Rocky Mountains Enterprises, Inc. v. Pierce Flooring, 95-367

Citation951 P.2d 1326,286 Mont. 282,54 St.Rep. 1410
Decision Date23 December 1997
Docket NumberNo. 95-367,95-367
PartiesROCKY MOUNTAIN ENTERPRISES, INC., a Montana Business Corporation, Susan A. Black, individually and as Guardian Ad Litem for Veronica Black, her minor child; and David A. Black, Plaintiffs and Appellants, v. PIERCE FLOORING, Carpet Barn, Thomas Huggins, Estate of George R. Pierce, and G. Ron Pierce, Defendants/Respondents/Cross-Appellants.
CourtUnited States State Supreme Court of Montana

Calvin J. Stacey, Stacey & Walen, Billings, for Respondents.

Thomas Huggins, pro se.

REGNIER, Justice.

David Black, Susan Black, individually, and as guardian ad litem for Veronica Black, her minor child, and Rocky Mountain Enterprises, Inc., appeal from a Thirteenth Judicial District Court, Yellowstone County, jury verdict and subsequent post-trial orders. The defendants cross-appeal. We affirm.

The issues on appeal are restated as follows:

1. Did the District Court commit error to justify remand of the case for retrial for damages only based upon:

A. Exclusion of David Black's opinion testimony as to Rocky Mountain's projected lost profits and business value;

B. Refusal to admit the deposition testimony of Susan Black;

C. The directed verdict against the minor child, Veronica Black;

D. Inadequacy of the jury verdict;

E. Admittance of police reports regarding the Blacks' domestic disputes into evidence;

F. Exclusion of plaintiffs' expert witnesses; and

G. Improper argument.

Rocky Mountain Enterprises and the Blacks also raise the following issues on appeal:

2. Did the District Court err in denying Rocky Mountain and the Blacks' memorandum of costs as untimely?

3. Did the District Court abuse its discretion in imposing sanctions against plaintiffs' counsel?

4. Did the District Court err in granting summary judgment against plaintiffs on the claim of civil conspiracy?

The following issues are raised on cross-appeal:

1. Did the District Court err in failing to dismiss the complaint pursuant to Rule 41(e), M.R.Civ.P.?

2. Did the District Court err in not granting either the defendants' motion for summary judgment or later motion for a directed verdict on plaintiffs' claims based on vicarious liability and negligence?

FACTUAL BACKGROUND

In June 1985, David and Susan Black started Rocky Mountain Enterprises, Inc., a closely-held corporation engaged in the wholesale distribution and sales of carpeting and other floor covering products in Billings. The Blacks made an arrangement with a carpet manufacturer's representative which allowed them a very favorable pricing structure. In March 1986, they began an advertising campaign that received a good response and their business steadily improved.

In October 1986, Susan Black started receiving hang-up nuisance calls at both the business during the day and at the Blacks' residence in the evening. On October 26, 1986, the tires on Susan's vehicle were slashed. Again on December 2, 1986, all four tires on her vehicle were slashed while it was parked at her residence. On December 17, 1986, someone slashed the tires on David's vehicle and broke into Susan's vehicle and slashed the headrests, seats, and interior. Finally, on December 24, 1986, an intruder came up on the porch of the Blacks' residence, unscrewed a light bulb, slashed a tire on Susan's vehicle, and threw essence of skunk into the vehicle. David and a security guard chased the intruder, but were unable to catch him.

After the incident on December 17, the Billings Police Department suggested that a telephone wiretap be put in place. The telephone calls were traced to Pierce Flooring, Inc., in Billings. Pierce Flooring was a competitor to Rocky Mountain, and is owned and run by the Pierce family who are individually named as defendants. The Pierce family also owns and runs Carpet Barn, a Montana corporation engaged in the retail sale of carpeting and other floor coverings. Tom Huggins, an employee of Carpet Barn, admitted to having made the nuisance calls to the Blacks but insisted that he made all the calls from Carpet Barn.

Upon questioning by the Billings police, Huggins admitted that his activities against the Blacks were related to the carpet business. He emphasized that no other person associated with the Pierce family or businesses knew what he was doing and denied that anyone else ever assisted him with his actions against the Blacks. On April 17, 1987, all charges were dismissed against Huggins based upon his acceptance into a deferred prosecution program.

On October 21, 1988, David and Susan Black, their minor child Veronica Black, and Rocky Mountain Enterprises, Inc., filed a complaint against George R. Pierce, Inc.; Pierce Flooring; Carpet Barn; George L. Pierce; G. Ron Pierce; Dorothy E. Pierce; and William D. Pierce (the Pierce defendants); and Thomas Huggins. In the complaint, Rocky Mountain and the Blacks sought recovery for damages against the defendants as a result of the criminal conduct committed by Huggins in 1986 while employed by Carpet Barn.

On December 29, 1994, the Pierce defendants moved for summary judgment on some of the plaintiffs' claims. The District Court returned an order and memorandum on January 10, 1995. In its order, the District Court granted partial summary judgment to the Pierce defendants on the Blacks' civil conspiracy claim. The District Court granted partial summary judgment to Pierce Flooring, Estate of George L. Pierce, and G. Ron Pierce as to the issue of respondeat superior. The District Court denied summary judgment on the issue of respondeat superior as to Carpet Barn. The District Court ultimately dismissed the case as to Pierce Flooring, Estate of George L. Pierce, and G. Ron Pierce. Although unclear from the record, around this time, the defendants George R. Pierce, Inc., Dorothy E. Pierce, and William D. Pierce were either dismissed by the District Court or voluntarily dismissed by the plaintiffs. Thus, the remaining defendants in this case were Carpet Barn and Thomas Huggins.

A jury trial began on January 30, 1995. On February 6, 1995, the jury returned a special verdict. The jury found that the acts of Huggins were committed within the scope of his employment with Carpet Barn and that those acts were a cause in fact and proximate cause of damages to the plaintiffs. The jury also found Carpet Barn negligent and that negligence was a cause in fact and proximate cause of damages to the plaintiffs. The jury awarded damages in the amount of $35,000 to Rocky Mountain. The jury awarded nothing to Susan or David Black. Finally, the jury found that Huggins acted with actual or implied malice that entitled the plaintiffs to an award of punitive damages.

On February 7, 1995, the jury awarded punitive damages in favor of Rocky Mountain and against Huggins in the amount of $51. The District Court entered judgment on March 7, 1995. The District Court also entered several post-judgment orders.

Rocky Mountain and the Blacks appeal and defendant Carpet Barn cross-appeals from the judgment orders of the District Court.

ISSUE 1

Did the District Court commit error to justify remand of the case for retrial for damages only based upon:

A. Exclusion of David Black's opinion testimony as to Rocky Mountain's projected lost profits and business value?

Rocky Mountain and the Blacks argue that the District Court abused its discretion by precluding David Black from testifying as to the economic loss, lost profits, and future income of Rocky Mountain. Rocky Mountain and the Blacks contend, and the defendants do not dispute, that expert testimony is not necessary to establish economic losses such as lost profits or lost income. However, Carpet Barn argues that the District Court properly precluded some of David Black's testimony regarding projected lost profits and income after Rocky Mountain went out of business because he was not qualified as an expert and, therefore, he would be offering speculative opinion testimony as to an amount representing future lost profits of Rocky Mountain.

Rule 701, M.R.Evid., states:

Opinion testimony by lay witnesses. If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

A district court has great discretion in the admittance of evidence and we will not overturn a court's decision unless the court abused its discretion. Miranti v. Orms (1992), 253 Mont. 231, 235, 833 P.2d 164, 166.

At trial, plaintiffs attempted to introduce evidence concerning projected lost profits and income of Rocky Mountain through the testimony of owner David Black. Carpet Barn objected to that testimony, arguing that Black was not an expert witness in this matter and, therefore, was unqualified to testify about projected lost profits and income.

Outside the presence of the jury, Black was examined by both parties in order for the District Court to determine whether Black was "qualified as an expert or if the alleged opinions are opinions that can be given by a non-expert."

The District Court ruled that David Black could not testify about projected lost profits and income. The District Court stated:

[T]he opinion that is being requested of [Black] to project lost profits from the time that his business went out of business into the future as an expert opinion, is not appropriate for lay testimony because he happened to have been a stockholder of that company at the time it went out of business.

Having made that ruling I'm going to rule that the witness is not qualified to testify as an expert in economics to make the projections that are intended to be made here.

The District Court also stated that any testimony...

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