Rothing v. Kallestad

No. 05-186
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 109
PETER and TANYA ROTHING, d/b/a
DIAMOND R ENTERPRISES, INC.,
Plaintiffs and Appellants,
v.
ARNOLD KALLESTAD,
Defendant and Respondent.
APPEAL FROM: The District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 2001-291,
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Calvin J. Stacey (argued), Stacey & Funyak, Billings, Montana
For Respondent:
James R. Halverson (argued), Herndon, Sweeney & Halverson,
Billings, Montana
Argued: February 1, 2006
Submitted: February 14, 2006
Decided: May 8, 2007
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Peter and Tanya Rothing (the Rothings) brought this action to recover damages
resulting from the death of nineteen horses owned by the Rothings that they alleged were
fed botulism contaminated hay purchased from Arnold Kallestad (Kallestad). The
Rothings sought recovery under theories of strict liability in tort, negligence and breach
of contract. The District Court for the Eighteenth Judicial District, Gallatin County,
granted Kallestad’s Motions for Summary Judgment thereby dismissing the Rothings’
Amended Complaint. The court also granted two Motions to Compel filed by Kallestad,
awarded Kallestad his attorney’s fees and granted Kallestad’s Motion for a Protective
Order regarding the determination of attorney’s fees. The Rothings appeal. We affirm in
part, reverse in part and remand for further proceedings consistent with this Opinion.
¶2 The Rothings raise several issues on appeal which we have restated as follows:
¶3 1. Whether the District Court erred in concluding that hay is not a “product” for
purposes of a strict liability in tort cause of action.
¶4 2. Whether the District Court erred in concluding that the Rothings’ negligence
claim against Kallestad fails because it was unforeseeable that the hay could cause injury
and death to the Rothings’ horses, thus no duty of care existed.
¶5 3. Whether the District Court erred in concluding that the Rothings’ breach of
contract claim against Kallestad fails because it was unforeseeable that the hay could
cause injury and death to the Rothings’ horses.
¶6 4. Whether the District Court erred in imposing discovery sanctions against the
Rothings.
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¶7 5. Whether the District Court erred in awarding attorney’s fees to Kallestad and
denying the Rothings a hearing in respect to the calculation of attorney’s fees.
¶8 Because we find the Rothings’ breach of contract claim dispositive of this case, we
do not address the Rothings’ strict liability and negligence claims.
Factual and Procedural Background
¶9 The Rothings conducted business near Belgrade, Montana, under the name
Diamond R Enterprises which included Diamond R Stables, Diamond R Kennels and
Diamond R Cattle Company. Diamond R Stables is involved in the breeding, training
and selling of horses; Diamond R Kennels is involved in the breeding of Labrador
Retrievers; and Diamond R Cattle Company is involved in breeding, raising and selling
miniature heifers.
¶10 Kallestad owns a ranch in Gallatin County where he primarily raises hay and a
small amount of grain. He also raises Red Angus cattle on the ranch. Each year since he
began ranching in 1984, Kallestad has sold some of the hay he raised, and at times, he has
advertised his hay for sale in the Bozeman Daily Chronicle. Kallestad estimated that he
sells between 300 and 1,000 tons of hay annually.
¶11 Tanya Rothing’s father, Steven Howells, is in the trucking business and, from time
to time, he purchased and transported hay from North Dakota to the Rothings in
Belgrade. In April 2001, the Rothings needed hay for their horses. Because Howells did
not have time to go to North Dakota to get the hay that he had planned to deliver to the
Rothings, the Rothings purchased hay from Kallestad for $90.00 a ton.
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¶12 Kallestad later testified that this hay was a second-cutting of alfalfa taken from a
field that had been re-seeded approximately two years earlier. The hay was cut with a
swather and allowed to dry for two to four days depending on the temperature. The hay
was then twin-raked (wherein two rows are turned and combined so that the bottom
portion can also dry) and baled with a mid-size square baler a day or two after being
raked. The bales were then stacked outside on a raised bed of gravel and fly ash from
August 2000 until April 2001 when it was sold to the Rothings.
¶13 Kallestad further testified that the hay was exposed to moisture during the winter
months and that, one winter, a ditch near the stacked hay overflowed causing water to go
along the west side of the stack of hay and then onto a road. Kallestad was unsure
whether the ditch water came in contact with the hay, but he indicated that the water
“may have been up there an inch or so.”
¶14 On April 23, 2001, the Rothings received 45 to 48 large bales of hay from
Kallestad. Some of the hay was fed to the Rothings’ horses the same day it was
delivered. On May 2, 2001, nine days after the delivery of the hay, one of the Rothings’
yearling colts was found “down.” That afternoon, the colt was taken to the Hardaway
Veterinary Hospital in Belgrade where the colt had to be euthanized. The following day,
two other yearling colts exhibited similar signs as the first colt. One of these yearling
colts also had to be euthanized. The body was transported to the Marsh Laboratory at
Montana State University where a post mortem was performed by Dr. Bill Layton. The
other yearling colt was treated with charcoal, but died two days later.
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¶15 On May 3, 2001, Dr. Layton contacted Dr. Robert Whitlock at the University of
Pennsylvania. Dr. Whitlock is an Associate Professor of Medicine and the Director of
the Botulism Laboratory at the University. Dr. Layton inquired about sending diagnostic
samples to be tested for botulism.
¶16 On May 4, 2001, three mares with foals exhibited symptoms similar to the others.
They were taken to the Hardaway Veterinary Hospital and treated with charcoal and
other medications. One of the foals died during the night. The treating veterinarians,
Dr. Gordon Hardaway and Dr. Thomas Jakob, suspected that the hay purchased from
Kallestad may be the cause of the problem, hence the remaining hay was removed from
the feeding area.
¶17 Shortly thereafter, Dr. Whitlock shipped botulism antitoxin to the Rothings and
their veterinarians, but by the time the outbreak was over, nineteen animals had died.
Dr. Whitlock concluded that the hay purchased from Kallestad and fed to the Rothings’
horses was contaminated with botulism. He based his opinion on diagnostic studies and
testing which he performed on numerous samples taken from the Rothings’ property as
well as the location where the hay had been stored on Kallestad’s property. Some of the
hay samples that were tested showed evidence of preformed Clostridium botulinum type
B toxin.
¶18 The Rothings filed suit against Kallestad on July 26, 2001. In their suit, the
Rothings pursued theories of recovery based upon strict liability, negligence and breach
of contract. As a result of this incident, the Rothings claimed that they suffered
significant damages, including veterinarian bills for services and antitoxin in the amount
5
of $38,549.28; the value of the nineteen dead horses in the amount of $40,000; and the
loss of income as a result of the deaths of the nineteen horses in excess of $100,000.
They also sought damages for emotional distress from watching their horses die and the
resulting economic devastation to their business.
¶19 In addition, Dr. Whitlock advised the Rothings that, as a result of this incident on
their property, they are at a greater risk of a reoccurrence of botulism poisoning in their
horses and they should vaccinate all of their horses yearly for as long as they own the
property. Dr. Whitlock also recommended that the Rothings warn all individuals who
might bring mares to be bred on their property of this incident and that if the Rothings
ever sell their property, they should disclose this incident. As a consequence, the
Rothings maintained that the value of their property has diminished. They also claimed
that they have incurred expenses for cleaning up their property as a result of the
contaminated hay and for additional feed costs.
¶20 Kallestad filed two separate Motions for Summary Judgment. In his first motion,
filed May 13, 2003, Kallestad argued that, under Montana law, hay is not a product and
he is not a manufacturer; therefore, he was entitled to summary judgment on the
Rothings’ strict products liability claim. In his second motion, filed June 22, 2004,
Kallestad argued that the Rothings’ remaining theories of negligence and breach of
contract should be dismissed because, if botulism was present, it was in no way
foreseeable.
¶21 The District Court granted both of Kallestad’s Motions for Summary Judgment in
orders filed on January 28, 2004, and August 18, 2004. In addition, the court granted
6
Kallestad’s several Motions to Compel; awarded Kallestad attorney’s fees incurred in
preparing the Motions to Compel; granted Kallestad’s Motion for Protective Order; and
sanctioned the Rothings by excluding evidence including Dr. Whitlock’s report.
¶22 The Rothings appeal all of the orders entered by the District Court including the
court’s January 28, 2004, and August 18, 2004 orders on Kallestad’s Motions for
Summary Judgment; the court’s June 29, 2004 order excluding evidence and awarding
expenses; and the court’s orders on Kallestad’s various Motions to Compel.
Standard of Review
¶23 We review a district court’s grant of summary judgment de novo, applying the
same evaluation under M. R. Civ. P. 56, as the district court. Cole ex rel. Cole Revocable
Trust v. Cole, 2003 MT 229, ¶ 8, 317 Mont. 197, ¶ 8, 75 P.3d 1280, ¶ 8 (citing Vivier v.
State Dept. of Transp., 2001 MT 221, ¶ 5, 306 Mont. 454, ¶ 5, 35 P.3d 958, ¶ 5). In this
regard, we have stated that
[t]he movant must demonstrate that no genuine issues of material fact exist.
Once this has been accomplished, the burden then shifts to the non-moving
party to prove, by more than mere denial and speculation, that a genuine
issue does exist. Having determined that genuine issues of fact do not
exist, the court must then determine whether the moving party is entitled to
judgment as a matter of law.
Cole, ¶ 8 (quoting Bruner v. Yellowstone County, 272 Mont. 261, 264-65, 900 P.2d 901,
903 (1995)). In addition, we review a district court’s legal conclusions for correctness.
Cole, ¶ 8.
Issue 3.
7
¶24 Whether the District Court erred in concluding that the Rothings’ breach of
contract claim against Kallestad fails because it was unforeseeable that the hay could
cause injury and death to the Rothings’ horses.
¶25 The District Court concluded that under Martel Const. Inc. v. State, 249 Mont.
507, 817 P.2d 677 (1991), and Ehly v. Cady, 212 Mont. 82, 687 P.2d 687 (1984),
forseeability is a factor in breach of contract claims in Montana. Hence, the court granted
Kallestad’s Motion for Summary Judgment on the Rothings’ breach of contract claim on
the basis that the injuries to the Rothings’ horses were not foreseeable.
¶26 However, neither Martel nor Ehly dealt with a transaction in goods as in the case
sub judice. In Martel, a construction company brought an action against the State to
recover interest expenses paid on funds the construction company was required to borrow
in order to finance extra work allegedly caused by the State in the reconstruction of a
railroad overpass. Martel, 249 Mont. at 508, 817 P.2d at 677-78. And in Ehly, the
purchaser of a parcel of real property brought an action against the sellers and the sellers’
broker over the breach of a buy-sell agreement. Ehly, 212 Mont. at 86, 687 P.2d at 689.
¶27 In the instant case, the Rothings’ purchase of hay from Kallestad was a transaction
in goods, thus it may be governed by Montana’s Uniform Commercial Code (UCC)
pertaining to sales if it meets the other requirements of Title 30, Chapter 2, Montana
Code Annotated (1999).1 Section 30-2-102, MCA, provides: “Unless the context
otherwise requires, this chapter applies to transactions in goods . . . .” “Goods” are
defined at § 30-2-105(1), MCA, to mean:
1
Because the sale of hay in this case took place on April 23, 2001, the 1999 version of
the MCA applies and all references to the MCA are to the 1999 version unless otherwise
stated.
8
all things (including specially manufactured goods) which are movable at
the time of identification to the contract for sale other than the money in
which the price is to be paid, investment securities . . . and things in action.
“Goods” also includes the unborn young of animals and growing crops and
other identified things attached to realty . . . . [Emphasis added.]
Hence, as the Official Comment to § 30-2-105, MCA, provides: “The definition of goods
is based on the concept of movability . . . . It is not intended to deal with things which
are not fairly identifiable as movables before the contract is preformed.” The hay in this
case had been cut, baled and stacked and was “movable” at the time the Rothings
purchased it from Kallestad.
¶28 Furthermore, in Mogan v. Cargill, Inc., 259 Mont. 400, 403, 856 P.2d 973, 975
(1993), this Court determined that wheat fell within the definition of “goods.” Other
items determined to be “goods” by this Court include: Smith v. General Mills, Inc., 1998
MT 280, 291 Mont. 426, 968 P.2d 723 (wheat); Konitz v. Claver, 1998 MT 27, 287 Mont.
301, 954 P.2d 1138 (timber); Carelli v. Hall, 279 Mont. 202, 926 P.2d 756 (1996) (elk);
Trad Industries, Ltd. V. Brogan, 246 Mont. 439, 805 P.2d 54 (1991) (elk); Webcor
Electronics v. Home Electronics, 231 Mont. 377, 754 P.2d 491 (1988) (telephone
systems); Norwest Bank Billings v. Murnion, 210 Mont. 417, 684 P.2d 1067 (1984)
(loader); Little v. Grizzly Mfg., 195 Mont. 419, 636 P.2d 839 (1981) (modular home); and
Scott v. Hjelm, 188 Mont. 375, 613 P.2d 1385 (1980) (horses).
¶29 In addition to the requirement that the transaction consist of the sale of “goods,”
the seller must meet the definition of a “merchant.” A “merchant” under the UCC
“means a person who deals in goods of the kind or otherwise by his occupation holds
himself out as having knowledge or skill peculiar to the practices or goods involved in
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the transaction . . . .” Section 30-2-104(1), MCA. Whether or not a person qualifies as a
merchant under the UCC is a mixed question of law and fact. Smith, 291 Mont. at 430,
968 P.2d at 726 (citing Dawkins & Co. v. L & L Planting Co., 602 So. 2d 838, 843 (Miss.
1992)). We further stated in Smith that
[d]espite the split of authority on this issue, a majority of courts have held
that under the Uniform Commercial Code, a farmer may be included under
the definition of “merchant” in some instances. However, whether a
particular farmer qualifies as a merchant cannot be determined through
application of a per se rule; rather, it is a conclusion that must be reached
on a case by case basis.
Smith, 291 Mont. at 431, 968 P.2d at 726-27 (internal citations omitted).
¶30 Thus, in this case, if the trial court determines that Kallestad was a merchant for
purposes of the sale of his hay to the Rothings, then the provisions of the UCC, and more
specifically, the Implied Warranty of Merchantability, would apply to this transaction.
“Unless excluded or modified [], a warranty that the goods shall be merchantable is
implied in a contract for their sale if the seller is a merchant with respect to goods of that
kind.” Section 30-2-314(1), MCA.
¶31 Prior to the advent of the UCC, the common law concept of “implied warranty”
developed in cases of food stuffs sold for immediate human consumption where “a
warranty of soundness or wholesomeness will be implied.” Larson v. Farmers
Warehouse Co., 297 P. 753, 754 (Wash. 1931). Courts extended the concept of implied
warranty to products to be fed to livestock, but initially limited its application to
“processed and packaged” food. See, e.g., Midwest Game Co. v. M.F.A. Milling Co., 320
10
S.W.2d 547, 550 (Mo. 1959) (attaching implied warranty where the animal food “is not
in its raw state but has been processed and packaged by the manufacturer”).
¶32 The court in Larson applied the concept of implied warranty to the sale of goods
to be fed to livestock. The owner of four cows purchased two tons of hay in the form of
31 bales from a retail seller of hay. The buyer alleged that the hay contained lead
arsenate and had poisoned his cows. Larson, 297 P. at 753. Other courts had refused to
extend the concept where an inspection of the goods purchased “would have disclosed
the presence therein of the injurious articles . . . .” Larson, 297 P. at 755. By contrast, no
amount of inspection, short of a chemical analysis, would have disclosed the presence of
lead arsenate in the hay. As a result, the court concluded that the seller was “liable as for
an implied warranty that the hay sold to [the buyer] was not only of the kind and quality
ordered, but was, as a lot, generally free from deleterious substances, poisonous to stock.”
Larson, 297 P. at 756. See also Brown v. Bigelow, 88 N.E.2d 542 (Mass. 1949)
(extending implied warranty to hay); Thatcher Milling & Elevator, Co. v. Campbell, 231
P. 621 (Utah 1924) (implied warranty in favor of purchaser of chicken feed); Gussner v.
Miller, 176 N.W. 359 (N.D. 1920) (implied warranty that hay was fit to be fed to the
stock upon a farm).
¶33 This Court also recognized the common law concept of an implied warranty
attaching to the sale of animal feed. Seaton Ranch Co. v. Montana Vegetable Oil & Feed
Co., 123 Mont. 396, 217 P.2d 549 (1950). The buyer of oil cake pellets brought an action
against the seller when 474 sheep died after eating the pellets. The buyer recovered a
verdict in his favor and the seller appealed. A sharply divided Court reversed on appeal
11
due to a faulty jury instruction, but in doing so, the Court upheld a separate jury
instruction regarding implied warranty. The Court determined that an implied warranty
of “soundness and wholesomeness” attached to the sale of food for animal consumption.
Seaton Ranch, 123 Mont. at 405, 217 P.2d at 554. The Court rejected the notion that the
buyer’s ability to inspect the product should dissolve the implied warranty as “[n]o
amount of inspection short of a chemical analysis would have disclosed the poisonous
condition of the feed.” Seaton Ranch, 123 Mont. at 405, 217 P.2d at 554. See also
Valdosta Milling Co. v. Garretson, 217 F.2d 625 (5th Cir. 1954) (applying Florida law in
determining that implied warranty attached to the sale of horse feed); G. Bernd Co. v.
Rahn, 96 S.E.2d 185 (Ga. 1956) (implied warranty attached to sale of steamed bone-meal
feed supplement intended for cattle).
¶34 Likewise courts in Washington and California applied the common law implied
warranty theory to the sale of hay. In Dougherty v. Lee, 168 P.2d 54 (Cal. Ct. Apps.
1946), the California Court of Appeals upheld a verdict against the seller of a single ton
of Sudan hay, a relatively small amount, where the hay caused the death of plaintiff’s
dairy cows from botulism poisoning. And, in Libke v. Craig, 216 P.2d 189 (Wash. 1950),
the Supreme Court of Washington reaffirmed its earlier ruling in Larson that the concept
of implied warranty applied to the sale of goods to be fed to livestock. In Libke, a
middleman had purchased hay from the grower and resold it to various parties, including
horseback riding academies. The middleman refused to pay for some of the hay that had
sickened horses at some of the riding academies. The grower of the hay brought an
action for the deficiency and the middleman cross-claimed based on the theory of implied
12
warranty. The court rejected the notion that the seller was relieved of any implied
warranty simply because the middleman had inspected the hay prior to purchase. Libke,
216 P.2d at 195.
¶35 These principles were carried over into the UCC. 2 Now, under the UCC, goods to
be merchantable must be at least such as:
(a) pass without objection in the trade under the contract
description; and
(b) in the case of fungible goods, are of fair average quality within
the description; and
(c) are fit for the ordinary purposes for which such goods are used;
and
(d) run, within the variations permitted by the agreement, of even
kind, quality, and quantity within each unit and among all units involved;
and
(e) are adequately contained, packaged, and labeled as the
agreement may require; and
(f) conform to the promises or affirmations of fact made on the
container or label if any.
Section 30-2-314(2), MCA (emphasis added). “Surely goods are not merchantable, if in
their ordinary use, the goods cause damage to the property to which they are applied or
harm to the person using them.” Streich v. Hilton-Davis, Div. of Sterling Drug, 214
Mont. 44, 59, 692 P.2d 440, 448 (1984).
2
The Official Comment to § 30-2-101, MCA, provides: “The coverage of the present
Chapter is much more extensive than that of the old Sales Act and extends to the various
bodies of case law which have been developed both outside of and under the latter.” This
language mirrors the Official Comment to Article 2-101 of the UCC. Similarly, the
Official Comment to § 30-2-314, MCA, provides: “This section, drawn in view of the
steadily developing case law on the subject . . . .” This language mirrors the Official
Comment to Article 2-314 of the UCC.
13
¶36 Here, Kallestad would have breached the Implied Warranty of Merchantability if
the trial court determines that the goods were not “fit for the ordinary purposes for which
such goods are used,” i.e., as feed for livestock. And, under § 30-2-715, MCA, if the trial
court determines that Kallestad breached the Implied Warranty of Merchantability, the
Rothings may be entitled to both their incidental and consequential damages.
Buyer's incidental and consequential damages. (1) Incidental
damages resulting from the seller's breach include expenses reasonably
incurred in inspection, receipt, transportation and care and custody of goods
rightfully rejected, any commercially reasonable charges, expenses or
commissions in connection with effecting cover and any other reasonable
expense incident to the delay or other breach.
(2) Consequential damages resulting from the seller's breach
include:
(a) any 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; and
(b) injury to person or property proximately resulting from any
breach of warranty.
Section 30-2-715, MCA (emphasis added). The Official Comment to § 30-2-715, MCA,
provides:
5. Subsection (2)(b) states the usual rule as to breach of warranty, allowing
recovery for injuries “proximately” resulting from the breach. Where the
injury involved follows the use of goods without discovery of the defect
causing the damage, the question of "proximate" cause turns on whether it
was reasonable for the buyer to use the goods without such inspection as
would have revealed the defects. If it was not reasonable for him to do so,
or if he did in fact discover the defect prior to his use, the injury would not
proximately result from the breach of warranty.
This language mirrors the language of the Official Comment to Article 2-715(2)(b) of the
UCC.
14
¶37 Furthermore, Article 2-715(2)(b), does not contain a foreseeability requirement,
thus a seller “is liable for injury to person or property even if the seller did not know of or
have reason to know of the buyer’s intended use.” James J. White & Robert S. Summers,
Uniform Commercial Code vol. 1, § 10-4, 733 (5th ed., Thomson West 2006).
Analogously, this Court has established that forseeability is not required in connection
with causation in negligence cases. See Prindel v. Ravalli County, 2006 MT 62, 331
Mont. 338, 133 P.3d 165 (“In order to establish proximate causation, however, the
specific injury to a plaintiff need not have been foreseen.”) (internal quotation marks and
italics omitted); Busta v. Columbus Hosp. Corp., 276 Mont. 342, 916 P.2d 122 (1996)
(where this Court held that in cases which do not involve issues of intervening cause,
proof of causation is satisfied by proof that a party’s conduct was cause-in-fact of damage
alleged, and no consideration of foreseeability is required in connection with causation).
¶38 Thus, contrary to the District Court’s conclusion that all breach of contract actions
in Montana require foreseeability, a breach of contract action under the UCC does not
require foreseeability if injury to person or property proximately results from any breach
of warranty.
¶39 Accordingly, we hold that the District Court erred in granting Kallestad’s Motion
for Summary Judgment on the Rothings’ breach of contract claim.
Issue 4.
¶40 Whether the District Court erred in imposing discovery sanctions against the
Rothings.
15
¶41 Kallestad contended that because none of the other individuals that he sold hay to
during the time period that he sold hay to the Rothings had any problems with their
livestock, he was entitled to basic information from the Rothings to respond to their
claims. This information included test results of water samples, feed samples, and tissue
samples, along with feed records, veterinarian records and autopsy reports. Kallestad
claimed that the Rothings did not respond to his requests for this information, thus he
filed a Motion to Compel on October 29, 2001. On December 14, 2001, a hearing was
held on the motion during which the Rothings’ attorney assured the District Court that he
would promptly provide the requested discovery information. Based on these assurances,
the District Court denied Kallestad’s motion.
¶42 Kallestad filed a renewed Motion to Compel on June 7, 2002, alleging that, despite
their assurances, the Rothings still had not responded to his discovery requests
approximately six months later. Attached to Kallestad’s brief in support of this motion
were eleven letters from Kallestad’s counsel to the Rothings’ counsel following up on
Kallestad’s requests for the discovery information. The District Court granted
Kallestad’s motion on July 3, 2002. Kallestad also maintained that because of the
Rothings’ delays in submitting the information, the District Court had to vacate the
original trial date and issue a new scheduling order on July 15, 2002.
¶43 On January 21, 2003, Kallestad filed another Motion to Compel claiming that the
Rothings still had not complied with Kallestad’s discovery requests and the District
Court’s July 3, 2002 order. Kallestad subsequently filed a motion to postpone ruling on
this motion when it appeared that the Rothings were about to comply with the discovery
16
requests. However, Kallestad filed another Motion to Compel on July 11, 2003, based on
what he perceived as continuing discovery abuses by the Rothings.
¶44 The Honorable Judge John Larson took over the handling of this case on
November 3, 2003. A hearing was held in chambers on or about February 13, 2004,
during which Judge Larson ordered the Rothings to produce supplemental discovery
within thirty days or evidence would be excluded. The Rothings failed to provide the
requested information and on June 29, 2004, the District Court issued an Order to
Exclude Evidence and Award Expenses. This order barred the Rothings from presenting
any evidence discussing the report of their expert witness, Dr. Whitlock, or their alleged
“snowballing credit” damages. In addition, the court ordered the Rothings to pay
reasonable attorney’s fees and costs for prior discovery violations.
¶45 The Rothings first moved to vacate the court’s order and then submitted a request
for clarification of the order. In another order dated July 22, 2004, the District Court
withdrew the language from its previous order that barred the Rothings from discussing
Dr. Whitlock’s report. The court further ordered that the matter would be discussed at
the hearing scheduled for August 13, 2004, on Kallestad’s second Motion for Summary
Judgment. During this hearing, the Rothings’ counsel informed the court that without
Dr. Whitlock’s evidence, his clients would have no chance of prevailing at trial.
¶46 The District Court filed its Opinion and Order Granting Kallestad’s Motion for
Summary Judgment and Order Vacating Trial on August 18, 2004. The only reference to
any evidence relating to Dr. Whitlock in the court’s order is found in the court’s
discussion of forseeability regarding the Rothings’ negligence claim. The court makes no
17
mention of its June 29, 2004 order wherein it barred the Rothings from discussing
Dr. Whitlock’s report, or its July 22, 2004 order wherein it withdrew the language barring
the Rothings from discussing that report. However, it is clear from the court’s opinion
and order wherein it considered the evidence relating to Dr. Whitlock that, although the
court had originally excluded such evidence, it reversed that order and vacated such
exclusion. Consequently, because the court made no further orders expressly barring any
discussion of Dr. Whitlock’s report, we conclude that the court’s July 22, 2004 order
permanently withdrew the proscription against Dr. Whitlock’s report.
¶47 In addition, the Rothings contend on appeal that the District Court erred in
granting Kallestad’s Motions to Compel. They maintain that in doing so, the court did
not order the Rothings to respond to any specific written discovery requests or produce
specific documentation. Instead, the Rothings argue that the court incorrectly sanctioned
them and awarded Kallestad his attorney’s fees.
¶48 Kallestad argues that the District Court has discretion to grant motions to compel,
to award attorney’s fees, and to impose sanctions against those who abuse the discovery
process. He maintains that two different judges witnessed the Rothings’ “constant delay
and non-responsiveness” over the course of three years and that, based on these discovery
abuses, the District Court properly granted Kallestad’s Motions to Compel, awarded
attorney’s fees and excluded evidence.
¶49 We review a district court’s decision regarding the imposition of sanctions for
alleged discovery abuse to determine whether the court abused its discretion. Richardson
v. State, 2006 MT 43, ¶ 21, 331 Mont. 231, ¶ 21, 130 P.3d 634, ¶ 21 (citing Estate of
18
Nielsen v. Pardis, 265 Mont. 470, 478, 878 P.2d 234, 238 (1994); Schuff v. A.T. Klemens
& Son, 2000 MT 357, ¶ 26, 303 Mont. 274, ¶ 26, 16 P.3d 1002, ¶ 26). “In doing so, we
generally defer to the district court because it is in the best position to determine both
whether the party in question has disregarded the opponent’s rights, and which sanctions
are most appropriate.” Richardson, ¶ 21 (citing Delaware v. K-Decorators, Inc., 1999
MT 13, ¶ 86, 293 Mont. 97, ¶ 86, 973 P.2d 818, ¶ 86; McKenzie v. Scheeler, 285 Mont.
500, 506, 949 P.2d 1168, 1172 (1997)).
The purpose of discovery is to promote the ascertainment of truth
and the ultimate disposition of the lawsuit in accordance therewith.
Discovery fulfills this purpose by assuring the mutual knowledge of all
relevant facts gathered by both parties which are essential to proper
litigation. Modern instruments of discovery, together with pre-trial
procedures, make a trial less a game of blindman’s buff and more a fair
contest with the basic issues and facts disclosed to the fullest practicable
extent.
Richardson, ¶ 22 (internal citations and quotation marks omitted).
¶50 Based on our review of the record, including the numerous letters from Kallestad’s
counsel requesting that the Rothings’ counsel provide the requested information or at
least respond to counsel’s previous letters, we conclude that the District Court did not
abuse its discretion in imposing sanctions against the Rothings for discovery abuse.
Accordingly, we affirm the District Court’s order granting Kallestad’s Motion to Compel.
Issue 5.
¶51 Whether the District Court erred in awarding attorney’s fees to Kallestad and
denying the Rothings a hearing in respect to the calculation of attorney’s fees.
¶52 In its June 30, 2004 Order to Exclude Evidence and Award Expenses, the District
Court ordered that the Rothings “shall pay the reasonable fees and costs incurred in the
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preparation of the prior motion and brief to compel” and “the reasonable attorney’s fees
and costs incurred in the preparation of all prior filings other than those [already]
covered.” On July 22, 2004, the court issued an order setting a hearing on the attorney’s
fees for the same time as the August 13, 2004 hearing on Kallestad’s Motion for
Summary Judgment. However, at that hearing, the court granted the parties a week “to
file expert affidavit [sic] questioning the hourly rate or the entries, or both.” No actual
hearing on the reasonableness of the attorney’s fees occurred. On February 7, 2005, the
court entered its Judgment wherein it ordered that the Rothings pay $4,569.00 in
attorney’s fees.
¶53 A district court’s award of reasonable attorney’s fees is a discretionary act and we
will not reverse the district court absent an abuse of discretion. Swenson v. Janke, 274
Mont. 354, 360, 908 P.2d 678, 682 (1995) (citing Ihler v. Chisholm, 259 Mont. 240, 246,
855 P.2d 1009, 1013 (1993), overruled on other grounds by Porter v. Galarneau, 275
Mont. 174, 911 P.2d 1143 (1996)). We have also consistently held that it is improper to
award attorney’s fees based solely on the affidavit of counsel without holding an
evidentiary hearing on the matter. Rossi v. Pawiroredjo, 2004 MT 39, ¶ 29, 320 Mont.
63, ¶ 29, 85 P.3d 776, ¶ 29 (citing Stark v. Borner, 234 Mont. 254, 258, 762 P.2d 857,
860 (1988)). “An award of fees, like any other award, must be based on competent
evidence . . . . Furthermore, the proper determination of a legal fee is central to the
efficient administration of justice and the maintenance of public confidence in the bench
and bar.” Rossi, ¶ 29 (citing First Security Bank of Bozeman v. Tholkes, 169 Mont. 422,
429, 547 P.2d 1328, 1332 (1976)).
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¶54 In the case sub judice, the District Court should have conducted an evidentiary
hearing to demonstrate the proper amount of attorney’s fees to be awarded. Without
consideration of such evidence, the award of attorney’s fees in this case was improper.
¶55 Accordingly, the judgment of the District Court on the issue of attorney’s fees is
vacated and the cause remanded for an evidentiary hearing to determine the proper
amount of attorney’s fees to be awarded.
¶56 Affirmed in part, reversed in part and remanded for further proceedings consistent
with this Opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE
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