I N THE SUPREME COIJRT O F THE S T A T E O F MONTANA
1989
MONTE D. LORENZ,
P l a i n t i f f a n d A p p e l ! ant.,
-VS-
THE E S T A T E O F L E S L I E S C H I L L I N G ,
Deceased,
D e f e n d a n t and R e s p o n d e n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e S e v e n 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 R i c h l a n d ,
T h e H o n o r a b l e H.R. O b e r t , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
K a t h l e e n M. Fritsch, Glendive, Montana
For R e s p o n d . e n t :
P e t e r 0. Maltese, S i d n e y , ?lantana
S u b m i t t e d on B r i e f s : Dec. 16, 1988
Decided: February 7 , 1 9 8 9
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Mr. Justice F. C. Mcnonough delivered the 0pini.on of the
Court.
This appeal involves a dispute over the condition of
farm land owned by the defendant and leased by the plaintiff.
Plaintiff Monte D. Lorenz appeals from the judgment of the
District Court of the Seventh Judicial District, Richland
County, entered after trial of the case to the court. The
court ruled that Lorenz take nothing by his compl-aint,which
the court then dismissed with prejudice. We affirm.
Lorenz frames four issues on appeal:
1. Whether Mr. Schilling had a duty to disclose his use
of Tordon on the fields.
2. Whether Mr. Lorenz proved by a preponderance of the
evidence that there was a breach of the duty to disclose by
Mr. Schilling.
3. Whether the court's decision was a result of passion
rather than law.
4. Whether the court erred by finding Mr. Lorenz
negligent for failing to test the soil for Tordon.
In November of 1983, Lorenz contacted Leslie and Terry
Schilling about leasing certain farm land owned by the
Schillings. The parties met to negotiate the lease, but the
content of those negotiations was disputed at trial.
Both sides agree that Lorenz indicated he wished to
raise sugar beets on the land during the coming year.
According to the depositions of both Leslie and Terry
Schilling, and Terry Schilling's testimony at trial, Leslie
Schilling indicated to Lorenz during these initial
negotiations that the herbicide Tordon had been applied to
some of the land in question. According to the Schillings,
it was suggested to Lorenz that he inquire as to the
suitability of the Tordon-treated land for raising sugar
beets. Lorenz allegedly replied that he could raise sugar
beets on the land as long as "Cleanv--another particular
brand of herbicide--had not been applied. Lorenz denies that
the Schillings ever told him about the Tordon application.
After these negotiations had taken place, Lorenz
obtained a Farmers' Home Administration land lease form. In
January of 1984, the parties again met, filled in the blanks
of the lease form to reflect the terms they had reached
earlier, and executed the lease. No mention was made of the
subject of this controversy.
In the spring, Lorenz had the soil on the leased acreage
tested to determine what fertilizers should be used. He then
planted sugar beets in three of the fields he had leased,
including two fields that had been treated with Tordon. R v
May, the beets in the two treated fields showed severe
damage, and were replanted. In late June, the replanted
fields again showed damage. Lorenz consulted with a field
representative from Holly Sugar, who told him that the
condition of the fields was consistent with Tordon damage.
No production was had from the treated fields for that crop
year. The lease was later terminated by agreement of the
parties.
Lorenz filed this action in September of 1984, alleging
fraudulent misrepresentation on the Schillings' part in
failing to disclose the Tordon application. After discovery
and trial, the District Court issued its ruling denying any
relief to Lorenz. This appeal followed.
While counsel for Lorenz frames four issues in her brief
on appeal, it is not necessary for us to examine each issue
separately. Both sides agree that Leslie Schilling had a
duty to disclose his application of Tordon to the fields in
question. The next two issues, whether Lorenz proved his
case by a preponderance of the evidence and whether the court
was motivated by passion rather than law, can be rephrased as
a single question. Did the District Court err in finding
that Schilling disclosed the Tordon application during the
lease negotiations?
When reviewing a civil case tried to a court sitting
without a jury, this Court will not substitute its judgment
for that of the District Court functioning as trier of fact.
Even when there is a conflict in the evidence, we will uphold
the court's decision where there is substantial credible
evidence to support its findings of fact and conclusions of
a . Eliason v. Wallace (1984), 203 Mont. 358, 680 P.2d 573.
The record shows that Lorenz, Leslie Schilling and Terry
Schilling were present when the lease was negotiated. Leslie
Schilling is now deceased, but testified in deposition prior
to his death that he disclosed his use of Tordon to Lorenz,
and suggested that Lorenz investigate the herbicide's
possj-ble effects on sugar beets. Terry Schilling testified
in deposition and at trial that her husband had indeed made
that disclosure and suggestion. Over against this evidence
was testimony by Lorenz that no such dj-sclosure had been
made.
The deposition testimony of Leslie Schilling,
corroborated by his wife at trial, is "substantial" in that
it would convince a reasonable person that the disclosure
took place. See, Eliason, 680 P.2d at 575. Counsel for
Lorenz has questioned the credibility of this testimonv by
seeking to point out inconsistencies or lack of memory on the
Schillings' part. However, there is also evidence of a lack
of motivation for the Schillings to lie to Lorenz. The terms
of the lease called for payment to the Schillings based on a
share of the crop harvested from their land. As Leslie
Schilling pointed out in his deposition, failure of Lorenz's
crop would mean that the Schillings would not be paid.
We conclude that there is substantial, credible evidence
in the record to support the District Court's finding that
Leslie Schilling disclosed his use of Tordon to Lorenz.
Lorenz's claim of fraudulent misrepresentat!-on therefore
fails.
The fourth issue presented, that the court erred in
finding Lorenz negligent in failing to have necessary soil
tests performed, is at best an instance of harmless error.
Counsel is correct in that the issue of Lorenz's negligence
was not properly before the court. However, the court's
statement was made in the context of its holding that the
damage to the beet crop did not result from misrepresentation
on the Schillings' part. No damages were awarded nor other
penalty imposed.
Affirmed .
Justice -
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