Watkins v. Williams

• Decision Date: 04 August 1994
• Docket Number: No. 93-428,93-428
• Citation: 265 Mont. 306,877 P.2d 19
• Parties: Bill WATKINS, Plaintiff and Respondent, v. Tom WILLIAMS and Virginia Williams, Defendants and Appellants.
• Court: Montana Supreme Court

Page 19

877 P.2d 19

265 Mont. 306

Bill WATKINS, Plaintiff and Respondent, v. Tom WILLIAMS and Virginia Williams, Defendants and Appellants.

No. 93-428.

Supreme Court of Montana.

Submitted on Briefs April 21, 1994.

Decided June 2, 1994.

Rehearing Denied Aug. 4, 1994.

[265 Mont. 309] Kevin E. Vainio, Butte, for defendants and appellants.

Gilbert U. Burdett, Burdett Law Firm, Billings, for plaintiff and respondent.

TURNAGE, Chief Justice.

Tom and Virginia Williams appeal from a judgment of the Second Judicial District Court entered against them following a jury verdict awarding Bill Watkins $20,191. They also appeal the denial of their motions for judgment notwithstanding the verdict and for a new trial.

We rephrase the dispositive issues as follows:

1. Whether the District Court erred in permitting Watkins to testify about the amount of damages he suffered.

2. Whether the court erred in determining that evidence about circumstances surrounding Watkins' alleged criminal arrest was inadmissible.

3. Whether the court erred in finding that the parties' attempted accord agreement was not satisfied and therefore did not extinguish their previously existing oral contract.

4. Whether the court erred by excluding evidence concerning the alleged forgery of a bill of sale.

5. Whether the court erred in excluding from evidence a letter, introduced by the Williamses at trial, which purported to contain material terms of compensation for Watkins' horse training services.

Tom and Virginia Williams own racehorses. At times, their horses have raced on tracks in Montana, Wyoming, Idaho and Oklahoma.

During March 1989, the Williamses asked Bill Watkins, a licensed horse trainer, to train six of their racehorses on location at Sallisaw, Oklahoma. Watkins agreed. The parties dispute whether their oral agreement contained material terms regarding compensation for Watkins' services.

The Williamses and Watkins opened an account at Blue Ribbons Downs racetrack, located near Sallisaw. As one of the Williamses' horses placed in or won a race, the winnings were deposited in the account. Racetrack expenses, such as entry fees, were taken out of the account. The parties agreed that Watkins could withdraw certain monies from the account to cover his training costs and charges.

Watkins provided the horses with hay, alfalfa, grain, vitamins, stables and exercise, among other things. At his request, jockeys galloped the horses around the track. Watkins also had veterinarians attend to the horses' medical needs.

Two of the six horses, The Right Key and Bodella, were taken off training status during the Fall of 1989. The Williamses drove from Montana to Oklahoma with a horse trailer and picked up The Right Key; Watkins put Bodella out to pasture after the horse failed to qualify in speed tests at the track.

Tom Williams occasionally visited Sallisaw to meet with Watkins and check on the horses during the course of the parties' contractual relationship. The Williamses irregularly paid Watkins portions of the amount they owed him; also, Watkins withdrew funds from the racetrack account from time to time.

The parties' contractual relationship ended approximately one year after it began. They met during March 1990 and worked out an accord to extinguish the Williamses' existing debt to Watkins. They agreed that the Williamses would pay Watkins $5,000, and, at that time, Tom Williams tendered two $2,500 checks to Watkins.

Watkins sent the checks to his bank. When his account was not credited with the second $2,500 check, Watkins learned that the check had become lost.

He called the Williamses and asked them to stop payment on the check. They did. Watkins also asked the Williamses to issue another $2,500 check to complete their accord agreement. They refused.

The Williamses stated that they refused because when they retrieved their racehorses after making the accord agreement with Watkins, they found the horse Bodella to be in poor condition. Specifically, they alleged that Bodella had been mistreated and starved by Watkins.

Watkins obtained the services of an attorney. Through his attorney, Watkins again requested that the Williamses complete their accord agreement by reissuing the second $2,500 check. The Williamses again refused.

When Watkins sued the Williamses on the original oral agreement, he stated that the Williamses had incurred a debt of approximately $38,000. Watkins further stated that the Williamses had directly and indirectly paid approximately $18,000 of the debt, leaving a balance of $20,191 owing.

The Williamses responded by alleging that the parties had reached a separate accord agreement which had extinguished the original oral contract. The Williamses also counter-claimed against Watkins, alleging that he mistreated their horse, Bodella.

At trial, testimony established that Watkins' charges for training horses was reasonable in Sallisaw, Oklahoma. The jury returned a verdict for Watkins, stating that the Williamses owed him $20,191. The jury found that Watkins did not owe the Williamses anything for the alleged mistreatment of Bodella. Judgment was entered accordingly, and the Williamses appeal.

STANDARD OF REVIEW

We review a district court's findings of fact for clear error and its conclusions of law to determine whether the conclusions are correct. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Regarding questions concerning the admissibility of evidence, the "question[s] ... must in every case be left largely to the sound discretion of the trial court, subject to review only in case of manifest abuse." Cech v. State (1979), 184 Mont. 522, 604 P.2d 97, citing Gunderson v. Brewster (1970), 154 Mont. 405, 466 P.2d 589.

ISSUE ONE

Did the District Court err by permitting Watkins to testify about the amount of damages he suffered?

The Williamses argue that the court erred by permitting Watkins to testify about the amount of damages he suffered because, while testifying, Watkins allegedly read from a document which was excluded from evidence. The document was a summary of contents contained in a wall calendar kept by horse trainers in Sallisaw. Watkins presented it to the court for admission into evidence and the Williamses objected, stating that the summary was not the best evidence of Watkins' training services. After voir dire of Watkins, the Williamses also alleged that the document should be excluded as self-serving. The court sustained the Williamses' objection.

Watkins thereafter testified about the amount of training services he rendered. He specifically stated that he charged $18 per day per horse trained. The $18 figure included a myriad of services, from shoeing to galloping to feeding and sheltering. Watkins charged a different amount for attending to Bodella's needs while the horse was at pasture. The total bill for his services for the year was $37,888. And, Watkins testified, the Williamses had paid him $17,697 of the debt they owed him, reducing the amount owing to a balance of $20,191.

Disputing the figure, the Williamses argue that the court erred by allowing Watkins to testify while reading from the calendar summary. They allege that the testimony is improper according to Rules 1002 and 1006, M.R.Evid. Watkins responds by asserting that the best evidence rule does not exclude oral testimony and that the court correctly permitted him to testify about the damages he suffered.

Rule 1002, M.R.Evid., the best evidence rule, requires that "[t]o prove the content of a writing ... the original writing ... is required...." Rule 1006, M.R.Evid., provides that:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

The best evidence rule pertains to evidentiary documents only when the terms of the writing are material. State v. Cronin (1978), 179 Mont. 481, 587 P.2d 395. It comes into play only when the terms of a writing are being established and an attempt is being made to offer secondary evidence to prove the contents of the original document. See Application of Angus (1982), 60 Or.App. 546, 655 P.2d 208, cert. denied (1983), 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 109.

Secondary evidence may include a copy of an original or testimony in regards to the contents of the original. See 32A C.J.S.2d Evidence, § 775. The secondary evidence is admissible over a best evidence objection if one of the requirements set forth at Rule 1004, M.R.Evid., has been met and proper foundation is laid.

Witness testimony adduced from personal experience or knowledge is not within the ambit of secondary evidence; witnesses may freely testify about events which have occurred independently from and may have been memorialized by an antecedent writing. See, e.g., Roods v. Roods (Utah 1982), 645 P.2d 640; see also D'Angelo v. United States (1978), 456 F.Supp. 127; Cf. Rule 602, M.R.Evid. The best evidence rule remains inapplicable when a witness testifies about personal knowledge of a matter, regardless whether the same information may be contained in an inadmissible writing. Moreover, our rules of evidence permit witnesses to use writings to refresh their memory while testifying. Rule 612, M.R.Evid.

After reviewing the record, we conclude that Watkins testified from personal knowledge and experience and that his concurrent use of the summary of contents from the wall calendar was not reversible error. The summary's contents, as stated by Watkins during oral testimony, merely set forth the number of days he trained the horses and the resulting charges which were incurred by the Williamses. Neither party disputes the length of time the horses were in Watkins' possession and the...