Semenza v. Bowman

• Decision Date: 22 November 1994
• Docket Number: No. 94-202,94-202
• Citation: 885 P.2d 451,268 Mont. 118,51 St.Rep. 1209
• Parties: Larry SEMENZA and Faye Fitzgerald, Plaintiffs, Respondents, and Cross-Appellants, v. Ronald BOWMAN and Eric Johnson, d/b/a L & R Spraying Service, Defendants and Appellants.
• Court: Montana Supreme Court

Page 451

885 P.2d 451

268 Mont. 118

Larry SEMENZA and Faye Fitzgerald, Plaintiffs, Respondents and Cross-Appellants, v. Ronald BOWMAN and Eric Johnson, d/b/a L & R Spraying Service, Defendants and Appellants.

No. 94-202.

Supreme Court of Montana.

Submitted on Briefs Oct. 13, 1994.

Decided Nov. 22, 1994.

William O. Bronson, James, Gray & McCafferty, Great Falls, for appellants.

K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, Great Falls, for respondents.

TRIEWEILER, Justice.

Plaintiffs Larry Semenza and Faye Fitzgerald commenced this action in the District Court for the Tenth Judicial District for Judith Basin County to recover compensation for crop damage which they allege was caused when their crops were sprayed by defendants Ronald Bowman and Eric Johnson, d/b/a L & R Spraying Service. After trial before the court without a jury, the court found that L & R's spraying caused plaintiffs' damages, awarded damages based on their expert's calculations, did not allow L & R's expert to testify, and awarded prejudgment interest. L & R Spraying Service appeals from the District Court's decision. Semenza and Fitzgerald cross-appeal. We affirm the judgment of the District Court.

The following issues are raised by L & R on appeal:

1. Did the District Court err when it concluded that Fitzgerald's claim was not barred by the statute of limitations?

2. Did the District Court err when it excluded the opinion testimony of L & R's expert witness?

3. Did the District Court err in its calculation of Semenza's and Fitzgerald's damages?

4. Did the District Court err when it awarded Semenza and Fitzgerald prejudgment interest?

On cross-appeal, Semenza and Fitzgerald raise the following issue:

Did the District Court err in its determination of the date from which prejudgment interest should accrue?

FACTUAL BACKGROUND

Defendants Ronald Bowman and Eric Johnson operated L & R Spraying Service as a partnership, which for simplicity will be referred to as L & R. Semenza owns and farms land near Helmville (Helmville farm) in Powell County, and near Utica (Utica farm) in Judith Basin County. Plaintiff Faye Fitzgerald owns a farm near Stanford (Stanford farm) in Judith Basin County, which Semenza custom farmed. In the spring of 1987, Semenza seeded approximately 260 acres of his Helmville farm, about 180 acres of his Utica farm, and roughly 521 acres of Fitzgerald's Stanford farm, with Klages barley. Semenza asked L & R to spray those crops, and they did. L & R used a mixture of Banvel II and Low Vol 6 (LV6) which was an "off label" mixture not authorized for use on spring barley.

In May 1987, L & R sprayed this mixture on Semenza's and Fitzgerald's barley and spring wheat crops. In July 1987, Fitzgerald noticed that her barley crop was damaged. Semenza discovered similar problems with his barley crop.

On March 29, 1989, Semenza filed the original complaint in this case in which he alleged that L & R was negligent and damaged his crop. This complaint did not name Fitzgerald, but claimed damage to 953 acres, including the crop on Fitzgerald's property. On or about January 15, 1990, an amended complaint was filed adding Fitzgerald as a party but asserting the same cause of action.

A bench trial was conducted from January 25-29, 1993, and the District Court issued its findings and conclusions on November 19, 1993.

To counter plaintiffs' damage calculations, L & R called Dr. Ray Choriki to testify. After numerous objections and voir dire examination, the court did not allow Choriki to express his opinion.

The court found that L & R's spraying caused the crop damage, and that Fitzgerald was damaged in the amount of $47,737.28, based on calculations done by her expert, Neal Fehringer. The basis for that amount was the court's finding that she should have been able to sell all of her barley as malt barley at $3.69/bushel and would have harvested at least 13,194 more bushels. In addition, the court found that Semenza had to rent equipment for $3,000 to screen out "thins" to ensure the maximum amount of Fitzgerald's barley was suited for malt, and added that amount to her damage award.

Fehringer also testified, and the District Court found, that based on crop reduction at both of his locations, Semenza sustained damages in the total amount of $55,073.02. The District Court also found that L & R knew that Semenza's damages were at least the amount set forth above, and awarded Semenza and Fitzgerald prejudgment interest to accrue from September 15, 1989.

Both parties filed post-trial motions pursuant to Rule 59, M.R.Civ.P. Plaintiffs moved the court to award interest from the date of the damage in 1987. L & R moved for a new trial and to alter or amend the judgment. All post-trial motions were denied. Additional facts will be discussed where necessary to address the issues on appeal.

ISSUE 1

Did the District Court err when it concluded that Fitzgerald's claim was not barred by the statute of limitations?

The District Court denied L & R's motion for summary judgment based on the statute of limitations, and also denied its post-trial motion, which was made on the same basis. Our standard of review of a district court's summary judgment ruling is de novo. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331 (citing Minnie v. City of Roundup (1993) 257 Mont. 429, 431, 849 P.2d 212, 214). Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P., Spain-Morrow, 872 P.2d at 331-32.

L & R claims that the District Court erred when it concluded that Fitzgerald's claim was not barred by § 27-2-207(1), MCA, which provides a two-year statute of limitations for injury to property since she was not added as a party until more than two years after her crops were damaged. L & R contends that Rule 15(c), M.R.Civ.P., does not contain specific language allowing a new plaintiff to be added after the statute of limitations has expired. The relevant portion of Rule 15(c) states:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

We previously discussed similar contentions in Priest v. Taylor (1987), 227 Mont. 370, 740 P.2d 648, and Tynes v. Bankers Life Co. (1986), 224 Mont. 350, 730 P.2d 1115. Relying on the rationale of these cases, Fitzgerald argues that if the two-year statute of limitation applies, her claim should relate back to the date of Semenza's original complaint. We agree.

In Priest, we concluded that a when party amends a complaint to add a new plaintiff and a new cause of action, the claim in the amended complaint will relate back if certain conditions are satisfied. Priest, 740 P.2d at 653. In Priest, we cited Tynes which allowed claims to relate back if the defendant would not be prejudiced. We emphasized that the later claim may relate back if the two parties are nearly identical and the later claim arises from the same conduct, transaction, or occurrence set forth in the original pleading as required by Rule 15(c), M.R.Civ.P. Priest, 740 P.2d at 654 (citing Tynes, 730 P.2d at 1120-21). We recognized that amendments involving new plaintiffs relate back in the following limited circumstances: (1) where there is a close identity of interest between the original plaintiff and the present plaintiff; and (2) where the new claim is based on the same allegations as the original claim. Priest, 740 P.2d at 655.

The damage in this case occurred in approximately July 1987. Semenza filed his complaint on March 30, 1989, in which he sought recovery for the damage to Fitzgerald's acreage. On January 15, 1990, an amended complaint was filed adding Fitzgerald as a plaintiff. Fitzgerald's claim arose out of the same transaction or occurrence, i.e., that L & R's spraying caused damage to her crops. The parties have a close identity of interest because Semenza custom farms Fitzgerald's property and he requested L & R to spray Fitzgerald's crop. Fitzgerald's claim is based on the same allegations of negligence as Semenza's original claim. Accordingly, we conclude that the amendment adding Fitzgerald related back to the original complaint and was not barred by the statute of limitations.

In addition, without regard to the relation-back doctrine, Fitzgerald's claim was timely pursuant to our decision in Ritland v. Rowe (1993), 260 Mont. 453, 861 P.2d 175. In Ritland, the issue was whether the three-year tort statute of limitations for negligence, or the two-year property damage statute of limitations, applies to cases involving damages to property caused by negligent conduct. We held that where two statutes apply, the district court should apply the statute with the longer period of limitation. Ritland, 861 P.2d at 178. We hold that the District Court did not err when it held that Fitzgerald's claim relates back and that her claim was not barred by the two-year statute of limitations.

ISSUE 2

Did the District Court err when it excluded the opinion testimony of L & R's expert witness?

We have previously recognized that the trial court "is vested with great latitude in ruling on the admissibility of expert testimony." Cottrell v. Burlington Northern Railroad Co. (1993), 261 Mont. 296, 301, 863 P.2d 381, 384 (citing Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 332, 684 P.2d 1041 1048). In Cottrell, we discussed the foundation necessary to establish an expert's qualifications and stated that:

We set forth the standard that the determination of the qualification and competency of expert witnesses rests largely within the trial judge, and without a showing of an abuse of discretion, such determination will not be disturbed.

Cottrell, 863 P.2d at 384 (quoting Foreman v. Minnie (1984), 211 Mont....