NO. 94-202
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
LARRY SEMENZA and FAYE FITZGERALD,
Plaintiffs, Respondents,
and Cross-Appellants,
V.
RONALD BOWMAN and ERIC JOHNSON, d/b/a
L & R SPRAYING SERVICE,
Defendants and Appellants.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Judith Basin,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
William 0. Bronson, James, Gray & McCafferty,
Great Falls, Montana
For Respondents:
Submitted on Briefs: October 13, 1994
Decided: November 22, 1994
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiffs Larry Semenza and Faye Fitzgerald commenced this
action in the District Court for the Tenth Judicial District for
Judith Basin County to recover compensation for crop damage which
they allege was caused when their crops were sprayed by defendants
Ronald Bowman and Eric Johnson, d/b/a L & R Spraying Service.
After trial before the court without a jury, the court found that
L & R's spraying caused plaintiffs' damages, awarded damages based
on their expert's calculations, did not allow L & R's expert to
testify, and awarded prejudgment interest. L & R Spraying Service
appeals from the District Court's decision. Semenza and Fitzgerald
cross-appeal. We affirm the judgment of the District Court.
The following issues are raised by L & R on appeal:
1. Did the District Court err when it concluded that
Fitzgerald's claim was not barred by the statute of limitations?
2. Did the District Court err when it excluded the opinion
testimony of L & R's expert witness?
3. Did the District Court err in its calculation of
Semenza's and Fitzgerald's damages?
4. Did the District Court err when it awarded Semenza and
Fitzgerald prejudgment interest?
On cross-appeal, Semenza and Fitzgerald raise the following
issue:
Did the District Court err in its determination of the date
from which prejudgment interest should accrue?
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FACTUAL BACKGROUND
Defendants Ronald Bowman and Eric Johnson operated L & R
Spraying Service as a partnership, which for simplicity will be
referred to as L & R. Semenza owns and farms land near Helmville
(Helmville farm) in Powell County, and near Utica (Utica farm) in
Judith Basin County. Plaintiff Faye Fitzgerald owns a farm near
Stanford (Stanford farm) in Judith Basin County, which Semenza
custom farmed. In the spring of 1987, Semenza seeded approximately
260 acres of his Helmville farm, about 180 acres of his Utica farm,
and roughly 521 acres of Fitzgerald's Stanford farm, with Klages
barley. Semenza asked L & R to spray those crops, and they did.
L & R used a mixture of Banvel II and Low Vol 6 (LV6) which was an
"off label" mixture not authorized for use on spring barley.
In May 1987, L & R sprayed this mixture on Semenza's and
Fitzgerald's barley and spring wheat crops. In July 1987,
Fitzgerald noticed that her barley crop was damaged. Semenza
discovered similar problems with his barley crop.
On March 29, 1989, Semenza filed the original complaint in
this case in which he alleged that L & R was negligent and damaged
his crop. This complaint did not name Fitzgerald, but claimed
damage to 953 acres, including the crop on Fitzgerald's property.
On or about January 15, 1990, an amended complaint was filed adding
Fitzgerald as a party but asserting the same cause of action.
A bench trial was conducted from January 25-29, 1993, and the
District Court issued its findings and conclusions on November 19,
1993.
To counter plaintiffs' damage calculations, L & R called Dr.
Ray Choriki to testify. After numerous objections and voir dire
examination, the court did not allow Choriki to express his
opinion.
The court found that L & R's spraying caused the crop damage,
and that Fitzgerald was damaged in the amount of $4?,737.28, based
on calculations done by her expert, Neal Fehringer. The basis for
that amount was the court's finding that she should have been able
to sell all of her barley as malt barley at $3.69/bushel and would
have harvested at least 13,194 more bushels. In addition, the
court found that Semenza had to rent equipment for $3,000 to screen
out Vhins" to ensure the maximum amount of Fitzgerald's barley was
suited for malt, and added that amount to her damage award.
Fehringer also testified, and the District Court found, that
based on crop reduction at both of his locations, Semenza sustained
damages in the total amount of $55,073.02. The District Court also
found that L & R knew that Semenza's damages were at least the
amount set forth above, and awarded Semenza and Fitzgerald
prejudgment interest to accrue from September 15, 1989.
Both parties filed post-trial motions pursuant to Rule 59,
M.R.Civ.P. Plaintiffs moved the court to award interest from the
date of the damage in 1987. L & R moved for a new trial and to
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alter or amend the judgment. ~11 post-trial motions were denied.
Additional facts will be discussed where necessary to address the
issues on appeal.
ISSUE 1
Did the District Court err when it concluded that Fitzgerald's
claim was not barred by the statute of limitations?
The District Court denied L & R's motion for summary judgment
based on the statute of limitations, and also denied its post-trial
motion, which was made on the same basis. Our standard of review
of a district court's summary judgment ruling is denovo. Spain-Morrow
Ranch, 61~. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331
(citing Minnie% City of Rowldup (1993), 257 Mont. 429, 431, 849 P.2d
212, 214). Summary judgment is proper only when there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Rule 56(c), M.R.Civ.P., Spai?t-hfOtrOW,
872 P.2d at 331-32.
L & R claims that the District Court erred when it concluded
that Fitzgerald's claim was not barred by § 27-2-207(l), MCA, which
provides a two-year statute of limitations for injury to property
since she was not added as a party until more than two years after
her crops were damaged. L & R contends that Rule 15(c),
M.R.Civ.P., does not contain specific language allowing a new
plaintiff to be added after the statute of limitations has expired.
The relevant portion of Rule 15(c) states:
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Whenever the claim or defense asserted in the
amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in
the original pleading, the amendment relates back to the
date of the original pleading.
We previously discussed similar contentions in Priest v. Taylor
(1987), 227 Mont. 370, 740 P.2d 648, and Zjnesv.BarzkersLifeCo. (1986),
224 Mont. 350, 730 P.2d 1115. Relying on the rationale of these
cases, Fitzgerald argues that if the two-year statute of limitation
applies, her claim should relate back to the date of Semenza's
original complaint. We agree.
In Priest, we concluded that a when party amends a complaint to
add a new plaintiff and a new cause of action, the claim in the
amended complaint will relate back if certain conditions are
satisfied. Priest, 740 P.2d at 653. In Priest, we cited Qizes which
allowed claims to relate back if the defendant would not be
prejudiced. We emphasized that the later claim may relate back if
the two parties are nearly identical and the later claim arises
from the same conduct, transaction, or occurrence set forth in the
original pleading as required by Rule 15(c), M.R.Civ.P. Priest, 740
P.2d at 654 (citing Qnes, 730 P.2d at 1120-21). We recognized that
amendments involving new plaintiffs relate back in the following
limited circumstances: (1) where there is a close identity of
interest between the original plaintiff and the present plaintiff:
and (2) where the new claim is based on the same allegations as the
original claim. Priest, 740 P.2d at 655.
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The damage in this case occurred in approximately July 1987.
Semenza filed his complaint on March 30, 1989, in which he sought
recovery for the damage to Fitzgerald's acreage. On January 15,
1990, an amended complaint was filed adding Fitzgerald as a
plaintiff. Fitzgerald's claim arose out of the same transaction or
occurrence, i.e., that L & R's spraying caused damage to her crops.
The parties have a close identity of interest because Semenza
custom farms Fitzgerald's property and he requested L & R to spray
Fitzgerald's crop. Fitzgerald's claim is based on the same
allegations of negligence as Semenza's original claim.
Accordingly, we conclude that the amendment adding Fitzgerald
related back to the original complaint and was not barred by the
statute of limitations.
In addition, without regard to the relation-back doctrine,
Fitzgerald's claim was timely pursuant to our decision in Ritlandv.
Rowe (1993), 260 Mont. 453, 861 P.2d 175. In Ritland, the issue was
whether the three-year tort statute of limitations for negligence,
or the two-year property damage statute of limitations, applies to
cases involving damages to property caused by negligent conduct.
We held that where two statutes apply, the district court should
apply the statute with the longer period of limitation. Ritland, 8 6 1
P.2d at 178. We hold that the District Court did not err when it
held that Fitzgerald's claim relates back and that her claim was
not barred by the two-year statute of limitations.
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ISSUE 2
Did the District Court err when it excluded the opinion
testimony of L & R's expert witness?
We have previously recognized that the trial court "is vested
with great latitude in ruling on the admissibility of expert
testimony." Cottrell v. Burlington Northem Railroad Co. ( 19 9 3 ) , 2 6 1 Mont. 2 9 6 ,
301, 863 P.2d 381, 384 (citing Cashv.OtkElevatorCo. (1984), 210 Mont.
319, 332, 684 P.2d 1041, 1048). In Cottrell , we discussed the
foundation necessary to establish an expert's qualifications and
stated that:
We set forth the standard that the determination of the
qualification and competency of expert witnesses rests
largely within the trial judge, and without a showing of
an abuse of discretion, such determination will not be
disturbed.
Cottrell, 863 P.2d at 384 (quoting Foreman v. Minnie (1984), 211 Mont.
441, 445, 689 P.2d 1210, 1212).
L & R argues that the District Court erred by disallowing the
testimony of Ray Choriki and compounded this error by refusing to
grant a new trial. L & R acknowledges that the District Court has
broad discretion regarding the qualifications of an expert, but
states that the degree of qualification goes only to the weight of
the expert's testimony.
Pursuant to Cottrell, when we review whether the District Court
properly exercised its discretion by excluding Ray Choriki's
testimony, we must begin with Rule 702, M.R.Evid., which sets forth
a
the criteria for admissibility of an expert's opinion. It
provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of
an opinion or otherwise.
In Cottrell, we acknowledged that implicit in that rule is a
requirement that before a district court allows an expert witness
to express an opinion, a foundation must be laid to show that the
expert has special training or education, and adequate knowledge on
which to base his or her opinion. Cottrell, 863 P.2d at 384.
In this case, Semenza and Fitzgerald do not question Choriki's
qualifications as a soil scientist. Rather, Semenza and Fitzgerald
argue Choriki's scientific studies, on which he based his opinion,
were performed in the 1960s under different conditions, involved
different chemicals, and were not sufficiently connected to the
crop damage that occurred in 1987 to establish a foundation.
The question in this case was whether the mixture of Banvel II
with LV6 affected plaintiffs' barley crops. The District Court
heard testimony over a two-day period to determine whether
Choriki's prior studies were relevant to that issue. Choriki
acknowledged that he lacked experience with claims involving this
specific mixture. Additionally, Choriki never examined the samples
of plaintiffs' barley until trial. The District Court determined
that Choriki was not qualified to render an expert opinion in this
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case. The court specifically found that Choriki's testimony did
not assist the trier of fact to understand the evidence, as
required by Rule 702, M.R.Evid.
In Cottrell, we decided that the district court did not abuse its
discretion because the expert lacked sufficient factual information
to form a foundation for his opinion. Cottrell, 863 P.2d at 385. We
noted that "[slpeculative testimony is inadmissible as evidence."
Cottrell, 863 P.2d at 385 (quoting wi&mS v. Wallace (1963), 143 Mont.
11, 13, 386 P.2d 744, 745).
L & R failed to establish a necessary connection between tests
done in the 1960s on a variety of crops involving different
chemical mixtures, and the present case. Choriki did not work with
the chemical mixture applied to the damaged barley crops. Nor did
Choriki examine the crop samples until trial. We hold that the
District Court properly exercised its discretion when it excluded
Choriki's proffered opinion.
ISSUE 3
Did the District Court err in its calculation of Semenza's and
Fitzgerald's damages?
A district court's damage determination is a factual finding
which must be upheld if it is supported by substantial evidence; we
will not overturn a district court unless its determination was
clearly erroneous. Columbia Grain Into1 v. Cereck (1993), 258 Mont. 414,
417, 852 P.2d 676, 678. L & R contends that the District Court
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erred as a matter of law by accepting plaintiffs' expert's damage
calculations. They argue that the District Court compounded this
error by not amending its judgment to reduce the amount of money
awarded for crop losses. We note that L & R only challenges the
damage measure on Semenza's Utica farm, and Fitzgerald's loss on
the Stanford farm.
Montana law provides that the measure of damages in a crop
loss claim is the net value of the crops lost; in other words, the
amount the crops are sold for, less the expenses incurred to
harvest and market them. AgtiLease,Inc.v.Gray (1977), 173 Mont. 151,
158-59, 566 P.2d 1114, 1118.
At issue in this case is whether the value of crops lost
should be measured by the price at which the crops were sold, or
the market price on the date that they were harvested. The former
value was $3.69 per bushel, the latter was $2.40.
L & R claims that based on decisions from other jurisdictions,
we should hold that the $2.40 value at the time of harvest must be
used to calculate damages. See Decatur County Ag-Services, Inc. v. Young
(Ind. 1981), 4 2 6 N . E .2d 64 4 ; Cutler Cranbeny Co., Inc. v. Oakdale Electric Co-op.
(Wis. 1977), 254 N.W.2d 234.
However, 5 27-1-317, MCA, provides that damages shall
compensate for all the detriment proximately caused, whether or not
it could have been anticipated. In addition, 9 27-l-302, MCA,
requires that damages be reasonable. We have previously stated
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that compensatory damages to property are designed to return the
damaged party to the same, or nearly the same, position enjoyed
before the property is damaged. See Spa&man v. Ralph M. Parsons Co.
(1966) r 147 Mont. 500, 506, 414 P.2d 918, 921. See also Billings Clinic v.
PeatMatwickMaindiCo. (1990), 244 Mont. 324, 345, 797 P.2d 899, 913
(stating compensatory damages should put the damaged party in the
position he or she would have attained absent the tortious
conduct).
In this case, testimony indicated that it was a common
practice to delay selling crops for weeks or months to enable
farmers to achieve a higher price for their crop. Testimony also
indicated that pursuant to another common farming practice, Semenza
and Fitzgerald, at the time of harvest, took out United States
Government loans for the value of the crop, and then sought to sell
the crop at a later date because of the glut in the barley market
on the date of harvest. Semenza and Fitzgerald follow this
practice whether or not their crop is damaged. Because this is
their common practice, and was not done to enhance their damages,
they are entitled to recognize the amount they would ordinarily
recognize on the date of sale. This ensures Semenza and Fitzgerald
are put in the position they would have attained and are
compensated for all detriment that was proximately caused by
L & R's negligent acts.
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We conclude, based on the evidence presented to the District
Court, and Montana's statutory law of damages, that the District
Court's finding regarding plaintiffs' damages was supported by
substantial evidence, it was not clearly erroneous, and it was not
contrary to the laws of this State.
ISSUE 4
Did the District Court err when it awarded Semenza and
Fitzgerald prejudgment interest?
A district court's award of prejudgment interest is a question
of law, and therefore, we examine whether the district court was
correct in its application of the law. Dew v. hWer (1993), 258
Mont. 114, 125, 852 P.2d 549, 556. L & R challenges the District
Court's Conclusion No. 6 which awarded Semenza and Fitzgerald
prejudgment interest at ten percent per annum from August 16, 1989,
the date of a letter from plaintiffs' counsel to L & R's insurance
company, which conveyed the amount of Semenza's initial damage
calculation. On January 7, 1994, the District Court amended its
order to provide that interest would accrue from September 15,
1989, instead of August 16, a date 30 days after the written notice
as required by 5 27-l-210, MCA.
L & R asserts that the District Court erred because its
prejudgment interest award was not based on an amount that
plaintiffs were able to establish as a sum certain at a specific
date before trial. L & R cites cases interpreting g 27-1-211, MCA,
for this proposition. ~eeI%pherSOlZ I/. Schlemmer (1988), 230 Mont. 81,
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749 P.2d 51; Castillo v. Frarks (1984), 213 Mont. 232, 690 P.2d 425.
However, the District Court's interest award was based on
55 27-l-210 and -212, MCA.
Section 27-1-212, MCA, provides that *@[iIn an action for the
breach of an obligation not arising from contract and in every case
of oppression, fraud, or malice, interest may be given, in the
discretion of the jury." In Dew, 852 P.2d at 556-57, we concluded
that this section also applies in cases where the judge is the fact
finder. There we upheld a district court's award of prejudgment
interest under § 27-1-212, MCA, noting that that section does not
have a certainty requirement. Dew, 852 P.2d at 556. Section
27-1-212, MCA, is derived from a California statute, and in Dew we
followed the California Supreme Court's conclusion that their
analogous section did not require liquidated damages. Dew, 852
P.2d at 556. Accordingly, we held in Dew that if § 27-1-212, MCA,
applies, the judge has discretion to award prejudgment interest
whether or not a plaintiff can reduce his or her claim to a sum
certain prior to judgment. There is no showing by L & R that the
District Court abused its discretion by its award of prejudgment
interest under the facts in this case. Therefore, we conclude that
the District Court did not err by its award of prejudgment interest
pursuant to 5 27-1-212, MCA.
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CROSS-APPEAL
Did the District Court err in its determination of the date
from which prejudgment interest should accrue?
Our discussion in the previous section is equally applicable
to this issue. Pursuant to § 27-1-212, MCA, prejudgment interest
is dependent on the discretion of the District Court. We will not
conclude that the District Court properly exercised its discretion
when it awarded prejudgment interest, and then conclude that it
abused its discretion when it selected the time period from which
that interest would run. We conclude that there was a rational
basis for the date chosen by the District Court as the date from
which interest would accrue, and that it did not err when it chose
that date.
The judgment of the District Court is affirmed.
Chief Justice
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