Williams v. Devinney

No. 94-402
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
JOHN WILLIAMS and BARBARA WILLIAMS
Plaintiffs and Respondents,
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard DeJana, Kalispell, Montana
For Respondent:
Marshall Murray, Murray & Kaufman, Kalispell,
Montana
Submitted on Briefs: January 12, 1995
Decided: March 7, 1995
Filed:
I
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the assessment of damages by the
Eleventh Judicial District Court, Flathead County. We affirm in
part and reverse in part, with instructions for the District Court
to modify its judgment by $1,100.
We consider the following questions on appeal:
I. Did the District Court err in determining the damage figures
owed to the Williamses by using the figures presented by the
Williamses' expert witness?
II. Did the District Court err in failing to award DeVinney his
offset award from the first case?
This is the second time this matter has been before this
Court. In Williams v. DeVinney (1993), 259 Mont. 354, 856 P.2d 546
(Williams I), we held that Alvin DeVinney (DeVinney) was liable for
misrepresentation concerning the real estate he sold to the
Williamses. The original controversy arises from the sale of a
modular home and a tract of real property upon which the home was
located. The Williamses purchased the real property from DeVinney
and the modular home from Kalispell Home Center, Inc., for whom
DeVinney was the selling agent.
DeVinney suggested the use of concrete piers to support the
modular home, representing that the piers would provide an adequate
foundation. DeVinney assured the couple that the ground was sound
and that the piers were an adequate foundation. However, the
ground was not sound because a house had burned on the piece of
property and been bulldozed over. Therefore, the piers that were
2
set did not support the home properly, resulting in damage to the
home.
The trial court determined that DeVinney was guilty of
negligent misrepresentation. We remanded the case for trial on the
issue of damages. At the second trial, the court followed the
general damage outline set out by the first trial court. The court
awarded $20,440 to the Williamses. DeVinney appeals the Findings
of Fact and Conclusions of Law issued on May 19, 1994, by the
court.
I.
Did the District Court err in determining the damage figures
owed to the Williamses by using the figures presented by the
Williamses' expert witness?
The court made the following findings of fact:
1 . Plaintiffs are entitled to damages as a result of the
negligent misrepresentation of Defendant Alvin DeVinney
in accordance with Judge Erickson's Findings of Fact and
Conclusions of Law entered January 6, 1992, and the Order
of the Montana Supreme Court above referenced.
2. Specific damages, which include damages outlined by
Judge Erickson in his January 6, 1992, decision and
which, by implication, are necessary to satisfy the
general directives of that decision, are as follows:
a. Remove porches and deck, remove home,
pour foundations in accordance with CAP0
specifications, replace home in accordance
with manufacturer's original requirements,
seal all joints in accordance with
manufacturer's recommendations and reattach
porches and deck............... $ 12,000
b. Reseal all exterior doors and windows,
refinish and/or replace water damaged trim and
adjust all doors and windows for proper
operation...................... $ 2,000
C. Remove 260 cubic yards of in-place soil
3
d. Furnish and place 260 cubic yards of
compacted topsoil at $ 7.00 per cubic yard in-
place after compaction......... $ 3,900
e. Furnish and replant small shrubs and
trees planted by plaintiff in the area of soil
removal........................ $ 690
SUBTOTAL $ 20,670
Engineering fee...... $ 1,520
Backhoe.............. $ 70
Living expense during
repair for four people:
10 days @ $180 per day $ 1,800
__--_-__-
TOTAL $ 24,060
3. The cost of installing the proper foundation for
Plaintiffs' home is $3,620, which sum should be deducted
from the above found damages.
DeVinney argues that the present court did not follow the
outline of damages as set down by the first court and that many of
the figures in the damage award are not "incidental" to the moving
of the house. Further, DeVinney argues that the basis for these
figures is hearsay and that the figures themselves cannot be
substantive evidence. DeVinney argues that the expert witness who
testified was not the witness that the Williamses stated in
discovery that they would put on the stand. It is DeVinney's
contention that the plaintiffs' expert, Robert Hafferman
CHafferman), admitted that he was not an expert qualified to make
these figures.
The Williamses argue that the court had the discretion to
believe whichever witness it considered to be more credible.
Further, the Williamses contend that their witness is clearly
qualified and that he was permitted by Montana law to testify based
upon any information that he himself felt to be appropriate.
4
A court has broad discretion in determining whether a witness
may qualify as an expert. Little v. Grizzly Mfg. (1981), 195 Mont.
419, 636 P.2d 839. A close review of the record discloses that
Hafferman has been a civil engineer for forty years and was
thoroughly qualified to testify concerning the various amounts of
damage. Hafferman did extensive testing on the piece of ground in
order to determine the problem. By way of contrast, DeVinney's
expert witness was not a civil engineer and looked at the property
for an hour. The District Court did not abuse its discretion in
accepting Hafferman as an expert witness.
A district court's findings of fact are reviewed as to whether
they are clearly erroneous. Williams v. DeVinney (1993), 259 Mont.
354, 856 P.2d 546. In reviewing a district court's findings of
fact, the Supreme Court will determine if substantial evidence
supports the findings and, if so, if the effect of the evidence has
been misapprehended by the court, or even if not misapprehended,
whether findings leave this Court with a firm conviction that a
mistake has been made. Public Lands Access Ass'n, Inc. v. Boone
and Crockett Club Foundation, Inc. (1993), 259 Mont. 279, 856 P.2d
525. We will review a district court's determination of the law as
to whether it is correct. Doting v. Trunk (1993), 259 Mont. 343,
856 P.2d 536.
DeVinney would have us dismiss the figures submitted in
Hafferman's report as hearsay. Hearsay evidence is an unsworn
statement made out of court with no opportunity afforded to
confront the speaker as to the veracity of the fact. Matter of
Swan (1977), 173 Mont. 311, 567 P.2d 898. However, there is no
5
requirement that the facts upon which an expert relies in forming
an opinion be themselves admitted in evidence. Matter of J.M.
(1985), 217 Mont. 300, 704 P.Zd 1037. In fact, the estimates of
damage used in Hafferman's report were his own projections based
upon updated cost information from others. As long as Hafferman is
an expert in his field and DeVinney was presented with the
opportunity to cross-examine, then Hafferman can testify to his
opinions based upon information provided by others. His testimony
indicates that this is what happened. The District Court did not
err in refusing to consider this evidence hearsay.
The court followed the figures presented by Hafferman.
Contrary to DeVinney's assertion that Hafferman was not listed as
testifying to the cost of foundation replacement, a review of the
record indicates that in Williamses' answer to DeVinney's
Interrogatory No. 1, the Williamses noted that Hafferman would
testify to "the method and expense of curing the damages incurred
by Plaintiffs." While two other witnesses were also scheduled by
the Williamses to testify, but did not, that fact does not negate
the fact that DeVinney had full knowledge of Hafferman's testimony
as well as the content of that testimony. A review of the
transcript indicates that DeVinney had a chance to cross-examine
Hafferman as well as a chance to voir dire him on the stand.
A review of the record also reveals that Hafferman never
admitted to not being an expert. In fact, he quickly rebutted
counsel's accusations of lack of expertise by stating that he was
skilled at making similar cost estimates--he just did not make the
original underlying cost estimates. Hafferman did testify as to
6
the generally accepted procedure for accepting bids such as the
ones he presented to the court.
Hafferman did admit that the two witnesses who did not testify
and who submitted the figures that Hafferman ultimately used were
experts at setting the possible price of repair work. That does
not mean that Hafferman's forty years of construction work and
accepting bids on repairs from other workmen should be disregarded.
Nor does it mean that Hafferman admitted that he was not an expert.
During the hearing on damages, DeVinney attempted to get
Hafferman to admit that all but part of the first total ($12,000)
were not attendant to the curing of defects in the foundation.
When we sent this case back in the original appeal, we did so
partly because the only evidence that supported the figures was in
the form of affidavits. Williams I, 259 Mont. at 362, 856 P.2d at
551. We stated in that appeal that the court had ordered a
determination of general damages and that a further hearing would
be necessary to determine the specific amount. We stated that
I'[t]he court should properly include in its damages award the
specific expenses which it finds, by implication, are necessary to
satisfy the general directives of the earlier decision." Williams
I, 259 Mont. at 362, 856 P.2d at 551. Hafferman testified that all
the projected figures of damage he had submitted on his report were
incidental to damage caused by having to move the modular home.
He was vigorously cross-examined by counsel whose questioning
elicited the response that the totals for shrub replacement etc.
were not "directly" related to the moving of the home or
replacement of the foundation. The fact that the damage was not
directly related to the cost of curing the foundation, does not
mean that the costs were not "necessary to satisfy the general
directives of the earlier decision." The totality of Hafferman's
testimony shows that he believed that the totals he submitted were
accurate and necessary.
In its conclusions of law, the court deducted from the
subtotal of all individual damage figures the amount of $3,620
which it determined that the Williamses would have had to pay for
a full foundation had the current turn of events not occurred.
Hafferman testified to the amount and to his way of determining
that amount. DeVinney's expert presented an amount for the repair
of the foundation without presenting any testimony as to how he had
arrived at a total figure that was about $3,900 less than
Hafferman's. Credibility of a witness is within the trial court's
discretion. Keebler v. Harding (1991), 247 Mont. 518, 807 P.2d
1354. The District Court did not abuse its discretion in using
Hafferman's testimony as compared to DeVinney's expert.
We conclude that substantial evidence exists to support the
District Court's use of Hafferman's figures as the appropriate
damage totals. We further conclude that the court did not
misapprehend the evidence that it had before it, nor are we firmly
convinced that any mistake has been made with the court's use of,
and subsequent awarding of, the Hafferman damage totals.
11.
Did the District Court err in failing to award DeVinney his
offset award from the first case?
The District court in the initial 1992 action awarded DeVinney
8
offset award from the first case?
The District court in the initial 1992 action awarded DeVinney
$1,100 because plaintiffs referred to DeVinney publicly as a crook.
When the case came back to the District Court, it did not mention
this amount in its subsequent ruling. The Williamses do not
address the absence of this amount on appeal.
We affirm the judgment of the District Court with the
exception that the District Court is instructed to subtract $1,100
from its May 19, 1994 judgment of $20,440.
Affirmed in part, and reversed in part, with instructions to
the District Court to modify its previous judgment by $1,100.
Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
March 7. 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Richard DeJana, Esq.
200 First Ave. East
P.O. Box 1757
Kalispell, MT 59903.1757
Marshall Murray
Murray & Kaufman, P.C.
P.O. Box 728
Kalispell, MT 59903-0728
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: oi%
Deputy (J