NO. 88-501
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
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DONALD J. TIGART,
plaintiff and Respondent,
-vs-
RICHARD J. THOMPSON,
Defendant and Appellant,
DOUGLAS C. BROOKINGS,
plaintiff and Respondent,
-vs-
DICK THOMPSON,
Defendant and Appellant.
RICHARD J. THOMPSON,
Third-Party Plaintiff and Appellant,
-vs-
DONALD J. TIGART,
Third-Party Defendant and Respondent.
APPEAL FROM: ~istrictCourt of the Ninth Judicial ~istrict,
In and for the County of Pondera,
The Honorable R.D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lon T. Holden; ~ardine,Stephenson, Rlewett & Weaver,
Great Falls, Montana
For Respondent:
Erik B. Thueson, Helena, Montana
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.-Patricia0'~rienCotter; Cotter & Cotter, Great Falls,
,. . ; Montana
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Submitted on ~riefs: April 2 7 , 1989
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Decided: June 6, 1989
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Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.
This is an appeal from an order of the District Court, Ninth
Judicial District, granting plaintiffs Brookings and Tigart a new
trial, granting them certain attorney fees and costs and ordering
the production of an investigative file in the possession of
defendant's insurance carrier. Defendant in the action below,
Richard J. Thompson, appeals.
The issues on appeal are whether the District Court erred
(1) by granting plaintiffs1 motions for a new trial based on
irregularities in the proceedings which deprived plaintiffs of a
fair trial;
(2) by awarding plaintiffs certain attorney fees and costs;
(3) by ordering defendant's insurance carrier to produce its
entire investigative file as it existed prior to the commencement
of legal proceedings.
Additionally, under Rule 14, M.R.App.P., respondent Brookings
raises the following issue: whether the District Court erred by
denying Brookingsl request for a ruling that Thompson individually
or Thompson and ~ i g a r t
jointly were negligent as a matter of law.
We affirm in part and dismiss in part.
This case stems from a single car accident which occurred on
the afternoon of January 4, 1985, on U.S. Highway 91 near the City
of Conrad, Montana. Plaintiff Tigart was driving his pickup south
on Highway 91 with plaintiff Brookings as his passenger. While
rounding an icy corner on that highway near the Branding Iron
Restaurant and Bowling Alley, plaintiffs encountered defendant
Thompson entering the highway in his pickup near the intersection
of Highway 91 and Front Street.
To avoid collision, Tigart let off of the accelerator and
began pumping his brakes. His vehicle fishtailed on the ice and
soon he lost control of it. The pickup veered across the highway
and rolled into a steep ditch on the other side, injuring both
Tigart and Brookings.
Thompson apparently had not seen Tigart approaching, did not
see him swerve and crash, and continued his route until he reached
his home in Brady, Montana. Thompson was not aware of any accident
or his possible part therein until several days later when he was
contacted by Harris, the investigating highway patrol officer about
his actions on January 4, 1985.
At trial, plaintiffs offered testimony that Thompson entered
the highway negligently from the bowling alley parking lot that day
by failing to keep a proper lookout, failing to stop and failing
to yield the right-of-way such that he created an immediate hazard
to Tigart in violation of section 61-8-341, MCA. Further,
plaintiffs alleged that such negligence legally caused their
injuries. After the trial commenced, Brookings was allowed to
amend his pleading asserting a separate negligence suit directly
against Tigart, his driver. Tigart likewise was joined by Thompson
as a third-party defendant.
Thompson, during the entire course of discovery and pretrial
proceedings, maintained that he knew nothing of the accident, had
no knowledge of any actions or circumstances on the day in question
and had no independent recollection of whether or not he was even
in the vicinity that day. Thompson further denied in answers to
interrogatories that he had given any statements to anyone, except
for talking with Officer Harris who made no notes of the conversa-
tion.
In her opening statement Tigartts attorney asserted that she
could state "with confidencett that Thompson would not refute any
of her evidence, and that actually what Thompson would say would
be consistent with Tigartts contentions of what transpired on the
highway that day.
Much to the surprise of both plaintiffs, on the opening day
of trial, defense counsel stated that the evidence would show that
his client had been bowling at the Branding Iron, left the parking
lot there, drove to Front Street, and entered the highway from
Front Street (not from the parking lot as plaintiffs contended)
after stopping at the stop sign, looking both ways and proceeding
cautiously. For a defense, Thompson additionally asserted that
Tigart was driving too fast for the conditions.
Plaintiffs protested this new development. In chambers
defense counsel explained that testimony would come in from Officer
Harris who interviewed Thompson in connection with the accident.
However, Harris took no notes from his conversation with Thompson
and would be relying solely on his recollection of the conversation
which occurred some three years earlier.
The trial judge ruled that Harris would not be allowed to
testify as an expert witness at trial because he had not been
identified by defense counsel as an expert in the pretrial order.
Rather, he would only be able to testify as a fact witness as to
what occurred at the accident scene when he arrived some twenty
minutes after impact. This development and ruling severely limited
the testimony that defense counsel could get in to prove the case
asserted in opening statements.
However, on the Friday of the first week of trial, after the
close of Brookingst case, defense revealed for the first time that
Thompson had actually given a statement to his insurance carrier,
Safeco, which was tape-recorded just eleven days after the
accident. This came to light during the course of trial when
Tigartts attorney subpoenaed the insurance adjuster and his
records. Just before the adjuster was to testify, defense counsel
notified the court and the plaintiffs that the statement existed.
The adjuster testified that all investigative files were kept
in the Spokane, Washington, regional office. The tape was likewise
in Spokane. It was agreed that the tape would be transcribed
immediately. The tape was transcribed over the weekend and
express-mailed to the Great Falls office where defense counsel
turned it over to the plaintiffs for the first time.
Plaintiffs proceeded in trial on Monday and were allowed to
read portions of the Thompson statement to the jury. The statement
was to the effect that Thompson did not see the Tigart vehicle and
had no knowledge of the accident. However, he was at that bowling
alley on that day at that time; he remembered the road conditions
as being "ripe for skatingn; he was "slow getting on the highway";
and he also placed himself at the Front Street intersection, rather
than entering the highway from the bowling alley parking lot.
Plaintiffs moved for a new trial based on surprise and for
personal sanctions against defense counsel for concealment of
evidence. Sanctions were not imposed; however, when a defense
verdict was returned by the jury, the trial judge granted plain-
tiffst motions for a new trial. The judge further ordered that
defendant pay attorney fees and costs associated with the first
trial and incurred from the close of discovery until the completion
of the appeal. Finally, the court ordered the defendant to produce
the entire Safeco investigative file as it existed prior to the
lawsuit being filed, based on a possibility that there may be even
more undisclosed witness statements in the file.
Defendant appeals.
I. New Trials
The District Court granted a new trial based on irregularities
in the proceedings which deprived plaintiffs of a fair trial. We
agree.
Section 25-11-102, MCA, provides:
Grounds for a new trial. The former verdict
or other decision may be vacated and a new
trial granted on the application of the party
aggrieved for any of the following causes
materially affecting the substantial rights of
such party:
(1) irregularity in the proceedings of the
court, jury or adverse party . . . by which
either party was prevented from having a fair
trial ;
Defense counsel contends that it was mere inadvertence and not
concealment which prohibited the production of the defendant's
statement during discovery. Such inadvertence surprised plaintiffs
and materially affected their substantial right to a fair trial.
AS the District Court noted in its order, "Because of these new
contentions and the surprise that they engendered, the plaintiffs
were forced to try to do discovery during the course of trial."
Prior to trial, both plaintiffs believed that the facts were
uncontested because Thompson recalled nothing with which to dispute
their evidence. However, at trial, many material facts were
disputed from the speed of the vehicles and the condition of the
road to the place from which Thompson actually entered the highway.
The order of the trial judge granting a new trial with regard
to the direction of the trial states:
The defendant has prevented the plaintiffs
from receiving a fair trial and has created
unfair surprise at trial by withholding a
major piece of evidence until after the trial
commenced.
... the defendant Is contentions in the final
pretrial order are devoid of any contentions
concerning where or when Thompson pulled out
onto the highway. Thus up until the time of
trial, both this Court and the Plaintiffs were
left with the impression--if not express
contentions--that the defendant would take no
position concerning his whereabouts or actions
related to the subject accident.
During the trial, the defense contended that
the plaintiffs had major credibility problems
because they were contending that the defen-
dant's evidence showed he pulled out from
Front Street. On closing argument, the de-
fense attorney stated that the plaintiffs and
at least Tigartls attorney had reshaped the
facts because the driveway (parking lot)
better fit their theory of liability.
Defendant's contention that this surprise did not I1materially"
affect the substantial rights of the plaintiffs is without merit.
The importance of the evidence cannot be underestimated, as it is
the sole record of defendant's recollection. Thompson was eighty
years of age at the time of the first trial and may very well have
had a lack of independent recollection of the day in question.
Granting a new trial is within the sound discretion of the
trial court. Benner v. B.F. Goodrich, Co. (1967), 150 Mont. 97,
430 P.2d 648. This discretion is not without limitation. Nelson
v. Fairmont Hot Springs (Mont. 1988), 763 P.2d 1135, 45 St.Rep.
2042. However, an order granting a new trial will not be set aside
absent a showing of abuse of discretion. Tope v. Taylor (Mont.
1988), 768 P.2d 845, 45 St.Rep. 2242; State v. DeMers (Mont. 1988),
762 P.2d 860, 45 St.Rep. 1901.
The credible evidence of this record shows that defense
counsel denied the existence of a critical piece of evidence during
discovery and then produced it during trial, after the close of
Brookingsl case. Defense counsel in resisting the motion for new
trial argued that nothing "irregularl1had happened. What defense
counsel views as nothing wirregularl'in the course of this trial
is a view that could only be shared with himself. Based on this
record, defense counsel cannot make a showing that the District
Court abused its discretion in ordering a new trial. That portion
of the District Court order is affirmed.
11. Attorney Fees
Although the District Court did not assess personal sanctions
against defense counsel, it awarded certain fees and costs in an
amount to be determined to both plaintiffs pursuant to section 37-
61-421, MCA. That portion of this appeal is dismissed without
prejudice. The issue of attorney fees and costs is not in the form
of a final order, and thus, the appeal is premature. This Court
has held that there must be a final judgment from which an appeal
may b e t a k e n b e f o r e we a r e v e s t e d w i t h j u r i s d i c t i o n . Rule 1,
M.R.App.P.; In Re Marriage of Adams (1979), 183 Mont. 26, 598 P.2d
197; State ex rel. Raw v. City of Helena (1961), 139 Mont. 343, 363
Further, it is the duty of the attorneys involved in an appeal
to bring this to the attention of the Court. As we stated in In
Re Adoption of B.G.B. (1979), 183 Mont. 347, 599 P.2d 375:
Too often this Court is confronted with cases
that are not ready for appellate review within
the meaning of the rules, but where the oppos-
ing parties do not bring this crucial fact to
our attention. We often do not discover this
until we are deeply into the process of review
and indeed often in the opinion-writing stage.
We cannot and will not tolerate this state of
affairs.
. . . If for some reason it is appealed
prematurely, it is the duty of the parties to
bring this to our attention by an appropriate
motion to dismiss . . .
599 P.2d at 381. This portion of the appeal is dismissed.
111. Investigative File
The District Court ordered the defendant to turn over Safeco's
entire investigative file as it existed prior to the filing of the
complaint. That order is not entirely supported by the law in
Montana.
Certainly, the judge was protecting any work product which
would have been generated after the legal action was commenced and
was merely assuring the exchange of discoverable information in
fulfillment of the letter and the spirit of discovery rules.
However, we conclude that there is no legal basis for such a broad
order. That portion of the District Court order is reversed and
modified as follows:
We order that any and all witness statements in Safecots file
be disclosed. We held in Cantrell v. Henderson (Mont. 1986), 718
P.2d 318, 43 St.Rep. 745, that a witness statement given by the
defendant to his insurance carrier prior to the filing of the
complaint is discoverable. Admittedly, defense counsel does not
dispute the discoverability of the Thompson statement, but rather
cites mere inadvertence for his failure to disclose. We have in
this case a failure to disclose discoverable documents through
negligent or willful conduct, thus warranting this Courtts order
that all such statements in Safecotspossession be revealed.
However, any motion to disclose an entire investigative file
must be objected to by specific objections to any part which the
defendant does not wish to disclose. Then the District Court can
handle those objections during the normal course of the discovery
process. This may require the plaintiffs to make additional, more
specific requests for particular pieces of information.
IV. Rule 14, M.R.App.P.
We do not reach the issue of whether the District Court
improperly denied Brookings a ruling under Rule 14 regarding
negligence as a matter of law. Brookings failed to appeal properly
this issue because he did not file a cross-appeal.
This Court does not review issues outside of those raised by
the appellant. Mydlarz v. Palmer/Duncan Construction Co. (1984),
209 Mont. 325, 682 P.2d 695. As we stated in Mydlarz, "Although
Rule 14, M.R.App.civ.P., provides for review of matters by cross-
assignment of errors, this does not eliminate the necessity for
cross-appeal by a respondent who seeks review of matters separate
and distinct from those sought to be reviewed by appellant."
Mydlarz, 682 P.2d at 700.
In summary, we affirm the District Court order for a new
trial; we dismiss without prejudice the appeal regarding certain
attorney fees and costs; disclosure is ordered of all witness
statements, written, taped, or otherwise, in Safecotsfile, and we
dismiss Brookings' appeal of the denial of a Rule 14, M.R.App.P.,
ruling .
The case is remanded to the District Court for further
proceedings consistent with this opinion.
We concur:
Justices /?