DiMarzio v. Crazy Mountain Const., Inc., DA 10-0097.

• Decision Date: 04 November 2010
• Docket Number: No. DA 10-0097.,DA 10-0097.
• Parties: Larry DiMARZIO, Plaintiff and Appellant, v. CRAZY MOUNTAIN CONSTRUCTION, INC., a Montana corporation, F.L. Dye Company, a Montana close corporation, Bridger Glass & Windows, Inc., a Montana corporation, Defendants, Appellees and Cross-Appellants.
• Court: Montana Supreme Court

243 P.3d 718

358 Mont. 119

2010 MT 231

Larry DiMARZIO, Plaintiff and Appellant,

v.CRAZY MOUNTAIN CONSTRUCTION, INC., a Montana corporation, F.L. Dye Company, a Montana close corporation, Bridger Glass & Windows, Inc., a Montana corporation, Defendants, Appellees and Cross-Appellants.

No. DA 10-0097.

Supreme Court of Montana.

Submitted on Briefs Sept. 15, 2010.

Decided Nov. 4, 2010.

For Appellant: John M. Kauffman, Kasting, Kauffman & Mersen, Bozeman, Montana.

William A. D'Alton, D'Alton Law Firm, Billings, Montana, for Appellee Crazy Mountain Construction, Inc.

Edward J. Guza, Guza, Williams & Nesbitt, Bozeman, Montana, for Appellee F.L. Dye Company.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

¶ 1 Plaintiff Larry DiMarzio (DiMarzio) appeals from a jury verdict from the Eighteenth Judicial District, Gallatin County, finding he breached his contract with both Defendants Crazy Mountain Construction, Inc. ("CMC") and F.L. Dye Company. The jury also found CMC was negligent in its work for DiMarzio and awarded damages to DiMarzio. DiMarzio also appeals certain evidentiary rulings. CMC cross-appeals the denial of most of its attorney's fees. F.L. Dye cross-appeals the denial of prejudgment interest. We affirm.

BACKGROUND

¶ 2 DiMarzio wanted to add a new kitchen and a glass atrium to his home in Bozeman, Montana, and hired CMC as a general contractor for the project on May 14, 2003. F.L. Dye was hired to install the air conditioning and humidification systems at DiMarzio's home. Duringthe course of the project, disputes arose between DiMarzio, CMC, and F.L. Dye about the quality of the work and air conditioning and humidification systems. These disputes resulted in the termination of the business relationships between CMC, F.L. Dye, and DiMarzio in the spring of 2004.

¶ 3 In October 2004, DiMarzio filed suit against CMC and F.L. Dye.¹ In his Amended Complaint, DiMarzio alleged CMC was negligent and breached its contract with him by failing to perform its work in a workmanlike manner and by its failure to properly supervise subcontractors, including F.L. Dye. DiMarzio alleged F.L. Dye was negligent in the design and installation of the air conditioning and humidification systems. CMC filed a counterclaim against DiMarzio for breach of contract. F.L. Dye filed a counter-claim against DiMarzio for breach of contract and unjust enrichment.

¶ 4 Pursuant to the District Court's scheduling order, DiMarzio timely filed the expert disclosure of Kevin Amende. In June 2007,nearly six months after the District Court's expert disclosure deadline, DiMarzio filed what he titled a "Supplemental Expert Disclosure" of William Lynch. F.L. Dye moved to strike the supplement as untimely (after the disclosure deadline) and because it was filed without leave of court (the disclosure was not made pursuant to a motion). DiMarzio responded that new information had been discovered and he was required to supplement, and that since there was no trial date, final pretrial order, or mediation, F.L. Dye was not surprised or prejudiced. DiMarzio also moved the District Court to amend the scheduling order to permit him to use Lynch at trial.

¶ 5 In a November 21, 2007, order, the District Court denied DiMarzio's request to amend the scheduling order, reserved judgment on the motion to strike, and offered to consider whether Lynch could testify to new matters as a rebuttal witness.

¶ 6 In response to the District Court's invitation, DiMarzio moved to substitute Lynch for Amende because Amende developed a conflict with DiMarzio and refused to testify at trial. On February 15, 2008, the District Court issued an order refusing to substitute Lynch for Amende and precluding DiMarzio from calling Lynch during his case in chief, but allowing DiMarzio to call Lynch as a rebuttal witness.

¶ 7 On May 13, 2009, DiMarzio again moved the District Court for an order allowing him to call Lynch during his case in chief. The DistrictCourt was not persuaded to alter its prior ruling and DiMarzio's motion was again denied by order dated June 26, 2009.

¶ 8 The case was tried before a jury from August 25, 2009, through September 1, 2009. The jury found as follows:

On DiMarzio's claims: CMC did not breach the contract, but CMC was negligent and awarded DiMarzio $7,902.44. F.L. Dye was not negligent;

On CMC's counter-claims: DiMarzio breached the contract and awarded CMC $5,361.78;

On F.L. Dye's counter-claims: DiMarzio breached the contract and awarded F.L. Dye $10,740.00, but DiMarzio was not unjustly enriched.

¶ 9 After the verdict, CMC requested attorney's fees and F.L. Dye requested prejudgment interest. The District Court awarded CMC attorney's fees for time spent on the contract claim only. CMC appeals from this order. The District Court denied F.L. Dye's request for prejudgment interest, concluding F.L. Dye's right to damages did not vest until the jury returned its verdict as to whether a contract existed between F.L. Dye and DiMarzio. F.L. Dye appeals from this order.

¶ 10 We restate the issues as follows:

¶ 11 DiMarzio raises the following issues on appeal:

¶ 12 Issue 1: Did the District Court abuse its discretion when it refused to allow DiMarzio to call William Lynch as an expert during his case in chief?

¶ 13 Issue 2: Did the District Court err when it denied DiMarzio's motion for directed verdict and allowed the jury to consider whether a contract existed between DiMarzio and F.L. Dye?

¶ 14 Issue 3: Did the District Court err in instructing the jury?

¶ 15 CMC raises the following issue on cross-appeal:

¶ 16 Issue 4: Did the District Court err in denying most of CMC's attorney's fees?

¶ 17 F.L. Dye raises the following issue on cross-appeal:

¶ 18 Issue 5: Did the District Court err when it denied F.L. Dye's request for prejudgment interest?

STANDARDS OF REVIEW

¶ 19 The district court's ruling on the admissibility of expert testimony is reviewed for an abuse of discretion. Sunburst School Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 68, 338 Mont. 259, 165 P.3d 1079 (citing State v. Vernes, 2006 MT 32, ¶ 14, 331 Mont. 129, 130 P.3d 169).

¶ 20 The denial of a motion for directed verdict is reviewed de novo.

[358 Mont. 123, 243 P.3d 722]

Tacke v. Energy West, Inc., 2010 MT 39, ¶ 16, 355 Mont. 243, 227 P.3d 601; Tucker v. Farmers Ins. Exch., 2009 MT 247, ¶ 23, 351 Mont. 448, 215 P.3d 1.

¶ 21 The giving of jury instructions is reviewed for an abuse of discretion. Vincent v. BNSF Ry. Co., 2010 MT 57, ¶ 14, 355 Mont. 348, 228 P.3d 1123; Edie v. Gray, 2005 MT 224, ¶ 12, 328 Mont. 354, 121 P.3d 516.

¶ 22 The award of attorney's fees is reviewed for an abuse of discretion. Tacke, ¶ 17.

¶ 23 The decision to grant or deny prejudgment interest is reviewed to determine whether the district court correctly interpreted the law. Swank Enterprises, Inc. v. All Purpose Services, Ltd., 2007 MT 57, ¶ 14, 336 Mont. 197, 154 P.3d 52.

DISCUSSION

¶ 24 Issue 1: Did the District Court abuse its discretion when it refused to allow DiMarzio to call William Lynch as an expert during his case in chief?

¶ 25 The District Court set a deadline of December 31, 2006, for the parties to disclose expert witnesses. DiMarzio timely disclosed expert witness, Kevin Amende. On June 20, 2007, DiMarzio filed a "Supplemental Expert Disclosure" which, in reality, disclosed an entirely new expert, William Lynch. Amende developed a conflict with DiMarzio and would not testify at trial; therefore, DiMarzio sought to replace Amende with Lynch. Because of the untimely disclosure of the new expert Lynch, the District Court did not allow DiMarzio to call Lynch in his case in chief, but allowed Lynch to testify in rebuttal.

¶ 26 DiMarzio alleges the District Court erred in refusing to allow Lynch to testify as an expert in his case in chief because there was no prejudice to F.L. Dye, and DiMarzio was not allowed to present the complete story to the jury.

¶ 27 The trial court is vested with great latitude in ruling on the admissibility of expert testimony. Nelson v. Nelson, 2005 MT 263, ¶ 31, 329 Mont. 85, 122 P.3d 1196 (emphasis in original). The district court has the authority to exclude expert testimony when the expert witness was not properly disclosed. Id. at ¶ 32; First Citizens Bank v. Sullivan, 2008 MT 428, ¶ 29, 347 Mont. 452, 200 P.3d 39. This Court views "with favor" sanctions for failure to comply with the rules of discovery. Seal v. Woodrows Pharmacy, 1999 MT 247, ¶ 22, 296 Mont. 197, 988 P.2d 1230.

¶ 28 Absent a showing that the district court abused its discretion, thisCourt will not overturn a district court's decision on the admissibility of evidence, including expert testimony. Nelson, ¶ 31; Sunburst, ¶ 68. A district court abuses its discretion when it acts "arbitrarily without employment of conscientious judgment or exceed[s] the bounds of reason resulting in substantial injustice." Circle S Seeds of Montana, Inc. v. T & M Transporting, Inc., 2006 MT 25, ¶ 14, 331 Mont. 76, 130 P.3d 150.

¶ 29 The District Court did not err when it refused to allow Lynch to testify in DiMarzio's case in chief. DiMarzio's disclosure of Lynch as an expert witness was not proper as it did not comply with the District Court's scheduling order. The District Court did not act arbitrarily nor did it exceed the bounds of reason. It considered the issue thoroughly and on several occasions—in November 2007, February 2008, and June 2009. The District Court acted within its wide discretion in precluding Lynch's testimony during DiMarzio's case in chief but allowing it during rebuttal. Nelson, ¶¶ 32-34; First Citizens Bank, ¶¶ 29-32.

¶ 30 Issue 2: Did the District Court err when it denied DiMarzio's motion for directed verdict and allowed the jury to consider whether a contract existed between DiMarzio and F.L. Dye?

¶ 31 The jury found that DiMarzio had a contract with F.L. Dye regarding the air conditioning and humidification systems, and that DiMarzio breached that contract. DiMarzio maintains it was CMC who was...