Durden v. Hydro Flame Corp.
| Decision Date | 10 March 1998 |
| Docket Number | No. 97-187,97-187 |
| Citation | 955 P.2d 160,1998 MT 47 |
| Parties | Jesse DURDEN and Grace Ann Durden, individually and as Guardians for April Durden, a Minor. Plaintiffs, Respondents and Cross-Appellants. v. HYDRO FLAME CORPORATION, a Utah Corporation, Defendant, and Chief Industries, Inc., d/b/a King of the Road, a Kansas Corporation, Defendant, Appellant, and Cross-Respondent. |
| Court | Montana Supreme Court |
Gig A. Tollefsen, Berg, Lilly, Andriolo & Tollefsen, Bozeman, for Appellant.
Monte D. Beck, Beck Law Offices, Bozeman, Montana; Joe Bottomly, Kalispell, for Respondents.
¶1 This is an appeal by Chief Industries, Inc., d/b/a King of the Road (Chief) from the December 5, 1996 order of the Sixth Judicial District Court, Park County, granting the motion of Plaintiffs Jesse and Grace Ann Durden, individually and as guardians for their minor daughter, April Durden (Durdens) for judgment notwithstanding the verdict and for new trial. We reverse in part, affirm in part and remand for further proceedings consistent with this opinion.
¶2 Because we are remanding this case for a new trial on the issues of causation and, if causation is proven, damages, we will limit our discussion of the background of this case to the extent necessary to address the dispositive legal issues.
¶3 Durdens filed a product liability action against Chief, a trailer manufacturer and ¶4 Chief appealed from the trial court's December 5 and December 23 orders. Durdens cross-appealed from the court's denial of their pretrial motion to strike the testimony of Chief's medical expert, Dr. Donna Seger, on the grounds that Chief had failed to provide an adequate expert-witness disclosure pursuant to Rule 26(b), M.R.Civ.P.
against Hydro Flame Corporation, a component manufacturer of the trailer furnace. Durdens alleged that personal injuries to Mrs. Durden and to April were caused by defects in the heating system allowing carbon monoxide, or CO, to enter the trailer. Durdens settled with Hydro Flame prior to trial. Liability was conceded by Chief. Durdens' action was tried against Chief on September 16 through 26, 1996. The jury returned a verdict finding no causation and, thus, did not reach the issue of damages. Thereafter, Durdens moved for judgment as a matter of law 1 based on insufficient evidence to support the verdict and for a new trial based on misconduct of defense counsel. The District Court granted both motions on December 5, 1996, and, by a subsequent opinion and order issued December 23, 1996, sanctioned Chief by requiring it to pay Durdens' reasonable attorneys' fees, costs and expenses incurred during the first trial and in obtaining a new trial.
¶5 At the outset, we note that, while Chief's notice of appeal encompasses the District Court's order of December 23, 1996, granting sanctions for defense counsel's misconduct, that particular matter is neither briefed nor argued on appeal by Chief. Accordingly, we deem Chief's appeal of the trial court's imposition of sanctions waived, and we will not address this issue further. Rule 23, M.R.App.P.; In re Marriage of Lee (1997), 282 Mont. 410, 421, 938 P.2d 650, 657; DeVoe v. State (1997), 281 Mont. 356, 370, 935 P.2d 256, 265; Rieman v. Anderson (1997), 282 Mont. 139, 147, 935 P.2d 1122, 1126-27; Whalen v. Taylor (1996), 278 Mont. 293, 302, 925 P.2d 462, 467.
¶6 We will, however, address the following issues in this appeal:
¶7 I. Did the District Court err in granting Durdens' motion for judgment as a matter of law?
¶8 II. Did the District Court err in granting Durdens' motion for new trial?
¶9 By way of their cross-appeal, Durdens raise the issue of whether the District Court erred in allowing Chief's medical expert, Dr. Donna Seger, to testify. We will also address this issue in turn.
¶10 Did the District Court err in granting Durdens' motion for judgment as a matter of law?
¶11 Appealability of the District Court's order granting judgment as a matter of law
¶12 Before deciding the merits of this issue we must first address Durdens' argument that an order granting judgment as a matter of law is not an appealable order. As Durdens point out, Rule 1, M.R.App.P., enumerates the orders from which appeals may be taken, and this rule does not include an order granting judgment as a matter of law. Durdens also cite to our decisions in Weston v. Kuntz (1980), 187 Mont. 453, 610 P.2d 172, and Bostwick v. Department of Highways (1980), 188 Mont. 313, 613 P.2d 997, wherein we held that a court order determining liability only, and reserving the issue of damages is interlocutory, and thus, not an appealable order. Weston, 187 Mont. at 454, 610 P.2d at 172; Bostwick, 188 Mont. at 315, 613 P.2d at 998.
¶13 In response, Chief points out that for several decades this Court has accepted appeals of district court orders granting or denying judgments as a matter of law. In support of this argument, Chief cites Fox Grain and Cattle Co. v. Maxwell (1994), 267 Mont. 528, 885 P.2d 432; Kestell v. Heritage Health Care Corp. (1993), 259 Mont. 518, 858 P.2d 3; Greytak v. RegO Co. (1993), 257 Mont. 147, 848 P.2d 483; Simchuk v. Angel Island Community Ass'n (1992), 253 Mont. 221, 833 P.2d 158; Larson v. K-Mart Corp. (1990), 241 Mont. 428, 787 P.2d 361; and Wilkerson v. School Dist. No. 15, Glacier Cty. (1985), 216 Mont. 203, 700 P.2d 617. These cases, however, are distinguishable.
¶14 In Fox Grain, the judgment as a matter of law eliminated a portion of the damages awarded to the defendant; we reversed and ordered the verdict reinstated. Fox Grain, 267 Mont. at 535, 885 P.2d at 437. In Kestell, the court denied the defendant's motion for judgment as a matter of law and we affirmed. Kestell, 259 Mont. at 528, 858 P.2d at 9. In Greytak, the court denied the plaintiff's motion for judgment as a matter of law, but ordered a new trial because of claimed instructional error. We reversed the order granting new trial. Greytak, 257 Mont. at 155-56, 848 P.2d at 489. Simchuk involved a case where the court granted judgment as a matter of law in favor of the defendant and denied the plaintiff's motion for judgment as a matter of law on the issue of negligence. We reversed the court's granting judgment as a matter of law, ordering the plaintiff's verdict reinstated, and affirmed the court's denial of the judgment as a matter of law on negligence. Simchuk, 253 Mont. at 227-28, 833 P.2d at 162. In Larson, we affirmed the court's denial of the plaintiff's motion for judgment as a matter of law. Larson, 241 Mont. at 433, 787 P.2d at 364. And, finally, in Wilkerson, we reversed the judgment as a matter of law for the defendant and ordered the plaintiff's verdict reinstated. Wilkerson, 216 Mont. at 211, 700 P.2d at 623.
¶15 Importantly, in each of the foregoing cases the order granting or denying judgment as a matter of law was in the context of a final, and thus appealable, disposition of the case. Accordingly, the cases cited by Chief do not support its argument here. The mere fact that we have accepted other appeals of orders granting and denying motions for judgment as a matter of law does not resolve the issue raised by Durdens.
¶16 Our recent decision in Ryan v. City of Bozeman (1996), 279 Mont. 507, 928 P.2d 228, is very nearly on point, however. In that case, the trial court granted plaintiff's motion for judgment as a matter of law on the issue of liability and ordered a new trial on damages. The defendant appealed the order granting new trial and filed a petition for writ of supervisory control with regard to the grant of judgment as a matter of law since, as we pointed out, "the grant of a [judgment as a matter of law] is not subject to appeal under Rule 1, M.R.App.P." Ryan, 279 Mont. at 509, 928 P.2d at 229. In its petition for the writ, defendant, without opposition from the plaintiff, asked that the two issues be combined. Given the posture of the case and in the interests of judicial economy, we granted the writ and ordered that both the granting of the judgment as a matter of law and the granting of a new trial be combined for briefing. Ryan, 279 Mont. at 509, 928 P.2d at 229.
¶17 In this case Chief did not file a petition for writ of supervisory control requesting review of the order granting judgment as a matter of law in conjunction with its appeal of the order granting new trial. Accordingly, on that basis, we might well dismiss the appeal of the judgment as a matter of law issue. Notwithstanding, we conclude that because this case comes to us from the trial court in a posture procedurally identical to that of the case in Ryan, our same concerns regarding judicial economy and the near certainty that we will likely have to address this issue in another appeal following the trial on damages justifies our addressing the merits of this issue at this time.
¶18 Our authority to proceed in this manner derives from Rule 3, M.R.App.P., which allows this Court, on its own motion, to suspend the requirements of the rules of appellate procedure in the interest of expediting a decision upon any matter before us or for other good cause shown.
¶19 Finally, on this latter point and given our decision in Ryan and, now, in this case, it may be proper that we simply consider amending Rule 1, M.R.App.P., to specifically allow for the appeal of an order granting a motion for judgment as a matter of law when that is taken in conjunction with an order also granting a new trial on damages. In this limited class of cases, since the order granting a new trial is already appealable under Rule 1(b)(2), M.R.App.P., considering the two appeals together may save the necessity either for a second appeal or a second trial. In either event, the courts and the parties all save valuable time, money and resources.
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