Doig v. Cascaddan, 96-373
| Decision Date | 25 March 1997 |
| Docket Number | No. 96-373,96-373 |
| Parties | Darleen H. DOIG, Plaintiff and Respondent, v. Gordon D. CASCADDAN and Joan L. Cascaddan, husband and wife, Defendants and Appellants. |
| Court | Montana Supreme Court |
Gregory W. Duncan; Harrison, Loendorf, Poston & Duncan; Helena, for Defendants and Appellants.
Thomas A. Budewitz; Attorney at Law; Helena, for Plaintiff and Respondent.
The respondent, Darleen H. Doig, filed a complaint for declaratory judgment in the District Court for the First Judicial District in Broadwater County. The appellants, Gordon D. Cascaddan and Joan L. Cascaddan, counterclaimed and sought damages for various alleged breaches of contract. Following a trial by jury, the District Court entered judgment for Cascaddans in the amount of $1,000, and awarded attorney fees to Doig as the prevailing party. Cascaddans appeal. We affirm the judgment of the District Court.
The issues on appeal are:
1. Did the District Court err when it denied Cascaddans' motion to allow extrinsic evidence to impeach their own witness?
2. Did the District Court err when it granted Doig's motion for a directed verdict and dismissed Cascaddans' claim pertaining to water rights?
3. Did the District Court err when it held that Doig is the prevailing party and, on that basis, awarded her attorney fees?
Doig was the owner of real property in Broadwater County. In 1992, she entered into a buy-sell agreement with Cascaddans. The terms of the agreement specify that, at closing, Cascaddans would receive a warranty deed secured by a mortgage, and that the remaining balance due would be paid according to the terms of a promissory note.
Furthermore, the agreement contains: (1) a provision which required Doig to clean up the property; and (2) a liquidated penalty clause which would apply if Doig failed to comply with the clean-up provision. The agreement also states:
If either party hereto finds it necessary to institute an action at law, to employ an attorney to protect or enforce any of the rights created hereunder ... the prevailing party shall be entitled to recover from the other party a reasonable attorney's fee....
Closing took place on August 14, 1992, and pursuant to the terms of the agreement, Cascaddans took possession of the property on August 1, 1993.
Cascaddans subsequently complained to Doig that she had not complied with the terms of their agreement. On March 3, 1994, they sent her a letter which stated:
Because of your failure to respond, the Cascaddans have decided to reduce their remaining principal balance due under their note to you by the sum of $20,000....
In response, Doig filed a complaint for declaratory judgment in which she requested the District Court to enter:
[A] judgment that [Doig] is not in breach of any of the terms of the contract between the parties and further declaring that [Cascaddans'] obligations to make all payments provided for in said contract remain in full force and effect.
Accompanying her complaint was an offer of judgment in the amount of $2,500.
Cascaddans counterclaimed and sought approximately $20,000 in damages. Specifically, they claimed that Doig breached the contract when she: (1) removed shop walls, shelving, and certain three inch and two inch irrigation pipe; (2) created a fence problem; and (3) failed to remove certain items from the property. Furthermore, based on her alleged failure to clean up the property, Cascaddans sought to collect a monetary penalty pursuant to the contract's liquidated penalty clause.
Subsequently, Doig sent Cascaddans a check in the amount of $906 for replacement of the missing shop wall. After Cascaddans returned the check to her, she filed another offer of judgment in the amount of $3,406.
On August 3, 1995, the District Court granted Doig's motion for summary judgment on Cascaddans' claim for damages pursuant to the liquidated penalty clause. Trial by jury was scheduled to commence on December 11, 1995; however, on December 1, 1995, Cascaddans retained new counsel and moved for a continuance. They also filed motions to add a third-party claim and to amend their counterclaim to allege that Doig breached the contract when she failed to convey certain water rights. The District Court denied the motion to add a third-party claim, but granted the motion to amend the counterclaim. Cascaddans' amended counterclaim sought damages in the amount of approximately $40,000. Trial by jury began on February 26, 1996.
At trial, Cascaddans contended that Doig breached the contract when she failed to convey water rights. As part of their case, they sought to establish the value of those water rights by eliciting the following testimony from Donald Shearer:
Q. And was it--did Doig ever offer to sell those water rights to you?
A. Yes.
Q. And did he offer to sell you the second and the fourth water right?
A. I think the second right.
Q. Was the fourth right associated with that at all?
A. I don't believe so, but I'm not sure at this point.
Q. What did he offer to sell you that right for?
MR. BUDWEITZ [Doig's counsel]: Object now because what he's asking, apparently attempting to do is establish a value of the second water rights, which he got, they got it.
THE COURT: If I'm not mistaken, and I'll ask Mr. Shearer, the second water right that you and Mr. Doig were discussing, that is the water right that the Cascaddans currently have, is it not?
A. I think so.
THE COURT: Okay. Sustained.
After Cascaddans completed the presentation of their evidence, they moved the District Court to allow them to use extrinsic evidence--the testimony of Darryl Strombaugh--to impeach Shearer's trial testimony. The District Court denied their motion.
At the conclusion of all the evidence, Doig moved for a directed verdict regarding several of Cascaddans' counterclaims. The District Court concluded that, with regard to the water rights, the improper location of the fence, and the missing pieces of two-inch pipe, Cascaddans had not provided sufficient evidence to establish their damages. Accordingly, it granted Doig's motion for a directed verdict with regard to those counterclaims.
As a result of the directed verdict, the damage claims which were submitted to the jury were for the total amount of $17,240. The jury returned a verdict in favor of Cascaddans in the amount of $1,000.
After trial, both parties moved for attorney fees. The District Court determined that Doig is the "prevailing party" and, on that basis, awarded her attorney fees.
Did the District Court err when it denied Cascaddans' motion to allow extrinsic evidence to impeach their own witness?
When we review a district court's evidentiary ruling, the standard of review is whether the district court abused its discretion. Glacier National Bank v. Challinor (1992), 253 Mont. 412, 415, 833 P.2d 1046, 1048.
At trial, Cascaddans asserted that Doig breached the contract when she failed to convey certain water rights. In support of their claim, Cascaddans presented Donald Shearer who testified as follows with regard to the value of the disputed water rights:
Q. And was it--did Doig ever offer to sell those water rights to you?
A. Yes.
Q. And did he offer to sell you the second and the fourth water right?
A. I think the second right.
Q. Was the fourth right associated with that at all?
A. I don't believe so, but I'm not sure at this point.
After Cascaddans completed the presentation of their evidence and rested their case, they asserted, outside the presence of the jury, that Shearer's trial testimony contradicted prior statements he made to their attorney. They claimed that previously Shearer stated that Doig offered to sell him two water rights (both the "second" and the "fourth" rights), and not just the one Cascaddans had already received. They further claimed that a third party, Darryl Strombaugh, heard Shearer's prior inconsistent statements and that he could testify for impeachment purposes. On that basis, they moved the District Court to allow them to use extrinsic evidence to impeach Shearer's testimony. The District Court denied the motion.
On appeal, Cascaddans contend that the District Court erred when it denied their motion to use extrinsic evidence (the testimony of Darryl Strombaugh) to impeach Donald Shearer. Specifically, they assert that, pursuant to Rule 607, M.R.Evid., they have the right to impeach any witness, including their own.
Cascaddans' interpretation of Rule 607, M.R.Evid., is correct. However, their argument on appeal overlooks the equally important Rule 613 which states, in relevant part:
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon....
Rule 613(b), M.R.Evid. (emphasis added); see also State v. Pease (1986), 222 Mont. 455, 462, 724 P.2d 153, 157.
In this case, Cascaddans failed to comply with Rule 613(b), M.R.Evid. They did not question Shearer regarding his alleged prior inconsistent statement, and provided him no opportunity to explain or deny that it was made. In fact, their motion to introduce extrinsic evidence for impeachment purposes was not made until after Shearer had been dismissed as a witness, and after they had completed the presentation of their evidence and rested their case.
Therefore, pursuant to Rule 613(b), M.R.Evid., Darryl Strombaugh's impeachment testimony was not admissible. Accordingly, we hold that the District Court did not err when it denied Cascaddans' motion to impeach Shearer by offering that testimony.
Did the District Court err when it granted Doig's motion for a directed verdict and dismissed Cascaddans' claim pertaining to water rights?
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