No. 88-125
I N THE SUPREME COURT OF THE STATE O F MONTANA
1988
LOWELL JEAN WILLIAMS,
P l a i n t i f f and A p p e l l a n t ,
-vs-
RONALD R I G L E R , KARI R I G L E R ,
and THELMA GRAY,
D e f e n d a n t s and R e s p o n d e n t s .
APPEAL FROM: D i s t r i c t C o u r t of t h e S i x t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of P a r k ,
T h e H o n o r a b l e B y r o n L . R o b b , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For Appellant:
K. R o b e r t Foster, Bozeman, Montana
For Respondent:
G e n e I. Brown; L a n d o e , Brown, P l a n a l p & Kommers,
Bozeman, Montana
Arnold Huppert; Huppert & Swindlehurst, Livingston,
Montana
S u b m i t t e d on B r i e f s : Aug. 18, 1988
Decided: S e p t e m b e r 27, 1988
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Mr. Williams brought an action for libel and slander
against Park County and the Park County Sheriff, Robert
Oakland. He also brought an action for libel and slander
against Ronald Rigler, Kari Rigler, and Thelma Gray. Since
both actions sought damages arising out of related incidents,
they were consolidated for trial. The jury returned a ver-
dict in favor of all defendants in the District Court for the
Sixth Judicial District, Park County. Mr. Williams appeals
the judgment entered in favor of the Riglers and Thelma Gray
only. We affirm.
The issues are:
1. Should this appeal be dismissed based on the lack of
a full transcript submitted by plaintiff for our review?
2. Did the District Court abuse its discretion in
refusing challenges to the jury for cause?
3. Did the District Court err in allowing the defen-
dants eight peremptory challenges?
4. Were statements made during defense counsel's clos-
ing argument an improper appeal to local prejudice?
Plaintiff submitted only a partial transcript essen-
tially covering the pretrial rulings, voir dire, and opening
and closing arguments. The transcript does not include any
of the testimony submitted in the course of the jury trial.
In his brief plaintiff refers to various interrogatories and
admissions, apparently contending these establish the facts
of the case. The record does not warrant that conclusion.
As a result, we actually have no record from which we may
summarize the pertinent facts. For the assistance of parties
reading the case, we will briefly summarize the contentions
on the part of the plaintiff as set forth in his brief.
Plaintiff contends that Mr. and Mrs. Rigler filed
criminal trespass charges against him after he was discovered
on their ranch, owned by Telma Gray, near Emigrant, Montana.
Plaintiff also contends that various anonymous threatening
phone calls were made to the Riglers. Plaintiff further
contends that the Livingston Enterprise printed various
statements connecting the anonymous calls and the criminal
trespass charges, with reference being made to "horn hunters"
in the area. From his brief it does not appear that plain-
tiff contends his name even appeared in the newspaper arti-
cles. Plaintiff contends that it subsequently appeared that
the Riglers had staged the various anonymous phone calls.
Plaintiff then filed libel and slander actions against the
Riglers, Thelma Gray, Park County and the Park County Sher-
iff, as well as the Livingston Enterprise. The Livingston
Enterprise was granted summary judgment. Plaintiff appeals
the jury verdict in favor of the Riglers and Thelma Gray.
I
Should this appeal be dismissed based on the lack of a
full transcript submitted by plaintiff for our review?
Before proceeding to the substantive issues raised by
plaintiff, we address the defendants' motion to dismiss this
appeal based on a failure to comply with the Montana Rules of
Appellate Procedure. Rule 9 (b), M.R.App.P., allows a party
to submit a partial transcript for appeal, but requires a
description of the included parts and a statement of the
prospective issues to be served on the respondent. The
plaintiff submitted a partial transcript to this Court but
failed to comply with the above requirements to allow the
respondent to reply to the adequacy of the transcript prior
to this appeal. It would be appropriate to dismiss the
appeal as a result of plaintiff's disregarding the rules.
However, this Court has concluded that an appeal need
not be automatically dismissed in every instance where the
Rules of Appellate Procedure have not strictly been followed.
Garza v. Peppard (Mont. 1984), 689 P.2d 279, 280, 41 St.Rep.
1922, 1923. Because the record does contain sufficient
information to consider the significant issues on challenges
to the jury, we will consider those aspects of the appeal.
I1
Did the District Court abuse its discretion in refusing
challenges to the jury for cause?
The plaintiff argues that two jurors who considered
themselves to he defense counsel's current clients should
have been excused when challenged for cause. Montana's
statute listing the grounds for challenges to jurors for
cause does not address past or present business relations
between a juror and an attorney involved in the case. Sec-
tion 25-7-223, MCA. In absence of specific statutory author-
ity rendering a juror client incompetent, we will defer to
the discretion of the District Court, whose judgment will not
be set aside unless a clear abuse of discretion is shown.
Abernathy v. Eline Oil Field Services (1982), 200 Mont. 205,
214, 650 P.2d 772, 777.
The transcript reveals that although both jurors consid-
ered defense counsel to be their attorney, neither had any
business pending with him at the time of trial. When asked
by the judge, one of the jurors answered that her past rela-
tionship with counsel would not reflect on her ability to act
as a juror. Because the District Court confirmed that no
present business was pending between either of the jurors and
defense counsel, we find no abuse of discretion by the Dis-
trict Court in refusing Williams' challenges for cause.
L I I
Did the District Court err in allowing the defendants
eight peremptory challenges?
The plaintiff claims that the District Court should not
have allowed a total of eight peremptory challenges to the
defense. Four were awarded to Park County and the Park
County Sheriff, and four to the Riglers and Thelma Gray.
Each party is entitled to four peremptory challenges
under S 25-7-224(1), MCA. "Each party" has been interpreted
to mean "each side," unless the position of the codefendants
is shown to be "hostile." Hunsaker v. Bozeman Deaconess
Foundation (1978), 179 Mont. 305, 313, 588 P.2d 493, 499.
For this Court to uphold an uneven grant of peremptory chal-
lenges, we must be convinced that the District Court conclud-
ed from the pleadings, representations, or evidence that
hostility existed and that the court set forth the reasons
for its ruling. Hunsaker, 588 P.2d at 501.
The issue of peremptory challenges was first raised in
this case at the pretrial level. The court heard argument
from all parties and invited briefs on the matter prior to
its ruling that each defendant would be allowed four peremp-
tory challenges. The District Court reasoned that because
the suits against the defendants were consolidated involun-
tarily, hostility was present. The defendants in the present
action contend that they did not make any statements to the
media so that if they had been found responsible in any
manner to the plaintiff, they would have sought indemnity
from the Park County Sheriff who actually made the statements
to the newspaper. The District Court concluded that the
interests of the parties were adverse on the claim of indem-
nity theory. We affirm the holding of the District Court in
granting four peremptory challenges to each set of
defendants.
IV
Were statements made during defense counsel's closing
argument an improper appeal to local prejudice?
In the absence of a transcript of the evidence submitted
to the jury, we are not able to consider plaintiff's conten-
tion that defense counsel made improper appeal to local
prejudice. We note this was a libel and slander action which
in itself apparently raised questions with regard to the
plaintiff's reputation. In the absence of a transcript we
are not able to evaluate the accuracy or necessity of closing
argument.
We decline to address the plaintiff's closing argument
issue. We affirm.