Durbin v. Ross

No. 95-378
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

KATHARINE GAIL DURBIN and
PHIL F. DURBIN, individuals,
Plaintiffs and Appellants,
v.
BARBARA ROSS an individual,
d/b/a/ ROSS REALTY; LYNNE PIAZZOLA,
an individual; WAYNE A. SHERRILL
and RACHEL SHERRILL, individuals;
and MICHAEL J. SHERRILL, an
individual,,
Defendants and Respondents.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C.B. McNeil, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Donald V. Snavely, Missoula, Montana
For Respondent:
Tracy Axelberg and Gary D. Kalkstein, Axelberg &
Kalkstein, Missoula, Montana

Submitted on Briefs: January 18, 1996
Decided: May 14, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

Katharine and Phil Durbin (the Durbins) appeal from the

Montana Twentieth Judicial District Court, Sanders County, order

granting summary judgment in favor of Barbara Ross, Ross Realty,

Lynne Piazzola (the Realtors) and dismissing the Durbins' claims

against the Realtors. We reverse and remand.

ISSUES

1. Did the District Court err in ruling that the Durbins
failed to establish a standard of care through the expert testimony

of a real estate broker?

2. Should this Court direct the District Court on the
admissibility of expert standard of care testimony?

BACKGROUND

The parties agreed to the following facts in the pretrial
order:

1. Plaintiffs Phil and Katharine "Gail" Durbin are
husband and wife. On April 26, 1993 the Durbins
purchased for the sum of $35,000.00 a piece of property
consisting of 20 acres and a single-family residence
located at 209 Upper River Road, Heron, Montana (the
"Property") from Defendants Wayne, Rachel and Michael
Sherrill, the sellers of the Property.
2. Defendants Wayne and Rachel Sherrill and their
children resided on the Property from May of 1987 until
they sold the Property to the Durbins. Defendant Michael
Sherrill resided on the Property for part of that time.
3. Defendants Lynne Piazzola and Barbara Ross are
real estate agents licensed by the State of Montana.
Lynne Piazzola is a licensed sales agent and was the
listing and sales agent for the sale of the Property to
the Durbins. Barbara Ross was the supervising broker for
Defendant Piazzola for this sale. Defendants Piazzola
and Ross both worked for Ross Realty, a real estate
office located in Noxon, Montana. Defendant Ross was the
owner of Ross Realty at the time of this sale.

2
 4. This case involves claims by Plaintiffs Durbin
that the condition of the Property was misrepresented to
them. The Durbins contend, among other things, that the
septic system, household water system, and other aspects
of the Property were not accurately represented by the
Defendants. Defendants Ross and Piazzola deny these
contentions. Defendants Ross and Piazzola contend, among
other things, that they did not make any
misrepresentations to the Durbins. . . .

The Durbins contend that the Realtors told them that 1) the

property had a legal septic system with a 750 gallon tank, when
there was only a 200 gallon drywell with no drainfield; 2) that the

household water was safe for normal household purposes when the

water was contaminated with coliform bacteria and was not safe for

any household purposes; and 3) that the access road was on the

property when it was on the neighbor's property. The Durbins

further contend that the Realtors failed to disclose other serious

defects in the home such as the fact that there were no hot water

pipes and thus no hot water, that the plumbing drain lines were not
connected to the main sewer line and drained directly into the soil

in the crawlspace under the home, and that the roof leaked. In

summary, the Durbins argue that the Realtors misrepresented that

the house was in good condition.

The Realtors dispute the Durbins' allegations of

misrepresentation. The Realtors in fact claim that they performed

a diligent inspection of the property and disclosed the information

gleaned from that inspection. They also claim that the Sherrills

informed the Durbins of the property's shortcomings and that those

shortcomings were reflected in the purchase price.
 The Durbins were not represented by an agent in the
transaction. Therefore, the Durbins filed a complaint against the
Realtors and the Sherrills claiming that they made material
misrepresentations about the property, concealed material facts
regarding the property, and that the Durbins relied on the
information in agreeing to purchase the property. The Durbins
disclosed their trial expert on January 31, 1995, but later
withdrew that expert witness.
Defendants Wayne Sherrill, Rachel Sherrill, and Michael
Sherrill did not appear in the action. Their defaults were entered
on February 2, 1994. The Realtors moved for summary judgment on
the ground that the Durbins could not prove any of their claims
without expert testimony establishing the relevant standard of
care. The District Court granted summary judgment in favor of the
Realtors and pursuant to Rule 54(b), M.R.Civ. P., certified for
immediate appeal its order dismissing all claims against the
Realtors. The Durbins appeal the District Court's determination
that for the Realtors to be found liable as individuals for their
conduct toward the Durbins, the Durbins must first establish a duty
owed by the seller's broker to the purchasers and that the standard
of care relating to such duty and breach thereof must be

established by expert testimony as a matter of law.
DISCUSSION
1. Did the District Court err in ruling that the Durbins
failed to establish a standard of care through the expert testimony
of a real estate broker?
 The Durbins contend that the Realtors committed actual fraud
and constructive fraud by misrepresenting the condition of the
property or, in the alternative, committed negligent
misrepresentation by failing to exercise reasonable care in
investigating the truth of the information they passed on to the
Durbins, violated the Montana Real Estate Licensing Act by
misrepresenting facts about the property, and violated the Montana
Consumer Protection Act by committing deceptive acts in the conduct
of their real estate business. The Durbins argue that standard of
care testimony is neither necessary nor relevant to these claims.
Specifically, the Durbins argue that they do not have to present
expert testimony to establish claims for fraud and claims of
statutory violations in this case for two reasons. First, the
Realtors did not represent the Durbins in this transaction and thus
did not create a professional relationship. Second, the elements
of the fraud claims focus on the knowledge and state of mind of the
Realtors in this case and not on the standard of care by other
professionals and the statutory violations involve the conduct of
the Realtors in this case and whether that conduct conformed with
statutorily mandated rules. In summary, the Durbins assert that
the District Court erred in granting summary judgment because
expert testimony is irrelevant to any factual issue required to
establish the Durbins' claims.
In contrast, the Realtors assert that the District Court

properly granted summary judgment finding that the gravamen of the
Durbins' claims sounds in negligence and that these claims fail

5
because the Durbins did not establish the appropriate standard of
care and breach of that standard. The Realtors further assert that
the Durbins had to provide expert testimony to prove duty and

breach in a negligence claim against a professional.

We review a grant of summary judgment de nova using the same

criteria initially used by the District Court under Rule 56,

M.R.Civ.P. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872

P.2d 782, 785. Therefore, we determine whether there is an absence

of genuine issues of material fact and whether the moving party is

entitled to judgment as a matter of law. -, 872 P.2d at 785.
Mead
The Durbins do not dispute that, were they pursuing a

professional negligence claim against their own broker, they would

need to produce expert standard of care testimony. They do not
assert a professional negligence claim because the Realtors did not

represent the Durbins in a professional capacity. Instead, the

Durbins assert common law and statutory fraud theories of recovery

which do not require proof of the standard of conduct exercised by

other brokers. The essence of the Durbins' claims sound in

fraudulent misrepsesentation and nondisclosure of material facts

concerning the property.
A. Actual Fraud and Constructive Fraud

In Lee v. Armstrong (1990), 244 Mont. 289, 293, 798 P.2d 84,

87, we delineated the nine elements of actual fraud: (1) a

representation; (2) falsity of the representation; (3) materiality

of the representation; (4) speaker's knowledge of the falsity of

the representation or ignorance of its truth; (5) speaker's intent

6
it should be relied upon; (6) the hearer's ignorance of the falsity
of the representation; (7) the hearer's reliance on the
representation; (8) the hearer's right to rely on the
representation; and (9) consequent and proximate injury caused by
the reliance on the representation. These elements focus on the
knowledge and intent of the broker involved in the transaction.
The standard of care exercised by other brokers in similar
transactions does not have bearing on what brokers in a specific
case know or intend. See e.g., State v. Howard (19811, 195 Mont.
400, 404-05, 637 P.2d 15, 17. In Howard, we held that the jury was
as qualified as the doctor to infer the defendant's intent from the
nature of the injuries the defendant inflicted. Howard, 637 P.2d
at 17; see also U.S. v. Clapp (8th Cir. 1995), 46 F.3d 795.
In Clanp, the defendant offered expert testimony to show that
he had acted without intent to defraud. In holding that expert
testimony was not necessary to illuminate the defendant's intent,
the court noted that expert testimony is appropriate when it
"relates to issues that are beyond the ken of people of ordinary
experience," but is superfluous where the subject matter is within
the knowledge or experience of laypersons. L2z!s%x, 46 F.3d at 802
(quoting United States v. French (8th Cir. 1993), 12 F.3d 114,

116).
We have similarly held that "[tlhe test for the admissibility

of expert testimony is whether the matter is sufficiently beyond
common experience that the opinion of the expert will assist the
trier of fact to understand the evidence or to determine a fact in

7
issue." Jim’s Excavating SerViCe v. HKM Assoc. (1994), 265 Mont.
494, 509, 878 P.2d 248, 257 (construing Rule 702, M.R.Evid.). For
example, in Jim's Excavatinq, we held that the expert's opinion was

based on the type of data which is reasonably relied on by experts

in the accounting field and was not a matter within the common

experience of a jury, and that there was adequate opportunity for

cross examination. We therefore concluded that the district court

did not err in allowing the testimony. Jim's Excavatinq, 878 P.2d
at 258.

While actual fraud hinges on the knowledge and intent of the

defendant, constructive fraud hinges only on the knowledge of the

defendant. Lee, 798 P.2d at 88. Courts may invoke constructive

fraud as a matter of law to prevent a party from being unjustly

enriched as a result of false statements made, even if the false

statement is not knowingly made. Lee
-r 798 P.2d at 88.

"Withholding relevant facts concerning purchased property can be a

fraudulent act. Furthermore, where a vendor by his conduct or
words creates a false impression concerning a matter of vital

importance to the purchaser, full disclosure of relevant facts may

be required." Lee, 798 P.2d at 88 (quoting Moschelle v. Hulse

(1980), 190 Mont. 532, 537, 622 P.2d 155, 159).

In Lee, we further held that

[w]here a contract is induced by false representations as
to material existent facts, which are made with the
intent to deceive, and upon which the plaintiff relied,
it is no defense . . . that the party to whom the
representations were made might, with due diligence, have
discovered their falsity, and that he made no searching
inquiry into the facts. . . .

8
a, 798 P.2d at 88. In &, we concluded that the district court

correctly found that the defendant did not fully disclose all
pertinent facts, which constituted constructive fraud.

In the instant case, none of the elements of claims for actual

or constructive fraud concerns the standard of care exercised by

other real estate brokers. Instead, the elements focus on the

knowledge and intent of the broker, issues which juries regularly

face and determine without assistance from expert testimony. In

summary, expert standard of care testimony is not necessary in the
instant case, where the Realtors are held to the same standard as

an ordinary citizen in a claim for fraud. In fact, the standard is

a common law standard based on the individual knowledge and intent

of the defendant, not on the custom or practice of other

professionals within the real estate profession. For example, if

all brokers lied in order to sell a property, then lying would be

a standard industry practice, absolving the brokers from fraud.

The Realtors are held to the same standard of care as other

citizens of Montana; they may not intentionally or negligently

defraud a third party. Accordingly, we hold that expert testimony

is not relevant to establishing the Realtors' duty toward third

parties such as the Durbins.

B. Negligent Misrepresentation

In the alternative to their fraud claims, the Durbins assert

a claim for negligent misrepresentation against the Realtors. The

Durbins base their claim on the Realtors' alleged failure to

exercise the care of a reasonable person in obtaining or

9
communicating information to the Durbins. The Durbins concede that
real estate sales is a profession or trade requiring expert
testimony if the broker violates a duty to his or her client and

the conduct in question is beyond the experience of ordinary
laypersons. However, they contend that they did not have a

professional relationship with the Realtors, and therefore do not

assert a professional negligence claim against them.

The Realtors, on the other hand, argue that the gravamen of

the Durbins' claims sounds in professional negligence and therefore

they must provide expert testimony to prove elements of duty and
breach in their claim against the Realtors. The Realtors support
their argument by citing to Section 229A of the Restatement

(Second) of Torts, which provides:
Unless he represents that he has greater or less skill or
knowledge, one who undertakes to render services in the
practice of a profession or trade is required to exercise
the skill and knowledge normally possessed by members of
that profession or trade in good standing in similar
communities.

Comment c to § 229A of the Restatement states that the rule does

not depend on the existence of an enforceable contract between the

parties, it applies equally to professional services rendered

gratuitously such as a physician treating a charity patient. An

undertaking by the defendant serves as the basis of the rule. The

Durbins assert that § 229A of the Restatement emphasizes that a

professional relationship must exist between the plaintiff and the

defendant before the standard of care for similarly situated
professionals becomes relevant.

10
 We have held that to establish professional negligence action,

the "plaintiff must prove that the professional owed him a duty,
[and] that the professional failed to live up to that duty, thus

causing damages to the plaintiff." Lorash v. Epstein (1989), 236

Mont. 21, 24, 767 P.2d 1335, 1337. For example, in pursuing a

negligence action against an attorney, the plaintiff must initially

establish the existence of an attorney-client relationship.

Lorash, 767 P.2d at 1337. In Lorash, the plaintiff was not able to

establish an attorney-client relationship which would impose a duty

to foreclose the plaintiff's mechanic's lien. Lorash, 767 P.2d at

1337. Similarly, in Carlson v. Morton (19871, 229 Mont. 234, 238,

745 P.2d 1133, 1136, we stated that in any professional negligence

action, the plaintiff must prove that the professional owed him a

duty and that the professional failed to live up to that duty,

causing damages to the plaintiff.

In the instant case, the Realtors did not undertake to

represent the Durbins; there was no professional relationship. Any

duty the Realtors owed to the Durbins did not arise from a

professional relationship. Without a duty arising from a

professional relationship, there can be no claim of professional

negligence. The Durbins appropriately brought a negligent

misrepresentation claim instead of a professional negligence claim.
In State Bank of Townsend v. Maryann's, Inc. (1983), 204 Mont.

21, 33, 664 P.2d 295, 301, we approved the definition of negligent

misrepresentation as contained in Restatement (Second) of Torts §

552. Section 522 provides:

11
 (1) One who, in the course of his business, profession or
employment, or in any other transaction in which he has
a pecuniary interest, supplies false information for the
guidance of others in their business transactions, is
subject to liability for pecuniary loss caused to them by
their justifiable reliance upon the information, if he
fails to exercise reasonable care or competence in
obtaining or communicating the information.

In considering this definition, we looked to the comments to the

Restatement, noting that they state that liability imposed by

subsection (1) is based on negligence if and only if the defendant

has failed to exercise the care or competence of a reasonable man

in obtaining or communicating the information. State Bank of

Townsend, 664 P.2d at 302. Moreover, in Thayer v. Hicks (1990),

243 Mont. 138, 149, 793 P.2d 784, 791, we held that an accountant

owed a duty of care to third parties with whom he was not in

privity of contract but whom he was aware relied on his work

product in connection with a particular transaction.

In Wagner v. Cutler (1988), 232 Mont. 332, 757 P.2d 779, the

purchaser of residential real estate brought suit against the

vendor for defects in the home. The plaintiff contacted a real

estate agent in Bozeman who showed plaintiff the house and who

represented that the house was well built and according to code.

Waqner, 757 P.2d at 781. The plaintiff moved in and subsequently

discovered defects in the house such as a hazardous chimney, poor

ceiling insulation, a broken sewage pump, and a faulty lawn

sprinkler. The plaintiff sued to recover damages under

misrepresentation and violation of the duty to inspect and disclose

defects. Applying § 552 of the Restatement, we held that the

plaintiff purchaser did not have to provide expert standard of care

12
testimony to establish the vendor's duty. We noted that the test
for the admissibility of expert testimony is whether the matter is

sufficiently beyond common experience that the opinion of an expert

would assist the trier of fact. We held that there was no
requirement of specialized knowledge in the negligent
misrepresentation claim. The defendant had a duty to obtain and

communicate information on the true condition of the house and

failed to do so. Therefore, we concluded that the district court

properly determined that the defendant failed to use reasonable

care. Waqner, 757 P.2d at 783; see also Lunden v. Smith (Or. App.
1981), 632 P.2d 1344.

In Lunden, plaintiff buyers brought suit to rescind their

purchase of a lighting fixture business. Lunden, 632 P.2d at 1345.

The sellers cross complained against their broker. The appellate

court affirmed the district court's determination that the broker

was negligent. Lunden, 632 P.2d at 1346. In so holding, the court

disagreed with the broker's contention that expert testimony was

needed to support a finding that his conduct amounted to

negligence. Lunden, 632 P.2d at 1347.

The Supreme Court of Arizona similarly held that expert

witness testimony was not necessary to establish the reasonableness

of a defendant's investigation of information when that defendant

supplied incorrect information. St. Joseph's Hosp. v. Reserve Life

Ins. (Ariz. 1987), 742 P.2d 808, 816-17. In St. Joseph's,

plaintiff, St. Joseph's Hospital, called the defendant insurer to

verify a patient's coverage. The insurer verified the coverage but

later refused to pay the hospital stating that the patient had

13
given the insurer his incorrect height and weight and Was

subsequently denied coverage. St. Joseoh's, 724 P.2d at 812. The
court construed §§ 552 and 229A of the Restatement of Torts, and

specifically quoted comment f to § 229A:

The care and competence that the supplier of information
for the guidance of others is required under [rule 229A,
Restatement of Torts] to exercise in order that the
information given may be correct, must be exercised in
the following particulars. If the matter is one that
reauires investiqation, the supplier of the information
must exercise reasonable care and competence to ascertain
the facts on which his statement is based. He must
exercise the competence reasonably expected of one in his
business or professional position in drawing inferences
from facts not stated in the information.
St. Joseph's, 742 P.2d at 816. The court agreed that a plaintiff
must supply a professional standard of care for inferences from

facts not stated in the information but held that the insurer's

duty to exercise reasonable care not to misstate existing,
ascertainable facts need not be established by expert testimony.

St. Joseph's, 742 P.2d at 816.
In the instant case, the Durbins cite to Easton v.
Strassburger (Cal. App. 1984), 199 Cal. Rptr. 383, 393, in which

the California Court of Appeals also held that expert testimony was

not necessary to establish the negligence of the seller's real

estate broker. In Easton, the court held that a real estate broker

has a duty to conduct a reasonably competent and diligent

inspection of property in order to discover defects for the benefit

of the buyer. Easton, 199 Cal. Rptr. at 388. In discussing the

negligence action against the brokers, the court noted that
none of the pertinent cases involving allegations of
negligence against a real estate broker require expert
testimony to establish the standard of care in the real

14
 estate industry, or the particular broker's breach of
that standard of care.

Easton, 199 Cal. Rptr. at 392. The court held that expert
testimony was not required to establish the standard of care in the

real estate industry or the appellant's breach of that standard

because the question of negligence was resolvable by common

knowledge and did not turn on facts peculiarly within the knowledge

of professional experts. Easton, 199 Cal. Rptr. at 392-93.

Similarly, in the instant case, the question of whether the
Realtors negligently misrepresented that there was a legal septic

system on the property is a question resolvable by common knowledge

and does not turn on a standard peculiarly within the knowledge of

an expert witness. The Realtors must exercise reasonable care and

competence to ascertain the facts on which their statements were

based because they were aware that the Durbins relied on their work

product in connection with this real estate transaction. This
standard of care does not require expert testimony establishing

accepted practice within the real estate profession. Accordingly,
we hold that expert testimony was not required to establish a duty

and a breach of that duty in the Durbins' negligent

misrepresentation claim.

C. Statutory Claims
The Durbins brought two statutory claims against the Realtors.

The Durbins alleged that the Realtors violated § 37-51-321, MCA, of

the Montana Real Estate Licensing Act and §§ 30-14-103 and 133,

MCA, of the Montana Consumer Protection Act. The Durbins claim

that these statutes set forth the standards the Realtors were

15
required to follow, and thus allow a layperson to determine without
expert testimony, whether the Realtors satisfied the requirements
of the Acts. The Realtors argue that regardless of the standards

set forth in the statutes, the Durbins have the burden, through

expert testimony of a licensed real estate broker/agent, to

establish the appropriate standard of care and the Realtors'

deviation therefrom.

Section 37-51-321, MCA, sets forth the procedures for

revocation or suspension of a real estate broker or salesperson's

license. Specifically, it allows the Board of Realty Regulation to
investigate the actions of a real estate broker or a real estate

salesperson and revoke or suspend a license when the broker or

salesperson has been found guilty of any of the following

practices:

(a) intentionally misleading, untruthful,
inaccurate advertising . . (b) making any falzz
promises of a character likely to influence, persuade, or
induce; (c) pursuing a continued and flagrant course of
misrepresentation or making false promises through agents
or salespersons or any medium of advertising or otherwise
. .

Additionally, the realty regulations cover grounds for license

discipline for acts such as fraud, misrepresentation, or deception.

A.R.M. 8.58.419(3) (1993). For example, A.R.M. 8.58.419(3) (1993),

provides in part:

(i) licensees shall endeavor to ascertain all
pertinent facts concerning every property in any
transaction in which the licensee acts, so that the
licensee may fulfill the obligation to avoid error,
exaggeration, misrepresentation, or concealment of
pertinent facts;
(ii) licensees who have listed property shall make
a prompt, reasonable, visual inspection of any property
listed; . . .

16
 (iv) licensees shall disclose to principals and
third parties all material facts concerning the property
of which the licensee has actual knowledge regarding the
property . .
Violation of these regulations may be considered by the Board in

determining whether the broker failed to meet the generally

accepted standard of practice. A.R.M. 8.58.419(l) (1993).

The Durbins contend that a layperson can determine whether a
broker has violated these regulations because the determination

requires no specialized knowledge. They further assert that the
Board of Realty Regulation eliminated the need for expert standard

of care testimony to establish unprofessional conduct within the

purview of A.R.M. 8.58.419(1993).

Section 37-51-321, MCA, sets forth grounds for revocation or

suspension of a real estate license such as making any false

promises of a character likely to influence, persuade, or induce or

demonstrating unworthiness or incompetency to act as a broker or

salesperson. A.R.M. 8.58.419 (1993), articulates acts or omissions

that are evidence of acts against the interest of the public. The
statute combined with its implementing regulations sets forth

comprehensive guidelines for licensed real estate agents and

brokers.
We have held that the provisions of the Real Estate Licensing

Act establish a standard of conduct to which brokers and

salespersons must conform. "If not, they must bear the

consequences." Carnell v. Watson (1978), 176 Mont. 344, 349, 578

P.2d 308, 311. Accordingly, in the instant case, expert testimony

17
was not required because a jury may determine whether the Realtors

violated any of the provisions in the regulations or statutes.

The Durbins also brought a claim under the Montana Consumer

Protection Act, 55 30-14-103 and 133, MCA. Section 30-14-103, MCA,

states that "[ulnfair methods of competition and unfair or

deceptive acts or practices in the conduct of any trade or commerce

are unlawful." Section 30-14-133, MCA, delineates that "[a]ny

person who purchases or leases goods or services primarily for

personal, family, or household purposes and thereby suffers any

ascertainable loss of money or property, real or personal . . . may
bring an individual but not a class action . .I'

The Board of Realty Regulations articulates what constitutes

an unfair or deceptive act or practice. A.R.M. 8.78.101(l) states

that a person engages in unfair or deceptive and therefore unlawful

acts or practices when, he or she "makes a false representation as

to the characteristics, ingredients, uses, benefits, alterations or
quantities of merchandise [or] states that a transaction involves

rights, remedies or obligations that it does not involve . .I'

A determination of whether the Realtors made a representation

and whether that representation was false is clearly within the

common knowledge of a layperson. In the instant case, scientific,

technical, or other specialized knowledge is not necessary to

assist the jury to understand the evidence because the statute and

the regulations establish the conduct to which the Realtors must

conform regardless of whether other brokers conform to that same

conduct. Accordingly, we conclude that the Durbins were not

18
required to provide expert standard of care testimony to establish

the relevant statutory violations.
2. Should this Court direct the District Court on the
admissibility of expert standard of care testimony?

The Durbins argue that not only do the elements of the claims

they asserted not require expert testimony but also that expert

testimony is not admissible for any of the claims they asserted.

Thus the Durbins contend that the Realtors are precluded from

offering expert testimony establishing the standard of care
exercised by other real estate brokers in similar transactions.

They request this Court to remand their case and direct the

District Court to exclude at trial any expert standard of care

testimony. The Realtors continue to assert that expert testimony

establishing the standard of care and a breach of that standard is

not only admissible but also required.
We have long held that issues concerning the admissibility of

evidence are within the discretion of the trial court. Cottrell v.

Burlington Northern R. Co. (1993), 261 Mont. 296, 301, 863 P.2d

381, 384 (citing Cooper v. Rosston (1988), 232 Mont. 186, 190, 756

P.2d 1125, 1127). "The trial court is vested with great latitude

in ruling on the admissibility of expert testimony." Cottrell, 863

P.2d at 384; see also Jim's Excavatinq, 878 P.2d at 257.
The fundamental requirements of Rule 702, M.R.Evid., testimony

by experts, still apply. Rule 702, M.R.Evid., 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.

19
The Commission Comments to Rule 702, M.R.Evid, note that the rule

sets forth two standards. First, the subject matter must be one

that requires expert testimony. Expert testimony is required in

areas not within the range of ordinary training or intelligence.

Newville v. State, Dept. of Family Service (1994), 267 Mont. 237,

257, 883 P.2d 793, 805 (requiring expert testimony establishing

standard of care for professional negligence because a jury of

laypersons is normally incompetent to pass judgment on standard of

care for professionals without the assistance of expert testimony).

Second, the particular witness must be qualified as an expert to

give an opinion in the particular area of the testimony. Thus,

Rule 702, M.R.Evid., implicitly requires a foundation showing that

the expert has special training or education and adequate knowledge

on which to base an opinion. Cottrell, 863 P.2d at 384. Within

the confines of the rule of evidence, a trial court has broad

discretion in determining the admissibility of the evidence.

Accordingly, we remand this case for trial leaving the District

Court with the discretion to determine the admissibility of expert

testimony.
Reversed and remanded.

We Concur: /

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