United Farm Agency v. Blome, 81-244

• Decision Date: 24 June 1982
• Docket Number: No. 81-244,81-244
• Citation: 646 P.2d 1205,198 Mont. 435
• Court: Montana Supreme Court
• Parties: UNITED FARM AGENCY, a Missouri Corp., and Bill Palmer, Plaintiffs and Respondents, v. Edward H. BLOME and Esta R. Blome, husband and wife, Defendants and Appellants.

Page 1205

646 P.2d 1205

198 Mont. 435

UNITED FARM AGENCY, a Missouri Corp., and Bill Palmer Plaintiffs and Respondents, v. Edward H. BLOME and Esta R. Blome, husband and wife Defendants and Appellants.

No. 81-244.

Supreme Court of Montana.

Submitted on Briefs Sept. 17, 1981.

Decided June 24, 1982.

Page Wellcome, Bozeman, for defendants and appellants.

Jardine, McCarthy & Grauman, Whitehall, for plaintiffs and respondents.

SHEA, Justice.

We remand this case to the Beaverhead County District Court because to do otherwise would result in a gross miscarriage of justice. In this case, the defendants filed a notice of appeal in a blatant attempt to deprive the trial court of jurisdiction to rule upon a motion to reamend an already amended judgment. It is necessary that we review the trial court's second amended judgment in order to reach the real merits of this case, despite the defendants' claim that their notice of appeal prevented the trial court from entering its second amended judgment.

Plaintiffs Palmer and United Farm Agency (UFA), as real estate agents and brokers, sold farm lands for the Blomes and received money from the purchasers. When the Blomes failed to pay Palmer his sales commissions, Palmer and UFA sued them to recover the commissions.

The Blomes filed a general denial but also alleged that Palmer and UFA had failed to account for some of the money received from the sales. Because of this failure to account, the Blomes alleged in their answer that they were entitled to treble damages under the Montana Real Estate Licensing Act. The Blomes also alleged that they were entitled to an offset against the unpaid commissions because Palmer and UFA had failed to account for an amount between $10,000 and $20,000, but in an amended answer filed three days before trial, the exact amount was alleged to be $16,014.

After a nonjury trial in which the Blomes presented an accountant's uncontradicted testimony that Palmer and UFA had failed to account for $16,014, the trial court did not permit the claimed offset and held that the Blomes owed $23,100 in unpaid commissions. Based on the accountant's testimony, the Blomes moved the trial court to amend the judgment to allow the $16,014 offset. Although Palmer and UFA opposed the motion, they offered no evidence to contradict the accountant's testimony. After the trial court amended the judgment, however, Palmer and UFA apparently had second thoughts about the propriety of the offset and hired an accountant of their own.

Based on their accountant's findings, Palmer and UFA then moved the trial court, in effect, to reopen the trial so that their accountant could testify that the $16,014 had been properly accounted for, and therefore, that it shouldn't be allowed as an offset. The trial court set a hearing on this motion for April 23, 1981 (later rescheduled for April 30, 1981), but before the hearing took place, the Blomes filed a notice that they were appealing from the first amended judgment. Blome's counsel appeared at the April 23 hearing and argued that because of the notice of appeal, the trial court had been stripped of jurisdiction to hear Palmer's and UFA's motion. The trial court nonetheless heard the accountant's testimony and was satisfied that the $16,014 had been properly accounted for. An order was entered which held that the offset was not allowed and that the amount of the judgment was increased back to the original amount of $23,100 plus interest. The trial judge also filed a memorandum setting forth his...