J. claims the District Court erred by failing to value or divide interest accumulated from the parties’ joint investment between the date of valuation and the date of actual division.

The District Court valued the marital estate as of September, 1987 and specifically valued the marital gain as totalling $154,986. Thereafter, the District Court entered its dissolution decree on December 7,1989 and awarded B.J. forty percent of the marital gain to be paid out of the parties’joint investment fund. At this point note that B.J. was not awarded rights to the joint investment fund but rather was awarded forty percent of the marital gain to be paid out of the joint investment fund. From September, 1987 until December, 1989, the parties’joint investments, which totalled $68,874.71 as of September 1987, accrued interest of over $10,000. B.J. argues, without citing any case law or statutory authority, that she is entitled to an equitable portion of this accumulated pre-judgment interest on the joint investment fund. We disagree.

The correct rule in this jurisdiction is that interest is not allowable until the exact amount due is ascertained or is ascertainable. Daly v. Swift & Co. (1931), 90 Mont. 52, 300 P. 265. In this case, the amount due B.J. was not ascertained (or ascertainable) until December 7,1989, when the District Court entered its decree. Therefore, interest is allowable only from December 7, 1989. We hold that no reversible inequity exists in the record regarding prejudgment interest.

B.J.’s third assignment of error is whether the District Court abused its discretion by accepting a number of valuations which were erroneous and inaccurate. B.J. first argues that the depreciation method used by Tom to value his machinery and equipment was fatally flawed in that the method only considered depreciation during the marriage rather than depreciation during the entire life of the machinery and equipment.

Specifically, B.J. points out that the District Court valued Tom’s “PTO baler” on the date of marriage, in 1976, for the same amount Tom had originally paid for it in 1963. B.J. contends that this constitutes an abuse of discretion of the District Court. We disagree.

At trial, Tom testified without contradiction that he purchased the baler in 1963, at cost, for $2,700 while its fair market value was $4,500. Tom further testified that in 1976, as of the date of the marriage, the baler then had a fair market value of $2,700. However, by 1987, ranchers had switched to the new round balers, and Tom and his expert both testified that the obsolete “PTO baler” was only worth $150. As such, the record reflects that the depreciation method used by Tom considered depreciation during the entire life of the machinery and equipment. There was no abuse of discretion. B.J. next states that “This erroneous method of depreciation was apparently implemented by Tom on all machinery purchased prior to the marriage.” We find no evidence in the record which supports this claim.

B.J. alleges other errors in the District Court’s findings. In short, we have reviewed the entire record before us and find that there is no credible evidence to substantiate any of her claims that the District Court abused its discretion. We affirm the District Court.

As her fourth and last assignment of error, B.J. asserts that the District Court erred by considering temporary maintenance as a marital asset. The District Court ordered Tom to pay $750 per month to B.J. during the course of the divorce because she had access to only her funds. At a later date the District Court found that B.J.’s share of the property division should be reduced by the amount of this temporary maintenance paid by Tom. Accordingly, the District Court reduced B.J.’s share of the property division by $20,250. B.J. claims this was a reversible error because, in so doing, the District Court was essentially treating temporary maintenance as an asset of the marital estate.

B.J. cites In re the Marriage of Lundvall (Mont. 1990), [241 Mont. 172,] 786 P.2d 10, 47 St.Rep. 173, for the proposition that temporary maintenance payments cannot be considered as a marital asset. This is not what we held in Lundvall. In Lundvall we said that one of the factors the court should consider when making a maintenance award is whether the spouse seeking the award “will receive sufficient property to provide for the spouse’s needs (§ 40-4-203(l)(a), MCA), the term ‘sufficient property means income-producing, not income consuming.” Lundvall at 12, 47 St.Rep. at 175. We then characterized the “asset” of temporary maintenance already received by the wife as not income-producing. Accordingly, we said that the total amount of temporary maintenance received by the wife from the husband is not to be considered a marital asset when making a maintenance award. In this case, the District Court was making a property distribution and charged B.J. for the property already received in the form of temporary maintenance payments. We hold that this was an equitable arrangement and not an abuse of discretion on the part of the District Court. The District Court is hereby affirmed.

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


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    DARRELL D. HENRICHS, Plaintiff and Respondent, v. DONNA E. TODD, Defendant and Appellant.
    No. 90-222.
    Submitted Aug. 9, 1990.
    Decided Nov. 8, 1990.
    Rehearing Denied Nov. 29, 1990.
    800 P.2d 710.

      Calvin J. Stacey, Keefer, Roybal, Hanson, Stacey & Walen, Billings, for defendant and appellant.
    R. Russell Plath, Halverson, Sheehy & Plath, PC., Billings, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Donna E. Todd appeals from the order of the District Court, Thirteenth Judicial District, Yellowstone County, granting a new trial to Darrell Henrichs, plaintiff, for irregularities in communications between the bailiff and the jury. We affirm.

The issues presented on appeal are:

1. Did the bailiff improperly communicate with the jury?

2. Did the irregularity affect the substantial rights of the respondent?

3. Did the communication deny the respondent’s right to a fair trial?

4. Was the grant of a new trial a manifest abuse of discretion on the part of the trial court?

On January 25, 1990, the jury returned a verdict in favor of the defendant by special interrogatory. On February 5, 1990, plaintiff Henrichs filed his motion for a new trial pursuant to Rule 59, M.R.Civ.P., and §§ 25-11-101 through -104, MCA. Henrichs alleged an irregularity in the proceedings which prevented him from receiving a fair trial. The irregularity alleged was that during the course of the deliberations, the jury had a question regarding the application of the comparative negligence statute and the payment of damages to the plaintiff. The jury wanted to know if damages would still be paid to Henrichs if it found that the defendant was 50 percent negligent and the plaintiff was 50 percent negligent. The jury notified the bailiff that it wanted to ask the question; the bailiff stated that he could not answer it and that all of the attorneys and court personnel would have to be called back into court to properly respond. When the foreperson asked how long all this would take, the bailiff responded that it would take about as long as it takes “for hell to freeze over.” Other jurors overheard the remark and decided to resolve the issue on their own.

The jury found for the defendant and the plaintiff timely filed a motion for new trial. After oral argument, the District Court found that the bailiff’s conduct had prevented the plaintiff from receiving the benefit of a statutory procedure designed to insure a fair trial and that such conduct materially affected the substantial right of the plaintiff to have the jurors’ question presented to the court.

I.

The conduct of the bailiff in this case is governed by § 25-7-403 and § 25-7-405, MCA. These statutes require that the bailiff is not to have any communication with the jury except by order of the court; and that if the jury has a question on testimony or on a point of law, it may require the bailiff to bring them into court. Section 25-7-403, MCA, provides in part:

“When the case is finally submitted to the jury, it may decide in court or retire for deliberation. If the jurors retire, they must be kept together in some convenient place, under charge of an officer, until at least two-thirds of them agree upon a verdict or are discharged by the court. Unless by order of the court, the officer having them under his charge must not suffer any communication to be made to them or make any himself, except to ask them if they or two-thirds of them are agreed upon a verdict; and he must not, before their verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon.” (Emphasis added.)

Section 25-7-405, MCA, provides in pertinent part:

“After the jury has retired for deliberation, if there be a disagreement among the jurors as to any part of the testimony or if they desire to be informed of any point of law arising in the cause, they may require the officer to conduct them into court.”

The conduct of the bailiff in this case was clearly in violation of § 25-7-403 and § 25-7-405, MCA. He did communicate to the jury and he did not conduct it into court for resolution of their question.

II.

Appellant contends that the communication between the bailiff and the jurors, although improper, was immaterial and did not have a prejudicial effect on the jury. Section 25-11-102, MCA, governs grounds for a new trial:

“The former verdict or other decision may be vacated and a new trial granted on the apphcation of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: (1) irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;”

Appellant relies on this Court’s decision in Ahmann v. American Federal Savings and Loan Association, 235 Mont. 184, 766 P.2d 853 (1988), for authority to conclude that the bailiff’s behavior did not materially affect plaintiff’s rights. In Ahmann, a juror testified that when she asked the bailiff whether the jurors could talk to the judge about their questions, she was informed that they could only communicate with the court in writing. The juror further testified that the bailiff told her that the judge probably would not consider the jury’s questions until the next day or until after the trial was completed. This Court concluded that the bailiff’s communication did not prevent the jurors from asking questions of the judge, and therefore did not materially affect the plaintiff’s rights.

The facts oí Ahmann are not analogous to the facts before us. The bailiff did not merely state a reasonable time in which the jurors could expect a response, as in Ahmann; here he communicated that it was almost impossible to get a response at all. By so doing, he effectively prevented the jury from clarifying a crucial point of law.

Appellant’s next argument that the jury was instructed on the issue of comparative negligence and therefore did not need to ask the question is equally without merit. It is not that the jury was without instruction that is at issue; it is that they were prevented from asking a question which they had a right to ask. Section 25-7-405, MCA. Further, the bailiff prevented the Judge from ever having the opportunity to decide whether to answer the jury’s inquiry. It is also beside the point that, as appellant notes, the communication was “done in a joking fashion and in no way was an attempt on his part to discourage the members of the jury from asking their question.” The effect of the remark was to prevent the jurors from attempting to contact the court materially affecting the substantial right of the respondent to have the jury fully informed. Clarification of the issue of comparative negligence was especially important in this case. Without the clarification, the possibility existed that some of the jurors were operating under the mistaken belief that the defendant’s negligence had to be greater than the negligence of the plaintiff before a verdict for the plaintiff could be given.

III.

Appellant also maintains that the statements of the jurors that they were not influenced through the conduct of bailiff Marcum are determinative of whether or not respondent was denied the right to a fair trial. Appellant submits eight affidavits from the jurors stating that their decision in the matter was not affected by the bailiff’s conduct. Although the jurors’ statements are not to be taken lightly, it remains pure speculation on their part whether or not the process may have gone differently with additional instruction from the court. The affidavits fail as proof of a fair trial when weighed against the bailiff’s actions.

IV.

Appellant contends that the trial court’s grant of a new trial to the respondent is not supported by substantial evidence and is clearly erroneous, and constitutes a manifest or obvious abuse of discretion. This Court recently set out the standard of review for decisions to grant a new trial:

“It is essential to our determination in this case for us to set forth a clear and concise statement of the scope of our review regarding the grant of a new trial. The decision to grant a new trial is within the sound discretion of the trial judge and will not be overturned absent a showing of manifest abuse of discretion.”

Stanhope v. Lawrence, [241 Mont. 468,] 787 P.2d 1226, 1228, 47 St.Rep. 438, 440 (Mont. 1990). In the case before us, appellant has the burden of showing that the judge abused his discretion by granting the new trial. Because there was no dispute that the bailiff had substantial communication with the jury, and failed to report the jury’s questions to the corut, we conclude that no showing was made that the trial judge manifestly abused his discretion.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    JON E. LEE, Claimant and Appellant, v. GROUP W CABLE TCI OF MONTANA, Employer, and PACIFIC EMPLOYERS INSURANCE CO., Insurer and Respondent.
    No. 90-279.
    Submitted on Briefs Oct. 19, 1990.
    Decided Nov. 8, 1990.
    800 P.2d 702.

      Richard J. Martin, Alexander, Baucus & Linnell, Great Falls, for claimant and appellant.
    William O. Bronson, James, Gray & McCafferty, Great Falls, for insurer and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Jon E. Lee appeals the judgment of the Montana Workers’ Compensation Court, which held that Lee’s 1986 back injury, sustained in the course and scope of his employment, was not the proximate cause of his current permanent partial disability. Rather, the court held that Lee’s current disability resulted from a separate injury occurring on January 25, 1989, and denied Lee indemnity benefits for his current disability under §§ 39-71-703 to -709, MCA(1985). We affirm.

Lee raises the following issues on appeal:

1. Did Pacific Employers Insurance Company sustain its burden of proof that a subsequent injury caused Lee’s disability?

2. Did Lee’s subsequent 1989 injury extinguish a permanent partial disability entitlement from his previous 1986 injury?

Jon E. Lee has been employed by a cable television company in Great Falls, Montana, since 1973. Lee was originally hired as an installer, later promoted to a service technician, and for the past fourteen years, has served as a system technician. All of these employment positions involve physical, outdoor duties.

Lee reported back injuries on three different occasions while in the course and scope of his employment. First, on June 14, 1984, Lee injured his back while replacing defective cable located under a driveway at a Great Falls residence. Lee filed a claim for compensation with the Montana Division of Workers’ Compensation on December 20, 1984. Lee’s treating medical physician, Dr. John Molloy, diagnosed Lee’s injury as muscle tension and prescribed muscle relaxants for his condition. According to his claim for compensation, Lee missed eleven days of work from this injury.

Second, on August 15, 1986, Lee injured his back while replacing cable in a four-foot-deep trench. Lee filed a claim for compensation with the Montana Division of Workers’ Compensation around August 29, 1986. Lee obtained the services of Dr. William Pardis, and later Dr. Jim Pardis, both chiropractors. Dr. William Pardis initially diagnosed Lee’s injury as lumbar radiculitis, and prescribed manipulation treatments. Dr. Jim Pardis concurred in this diagnosis. Lee received 232 chiropractic treatments from the chiropractors over a period of about three years, these treatments being labeled primarily as maintenance treatments. Lee returned to work on the day following this injury according to his filed claim for compensation.

Third, on January 25, 1989, Lee injured his back on the job while unloading a thirty-eight-pound piece of equipment known as a sweeper from his truck. Lee filed a claim for compensation following this incident. Dr. Jim Pardis stated that this injury was both an exacerbation of the 1986 injury and a new injury because it was in the same location in the back but more extensive. Unlike the two previous injuries, Lee missed approximately three months of work following this 1989 injury.

An independent medical examination was conducted by Dr. Robert Chambers, an orthopedic surgeon, on March 9, 1989. Dr. Chambers diagnosed Lee to have chronic lumbar strain syndrome. When asked if he thought Lee’s disability was caused by a recurrence of the same condition or an aggravation or increase of a condition, Dr. Chambers responded:

“I think to analyze Mr. Lee’s case from my standpoint, I would say that he was treated in the so-called conservative or standard way by Dr. Molloy back in the early 1980’s, and yet he was not rehabilitated or treated with the view of prevention and correcting the underlying deficits, which I think in most cases, as I said, are relative weakness of the trunk muscles and a lack of knowledge of proper body mechanics and work skills related to that. And I would look at it that way, rather than saying this is an injury that he had for six or seven years. An injury is an incident, to my mind, and an injured part heals itself.”

Underwriters Adjusting Company was the carrier at risk for the 1984 injury, which is not the subject of this litigation. Pacific Employers Insurance Company (Pacific) is the insurer for Lee’s 1986 and 1989 injuries. Medical benefits have been paid by Pacific on both injuries.

On July 17,1989, Lee petitioned the court for trial stating that his 1986 injury resulted in a permanent partial impairment and that he was entitled to indemnity benefits under §§ 39-71-703 to -709, MCA (1985), statutes amended or repealed by the 1987 Montana Legislature. At Lee’s trial, Dan Schara, a certified rehabilitation counselor, testified regarding Lee’s vocational assessment. Schara, who was unaware of Lee’s 1989 injury when he made his report, opined that due to Lee’s current disability, Lee would be unable to continue working at his present job, and his pre-injury labor market was reduced by 67 percent.

On May 15, 1990, the court found that Lee’s “current disability, is related to his January, 1989 injury” and thereby, any laws in effect in 1986 were inapplicable to Lee’s current disability. From this decision, Lee appeals.

1. Did Pacific Employers Insurance Company sustain its burden of proof that a subsequent injury caused Lee’s disability?

The underlying question in both issues presented on appeal is whether Lee’s 1986 injury or his 1989 injury proximately caused his current permanent partial disability. If it were held that Lee’s 1986 injury proximately caused his current disability, Lee would be entitled to either receive, 1) benefits based on his actual loss of earning capacity or, 2) indemnity benefits based on bis prospective loss of earning capacity under the 1985 Workers’ Compensation Act; these provisions were amended by the 1987 Montana Legislature. Thus, Lee would receive more benefits if it were held that his 1986 injury proximately caused his current disability.

Lee first argues that Pacific failed to prove that Lee’s disability was caused by his 1989 injury. Pacific disagrees with how Lee framed this issue. Pacific argues that in order for the burden of proof to shift to Pacific, Lee must first prove that his 1986 injury was the cause of his current disability entitling him to indemnity benefits under §§ 39-71-703 to -709, MCA(1985). Ricks v. Teslow Consolidated (1973), 162 Mont. 469, 483-84, 512 P.2d 1304, 1312-13. Pacific further argues that Lee failed to meet this burden of proof. We agree.

In reviewing a decision of the Workers’ Compensation Court, the standard of review is whether substantial credible evidence exists to support the court’s findings of fact and conclusions of law. O'Brien v. Guaranty Fund Services (Mont. 1990), [241 Mont. 267,] 786 P.2d 1169, 47 St.Rep. 251, 254 (Citations omitted). Clearly, the evidence in this case does not support the premise that Lee’s 1986 injury was the proximate cause of his current disability. Rather, the evidence establishes a direct link between Lee’s 1989 injury and his current disability. Lee returned to work the day following his 1986 injury and worked steadily until the 1989 injury, nearly two and one-half years later. Following his 1989 injury, Lee missed approximately three months of work, this evidence indicating the significance of his 1989 injury in relation to his current disability. Medical testimony by Dr. Pardis and Dr. Chambers indicate that Lee suffered two back injuries. Dr. Pardis stated that Lee’s 1989 injury was both an exacerbation of the 1986 injury and a new injury. Dr. Chambers stated that Lee suffered two injuries and that “[a]n injury is an incident, to my mind, and an injured part heals itself.”

Lee further argues that his 1989 injury was a “recurrence” of his 1986 injury as opposed to being a separate event. Lee’s argument has no merit in light of Belton v. Hartford Accident & Indemnity Co. (1983), 202 Mont. 384, 387-89, 658 P.2d 405, 408-09, where we held that liability for ultimate disability would rest upon the injury which had not reached a state of “maximum healing.” In Belton, the claimant suffered two back injuries while in the scope and course of his employment, each injury covered by a different insurer. The claimant suffered a permanent total disability following the second back injury. The two insurance companies were the litigants in this matter, with the issue being which company was liable for the benefits to the claimant. This Court held that the insurer at the time of the second injury was liable for benefits relating to a permanent total disability when the claimant reached “maximum healing” from his first back injury prior to the time of the second back injury. “ ‘[Mjaximum healing’... conveys the message that the claimant’s condition ha[s] arrived at a point where it [will] get no better even though the claimant ... still [has] symptoms of the injury whether it be an objective sign or a subjective symptom such as pain.” Belton, 658 P.2d at 406.

Although Belton dealt primarily with the issue of liability between two insurance companies, the “maximum healing” rule can be applied here to determine which injury proximately caused Lee’s current disability. Here, Lee lost no work time following his 1986 injury. Nearly two and a half years elapsed between the 1986 injury and the 1989 injury; although Lee did report occasional pain and other incidences of discomfort in 1986 and continued manipulative treatments with Dr. Pardis, Lee continued to perform his normal work duties steadily up until his January, 1989, injury. Based on the above, we hold that substantial evidence exists to conclude that Lee reached “maximum healing” from his 1986 injury prior to his 1989 injury, and therefore, Lee’s 1989 injury was the proximate cause of his current disability.

2. Did Lee’s subsequent 1989 injury extinguish a permanent partial disability entitlement from his previous 1986 injury?

Alternatively, Lee argues that even if his 1989 injury is deemed a separate injury, he is still entitled to indemnity benefits under §§ 39-71-703 to -709, MCA (1985), for his 1986 injury. Lee’s argument lacks merit, as we have already determined that Lee’s permanent partial disability was proximately caused by his 1989 injury.

Moreover, as Pacific’s brief indicates, the uncontroverted facts of this case reveal that Lee lost no time from work as a result of his 1986 injury. Although he continued to report instances of pain and discomfort, he lost no work wages from his 1986 injury. No effort was made in the months after his 1986 injury to evaluate his functional capacities, measure his labor market, and otherwise make a determination of what future loss of earning capacity he might have as a result of this injury. Rather, all such data was gathered after Lee’s 1989 injury, the injury which resulted in Lee’s approximate three-month absence from work, and according to Lee, resulted in the most pain and suffering. We therefore uphold the Workers’ Compensation Court’s holding that any benefits owed to Lee for his permanent partial injury are subject to the laws in effect at the time of his 1989 injury.

Affirmed.

JUSTICES HARRISON, BARZ, SHEEHY and WEBER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RODNEY ALLEN WEST, Defendant and Appellant.
    No. 89-275.
    Submitted on Briefs Oct. 11, 1990.
    Decided Nov. 15, 1990.
    800 P.2d 1047.

      Larry D. Mansch and David E. Stenerson, Public Defender’s Office, Missoula, for defendant and appellant.
    Marc Racicot, Atty. Gen., and Patricia Schaeffer Jordan, Asst. Atty. Gen., Helena, Robert L. Deschamps III, County Atty., and Fred Van Valkenburg, Deputy County Atty., Missoula, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Rodney Allen West was convicted of felony theft and misdemeanor failure to return rented or leased personal property, in a jury trial in the District Court for the Fourth Judicial District, Missoula County. He appeals. We affirm.

The issues are:

1. Did the District Court err by allowing evidence of other crimes in violation of Rule 404(b), M.R.Evid.?

2. Did the court err in ruling West’s letter exhibit inadmissible?

3. Did the court err in instructing the jury on accomplice testimony?

On December 5, 1987, a 1986 red Ford pickup truck was reported stolen from the lot of Karl Tyler Chevrolet in Missoula, Montana. Two salesmen thought they had seen the truck on the lot about two weeks earlier, but the last verifiable date it was on the lot was September 24, 1987. The pickup was valued at $9,000.

On March 26, 1988, the chief of police at St. Ignatius, Montana, discovered a red Ford pickup cab dumped near a road. The vehicle identification number had been torn off, but part of the number was identified from indentations in the dashboard. That partial number matched that of the truck missing from Missoula.

Missoula law enforcement officers began an investigation into purchases by area automobile salvage yards of other parts which could have been from the missing truck. They discovered that on November 16, 1987, Ace Auto Salvage bought a Ford transfer case and transmission from a woman, Leslie Galameau, and two men. On November 25, 1987, Ace bought a Ford engine and axles from a Bill Harris. On November 30, 1987, AC Auto Recycling bought two red truck doors from a Bill Harris. On December 18, 1987, Ace bought a red tailgate from Kent Hite, one of the two men and a woman who had come in with the engine. The vehicle identification number of the stolen truck was found on the engine and on the transfer case.

St. Ignatius police officers knew that West had a history of vehicle thefts and that he lived on the road where the Ford cab had been found. They also discovered that Leslie Galameau lived with West. Ared pickup box had been seen next to West’s garage. In August 1988, a detective with the Missoula police department obtained a search warrant for West’s residence. He found red paint fragments and pieces of red plastic and foam in the garage which matched pieces missing from the pickup cab. He also found a videotape, “The Outlaw Josey Wales,” which, along with a VCR, had been stolen from a Missoula video rental store in October 1987. The movie and VCR had been rented to “Bill Harris,” who had given a fictitious address.

West was charged with felony theft of the truck and with felony failure to return the rented videotape and VCR. At trial, the State produced an I.D. card from the Idaho Transportation Department. It was issued to “Bill Harris” but bore a photograph of West. The card had the same Social Security number and address that had been given to the automobile salvage yards. A handwriting analyst testified that it was probable that West had signed the Harris I.D. card, the checks from the salvage yards to “Bill Harris,” and the video rental agreement.

West presented alibi witnesses as to his whereabouts on the day the Idaho I.D. was issued, the day the videotape and VCR were rented, and during the time in which the track was stolen. Kent Hite testified that he had not received the tailgate he sold from West. The jury found West guilty as charged on the truck theft and, as to the videotape and VCR, guilty of the lesser included offense of misdemeanor failure to return rented or leased property.

I.

Did the District Court err by allowing evidence of other crimes in violation of Rule 404(b), M.R.Evid.?

Rule 404(b), M.R.Evid., provides that

“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

In Montana, formal notice must be given before evidence of other crimes may be introduced at trial. State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

In this case, the court issued an order in limine that no reference was to be made at trial to West’s criminal record. Before trial, however, the court and counsel also discussed the State’s intent to use the testimony of West’s probation officer and certain documents she possessed containing West’s handwriting as evidence that he was the person who had signed “Bill Harris” on the Idaho I.D. card and on the checks from the salvage yards.

The testimony of the probation officer, Cheryl Thornton, and the documents introduced in connection with her testimony were sanitized at trial. Her occupation was not identified, she stated only that West was her “client,” and all references to probation were deleted from the documents. Her testimony and those documents are not raised as grounds for appeal. Rather, the basis for this issue on appeal is the prosecution’s reference to her in closing argument as “Cheryl Thornton, [West’s] probation officer.” No objection was made at that time. West now argues that the reference violated the order in limine, the Just requirements, and Rule 404(b), M.R.Evid.

Several witnesses for the defense let it shp that West had been in prison before. In answer to a question about how long her daughter and West had been married, Leslie Galarneau’s mother said, “God, when he got out of prison, he come home. I don’t remember how long.” Kent Hite testified that he was able to recall the date he went to Missoula with West to hock a rifle (the same day the videotape and VCR were rented) because “They tried to violate Rod West for hocking that rifle on October 5th.”

Section 46-20-701, MCA, provides that no cause shall be reversed by reason of trial error against a criminal defendant unless the record shows that the error was prejudicial to the defendant. By the time the State’s closing argument was made, several references had been made by West’s witnesses to his criminal record. While we do not approve of it, we hold that the identification in the State’s closing argument of witness Cheryl Thornton as West’s probation officer did not prejudice the defense and is not reversible error.

II.

Did the court err in ruling West’s letter exhibit inadmissible?

The defense attempted to introduce into evidence a letter to Leslie Galameau dated December 1987 and signed by Rod West, and an envelope postmarked December 22, 1987, at Redding, California. The letter indicated that West had been in California for approximately a month. Leslie Galameau’s mother testified that she picked up the mail including the envelope just before Christmas in December 1987. However, she could not testify that the letter arrived inside the envelope because, as she said, she does not read her daughter’s mail. Leslie Galarneau did not testify at trial.

The District Court mled that in the absence of proof that the letter arrived inside the envelope, the evidence was irrelevant and inadmissible. West claims that this was error.

A threshold requirement for admission of a document into evidence is authentication or identification. Rule 901(a), M.R.Evid., provides:

“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

Without any testimony that the letter arrived inside the envelope, there is no proof that the letter was mailed by West from Redding, California, on December 22, 1987. We agree with the District Court that, absent such testimony, the letter and envelope were inadmissible because there was no evidence that they were what their proponent, West, claimed. We hold that the court did not err in ruling the letter exhibit inadmissible.

III.

Did the court err in instructing the jury on accomplice testimony?

This issue relates not to the form of the instmction on accomplice testimony but to the fact that such an instruction was given at all. West argues that because the State did not connect any of Kent Hite’s acts with acts of West, it was error to instruct the jury that it should view the testimony of Kent Hite with distrust if they believed he was an accomplice in the theft of the truck.

In support of his argument, West cites State v. Rodriguez (1987), 228 Mont. 522, 744 P.2d 875. In that case, the defendant was convicted of the theft of a CamCorder. At trial, an alleged accomplice, Art Walker, testified on behalf of the State that he had sold the stolen camera to a pawn shop and had split the proceeds with the defendant. He testified that he did not know the camera was stolen until he went to pick it up from the defendant prior to the sale. This Court held that Walker was not an accomplice with defendant because there was nothing in the record to connect him with the theft of the camera. Rodriguez, 744 P.2d at 877.

In the present case, the alleged accomplice testified for the defense rather than for the State. There were no witnesses to the theft of the truck and there is no direct evidence that Hite was an accomplice in the theft. However, the evidence showed that he was with West when parts from the stolen truck were sold. Hite admitted that he helped West remove a cab from a red truck. The defense presented testimony at trial that at the time the pickup cab was dumped, West was in jail (apparently on other charges). Someone else must have dumped the cab. Also, Hite testified that he was with West on October 5,1987, the day the videotape and VCR were rented in Missoula.

The jury was instructed that

“Testimony has been presented that the witness Kent Hite may be an accomplice in this case....
“It is a question of fact for the jury to determine from the evidence and from the law as given you by the court whether or not in this particular case the witness Kent Hite was or was not an accomplice within the meaning of the law.”

The instruction did not require the jury to find that Hite was West’s accomplice. It did require that, if the jury found that Hite was an accomplice, his testimony must be corroborated by other evidence.

Because the trial testimony indicated that West had an accomplice and because Hite is, according to the trial testimony, a likely candidate for that honor, we conclude that the record connects Hite’s actions with those of West. We hold that the court did not err in giving the instruction on accomplice testimony.

Affirmed.

JUSTICES SHEEHY, BARZ, WEBER and McDONOUGH concur.


text:
    LORRAINE KATHLEEN ADLINGTON, Plaintiff and Appellant, v. FIRST MONTANA TITLE INSURANCE COMPANY and reinsured by TITLE INSURANCE COMPANY OF MINNESOTA, Defendants and Respondents.
    No. 90-045.
    Submitted on Briefs Sept. 6, 1990.
    Decided Nov. 15, 1990.
    800 P.2d 1051.

      Richard DeJana, Kalispell, for plaintiff and appellant.
    James C. Bartlett, Hash, O’Brien & Bartlett, Kalispell, for defendants and respondents.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Lorraine Adlington appeals from the order of the District Court, Eleventh Judicial District, Flathead County, dismissing her case against First Montana Title Insurance Company. We affirm.

The issues raised on appeal are:

1. Is the pre-trial order determinative of issues that must be proven at trial?

2. Did the District Court abuse its discretion by dismissing the appellant’s complaint at the close of her case-in-chief for failure to prove her damages?

On July 23, 1982, the appellant purchased Lot 56 of Alpine Acres in Flathead County, Montana. She secured a title insurance policy from the respondent, First Montana Title Insurance Company as reinsured by the Title Insurance Company of Minnesota. In the non-jury lawsuit which commenced on September 12, 1989, the appellant alleged that because the title company failed to disclose a sanitary restriction, she was entitled to recover for the cost of a new water well. At the close of appellant Adlington’s case-in-chief, First Montana moved to dismiss the lawsuit on the basis that Adlington had failed to present evidence as to the cost of a new well. The District Court invited both parties to file posttrial briefs on the issue. Post-trial memoranda were filed and on October 26, 1989, the court granted the motion to dismiss.

The agreed statement of facts in the pre-trial order did not raise any specific contention as to the cost of a new well, or an agreement as to what the cost would be. The court reasoned that the burden of proof had therefore remained with the appellant throughout the trial to present evidence as to the cost of the well. While the appellant did not introduce specific evidence of damages, she did testify that she could have had the well installed in 1984 for the sum of $10,000 Canadian, or about $7,800 American.

On November 6, 1989, the appellant filed a motion for new trial or relief from judgment order on the grounds that the pretrial order had failed to specify the cost of the well as a particular issue of fact. On December 6,1989, the District Court denied the motion for a new trial for the same reason it had granted respondent’s motion for dismissal, i.e., the appellant’s failure to prove damages. The court stated that although damages were not an issue to be proved in the pre-trial order, the order likewise did not contain a stipulation as to the amount of damages. On January 4,1990, the appellant filed notice of appeal to this Court.

The first issue on appeal is whether the pre-trial order determines the issues that must be proven at trial. The appellant contends that because the cost of the well was not an enumerated “factual issue” in the pre-trial order, it was not an issue on which she had to present evidence. Although the cost of the well was not enumerated, it was clearly a contested fact. In the respondent’s answer he denies paragraph 4 of the complaint, which states, “That there exists upon the property as a condition on title, sanitary restrictions which prohibit the use of the old well. Because of the sanitary restrictions, the cost of the new well will run approximately $7,500.00 to $10,000.00.” Also, paragraph 9 of the respondent’s answer states, “The loss alleged to have been sustained by Appellant, if it was sustained at all, resulted from the matter or things in the exceptions in the policy of insurance.” Obviously the amount of loss was an issue which should properly have been explored at trial; that it was not listed in the pre-trial order is immaterial. Moreover, the damages were listed as a plaintiff’s contention. Since cost was a part of the pleadings, it was indeed before the court.

The second issue is whether the District Court abused its discretion by dismissing the appellant’s complaint at the close of her case-in-chief for failure to prove her damages. The District Court’s order of October 26, 1990, granting the respondent’s motion to dismiss states that the appellant failed to introduce anything except her own hearsay statements as to the cost of the new well. The court admitted the hearsay statements for “... the purposes of reliance, but not for the truth of the matters testified to.” Because the statement was inadmissible as proof of the cost of the well, the court concluded that no evidence was presented on the issue, and the case was therefore dismissed for failure to prove damages.

The appellant contends that the District Court incorrectly determined that her statement regarding the cost of the well was inadmissible hearsay. She maintains that the complaint and pretrial order sought only an award of the amount necessary to install the well — whatever that might be. She saw no need to put on proof of the cost. The appellant cites Jarussi v. Board of Trustees, 204 Mont. 131, 664 P.2d 316 (1983), for authority to assert that a plaintiff’s testimony as to the value of a potential loss when unrebutted is sufficient to support a judgment. However, Jarussi’s losses were actual, not potential. The court stated that the amount of Jarussi’s damages were “clear and uncontradicted.” Jarussi, 204 Mont. at 137, 664 P.2d at 319. Here an issue clearly exists as to the cost of the well and the appellant’s hearsay statements are insufficient to meet the “substantial evidence” standard required for a judgment for damages. Johnson v. Murray, 201 Mont. 495, 506, 656 P.2d 170, 175 (1982).

The appellant’s hearsay statement was insufficient to prove the cost of the well. She had no qualifications, skill, or special knowledge that would enable her to testify of her own knowledge about the probable actual damages. The District Court properly excluded her statement as to the truth of the subject matter of the testimony, and granted the respondent’s motion to dismiss.

Affirmed.

JUSTICES SHEEHY, BARZ, WEBER and MCDONOUGH concur.


author: JUSTICE SHEEHY

text:
    DAN C. RASMUSSEN, Plaintiff, Respondent and Cross-Appellant, v. PHILLIP FOWLER, Defendant and Appellant.
    No. 90-158.
    Submitted Sept. 13, 1990.
    Decided Nov. 15, 1990.
    800 P.2d 1053.

      Ralph B. Kirscher, Worden, Thane & Haines, Missoula, for defendant and appellant.
    James A. Haynes, Hamilton, for plaintiff, respondent and cross-appellant.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Phillip Fowler appeals from the judgment of the District Court of the Fourth Judicial District, Ravalli County, holding Rasmussen to be entitled to access across Fowler’s property by virtue of prescriptive right. We affirm the District Court.

Fowler presents the following issues:

1. Whether the District Court erred in determining a public easement exists on McFadgeon Road.

2. Whether the District Court erred in determining Rasmussen has a prescriptive easement in the McFadgeon Road.

The Rasmussen family purchased dryland farm property in 1955 from Lawrence McFadgeon. In 1965, McFadgeon gave over his 200 acre state land agricultural lease to the Rasmussens. To gain access to the leased land, McFadgeon had crossed the land currently owned by Fowler for more than forty years. The road was commonly referred to as the McFadgeon Road by area landowners.

Appellant Fowler purchased bis property in 1975. The McFadgeon road runs across Fowler’s property, passing between his house and barn.

Dan Rasmussen acquired the farm from his parents in 1972. He has continuously resided and worked upon the farm from 1955 to the present, excepting three years of college. Rasmussen, as his father and Lawrence McFadgeon before him, used the road to reach his state leasehold. In that practice, Rasmussen has driven trucks, combines, rod weeders and other farm machinery over the road without seeking permission from Fowler or his predecessors.

At the time Fowler acquired his property, a problem arose through increased use of the road by people not associated with any farming or ranching interests in the area. A decision was made by Fowler, Rasmussen and Robert Bandy, who also used the road, to install a locking gate. Keys were distributed to all, including other families who used the road for access. All parties continued to use the road as they had in the past.

In 1987, Fowler erected a new gate across the road with a 14-foot wide clearance. At that time, Rasmussen indicated to Fowler that he could not drive his combine through, as it needed at least a 22-to 24-foot clearance. No change in the gate width was made. Fowler soon informed Rasmussen to cease using the road, and Fowler thereafter chained and locked the gate shut.

Rasmussen subsequently filed a complaint and request for an injunction on August 17, 1987, in order to harvest his wheat crop on his leasehold. Ahearing was held on August 27,1987, and the District Court granted Rasmussen a preliminary injunction, ordering all locks and chains removed and interference to cease.

On May 23,1988, Fowler was ordered to remove any gates or posts encumbering Rasmussen’s access. Ahearing was held two days later, with Fowler appearing through counsel. The court advised counsel to instruct Fowler to remove the portion of the gate obstructing Rasmussen’s farm equipment movement within three days.

Trial was held on August 29,1988. The court issued findings of fact and conclusions of law on November 4, 1988, and concluded that Rasmussen and his predecessors had established the following prescriptive rights in McFadgeon Road:

1. A commercial easement in gross for the benefit of Rasmussen and his farmlands;

2. An easement appurtenant to the state leased land for the limited benefit of agricultural lessees of the state land; and

3. A public easement to the state land in accordance with historical use.

The court ruled Rasmussen’s easement to extend to all general farming and ranching purposes as exercised in the past, and that the use rights were conveyable by him to successors for the same purposes. The court further ordered all impediments removed and reconstruction of the gate to afford Rasmussen access with his equipment. Rasmussen was further granted right of reasonable maintenance and attorney fees, costs and punitive damages.

Final judgment and order was entered on January 12, 1990. The court amended the earlier findings to establish that the McFadgeon Road followed a definite course, a necessary element for the existence of a prescriptive public easement. In addition, the court reserved the issue of punitive damages pending a violation of the order and judgment, and denied attorney fees. Fowler appeals from the judgment, and Rasmussen cross-appeals the denial of punitive damages and attorney fees.

We address first and primarily the issue of a public prescriptive easement. It is well established that a prescriptive easement may be acquired by open, exclusive, notorious, continued and uninterrupted use for a period of five years. Section 70-19-401, MCA; Parker v. Elder (1988), 233 Mont. 75, 758 P.2d 292; Stamm v. Kehrer (1986), 222 Mont. 167, 720 P.2d 1194; Rathbun v. Robson (1983), 203 Mont. 319, 661 P.2d 850; Garrett v. Jackson (1979), 183 Mont. 505, 600 P.2d 1177.

The record in the instant case is replete with evidence of an adverse use of the McFadgeon Road rather than a permissive use. Testimony by current and past landowners using the road documented public use of the road going back over 50 years. During that period, various gates were installed along the road for the purpose of keeping cattle from roaming, not to deny access. Until Fowler locked his gate, no evidence of restricting public use was shown, save one. In that instance, Rasmussen’s predecessor, Lawrence McFadgeon instituted a civil suit in 1949 to enjoin one George Schwab from closing off the road. The record discloses that the suit was dismissed and Schwab thereafter made it known the road was not to be closed.

In Johnson v. McMillan (1989), 238 Mont. 393, 778 P.2d 395, a case very similar to the instant case, this Court reaffirmed the rule that a gate erected “not to stop people but cattle, is not enough standing alone to rebut the presumption established by such ... long public use.”

Most of those testifying stated they used the road, without seeking permission, to gain access to their lands. Others testified that the county claimed the road for a period, and provided a grader to be used in its maintenance. This is on all fours with McClurg v. Flathead County Commissioners (1980), 188 Mont. 20, 610 P.2d 1153, wherein the landowner attempted to close a road used by the public for over 33 years in a continuous, uninterrupted and adverse manner. This Court held that the public’s continued adverse use, and the grading and maintaining of the road without the landowner’s permission were sufficient to show adverse control.

There is substantial evidence here to support a finding that public travelers pursued a definite, fixed course, continuously and uninterruptedly, over the road for at least 50 years. Fowler’s evidence of permissive use is scant. Absent a demonstration of a clearly erroneous determination by the district court, we will affirm. Rule 52(a), M.R.Civ.P. District courts sitting as finders of fact occupy the best position to determine if a use has been permissive or adverse. Lunceford v. Trenk (1974), 163 Mont. 504, 518 P.2d 266.

The District Court’s finding of a public easement to the state land in accordance with historical use is sufficient to grant Rasmussen a continuing unimpeded right of way to his leasehold. Although it need not have further ruled, the District Court also found Rasmussen entitled to both an easement in gross and an easement appurtenant to his agricultural leasehold. Fowler contends error in both findings.

It is sufficient to say that the District Court’s conclusions have an adequate grounding in fact and law. Rasmussen presented substantial credible evidence of adverse use. Fowler failed to overcome the disputable presumption by contrary preponderant evidence. Rule 301(b)(2), M.R.Evid.; Parker v. Elder, supra. An easement in gross may be obtained by prescription. Restatement of Property, § 454, supplement at 29. As for an easement appurtenant, Fowler maintains that the state land is the dominant tenement, and that Rasmussen, as a mere lessee, cannot be granted a prescriptive right. We agree that Rasmussen cannot be granted an easement appurtenant to the state land, but hold that the lower court rightly determined that there is such a right recognized in favor of the State as the owner through long historical use, and that Rasmussen, in his standing, as lessee, has the right of use of that easement for agricultural purposes.

Rasmussen cross-appeals the denial of punitive damages and attorney fees originally awarded him.

Rasmussen was granted entitlement to damages, punitive damages, and attorney fees by the District Court in its order of November 4,1988. In the final judgment and order entered January 12,1990, Judge McLean denied the right to attorney fees awarded by his predecessor, Judge Wheelis. In addition, the District Court in its judgment reserved the imposition of punitive damages pending any violation of the final judgment and order.

Section 27-1-221, MCA, states that “reasonable punitive damages may be awarded where the defendant has been guilty of actual fraud or actual malice.” Subsection (2) states that actual malice exists where the defendant “has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff” and proceeds to act in disregard or indifference to the high probability of injury. Fowler clearly did so here. Despite being told by his predecessor and others that the road was to remain open, and being told by Rasmussen that a new gate would unable him to harvest his leasehold crop, Fowler proceeded to block the McFadgeon Road.

Our reading of the judgment granted by the District Court is that it granted injunctive relief to Rasmussen as well as nominal compensatory damages, and held open the possibility of punitive damages if Fowler violated the order and judgment. The District Court also denied attorney fees to Rasmussen, although such damages are sometimes awarded in cases involving injunctive orders. The reason for denial of punitive damages at the judgment stage are probably that the earlier order granted by the court served to keep the road open and unobstructed during the litigation. It does not appear the earlier order was disobeyed. The District Court does not appear to be clearly erroneous at this stage, so we affirm the District Court’s order on punitive damages. We also affirm the decision of the District Court not to award attorney fees. The only statutory provision in which this Court has found reason to grant attorney fees is § 27-19-406, MCA, and this statute refers only to parties who obtain a dissolution of an injunctive order. Northern Border Pipeline Co. v. State (1989), 237 Mont. 133, 772 P.2d 839.

Affirmed.

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


author: JUSTICE WEBER

text:
    JAMES B. FORDYCE and THELMA FORDYCE, Plaintiffs and Appellants, v. LEROY MUSICK and STEVEN MUSICK, Defendants and Respondents.
    No. 90-159.
    Submitted on Briefs Sept. 13, 1990.
    Decided Nov. 15, 1990.
    800 P.2d 1045.

      Timothy J. O’Hare, Lewistown, for plaintiffs and appellants.
    Robert L. Johnson, Lewistown, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs, James and Thelma Fordyce (Fordyces) initiated this action for rescission of a Farm Lease Agreement against defendants, Leroy and Steven Musick (Musicks), alleging that the Musicks breached the agreement. The Musicks counterclaimed alleging breach of the agreement and seeking damages for breach. Following a nonjury trial, the District Court for the Tenth Judicial District, Fergus County, entered judgment for the Musicks and awarded damages in the amount of $69,540.53 plus costs. The Fordyces appeal. We affirm.

The issues are:

(1) Did the District Court err in finding that the Musicks sustained a loss of income for 1987 and 1988 due to acreage restrictions imposed under the Conservation Reserve Program (CRP) administered by the Agricultural Stabilization and Conservation Service (ASCS)?

(2) Did the District Court err in awarding damages to the Musicks even though their family farm corporation, Bar Elsky Ranch, Inc., was shown on the ASCS records as the operator of the farm?

The Fordyces own farm land in Fergus County, and the Musicks have farmed that land under lease for many years. On April 1,1977, the parties executed a ten year lease. On April 1, 1982, the parties renegotiated and executed a new ten year lease. On January 10,1987, the Fordyces wrote a letter to the Musicks, claiming that the Fordyces had not signed the 1982 lease and that the lease would expire on April 1, 1987, under the 1977 cease. The Fordyces then made application with the ASCS to retire their land from agricultural production for ten years through the CRP with all the payments from the program to be paid to the Fordyces.

The Musicks made timely protest with the ASCS and submitted evidence to the agency that the 1982 lease was indeed executed, and that the lease permitted the Musicks to farm the land through 1992. The ASCS nevertheless honored the Fordyces’ application, and the Musicks were unable to plant crops on the leased land for 1987 and 1988 in order to comply with the rules of the ASCS to receive federal deficiency payments for the Musicks’ entire farming operation.

On July 23,1987, the Fordyces, through counsel, sent the Musicks a “Notice of Default” claiming that the Musicks allowed noxious weeks to grow on the Fordyces’ land. The lease contains a weed control provision making the elimination of noxious weeds an eventual goal. The Musicks refused to yield up the land to the Fordyces and the Fordyces brought this action for rescission of the lease. The Musicks counter-claimed, seeking damages for 1987 and 1988 while the land was unable to be planted under the CRP restrictions.

I

Did the District Court err in finding that the Musicks sustained a loss of income for 1987 and 1988 due to acreage restrictions imposed under the CRP administered by the ASCS?

The Fordyces argue that there is not substantial credible evidence in the record to support the Musicks’ cl aim for damages. The Fordyces contend that the record shows that the damages were actually caused by the Musicks’ bad business decisions.

The standard of review for a civil case for a judge sitting without a jury is whether or not the District Court’s findings are clearly erroneous. Dennis v. Tomahawk Services, Inc. (1989), 235 Mont. 378, 379, 767 P.2d 346, 347. This Court will not substitute its judgment for that of the trial court absent that showing, even where there is evidence in the record to support appellant’s contentions. Id.

Because of the CRP and in order to comply with the federal rules to receive federal deficiency payments for their entire farming operations, the Musicks elected in 1987 to plow up the 83.3 acres of pubescent wheat grass seed planted on the land leased from the Fordyces. The Fordyces argue that if the Musicks would have elected to plow up wheat and barley instead, their damages would not have been as great.

The matter of which field to idle was only one of many decisions facing the Musicks because of the Fordyces’ wrongful enrollment of the leased land into the CRP. In making those decisions the Musicks had a duty to act reasonably under the circumstances so as not to unnecessarily enlarge their damages. Bronken’s Good Time Co. v. J.W. Brown (1983), 203 Mont. 427, 432, 661 P.2d 861, 864. The law does not require those decisions to be unerringly correct with the benefit of hindsight. If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather than the other is chosen. Hogland v. Klein (1956), 49 Wash.2d 216, 298 P.2d 1099, 1102.

Whether the injured party violated his duty to mitigate damages is a question for the trier of fact when there is conflicting evidence. Bronken’s, at 433, 661 P.2d at 861. We have carefully reviewed the record and find there is substantial credible evidence to support the District Court’s findings. We hold that the District Court did not err in finding that the Musicks sustained a loss of income for 1987 and 1988 due to acreage restrictions imposed under the CRP administered by the ASCS.

II

Did the District Court err in awarding damages to the Musicks even though their family corporation, Bar Elsky Ranch, Inc., was shown on the ASCS records as the operator of the farm?

The Fordyces claim that Musicks’ family farm corporation, Bar Elsky Ranch, Inc., is the real party in interest. Bar Elsky Ranch was not a party to the lawsuit and thus Fordyces argue that the District Court erred in awarding damages to the Musicks under Rule 17(a), M.R.Civ.R, which states in part “[e]very action shall be prosecuted in the name of the real party in interest.”

It is elementary law that a contract binds no one but the contracting parties. Gambles v. Perdue (1977), 175 Mont. 112, 115, 572 P.2d 1241, 1243. The obligation of the contract is limited to the contracting parties, and ordinarily only those who are parties to the contract are liable for their breach. Id. Therefore if the contracting parties are before the court, they are the proper parties even though a party not before the court, such as Bar Elsky Ranch, had the benefit of one contracting party’s performance. The evidence does not show that Bar Elsky Ranch had any ownership rights in the lease and therefore Bar Elsky Ranch was not a real party in interest in this action. We hold that the District Court did not err in awarding damages to the Musicks even though their family farm corporation, Bar Elsky Ranch, Inc., was shown on the ASCS records as the operator of the farm.

Affirmed.

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


text:
    SOUTH GALLATIN LAND CORPORATION, a Montana Corporation, Plaintiff and Respondent, v. GERALD P. YETTER, Defendant and Appellant.
    No. 90-160.
    Submitted on Briefs Oct. 11, 1990.
    Rehearing Denied Dec. 13, 1990.
    Decided Nov. 15, 1990.
    801 P.2d 575.

      Allen L. McAlear, Bozeman, for defendant and appellant.

      J. Robert Planalp, Landoe, Brown, Planalp & Kommers, Bozeman, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

In 1984 South Gallatin Land Corporation petitioned the Eighteenth Judicial District Court, Gallatin County, for a declaratory judgment to close a real estate contract transaction. The court bifurcated the counterclaims of defendant, Gerald P. Yetter, from the declaratory judgment action. The parties stipulated to a compromise, reviewed by the court, which entered judgment January 6, 1986, in favor of South Gallatin. Yetter appealed a subsequent order of the District Court, and this Court dismissed his appeal on April 23,1987. Yetter filed further motions which were dismissed for lack of jurisdiction. On December 19, 1989, the District Court, because of lack of jurisdiction, dismissed defendant’s motions to allow additional counterclaims and to compel discovery. From this order, Yetter appeals. We affirm.

The parties present the following issues:

1. Can bifurcated counterclaims be disposed of without a hearing?

2. Did the District Court err in denying permission to file a supplemental counterclaim on the ground that the court lacked jurisdiction?

3. Should this appeal be dismissed because the appeal was not timely filed?

South Gallatin Land Corporation’s predecessor in interest, Randolph S. White, agreed to purchase real estate from Gerald P. Yetter, as evidenced by an Agreement for Sale and Purchase of Real Property signed June 30, 1982. After White’s interest was assigned to South Gallatin Land Corporation, Yetter refused to accept payment and tried to back out of the transaction. South Gallatin petitioned the District Court for a declaratory judgment clarifying the rights of the parties.

In his answer to South Gallatin’s petition, Yetter counterclaimed for damages, alleging claims which he characterized as “bad faith.” South Gallatin moved to bifurcate the bad faith claims on the basis that “a decision in favor of the Plaintiff would terminate any right the Defendant had to the counterclaim he alleges against this Plaintiff.” During a December 24, 1984, hearing, the corut granted the motion to bifurcate the counterclaims.

After a two-day hearing in November 1985, the parties agreed in writing to abide by the Agreement for Sale, with certain changes stipulated to by the parties. The court found that South Gallatin had not breached the Agreement for Sale and was not in default in performance of the contract. The court stated that it had examined the stipulation between the parties and ordered that portions of the stipulation constitute an amendment to the contract.

Yetter still refused to complete the closing, and on August 19,1986, the District Court ordered the public administrator to sign the necessary deeds and other papers. The court further ordered that “neither interest nor time for computation of annual payments shall commence unless the Defendant acknowledges and receives the balance of the purchase price.”

On September 4, 1986, Yetter appealed that order and “from the previous Orders entered in the case which refused to dismiss the case or to require the Plaintiff to tender or pay deposit in court, the balance of the down payment and annual payments and interest in the contract and, from the Order denying Summary Judgment to the Defendant.” This Court dismissed Yetter’s appeal on the ground that since the order from which Yetter appealed had been performed, a controversy no longer existed.

On October 13, 1987, Yetter moved for substitution of another judge in the case. Although Judge Gary found the motion to be “untimely and improperly made,” he elected to recuse himself. On November 15, 1988, Yetter moved for payment of real estate taxes and delinquent payments. South Gallatin asserted that the corporation was complying with the comb’s August 19, 1986, order because Yetter refused to acknowledge receipt of the balance of the down payment. The District Court dismissed Yetter’s motions on the basis that the court lacked jurisdiction.

Yetter then moved to amend the counterclaims originally filed in the action and to compel discovery. Two orders were entered denying these last motions, one on December 19, 1989, and one on January 18, 1990. Both orders denied the motions on the same ground: the District Court’s lack of jurisdiction since the litigation was effectively terminated by this Court’s dismissal of Yetter’s first appeal. From the court’s denial of the motion to amend counterclaims, Yetter appeals.

I

Can bifurcated counterclaims be disposed of without a hearing?

Separate or bifurcated trials can be ordered by a district court pursuant to Rule 42(b), M.R.Civ.R:

“The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.”

Rule 42(b) is essentially the same as Rule 42(b) of the Federal Rules of Civil Procedure, except the federal rule provides that separate trials shall always preserve “inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.” In 1966 the federal rule was amended by adding a condition or ground for a grant of separate trials: “when separate trials will be conducive to expedition and economy.” F.R.Civ.P., 42(b); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2381 (1971). However, no difference in result exists between the federal rule and its Montana counterpart when an order for a separate trial is considered. State ex rel. Fitzgerald v. District Court (1985), 217 Mont. 106, 116, 703 P.2d 148, 155.

Yetter argues that his counterclaims, which were bifurcated and reserved for trial by jury, were never addressed by the district court. Often the reason for separate trials pursuant to Rule 42(b) is that one issue may be dispositive of other claims in the case, as noted by Wright & Miller in their discussion of Rule 42(b), F.R.Civ.P.:

“If a single issue could be dispositive of the case, and resolution of it might make it unnecessary to try the other issues, separate trial of that issue may be desirable to save the time of the court and reduce the expenses of the parties.”

9 C. Wright & A. Miller, supra § 2388, at 280. In this case, the parties entered into a compromise agreement regarding the contract, and the court, after reviewing the stipulation, entered final judgment. The Stipulation Pursuant to Judgment provides:

“That upon payment as decreed then the action shall be dismissed and the parties will be governed by this stipulation and decree and by the contract where it has not been modified and that contract is hereby confirmed and satisfied.”

Acompromise agreement, when the basis for a final judgment, bars all preexisting claims and causes of action. Robinson v. First Security Bank of Big Timber (1986), 224 Mont. 138, 141, 728 P.2d 428, 430. By signing the stipulation, Yetter waived any further claims of breach of contract occurring prior to judgment, including bad faith claims or breach of the implied covenant of good faith and fair dealing. Thus, the settlement of the declaratory action was dispositive of Yetter’s counterclaims, and a hearing was unnecessary.

II

Did the District Court err in denying permission to file a supplemental counterclaim on the ground that the court lacked jurisdiction?

The Stipulation Pursuant to Judgment was signed December 31, 1985, and final judgment was entered January 6, 1986. Yetter’s appeal of the District Court’s post-judgment order to the public administrator to complete the closing of the real estate contract was dismissed by this Court April 23, 1987. Yetter filed the motion to amend his counterclaims on June 28,1989. Yetter may not, two years after this Court’s dismissal of his appeal and more than three years after entry of final judgment, attempt to revive the action by amending his counterclaims.

A dismissal of an appeal is made with prejudice:

“The dismissal of an appeal is in effect an affirmance of the judgment or order appealed from, unless the dismissal is expressly made without prejudice to another appeal.”

Rule 12, M.R.App.P. Where an appellate court has unqualifiedly affirmed a judgment of the trial court, no further or successive appeals can be allowed. The appellate court’s decision settles the law and must be applied in all subsequent stages of the case, as well as being res judicata in other actions as to each matter adjudicated. Gray v. Bohart (1957), 131 Mont. 522, 524, 312 P.2d 529, 530-31. This Court’s dismissal of Yetter’s appeal ended the litigation.

Even if this Court’s dismissal of Yetter’s first appeal is characterized as ruling solely on the August 19, 1986, order of the District Court, the time for appeal of the final judgment or other orders in this action has long since passed. We find that the District Court did not err in dismissing Yetter’s motion for lack of jurisdiction.

III

Should this áppeal be dismissed because the appeal was not timely filed?

The District Court entered two orders denying Yetter’s motion. Appeal from the first order would be untimely. However, we need not decide this issue since we affirm the District Court’s dismissal of the motions for lack of jurisdiction.

IV

In sum, the numerous motions which Yetter’s counsel has made in district court after judgment had been entered were improper and unnecessary, and this appeal of the latest dismissal entirely without merit and contrary to established principles of legal procedure. Such actions constitute an abuse of the judicial system. Appellant is attempting to re-litigate an issue to which he twice agreed, once when he entered into the Agreement for Sale, and again when he signed the Stipulation Pursuant to Judgment. This suit was initiated six years ago. As we have previously stated, “It is important for the sake of the litigants and for the judicial system that litigation will at some time be finally ended.” Lussy v. Dye (1985), 215 Mont. 91, 93, 695 P.2d 465, 466.

When an appeal is taken without substantial or reasonable grounds, we conclude that sanctions are appropriate. Searight v. Cimino (1989), 238 Mont. 218, 223, 777 P.2d 335. Pursuant to Rule 32, M.R.App.P., we therefore impose damages on counsel for appellant in the amount of $500 to be paid to respondent.

Affirmed.

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


author: JUSTICE BARZ

text:
    MARK MELOTZ d/b/a Melotz Trucking, Plaintiff and Respondent, v. CRAIG SCHECKLA, d/b/a Scheckla Trucking, Defendant and Appellant.
    No. 89-547.
    Submitted on Briefs Aug. 23, 1990.
    Decided Nov. 27, 1990.
    801 P.2d 593.

      James A. Patten, Patten Law Firm, P.C., Billings, for defendant and appellant.
    John Houtz, Forsyth, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Appellant Craig Scheckla, appeals from a judgment entered on a jury verdict rendered in the Sixteenth Judicial District, Rosebud County, awarding respondent Mark Melotz damages for breach of warranty. We affirm.

Scheckla raises the following issues on appeal:

1. Did the District Court abuse its discretion by allowing admission of an exhibit at trial when the court had earlier imposed discovery sanctions which prohibited the admission of such exhibit?

2. Did the District Court abuse its discretion by failing to prohibit evidence of lost income as a sanction for discovery abuse?

3. Was the existence of a warranty supported by sufficient evidence?

4. Was respondent Melotz entitled to consequential damages for breach of warranty?

Appellant, Craig Scheckla, owns a trucking business and hauls wood products for a sawmill in Sheridan, Wyoming. Respondent, Mark Melotz, is likewise in the trucking business and hauls on a contract basis. In July of 1985, Melotz purchased from Scheckla a used 335 Cummins diesel engine for $3,000 which was installed in Melotz’s 1970 Peterbilt truck. According to Melotz’s testimony at trial, when he and Scheckla discussed the sale of the engine Scheckla told him “[a]ll you [have to] do is take it home, put it in there [in the truck] and it will go right to work and it was in good running condition.” Melotz further testified Scheckla also told him the engine recently had some major work done to it.

After installing the engine in late July of 1985, Melotz immediately encountered problems with the oil pressure. When informed of the problem by Melotz, Scheckla told him this type of engine had low oil pressure and, according to Melotz’s testimony, Scheckla told him to replace the bearings and if that did not fix the problem Scheckla would “pay for the bearings and everything.” Shortly thereafter, Melotz hauled a load to Logan, Utah. During this trip Melotz encountered problems of low oil pressure and engine overheating. From Utah, Melotz took a load to Oregon and en route the problems with low oil pressure and overheating continued. In Oregon Melotz had new bearings installed. Melotz then headed to South Dakota with continuing problems. While passing through Dubois, Wyoming on the way to South Dakota, Scheckla’s mechanic examined the engine and replaced a cracked head.

Due to continuing problems with the engine, Melotz parked the truck during the months of September and October of 1985. Scheckla recommended new head gaskets and Melotz installed them in early November of 1985. On November 4,1985, Melotz, beheving his truck was capable of performing the job, entered into a contract to haul rip-rap for Midwest Dumpers, Inc. at Canyon Ferry Lake. Shortly before he was to commence work on the contract, Melotz had to notify Midwest Dumpers that he was unable to perform due to overheating problems which started up again. The engine subsequently locked up and upon being tom down Melotz discovered the engine had a cracked block and was unrepairable.

On February 18, 1986, Melotz filed a complaint against Scheckla seeking damages for breach of warranty and for other claims not relevant on appeal. This case then began a long procedural history marked by constant disputes between the parties. On November 28, 1986, Scheckla served interrogatories and a second request for production on Melotz. This discovery sought, among other items, all state and federal income tax returns and financial statements prepared within the five years preceding the filing of the complaint.

Following a motion to compel by Scheckla, Melotz responded to the discovery requests. The answers were deemed nonresponsive by the District Court and as a result Judge Alfred B. Coate imposed sanctions upon Melotz on April 10, 1987. Specifically, Judge Coate ordered: “At trial Plaintiff [Melotz] will not be permitted to introduce any evidence other than those items supplied to Defendant on December 12, 1986 [at Melotz’s deposition] and marked as items 1 through 33.” The Midwest Dumpers contract was not one of the marked items but was discussed at the deposition and provided to Scheckla on February 13, 1987.

On May 8, 1987, the District Court determined the amount in controversy was less than $3,500 and transferred the case to the Rosebud County Justice Court. The case was eventually transferred back to District Court on September 12, 1988.

Once back in District Court, Judge Kenneth R. Wilson assumed jurisdiction on January 20, 1989 after Judge Coate retired. Judge Wilson gave Melotz another chance to produce his income tax returns and financial statements, ordering that if Melotz did not produce those items, three of his claims for damages would be dismissed. This information was not provided and on June 26, 1989, in chambers before trial, Judge Wilson ordered those claims stricken.

At trial the court refused to hear evidence on the potential profits of hauls during periods the truck experienced down time, deeming the evidence too speculative and as an additional sanction for discovery abuse. The court did allow into evidence the Midwest Dumpers contract. The jury returned a verdict in favor of Melotz in the amount of $12,026.40. The District Court reduced the verdict by $208 and Melotz’s bill of costs by $359. The court then denied Scheckla’s post-trial motions for judgment notwithstanding the verdict and to amend or alter the judgment.

Scheckla now appeals raising the aforementioned issues.

I. - II.

Since issues 1 and 2 both pertain to the imposition of sanctions for discovery abuse, we will address them simultaneously.

Scheckla contends Judge Wilson abused his discretion by ignoring Judge Coate’s earlier discovery sanction limiting Melotz’s trial exhibits when he allowed the Midwest Dumpers contract into evidence. Citing Owen v. F.A. Buttrey Company (1981), 192 Mont. 274, 280, 627 P.2d 1233, 1236, he argues that Melotz must “suffer the consequences” of his discovery abuse and asserts that Melotz did not have to do so because he was allowed to go forward with a major part of his case, i.e., the Midwest Dumpers contract lost profits.

This Court has previously stated that the district court has the discretion to control discovery activities. State of Oregon ex rel. Worden v. Drinkwalter (1985), 216 Mont. 9, 12, 700 P.2d 150, 152. The district court also has the discretion to decide what sanctions are to be imposed on a party who fails to comply with discovery rules. Barrett v. ASARCO, Inc. (1988), 234 Mont. 229, 234, 763 P.2d 27, 30 (citing Sikorski v. Olin (1977), 174 Mont. 107, 111, 568 P.2d 571, 573). Judge Wilson impliedly ignored or overruled Judge Coate’s previous ruling and gave Melotz one last chance to produce his tax returns and financial statements. Melotz did not produce this information and Judge Wilson dismissed three items of contended damages. Certainly by striking damages amounting to $32,760, Melotz was required to “suffer the consequences.” The District Court was acting well within its discretion when it allowed the contract into evidence.

Scheckla further contends the District Court abused its discretion by failing to prohibit evidence of lost income from the Midwest Dumpers contract as a sanction for discovery abuse. Scheckla argues that since he was not provided the requested financial information he had no way of ascertaining whether Melotz’s testimony concerning lost profits was accurate. “The exclusion of evidence for noncompliance with discovery rules is a harsh remedy [and] ... we will reverse the trial judge only when his judgment may materially affect the substantial rights of the appellant and allow a possible miscarriage of justice.” (Citation omitted.) Barrett, 763 P.2d at 30-31. We do not find that situation here. Melotz provided Scheckla with the Midwest Dumpers contract more than two years before trial. Scheckla himself was in a similar trucking business and could have testified as to profitability. Moreover, Scheckla examined Melotz in part of a seven and one-half horn* deposition and again at trial on this issue.

We hold the District Court did not abuse its discretion in allowing the contract into evidence and in allowing evidence of lost income from the contract.

III.

Scheckla attacks the jury’s verdict arguing his statement that the engine could go right to work and was in good running condition was merely an opinion or “puffing” and did not create an express warranty. Scheckla also contends that the evidence presented at trial did not show that he engaged in the business of selling engines or that Melotz relied upon his skill and judgment in selecting a particular engine and therefore the evidence was insufficient to show that an implied warranty of merchantability or an implied warranty of fitness for a particular purpose had been created.

We will not disturb a jury verdict when there is substantial credible evidence in the record to support it.

“Sufficiency of the evidence. We will not reverse a judgment based upon a jury verdict if there is substantial evidence in the record to support the jury verdict.. .We review in the light most favorable to the prevailing party, reversing only when there is a lack of substantial evidence to support the judgment based upon the jury verdict...
“The ‘substantial evidence’ test variously expressed allows reversal only if there is a complete absence of probative facts to support the verdict... or if the evidence is so overwhelming there is no room for an honest difference of opinion ... or if there is a complete absence of any credible evidence in support of the verdict.” (Citations omitted.) Flynn v. Siren (1986), 219 Mont. 359, 365, 711 P.2d 1371, 1374.

The court gave the jury instructions on express warranty, express warranty — statement of opinion, implied warranty, and implied warranty of fitness for a particular purpose. The jury, by general verdict, found that Scheckla warranted the engine he sold to Melotz and that Scheckla had breached the warranty. After reviewing the record in a light most favorable to the prevailing party, we conclude the record contains sufficient evidence upon which the jury could find that at least an express warranty existed.

Whether a statement is an express warranty is an issue of fact. Vandalia Ranch v. Farmers Union & Oil Supply (1986), 221 Mont. 253, 259, 718 P.2d 647, 651; Whitaker v. Farmhand, Inc. (1977), 173 Mont. 345, 354, 567 P.2d 916, 921. Issues of fact are for the jury to resolve and should not be taken away from the jury because some evidence furnishes reasonable grounds for different conclusions. Kleinsasser v. Superior Derrick Service, Inc. (1985), 218 Mont. 371, 374, 708 P.2d 568, 570. In the present case Scheckla represented to Melotz that the engine was in good working condition and that the engine could be put in the truck and it would go right to work. Scheckla also stated that the engine recently had major repair work done to it. The record indicates that after the engine was installed, Scheckla told Melotz to replace the bearings and if that did not correct the problem, he would pay for the repairs. Additionally, on at least one other occasion Scheckla recommended the type of repairs that should be done and Scheckla’s mechanic replaced the head in an effort to correct the problems with the engine. The statements made by Scheckla, together with his conduct after the engine was installed, provides a sufficient basis upon which the jury could find that an express warranty existed.

We hold that substantial evidence supports the existence of a warranty under the circumstances of this case.

IV.

The jury, upon deciding the warranty issue in Melotz’s favor and finding that Scheckla had breached the warranty, awarded Melotz consequential damages for his claim of lost profits on the Midwest Dumpers contract. Scheckla contends that under the Uniform Commercial Code Melotz had to “cover” before consequential damages could be awarded. Scheckla argues that all Melotz had to do to cover was to purchase a substitute engine, and, having failed to do so, Melotz failed to mitigate his damages and should therefore be denied any recovery of consequential damages.

Section 30-2-715, MCA, provides that consequential damages resulting from the seller’s breach of warranty include “[a]ny loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise ...” In Harrington v. Holiday Rambler Corporation (1978), 176 Mont. 37, 575 P.2d 578, the plaintiffs sued the manufacturer for damages for breach of warranty because of defects in the trailer they had purchased. The defendant contended the plaintiffs failed to mitigate damages by not having the trailer repaired by a third party, failing to cover by purchasing a substitute trailer and continuing to use the trailer after they knew of the defects. In holding that the plaintiffs did not fail to mitigate damages, this Court stated the following regarding the doctrine of avoidable consequences:

“The duty to reduce or mitigate damages is a positive one upon the injured person, but it has limits. The test is: What would an ordinary prudent person be expected to do if capable, under the circumstances?” (Citation omitted.)

Harrington, 575 P.2d at 581.

The record in the present case discloses that Melotz did what an ordinary prudent person would be expected to do under the circumstances. It is true, as Scheckla points out, that to cover would have been to purchase a substitute engine. However, there are no facts in the record to indicate the engine needed to be replaced until after the time the Midwest Dumpers contract was to be performed. The record discloses that Melotz made a number of repairs in an attempt to make the used engine run satisfactorily. Scheckla himself noted that this type of engine has low oil pressure and advised Melotz to replace the bearings. Also, Scheckla’s mechanic replaced the head in an effort to determine what was wrong with the engine.

Melotz entered into the Midwest Dumpers contract in November, 1985 when the engine had undergone recent repairs recommended by Scheckla and Melotz believed the truck was capable of fulfilling the contract. Melotz testified that it was only three or four days before he was supposed to begin performing the contract when he realized he would not be able to do so due to continuing overhearing problems. At that time he notified Midwest Dumpers that he would be unable to perform the contract. It was not until March, 1986, after Melotz had lost the Midwest Dumpers contract, when the engine locked up and subsequently was completely torn down that Melotz learned the engine had a cracked block and was unrepairable.

We hold that under the above set of facts the jury could reasonably have found that Melotz’s consequential damages could not be prevented by cover or otherwise.

Affirmed.

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