George v. Hay ( 1995 )

NO. 94-287
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
DAVE GEORGE, RICHARD GEORGE,
CHARLES W. HOPKINS, GREGG
WILLIAMS and BRIAN McCULLY,
Plaintiffs and Respondents,
v.
ALAN HAY and WI-HAUL WHOLESALE
DISTRIBUTORS, INC.,
Defendants and Appellants.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
James C. Bartlett, Hash, O'Brien & Bartlett,
Kalispell, Montana
For Respondents:
E. Eugene Atherton, Attorney at Law,
Kalispell, Montana
Submitted on Briefs: January 26, 1995
Decided: May 4, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiffs, Dave George, Richard George, Charles W.
Hopkins, Gregg Williams, and Brian McCully filed a complaint
against the defendants, Alan Hay and W&Haul Wholesale
Distributors, Inc., in the District Court for the Eleventh Judicial
District in Flathead County. 1n their complaint, plaintiffs
alleged a breach of contract for services and that they were
entitled to damages. The defendants answered and stated a
counterclaim for wrongful attachment.
On December 2, 1993, after a trial, a jury found that Alan Hay
individually hired plaintiffs and owed them compensation. The jury
further found that plaintiffs did not wrongfully attach property of
either defendant, and that plaintiffs did not abuse the writ of
attachment process. Defendants appeal from the judgment entered
pursuant to that verdict. We affirm the judgment of the District
Court.
The following issues are raised on appeal:
1. Was there substantial evidence to support the jury's
finding that plaintiffs did not wrongfully attach the defendants'
property?
2. Was there substantial evidence to support the jury's
damage award?
3. Did the District Court err by its admission or exclusion
of evidence?
4. Did the District Court err when it entered judgment
against both defendants?
FACTUAL BACKGROUND
On December 31, 1991, plaintiffs filed a complaint against
Alan Hay. They alleged that Alan had breached his contract with
them and that they were entitled to damages. On the same date,
plaintiffs also filed an exparfe request for a prejudgment writ of
attachment and a supporting affidavit in which they requested
attachment of Alan's lumber which they had skidded, loaded, and
hauled. The writ was granted by the District Court on that date.
On January 6, 1992, Alan filed a motion to quash and discharge
the writ of attachment for the reason that it was improperly or
irregularly issued. He alleged that plaintiffs had no contract
with him; that he did not own any of the property described in the
writ; that the writ was issued exparte; and that he was not given
proper notice. On January 17, 1992, the District Court granted
Alan's motion and discharged the writ of attachment.
Plaintiffs amended their complaint on February 6, 1992, to add
Wi-Haul Wholesale Distributors, Inc., as a defendant, based on the
allegation that their contracts may have been with this entity.
On that date, they also filed a second motion for a
prejudgment writ of attachment and a supporting affidavit. The
District Court issued this writ.
On February 11, 1992, defendants filed answers to plaintiffs'
amended complaint, and for a counterclaim, alleged that their
property had been wrongfully attached.
On February 24, 1992, plaintiffs filed a motion for summary
judgment against both defendants on the issues raised by their
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complaint. On June 9, 1992, the District Court granted plaintiffs'
motion in part and held that there was no dispute that the
defendant corporation owed all plaintiffs, other than Richard
George, the amounts claimed in their complaint ($11,043.64). The
court held that there were genuine issues of fact regarding Alan's
liability, regarding the amount owed to Richard George, and
regarding defendants' counterclaim, and therefore, denied summary
judgment regarding those issues.
A jury trial began on November 30, 1993. On December 2, 1993,
the jury found that Alan, individually, had hired each of the
plaintiffs. The jury found that Alan owed David George $7234.04;
Richard George $3510.49; Charles Hopkins $1420.62; Gregg Williams
$577.41; a n d Brian McCully $1714.84. The jury found that
plaintiffs did not wrongfully attach the property of either
defendant, and that plaintiffs did not abuse the writ of attachment
process. On March 7, 1994, the District Court entered its judgment
against both defendants. Defendants appeal.
ISSUE 1
Was there substantial evidence to support the jury's finding
that plaintiffs did not wrongfully attach the defendants' property?
We will not overturn a jury verdict which is supported by
substantial evidence. Kitchen Krajiers, Inc. v. Eustside Bank ( 3.9 9 0 ) , 242
Mont. 155, 164, 789 P.2d 567, 572 (citing Batchoffv. Craney (19461, 119
Mont. 157, 172 P.2d 308).
Defendants argue that the first writ of attachment was
wrongful, based on procedural flaws related to post-seizure
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hearings, the necessary affidavit and evidence, and the inadequacy
of the undertaking.
Plaintiffs concede that the first writ of attachment was
procedurally flawed, but argue that it was later discharged by the
District Court, and that it was not wrongful, as that term is
defined by our prior cases.
In Montgomeryv. Hunt (1987), 227 Mont. 279, 283, 738 P.2d 887,
889, we held that "[pIroof of malice . . and want of probable
cause are two essential elements of an action for wrongful
attachment in tort." Malice has been defined as "improper motive,
. . [or] a wilful disregard of the rights of others . . . .'
Thomas J. Goger, Annotation, What Constitutes Malice Sufjcient to Just$$ an Award
of Punitive Damages in Action for Wrongfit Attachment or Garnishment, 6 1 A. L . R . 3 d
984, 990 (1975).
The jury was properly instructed regarding the procedural
requirements for a writ of attachment and the requirement of malice
for a finding of wrongful attachment. A review of the record
reveals no evidence that plaintiffs acted with an improper motive
or with a wilful disregard of defendants' rights.
For these reasons, we conclude that there was substantial
evidence to support the jury's finding that the issuance of the
writ of attachment in this case was not wrongful.
ISSUE 2
Was there substantial evidence to support the jury's damage
award?
m
d
overturned." Passama, 863 P.2d at 380 (citing Crist, 833 P.2d at
1054).
Defendants contend that the District Court admitted evidence
of an offer to compromise, contrary to Rule 408, M.R.Evid. Rule
408 provides that:
Evidence of (1) furnishing or offering or promising
to furnish, or (2) accepting or offering or promising to
accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to
either validity or amount is not admissible to prove
liability for or invalidity of the claim or its amount.
During the cross-examination of Alan, he was asked about a
meeting attended by him, his brother, and the plaintiffs after
their complaint was filed. Referring to Alan's brother, counsel
for plaintiffs asked the following question, and was given the
following answer:
Q. [BY MR. ATHERTONI What did he offer my people?
A. Let's get this resolved and let's get the people
that really should be in this case involved, not all of
US. We're just trying to make a living, just like you.
Q. Did your brother offer my people money on this
meeting that occurred after I started representing them?
. . . .
THE WITNESS: No
We conclude that the cited colloquy did not include evidence
of a promise to provide consideration to compromise the plaintiffs'
claim, and therefore, was not inadmissible pursuant to Rule 408.
The defendants also contend that the District Court erred by
excluding testimony from Charles Tustin which related to
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