No. 82-136
I N THE SUPREME COURT O T E STATE O MONTANA
F H F
1983
D A GRAHAM,
E N
P l a i n t i f f and A p p e l l a n t ,
-vs-
CLARKS FORK NATIONAL EANK,
Defendant and Respondent.
A p p e a l from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f C a r b o n , The H o n o r a b l e
C h a r l e s Luedke, J u d g e p r e s i d i n g .
Counsel of Record:
For Appellant:
Morrow, S e d i v y , O l s o n & Eck; Thomas O l s o n ,
Bozeman, Montana
Swandal, D o u g l a s s & Swandal; K e n t R . D o u g l a s s ,
L i v i n g s t o n , Montana
For Respondent:
B r i d g e r Law O f f i c e ; J o s e p h Mudd, E r i d g e r ,
Montana
Moulton, E e l l i n g h a m , Longo & M a t h e r , B i l l i n g s ,
Plontana
S u b m i t t e d on E r i e f s : April 15, 1983
Decided: May 1.9, 1 9 8 3
MAY 1 9 1983
Clerk
Mr. J u s t i c e J o h n Conway H a r r i s o n delivered t h e O p i n i o n of the
Court.
T h i s a p p e a l comes from t h e D i s t r i c t C o u r t of the Thirteenth
J u d i c i a l District i n and f o r t h e County of Carbon Plaintiff
commenced t h i s a c t i o n s e e k i n g damages f o r c o n v e r s i o n of cattle.
I n 1 9 7 8 - Dean Graham p u r c h a s e d n i n e t e e n head of registered
cattle. The c a t t l e were p a s t u r e d on l a n d owned by h i s t h e n son-
in-law, Marvin Heyd. Heyd a l s o owned c a t t l e ; s e c u r e d by C l a r k s
F o r k N a t i o n a l Bank, Heyd c o u l d n o t meet h i s o b l i g a t i o n s t o t h e
bank, consequently, t h e bank t o o k p o s s e s s i o n of Heyd's cattle,
and by m i s t a k e , a l s o t o o k G r a h a m ' s c a t t l e . Graham a l l e g e d t h a t ,
d u r i n g t h e t i m e t h e bank had p o s s e s s i o n , h i s c a t t l e l o s t w e i g h t .
Graham a l s o a l l e g e d t h a t h i s c a t t l e were i m p r o p e r l y p a s t u r e d w i t h
b u l l s owned by Heyd, and a s a r e s u l t he was f o r c e d t o abandon a
program of a r t i f i c i a l i n s e m i n a t i o n .
Graham b r o u g h t suit against the bank alleging conversion,
s e e k i n g damages i n excess of $200,000. During the trial the
c o u r t r e f u s e d G r a h a m ' s o f f e r e d t e s t i m o n y c o n c e r n i n g t h e v a l u e of
a h y p o t h e t i c a l purebred angus c a l f crop. Also, the court granted
t h e bank a d i r e c t e d v e r d i c t on G r a h a m ' s c l a i m of f u t u r e damages
and e x e m p l a r y damages. The j u r y r e t u r n e d a n award of $ 5 3 , 4 7 5 .
The D i s t r i c t Court set aside the jury award as excessive and
g r a n t e d a new t r i a l l i m i t e d t o t h e i s s u e of damages a r i s i n g from
t h e wrongful conversion.
Graham a p p e a l e d t o t h i s C o u r t . T h i s Court h e l d t h a t (1) t h e
g r a n t i n g of a new t r i a l was p r o p e r , ( 2 ) on r e t r i a l , Graham s h o u l d
b e a l l o w e d t o o f f e r e v i d e n c e of f u t u r e c a l f c r o p l o s s e s , and ( 3 )
t h e c l a i m of e x e m p l a r y damage s h o u l d be s u b m i t t e d t o t h e j u r y .
Graham v. C l a r k s Fork N a t i o n a l Bank ( 1 9 8 1 ) , Mont . -- , 631
P.2d 7 1 8 , 38 S t . R e p . 1140. The c a s e was r e t r i e d and t h e jury
awarded Graham $ 2 , 2 0 0 a c t u a l damages p l u s c o s t s . Graham a p p e a l s
again.
The a p p e l l a n t h a s r a i s e d two i s s u e s , b o t h of which stem from
e v i d e n c e which was a d m i t t e d c o n c e r n i n g M a r v i n H e y d ' s character.
First, appellant argues that admission of the evidence was in
c l e a r v i o l a t i o n of t h i s C o u r t ' s mandate i n o u r f i r s t o p i n i o n ; and
s e c o n d , by a d m i t t i n g t h e e v i d e n c e t h e D i s t r i c t C o u r t i g n o r e d t h e
l a w of conversion. The c o n t e s t e d evidence appears in several
p l a c e s t h r o u g h o u t t h e 874 p a g e t r a n s c r i p t . Appellant points to
n i n e t e e n s p e c i f i c i n s t a n c e s where e v i d e n c e was a l l o w e d c o n c e r n i n g
Marvin Heyd's character; m o s t of which focused on h i s l a c k of
financial responsibility. A p p e l l a n t c l a i m s t h a t s i n c e Heyd was
t o pasture his c a t t l e , and, s i n c e Heyd was h i s s o n - i n - l a w , the
character of Heyd was associated with himself. As a result,
appellant claims he was denied a fair and impartial trial.
Appellant admits that there never was an o b j e c t i o n t o the
a d m i s s i o n of a n y of t h e c o n t e s t e d e v i d e n c e . I n d e e d , much of t h e
evidence was illicited while appellant's trial counsel was
questioning the various witnesses. Of t h e n i n e t e e n i n s t a n c e s of
alleged error, t w e l v e were b r o u g h t a b o u t by t h e a p p e l l a n t him-
self. Nonetheless, a p p e l l a n t claims t h a t the i s s u e is p r o p e r l y
before this Court via the "plain error" doctrine discussed in
Halldorson v. Halldorson ( 1 9 7 7 ) , 1 7 5 Mont. 170, 573 P.2d 169,
where t h i s C o u r t h e l d t h a t a b s e n t o b j e c t i o n a t t r i a l , t h i s Court
may c o n s i d e r issues relating to the fundamental r i g h t s of the
parties.
The p l a i n e r r o r d o c t r i n e i s n o t a p p l i c a b l e t o t h i s c a s e . In
- alldorson,
H we elaborated on the doctrine by stating :
" a p p e l l a t e c o u r t s have a d u t y t o d e t e r m i n e
w h e t h e r t h e p a r t i e s b e f o r e them h a v e b e e n
d e n i e d s u b s t a n t i a l j u s t i c e by t h e t r i a l c o u r t ,
and when t h a t h a s o c c u r r e d we c a n , w i t h i n o u r
sound d i s c r e t i o n , c o n s i d e r whether t h e t r i a l
c o u r t h a s d e p r i v e d a l i t i g a n t of a f a i r and
i m p a r t i a l t r i a l , e v e n t h o u g h no o b j e c t i o n was
made to the conduct during the trial."
H a l l d o r s o n , 1 7 5 Mont. a t 1 7 4 , 573 P.2d a t 1 7 2 .
-
W have c a r e f u l l y reviewed
e the record and see no r e a s o n t o
upset the verdict and judgment. Appellant was not denied
substantial justice. He received a f a i r t r i a l , accordingly, we
af f irm.
W concur:
e
-
Chief J u s t i v e
Mr. Justice John C. Sheehy, dissenting:
I dissent.
This Court should reverse the judgment in the District
Court, and remand the cause for a new trial limited strictly
to the issue of damages.
There have now been two district court trials of this
cause. After the first trial, the District Court granted a
new trial, limited strictly to the issue of damages. On
appeal, we affirmed the grant of the new trial limited to the
issue of damages, and specified that additional factors
relating to damages should be consid-ered in the next trial.
When the next trial occurred, the issues were not limited to
damages. It is on that basis that the plaintiff now appeals,
and on which the plaintiff ought to be sustained.
When we affirmed the grant of a new trial limited to the
issue of dama.ges, that holding became the law of the case.
When the District Court disregarded the law of the case, and
expanded the second trial to include evidence of the
character of a nonparty, it abandoned the law of the case,
and the District Court should be checked in that abandonment.
In explaining the law of the case, this Court has held:
"The rule is well established and long adhered to
in this state that where, upon an appeal, the
Supreme Court, in deciding a case presented states
in its opinion a principle or rule of law necessary
to the decision, such pronouncement becomes the law
of the case, and must be adhered to throughout its
subsequent progress, both in trial court and upon
subsequent appeals; and this although upon its
subsequent consideration the Supreme Court may be
clearly of opinion that the former decision is
erroneous * * * It is a final adjudication from
the consequences of which this Court may not
depart, nor the parties relieve themselves (citing
cases) " . Carlson v. Northern Pacific Railroad
Company (1930), 86 Mont. 78, 281 P. 913, 914. See
also Fiscus v. Beartooth Elec. Cooperative (1979),
180 Mont. 434, 591 P.2d 196.
This is a case where the bank seized Graham's cows for
another person's debts in spite of the fact that Graham's
cows carried brands which established their ownership and
which brands were disregarded by the bank when the cows were
seized. When Graham attempted to recover his cows, the bank
refused to divulge their location and turned his cows into
pasture with 6 unregistered bulls. Thus the bank destroyed
the breeding program that Graham had established for his
herd. By expanding the second District Court trial, as it
did, the District Court allowed the bank to remove the "black
hat" from its head, and put it on the head of a debtor, a
factor that had no relationship to the damages sustained by
Graham.
Contrary to what is contained in the majority opinion,
the holding of this Court in Halldorson v. Halldorson (19771,
175 Mont. 170, 573 P.2d 169, commands that we return this
cause for a proper trial limited to the issue of damages
sustained by Graham. The verdict which the majority is
affirming here is manifestly insufficient.