Price Bldg. Service Inc. v. Christensen

• Citation: 215 Mont. 372,697 P.2d 1344,42 St.Rep. 440
• Decision Date: 08 April 1985
• Docket Number: No. 84-394,84-394
• Parties: PRICE BUILDING SERVICE INC., Plaintiff and Respondent, v. John CHRISTENSEN, d/b/a J.C. Tile, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 1344

697 P.2d 1344

215 Mont. 372

PRICE BUILDING SERVICE INC., Plaintiff and Respondent, v. John CHRISTENSEN, d/b/a

J.C. Tile, Defendant and Appellant.

No. 84-394.

Supreme Court of Montana.

Submitted on Briefs Dec. 7, 1984.

Decided April 8, 1985.

Timothy D. Geiszler, Missoula, for defendant and appellant.

Milodragovich, Dale & Dye, Michael J. Milodragovich, Missoula, for plaintiff and respondent.

TURNAGE, Chief Justice.

Defendant appeals a judgment entered by the Missoula County District Court in favor of Price Building Service in its action for breach of warranty. Following a nonjury trial, Price was awarded $10,872.13 plus interest, fees and costs in a judgment dated June 8, 1984. Christensen appeals raising certain questions concerning the trial court's admission of expert testimony.

This lawsuit was initiated by the general contractor, Price, against its subcontractor, Christensen, for damages resulting from a defective tile floor installed in the construction of the Missoula Arby's restaurant. Several months after the building was complete, the tile flooring came loose in several places.

Price claimed that the problem was caused by defective bonding of the "thin-set" mortar and that the tile subcontractor, Christensen, was responsible. Christensen refused to replace the flooring as it was his position that the concrete slab surface to which the tile was bonded had settled. Christensen argued that this settling caused the tile to buckle and spring loose. After the owner, Arby's threatened legal action against the general contractor, Price demanded Christensen replace the floor. Christensen eventually submitted a bid for the replacement, but Price contracted with another tile company who submitted a lower bid to do the work. This lawsuit was filed against Christensen to recover the costs of the repair work.

I

Christensen's primary issue on appeal is whether Kevin Price was properly allowed to testify as an expert witness under Rule 702, Mont.R.Evid. Kevin Price was an employee of the plaintiff contracting company and was generally responsible for supervising the various construction projects that were undertaken. Price has a high school education but no technical training in tile-laying. He had worked as a general laborer for the company before assuming his office responsibilities. Experience in tile-laying was gained through supervising subcontractors and preparing for the present litigation.

Christensen takes exception to Kevin Price expressing his opinion of the cause of the tile failure. Appellant asserts that the trial court abused its discretion in allowing the testimony under Rule 702, Mont.R.Evid. This rule of evidence, adopted verbatim from the modern federal rule, provides as follows:

"Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Christensen's appeal takes several tacks. First, it is argued that Price had no education, training or personal skill or experience with regard to tile installation. Secondly, appellant points out that the only expertise Price had was gained in preparation for this trial. The first contention is not supported by the record. The second contention may be true, but we find no legal support, nor does appellant provide such, for the proposition that one cannot become a Rule 702 expert through knowledge gained in preparation for litigation.

Of greater importance to the issue is the standard of review to be applied to the expert witness determination by the trial court. Appellant acknowledges that a determination of whether an expert witness is properly qualified is within the discretion of the trial judge. Haynes v. County of Missoula (1973), 163 Mont. 270, 290, 517 P.2d 370, 381. Absent a showing of abuse, the trial court's determination that a witness is qualified to testify as an expert will not be disturbed.

The District Court Judge in this case stated:

"I find that this witness has met the threshold level to testify as an expert. He has read enough and spoken to enough knowledgeable people and he deals with it on a reasonably--not daily, but periodic basis that I will allow him to testify as an expert on what he believes to be the cause of the tile failure."

This pronouncement followed several objections to opinion testimony by appellant's counsel that were sustained before a proper foundation was laid. The following dialogue preceded the witness being qualified as an expert:

"Q. [Plaintiff's Counsel] In the past, have you, in terms of performance of other jobs, discussed methods and manners of laying tile with tile contractors?

"A. [Price] Yes.

"Q. As a matter of fact, have you used Mr. Christensen to lay tile in other jobs that you've had?

"A. Yes.

"Q. Have you discussed matters such as this with Mr. Christensen?

"A. It's been several years ago, but I'm sure we did it from time to time.

"Q. And with other tile contractors as well?

"A. Yes.

"Q. And as a part of those discussions, have you discussed appropriate ways and proper ways to install given types of tile in given types of circumstances?

"A. Yes, we have.

"Q. Have those discussions also included the nature of, for example, surface preparation that needs to be done for proper tile installation?

"A. Yes.

"...

"Q. With respect to the potential problems that occur on a job site, have you discussed with tile contractors that are working for you the nature of problems that can occur if a preliminary step is not done properly by either the artisan or perhaps some other subcontractor that you've got?

[Objection]

"A. Yes, we have, as far as preparation of the surface to receive the tile and whatnot.

"Q. And apparently you've also discussed methods of determining where tile is loose; is that correct?

[Objection]

"A. Yes, we have.

"Q. And ... you apparently had some tile problems in other jobs that you've had; is that correct?

"A. Very minor ones, yes.

"Q. And I think you indicated they weren't to this magnitude, but there were other tile problems; is that true?

"A. Yes.

"Q. And I would presume as far as those problems are concerned, that you had to conduct some inquiry to determine the nature of the failure so that it wouldn't happen again; isn't that true?

"A. Yes.

"Q. And is the nature of the experience that you've had in excess of that that the ordinary layman or home handyman would have in terms of technical knowledge and compliance with specifications and that type of particular knowledge?

"A. Yes."

On the basis of this foundation, the lower court qualified the witness.

We are somewhat concerned that this witness was allowed to express his opinion on a skill to which he had no practical or personal involvement prior to preparation for trial. But the fact that we would reach a different conclusion on the determination than that of the trial court does not render the trial judgment infirm. The trial court's ruling must be upheld unless shown to be clearly erroneous. Rule 52, M.R.Civ.P. This Court will not overturn the holdings or findings of a trial court simply because the evidence furnishes reasonable grounds for different conclusions. Morgen & Oswood Const. Co. v. Big Sky of Mont. (1976), 171 Mont. 268, 557 P.2d 1017. This adage is particularly justified here, where the trial judge had the benefit of observing the witness's demeanor and credibility while we are reviewing a lifeless record.

Two Colorado appellate decisions illustrate the degree of discretion trial courts have in resolving Rule 702 determinations. In Sundance Develop., Inc. v. Standard Lbr. & Hard. Co. (Colo.App.1974), 520 P.2d 1056, the owner of recently constructed tennis courts sued the contractor who installed fences around the courts after the fences were wind-damaged. The plaintiff attempted to qualify as an expert a vice president of a firm that built tennis courts, such that this individual could testify on the cause of the tennis fence failure. The trial court excluded the testimony after the expert conceded he had little personal experience in the construction of fences because, in his firm, work of that nature was performed by subcontractors. This decision was upheld by the court of appeals which applied a "clearly erroneous" standard similar to Montana's standard set forth above. The Sundance court noted that the witness was generally knowledgeable with respect to tennis court construction but lacked knowledge and expertise in the matter at issue--construction of fences around tennis courts.

A trial court's ruling on expert testimony was ultimately reversed by the Colorado Supreme Court in Freeman v. Gentry Builders, LTD. (1974), 185 Colo. 123, 522 P.2d 739. In this case owners of a home with alleged defects attempted to qualify a foundation contractor as an expert to testify on the cost of repairing defects to the home generally. The trial court excluded the testimony because the contractor had bid many repair jobs but not the particular type of job required by the home's defects (placing voids in the partitions of the home). The court of appeals affirmed, Gentry Builders, LTD. v. Freeman (1973), 33 Colo.App. 144, 517 P.2d 469, but the Supreme Court reversed. The Supreme Court found the trial court ruling clearly erroneous as the foundation contractor had considerable experience in the building trade:

"... if it is shown that the trial court's ruling is clearly erroneous and results in the exclusion of competent and relevant evidence from the trial, reversal is required." 522 P.2d at 740.

These two cases indicate the general rule followed across this country that the lower court decision will be upheld unless there has been some clear error. In the case at bar, the trial judge was presented with sufficient evidence of Kevin Price's ...