Eberl v. Scofield

No. 90-168

IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

FLORIAN EBERL and GEORGE ULRICH
d/b/a STARLINE BRAUNVIEH,
Plaintiffs and Appellants,

WAYNE SCOFIELD, an individual; AMERICAN
AGRINOMICS, a Missouri corporation;
HOLLAND RANCH COMPANY, a Montana corpora-
tion; and BEAVERHEAD LIVESTOCK AUCTION,
a Montana corporation,
Defendants and Respondents.

APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Max A. Hansen, Esq., Dillon, Montana
For Respondents:
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LC Thomas R. Scott, Esq., Dillon, Montana (Beaverhead
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L. I Livestock Auction)
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"L.. William M. Kebe, Jr., Esq., Johnson, Skakles & Kebe,
d i- r (Y
L L Butte, Montana (American Agrinomics)
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John W. Company) Esq., Missoula, Montana (Holland
Ranch
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Submitted on Briefs: August 7, 1990
Decided: September 18, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Plaintiffs Eberl and Ulrich brought this suit in the District
Court for the Fifth Judicial District, Beaverhead County, to
recover seventeen purebred Braunvieh bulls or the value thereof,
plus related damages. The court granted the motion of Beaverhead
Livestock Auction for summary judgment on the claim against it.
Plaintiffs obtained certification of that ruling under Rule 54(b),
M.R.Civ.P., and appealed. We affirm.
The issues are:
1. Did the District Court err in granting Beaverhead
Livestock Auction's motion for summary judgment?
2. Did the court err in striking the affidavit of Wayne
Scofield?
3. Did the court err in allowing the Montana Department of
Livestock to file an amicus curiae brief?
The plaintiffs live in Alberta, Canada. They do business as
Starline Braunvieh, raising and selling purebred Braunvieh cattle.
In March 1987, defendant Scofield, then a resident of Montana,
negotiated with plaintiffs for the purchase of forty-four purebred
Braunvieh bulls. Fourteen of the bulls were selected from
plaintiffs1 stock in Canada, three were shipped from plaintiffs'
Idaho stock, and plaintiffs helped Scofield locate the rest of the
bulls from other Canadian sellers.
 Scofield provided plaintiffs with business cards indicating
that he was an employee of American Agrinomics. He told them that
he was authorized to buy the bulls for Holland Ranch Company,
located outside Dillon, Montana. Scofield obtained plaintiffs'
agreement that the purchase price for the bulls Starline Braunvieh
sold him would not be paid until one week after the bulls were
delivered to Montana. Plaintiffs did not, however, convey title
to the bulls to Scofield.
On April 3, 1987, the forty-four bulls were shipped to Beaver-
head Livestock Auction (BLA) in Dillon, Montana. The other sellers
required payment for their bulls before the bulls were unloaded.
BLA paid those sellers with the understanding that Scofield would
reimburse it.
The bulls were checked into the yard by Jack Ripley, a State
Department of Livestock inspector. Ripley indicated on his
inspection reports that payment for the bulls should be delivered
to the shipper, Scofield.
Scofield transported twenty-four of the bulls to Holland
Ranch Company but Holland Ranch Company then determined that it
could not pay the purchase price Scofield had promised. Those
bulls were returned to BLA and resold at a lower price through the
ring. The buyers of the remaining bulls also paid less than the
purchase price Scofield had promised plaintiffs. After BLA
deducted its commission and costs and the money Scofield owed for
the bulls of the other sellers from the money paid for the bulls,
only about $1,000 remained. Plaintiffs have never been paid for
the bulls, which they value at $26,000.
Plaintiffs brought this suit in June 1987. Their claim
against BLA is that BLA should have held the proceeds of the sale
of their bulls for them, the rightful owners. Following discovery,
BLA moved for summary judgment, which was granted in an omnibus
order from which the plaintiffs appeal.

Did the District Court err in granting Beaverhead Livestock
Auction's motion for summary judgment?
Plaintiffs argue that genuine issues of material fact exist
which preclude summary judgment for BLA. specifically, they argue
that there is a question as to whether BLA had a duty to determine
who owned the bulls before it made payment of the proceeds of sale.
They cite B 81-8-233, MCA:
A livestock market is liable to the rightful
owner of all livestock sold for the net pro-
ceeds for such livestock whether or not the
rightful owner was known to the market at the
time of the sale.
The depositions on file indicate that the longstanding
practice in Montana is that a livestock market pays the proceeds
of a cattle sale according to the directions of the state livestock
inspector, who investigates title to the animals. Section 81-3-
203(1), MCA, requires that a state livestock inspector must issue
a certificate of inspection as to any livestock for sale, stating
that the livestock is being sold by the rightful owner or person
with lawful right of possession. Section 81-8-231 (3), MCA,
provides that the Department of Livestock shall
supervise and regulate livestock markets in
all matters affecting the relationship between
the livestock market and owners of livestock
and between the livestock market and pur-
chasers of livestock.

Section 81-8-261, MCA, provides that livestock sold at a livestock
market may not be delivered to a purchaser until the purchaser has
received an inspection certificate stating that the state livestock
inspector is satisfied as to the ownership of the livestock.
In his deposition, state livestock inspector Jack Ripley
stated that he determined that title to the bulls was in scofield
because the cattle were shipped to him. "When you ship the cattle
from you to me and it shows shipped to, we understand, off of our
Canadian records, that that means that the guy down here has title
to the cattle." He stated that his determination was in accord
with an unwritten policy which had existed in the Department of
Livestock since at least 1963.
We conclude that any duty of BLA to go beyond the directions
of the state inspector in ascertaining the name of the true owner
of cattle would conflict with the statutory scheme. Accordingly,
we conclude that the term Itrightful owner" in 5 81-8-233, MCA,
refers to the owner as determined by the Montana Department of
Livestock. We therefore conclude that the District Court was
correct in stating that all of the evidence indicates that BLA has
fully complied with the applicable laws and rules. We hold that
the court did not err in granting BLAts motion for summary
judgment .

Did the court err in striking the affidavit of Wayne Scofield?
The District Court ordered stricken an affidavit by Scofield
which plaintiffs had submitted. The court stated that tt[t]he
allegations therein contain no admissible evidence as to any
genuine issue of material fact as between Plaintiffs and [BLA].It
Plaintiffs argue that the court should have considered the af-
fidavit in ruling on the summary judgment motion, because the
affidavit met the criteria of Rule 56, M.R.Civ.P.
Rule 56(e), M.R.Civ.P., provides that
[slupporting and opposing affidavits shall be
made on personal knowledge, shall set forth
such facts as would be admissible in evidence,
and shall show affirmatively that the affiant
is competent to testify to the matters stated
therein.
We have reviewed the proposed affidavit of Scofield, containing his
statement concerning the circumstances surrounding the sale of the
bulls. We conclude that the District Court was correct in ruling
that Scofield did not therein make any statements which were of his
personal knowledge and related to the issue on which summary
judgment was granted. All his statements relating to that issue
were hearsay. We therefore hold that the District Court did not
err in striking Scofield's affidavit.

Did the court err in allowing the Montana Department of
Livestock to file an amicus curiae brief?
The District Court, in allowing the Montana Department of
Livestock to file its amicus brief, stated that:
The Court finds that this brief and its sup-
porting exhibits to be relevant to the prin-
cipal issues as between Plaintiffs and the
Defendant BEAVERHEAD LIVESTOCK AUCTION and has
been adopted by the latter in support of its
motion for summary judgment.
The amicus motion and brief is fully within
the intent and purpose of a long established
procedure therefor. It gives the Court invalu-
able information on a question of law in
respect to which the Court was doubtful and
especially from one who, in the Courtls judg-
ment, should have been a named defendant under
Plaintiffs1 various theories of liability.
Plaintiffs argue that the amicus brief was untimely, was not
supported by the rules, and was inaccurate. They point out that
the brief was filed less than three weeks prior to the trial date
and almost two months after the pretrial motion deadline. Plain-
tiffs assert that it should be stricken.
The Montana Rules of Civil Procedure and the Uniform District
Court Rules neither provide for nor prohibit the use of briefs by
amicus curiae in the district courts. This Court has stated that
I8[t]he right to be heard as amicus curiae is within the discretion
of the court." State v. Bonner (1950), 123 Mont. 414, 420-21, 214
P.2d 747, 751. In this case, we conclude that it was within the
District Court's discretion to allow the brief of the Montana
Department of Livestock to be filed.
The inaccuracies reported in the amicus brief concern con-
clusions drawn from a letter written by the Head of the Regula-
tory Services Branch of the Animal Industry Division of Alberta
Agriculture. The conclusions were that the documents conveyed with
plaintiffs1 bulls effectively conveyed title to the bulls to
Scofield. Because our holding that it was not error to grant
summary judgment for BLA is based on the absence of a duty of BLA
to determine the true owner of the bulls in contradiction to the
determination of the Montana Department of Livestock, we conclude
that this argument is irrelevant.
Affirmed .
We concur: