Czajkowski v. Meyers

November 7 2007

DA 06-0401

IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 292

PETER CZAJKOWSKI and JOAN CZAJKOWSKI,

Plaintiffs and Appellants,

v.

NICHOLAS MEYERS and VIRGINIA MEYERS,

Defendants and Appellees.

APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park, Cause No. 2003-034
Honorable Wm. Nels Swandal, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Karl Knuchel, Attorney at Law, Livingston, Montana

For Appellees:

Kevin S. Brown, Paoli & Brown, P.C., Livingston, Montana

Submitted on Briefs: February 21, 2007

Decided: November 7, 2007

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 The Czajkowskis and Meyers both own property and reside in Yellowstone

Gateway Estates, a five-parcel subdivision in Livingston, Montana. The property of all

five homeowners in this subdivision is subject to restrictive covenants. The Czajkowskis

sued the Meyers for breach of the covenants pertaining to new construction on and

improvements to the Meyers’ property. The Czajkowskis did not ask for monetary

compensation or recovery of attorney’s fees; they merely asked the District Court to

fashion a fitting remedy if it found that the Meyers breached the covenants. The Meyers

counterclaimed alleging the Czajkowskis breached the covenant prohibiting noxious and

offensive activities. They sought damages for emotional distress, punitive damages and

attorney’s fees. The Montana Sixth Judicial District Court ruled in favor of the Meyers

on all issues. The Czajkowskis appeal. We affirm.

ISSUES

¶2 A restatement of the issues on appeal is:

¶3 Did the District Court err when it determined that the Meyers did not violate the

protective covenants applicable to the parties?

¶4 Did the District Court abuse its discretion by awarding damages to both Nick and

Virginia Meyers for intentional infliction of emotional distress?

¶5 Did the District Court err by awarding punitive damages to the Meyers?

FACTUAL AND PROCEDURAL BACKGROUND

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¶6 Nick and Virginia Meyers bought a twelve-acre parcel in Yellowstone Gateway

Estates in 1997. At the time of purchase, the Meyers were aware of the restrictive

covenants that ran with the five parcels in the subdivision. When they bought the

property, the structures on the land consisted of a berm-style house, a chicken coop and a

shed/barn. The property had fallen into disrepair and the Meyers spent thousands of

dollars repairing fences, removing old farm equipment, tearing down the chicken coop,

undertaking extensive weed control and performing improvements to the property. The

Meyers also built a pole barn in 1997 to shelter their tractors and farm equipment. The

pole barn was constructed with grey metal sides and a white metal roof. In May 2002 the

Meyers began constructing a guesthouse. It was a chalet-style design with cedar wood

siding and a dark metal roof. The guesthouse was completed in 2005 or 2006.

¶7 Peter and Joan Czajkowski traveled to Montana in 1998 and purchased a two-acre

lot adjacent to the Meyers’ property. They were notified of the protective covenants at

the time of the purchase. Their purchase included both the land and a house that was

being built on the property at the time. The house was designed and constructed with

wooden sides and a metal roof. At the time the Czajkowskis purchased their land, the

Meyers had completed construction of their pole barn but had not yet begun constructing

the guesthouse.

¶8 Personal tension developed in the neighborhood shortly after the Czajkowskis

arrived in Montana in May 1999. When they discovered that construction of their house

was not complete, the Czajkowskis sued the original builder who was an owner of one of

the five parcels in the subdivision and hired another contractor to complete construction.

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They maintain that their relationship with their new neighbors suffered as a result of the

law suit. They also claim that shortly after moving into their house, Virginia Meyers

“threatened” them over the Meyers’ rights to water running through a ditch on the

Czajkowskis’ property, asserting that she could enter their property at any time without

their permission in order to maintain the ditch. Virginia Meyers disputes the

Czajkowskis’ description of the conversation.

¶9 Regardless of its genesis, the relationship between the Meyers and the

Czajkowskis deteriorated rapidly. The Meyers claim that beginning in 2001 the

Czajkowskis began subjecting them, and other neighbors, to a systematic barrage of

verbal abuse and surveillance. They testified that the Czajkowskis unrelentingly

screamed vulgar epithets and made vulgar gestures at them, as well as photographed them

and blatantly watched them through binoculars.

¶10 In March 2003 the Czajkowskis filed suit against the Meyers alleging that they

violated several covenants, including but not limited to, the requirement that secondary

structures constructed on the property must match the external design and external

materials of the primary structure. The Czajkowskis did not present evidence that any

alleged covenant violation by the Meyers diminished the value of their property or the

subdivision as a whole, nor did they seek monetary compensation or recovery of

attorney’s fees. Rather they asked the court, in the event it found that the Meyers had

violated the covenants, to fashion a remedy it saw fit.

¶11 The Meyers counterclaimed that the Czajkowskis violated the covenant that

prohibited noxious or offensive activities that were annoying or constituted a nuisance to

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other owners. They assert that the Czajkowskis’ continuous verbal abuse and

surveillance constituted such prohibited offensive activity. The Meyers sought damages

for intentional emotional distress, punitive damages, and attorney’s fees. A bench trial

was held on February 2 and 3, 2005. Subsequently, the District Court ruled in favor of

the Meyers and awarded $25,000.00 each to Nick and Virginia Meyers as compensation

for emotional distress. The court also imposed a $10,000.00 punitive damages award

against the Czajkowskis. After a subsequent hearing, the District Court granted the

Meyers attorney’s fees in the amount of $10,840.45. The Czajkowskis filed a timely

appeal.

STANDARDS OF REVIEW

¶12 A district court’s interpretation of a restrictive covenant is a conclusion of law

which we review to determine whether the court’s conclusion is correct. Creveling v.

Ingold, 2006 MT 57, ¶ 5, 331 Mont. 322, ¶ 5, 132 P.3d 531, ¶ 5 (citation omitted).

¶13 When reviewing an award of damages, the standard of review is whether the trial

court abused its discretion. Sartori v. S & S Trucking, Inc., 2006 MT 164, ¶ 12, 332

Mont. 503, ¶ 12, 139 P.3d 806, ¶ 12.

¶14 We review a district court’s punitive damages findings made pursuant to

§ 27-1-221, MCA, under the three-part test set forth in Interstate Production Credit v.

DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991), to determine whether they are

clearly erroneous. Marie Deonier v. Paul Revere Life Ins. Co., 2004 MT 297, ¶ 39, 323

Mont. 387, ¶ 39, 101 P.3d 742, ¶ 39. To determine whether the court’s findings are

clearly erroneous, we will first review the record to see if the findings are supported by

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substantial evidence. Second, if the findings are supported by substantial evidence we

will determine if the trial court has misapprehended the effect of the evidence. Third, if

substantial evidence exists and the effect of the evidence has not been misapprehended,

this Court may still find that a finding is clearly erroneous when, although there is

evidence to support it, a review of the record leaves us with the definite and firm

conviction that a mistake has been committed. Deonier, ¶ 39.

¶15 It is not this Court’s function, on appeal, to reweigh conflicting evidence or

substitute our evaluation of the evidence for that of the district court. We defer to the

district court in cases involving conflicting testimony because we recognize that the court

had the benefit of observing the demeanor of witnesses and rendering a determination of

the credibility of those witnesses. State v. Wetzel, 2005 MT 154, ¶ 11, 327 Mont. 413,

¶ 11, 114 P.3d 269, ¶ 11 (citations omitted).

DISCUSSION

¶16 Issue One: Did the District Court err when it determined that the Meyers did not
violate the protective covenants applicable to the parties?

¶17 The Czajkowskis contend that the District Court erred in its interpretation and

application of the following protective covenants:

Article 1.3 Restoration of Lot. Upon completion of the construction on
any improvement on any portion of the Property, the owner shall, to the
greatest extent possible, restore the lot to the conditions which existed prior
to such construction (taking into account such construction) so that the lot
and improvements shall be in harmony with the surrounding property.

Article 2.1(k) Building Restrictions. Any secondary structure on a site will
match the external design and be made of the same basic external material
as the primary structure.

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¶18 The District Court found that, as applied to the facts of this case, these two

covenants conflicted. Noting that the Meyers’ berm house was the only berm house in

the subdivision and surrounding properties, the court found that the Meyers faced a

dilemma when constructing their guesthouse—they could either construct i t in

accordance with Article 2.1(k) to match the external design of the berm house, or they

could construct it in accordance with Article 1.3 which instructs that “the lot and

improvements shall be in harmony with the surrounding property.” As a result of these

conflicting covenants, the court found that the Meyers did not violate the covenants by

building a guesthouse that harmonized with the surrounding properties, or, if they did, it

was a harmless and de minimis violation. The District Court also found that the Meyers’

pole barn, which was built before the Czajkowskis purchased their property, was identical

to another pole barn in the subdivision and to other pole barns on surrounding properties;

therefore, it too was in harmony and not a violation of the covenants.

¶19 The Czajkowskis argue that in determining whether the Meyers’ pole barn and

guesthouse violated the protective covenants, the controlling covenant was Article 2.1(k).

They maintain that the language of the covenant was “plain, certain, and unambiguous,”

and the District Court simply should have determined whether the new structures were of

the same “external design” as the Meyers’ primary structure, i.e., the berm house. They

claim that it was error for the District Court to compare the Meyers’ new structures to

structures on neighboring property to determine “harmony with the surrounding

property.”

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¶20 The Meyers counter that they complied with the “same basic external material”

requirement in Article 2.1(k) by constructing the guesthouse with log siding and a metal

roof, the same external materials with which the berm house is built, but that in order to

construct a guesthouse that was in harmony with the surrounding properties as instructed

by Article 1.3, they could not build another bermed structure. They also acknowledge

that they do not know whether the term “surrounding property” was intended to mean the

individual parcel on which the construction took place or the subdivision as a whole but

they testified, as did the Czajkowskis and other subdivision homeowners, that they

interpreted the phrase to mean the entire subdivision, not a single parcel.

¶21 General rules of contract interpretation apply to restrictive covenants. The

determination of whether an ambiguity exists in a restrictive covenant, as in a contract, is

a question of law for a court to determine. Creveling, ¶ 8. Where a contract provision is

clear and unambiguous, a court must apply the language as written. An ambiguity exists

where the language of the contract, as a whole, could reasonably be subject to two

different meanings. The fact that the parties disagree as to the meaning of a contract

provision does not necessarily create an ambiguity. Kuhr v. City of Billings, 2007 MT

201, ¶ 18, 338 Mont. 402, ¶ 18, ___ P.3d ___, ¶ 18. Additionally, restrictive covenants

are strictly construed and ambiguities in covenants are resolved to allow free use of

property. Creveling, ¶ 8.

¶22 The restrictive covenants expressly state that the purpose of the covenants is to

enhance and protect the value, desirability and attractiveness of the entire five-parcel

subdivision and are for the mutual benefit of all the residents of the subdivision. To

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achieve this purpose, an underlying consideration of the drafters of the covenants appears

to be harmony and compatibility with the surroundings. As indicated above, Article 1.3

requires that improvements to a lot must be in harmony with the surrounding property;

Article 2.1(e) requires that fencing must be “compatible with the natural surroundings”;

and Article 2.3 requires the owner to maintain his or her lot and the structures on it with

“natural colors, and landscaping schemes that are harmonious with the surrounding

area . . . .”

¶23 The District Court heard substantial testimony from neighbors and surrounding

landowners that the Meyers’ guesthouse was “fitting with the community” and in

harmony with it; in fact, much more so than the Meyers’ berm home. It was undisputed

that fifteen of the eighteen surrounding houses were constructed in a similar fashion to

the guesthouse.

¶24 Czajkowskis argue that Article 1.3 applies exclusively to restoration of a post-

construction lot and therefore the District Court erred in considering it to determine

whether the Meyers’ guesthouse violated the covenants. We disagree and conclude that

while Article 1.3 includes a “Restoration of Lot” heading and addresses lot restoration

after construction, it also expressly requires that the lot “and improvements” be in

harmony with the surrounding property. “Improvements” is not defined in the covenants;

therefore, in accordance with Farmers Union Mut. Ins. Co. v. Horton, 2003 MT 79, ¶ 16,

315 Mont. 43, ¶ 16, 67 P.3d 285, ¶ 16, we interpret the term using its common, everyday

meaning, i.e., a usually permanent addition to or modification of real property that

enhances its capital value and is distinguished from an ordinary repair in being designed

9
to make the property more useful or valuable. Merriam-Webster’s Dictionary of Law,

Merriam-Webster, Inc. retrieved Sept. 20, 2007, from http://www.Dictionary.com.

Therefore, interpreting the text of Article 1.3 and not simply its heading, Article 1.3

instructs that upon completion of any “improvement” on subdivision property, the owner

must restore the lot to conditions existing before construction so that the lot and

improvements are in harmony with the surrounding property. This renders Articles 1.3

and 2.1(k) ambiguous when applied to the Meyers because they cannot build a secondary

structure that is at once the same external design of their berm house and in harmony

with the surrounding property. By contrast, the other four homes share a similar above-

ground “log cabin” design, are constructed with similar materials, and are in harmony

with each other as well as the surrounding properties outside the subdivision. However,

having concluded that the covenants are inconsistent vis-à-vis the Meyers, we must

ascertain the intent of the drafters to determine whether the Meyers have violated the

restrictive covenants. Kuhr, ¶ 18.

¶25 It is a well-established principle of contractual construction that in interpreting a

written instrument, the court will not isolate certain phrases of the instrument to garner

the intent of the parties, but will look at the entirety of the instrument to ascertain the

paramount and guiding intent of the parties, or in this case, the drafters. We will not

allow isolated tracts, clauses and words to prevail over the general language utilized in

the instrument. Anderson v. Stokes, 2007 MT 166, ¶ 36, 338 Mont. 118, ¶ 36, 163 P.3d

1273, ¶ 36 (citations omitted); § 28-3-501, MCA. Additionally, particular clauses of the

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agreement are subordinate to the general intent of the contract. Anderson, ¶ 36;

§ 28-3-307, MCA.

¶26 We conclude that the drafters of the covenants intended that improvements to the

subdivision lots be both internally consistent with the primary structure and in harmony

with the structures on surrounding lots. In the case of the Meyers, and the Meyers alone,

however, this was not possible. The District Court, noting that the Czajkowskis

presented no evidence that the Meyers’ guesthouse or pole barn diminished the value of

the Czajkowskis’ property, correctly concluded that partial compliance with Article

2.1(k) (use of the same exterior materials as the berm house for the guesthouse) and full

compliance with Article 1.3 was adequate and while possibly a de minimis violation, it

did not affect the rights of others in the subdivision. We will not disturb this decision.

¶27 Issue Two: Did the District Court abuse its discretion by awarding damages to
both Nick and Virginia Meyers for intentional infliction of emotional distress?

¶28 The Czajkowskis argue that the District Court abused its discretion by awarding

damages to the Meyers because neither Nick nor Virginia presented evidence of serious

or severe emotional distress resulting from the Czajkowskis’ behavior.

¶29 As noted in the 1965 Restatement (Second) of Torts § 46 cmt b (hereinafter

“Restatement”), the law was slow to afford independent protection for stand-alone

emotional distress claims because of the fear of fictitious or trivial claims, distrust of the

proof offered, and the difficulty of setting up any satisfactory boundaries to liability.

Law in this area, however, has evolved significantly since publication of the Restatement.

In 1995, in Sacco v. High Country Independent Press, 271 Mont. 209, 896 P.2d 411

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(1995), t h i s Court established intentional infliction of emotional distress as a

compensable tort and an independent cause of action in Montana. Such an action arises

when a plaintiff suffers serious and severe emotional distress as a reasonably foreseeable

consequence of a defendant’s intentional act or omission. Sacco, 271 Mont. at 237, 896

P.2d at 428.

¶30 As our case law developed, we consistently relied upon Restatement § 46 for

guidance in emotional distress claims, and continue to do so. Section 46(1) provides:

One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such
bodily harm.

Restatement § 46 comment d elaborates on the meaning of “extreme and

outrageous conduct”:

Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community. Generally, the case is one in which the recitation of
the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, “Outrageous!”

¶31 Additionally, comment j to § 46 defines “severe emotional distress” as:

Emotional distress passes under various names, such as mental suffering,
mental anguish, mental or nervous shock, or the like. It includes all highly
unpleasant mental reactions, such as fright, horror, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment, worry, and
nausea. It is only where it is extreme that the liability arises. Complete
emotional tranquility is seldom attainable in this world, and some degree of
transient and trivial emotional distress is a part of the price of living among
people. The law intervenes only where the distress inflicted is so severe
that no reasonable man could be expected to endure it. The intensity and
the duration of the distress are factors to be considered in determining its
severity. Severe distress must be proved; but in many cases the extreme

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 and outrageous character of the defendant’s conduct is in itself important
evidence that the distress has existed.

Measuring this element requires a careful consideration of the circumstances under

which the infliction occurs, and the party relationships involved, in order to determine

when and where a reasonable person should or should not have to endure certain kinds of

emotional distress. Maloney v. Home and Investment Center, Inc., 2000 MT 34, ¶ 63,

298 Mont. 213, ¶ 63, 994 P.2d 1124, ¶ 63.

¶32 It is well-established that emotional distress can manifest in both physical and

non-physical harm. Comment k to § 46 addresses physical harm. Understandably, it is

easier to conclude that emotional distress is genuine where there is discernible bodily

harm that is attributable to the emotional distress, such as gastrointestinal disorders,

elevated blood pressure, hair loss or ulcers. E.g. Seltzer v. Morton, 2007 MT 62, ¶ 116,

336 Mont. 225, ¶ 116, 154 P.3d 561, ¶ 116. When severe emotional distress is

accompanied or followed by shock, illness, or other bodily harm, these physical

manifestations afford evidence that the distress is genuine and severe.

¶33 The District Court presented sixteen paragraphs in its Findings of Fact and

Conclusions of Law and Order, summarizing extensive testimony of verbal abuse and

surveillance by the Czajkowskis against the Meyers. It included testimony by Nick and

Virginia as well as other neighbors who had witnessed the Czajkowskis’ behavior. The

court found that Virginia, as a result of the Czajkowskis’ actions, “was fearful, lost

countless hours of sleep, lost weight . . . and her hands would shake.” The District Court

13
found that Nick “suffered emotional distress as a result of [Czajkowskis’] approximately

four (4) year campaign of vulgar, abusive language and conduct.”

¶34 The record supports the District Court’s findings in relation to Virginia’s physical

manifestations of severe emotional distress. Her testimony revealed that while she

attempted to withstand the stress of the incessant verbal assaults through exercise or by

trying to ignore them, she nonetheless would “break under it” and did so “far too many”

times during the four years. She told how she would cry, her hands would shake, she lost

weight, and “gave up sleeping.”

¶35 The Czajkowskis urge us to apply the factors we applied in Renville v.

Fredrickson, 2004 MT 324, 324 Mont. 86, 101 P.3d 773. In Renville, we examined a

mother’s negligent infliction of emotional distress claim and determined that her claim

was not compensable. Her claim arose out of the death of her forty-one year old son in

an automobile accident in which the driver of the vehicle died also. Renville was not

involved in the accident nor did she witness it. Renville claimed that when she was

notified of her son’s death, she “began to scream and cry and her body shook.” Renville,

¶ 14. She testified that after her son’s death she continued taking the tranquilizers she

had been taking for many years, increasing the dosage for a short period of time; that she

took anti-depressants for approximately two weeks; and that for months after his death,

she would cry when his name was brought up in conversation. Renville, ¶ 14. We noted

that Renville had not sought medical care or counseling, nor did she have continuous

days without appetite or nights without sleep. We concluded that while “[t]he loss of or

serious injury to a child, whether an adult or a minor, is no doubt a traumatic experience,

14
. . . it is one experienced by countless parents every year.” We therefore affirmed the

district court’s determination that her distress claim was not compensable. Renville,

¶¶ 15-16.

¶36 Renville is distinguishable from the case before us. The automobile accident in

which Renville’s son died and which may have been caused by driver negligence was not

committed to intentionally inflict emotional distress upon Renville. Conversely, the

Czajkowskis’ outrageous behavior toward the Meyers appears to be exclusively intended

to anger, humiliate, and embarrass the Meyers, or, in other words, to intentionally inflict

emotional distress upon them. However, even if we ignore the negligent and intentional

contrasts between the two cases, Renville remains distinguishable. While Virginia

Meyers, like Renville, did not seek medical or psychological care, unlike Renville, the

source of Meyers’ distress was not a single painful event that time would begin to heal.

The record reveals that the Meyers endured an unrelenting barrage of obscene gestures,

vile verbal abuse in which the Czajkowskis employed the coarsest and most offensive

words in our language, and on-going surveillance of their every outdoor activity for over

four years. As noted above, duration and intensity of the distress are factors in

determining its severity. The Czajkowskis’ behavior as described in the record truly was

indecent, atrocious and utterly intolerable in a civilized community. Restatement § 46

cmt d.

¶37 Under these outrageous circumstances, the physical manifestations of emotional

distress exhibited by Virginia were sufficient to support the District Court’s conclusion

15
that she suffered compensable serious emotional distress that was a reasonably

foreseeable consequence of the Czajkowskis’ tortious conduct.

¶38 The Czajkowskis also challenge the District Court’s determination that Nick

suffered serious emotional distress, asserting that Nick’s testimony that he was not thin-

skinned and that being called names by the Czajkowskis did not bother him as much as

when they called his wife names was “proof that he did not suffer emotional distress and

certainly he did not suffer severe emotional distress.” However, the record reveals that

Nick told the District Court that he felt “extremely angry” about the Czajkowskis’

treatment of him and his wife; that he felt “apprehension” about going outside and felt

that he was “always looking over [his] shoulder”; that he felt “very bad” and had “no

privacy”; and that he was embarrassed in front of guests by the Czajkowskis’ behavior.

He related how friends refused to come to their home for outdoor events but that they

themselves attempted to enjoy their property by socializing outside notwithstanding the

Czajkowskis’ behavior. The District Court, without detailing Nick’s testimony as we did

above, determined that:

[t]he stress of [the Czajkowskis’] continuous abuse caused both of the
Meyers to suffer severe emotional distress that no reasonable person would
be expected to endure. . . . Day in and day out, the Meyers were unable to
quietly enjoy their homestead without being flipped off or having abusive
names screamed at them such as “c--t, mother f-cker, f-cking asshole,
stupid asshole, and son-of-a-bitch.” No reasonable person should be
expected to endure such torment and emotional distress.

We therefore conclude that given the intensity and duration of the Czajkowskis’

verbal attacks on the Meyers and the Meyers’ physical and emotional reactions thereto,

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the Meyers adequately established a compensable claim for intentional infliction of

emotional distress.

¶39 A court may award compensatory and/or punitive damages in intentional

emotional distress cases. Section 27-1-317, MCA, allows an injured party to recover an

amount in damages which will compensate him for all the detriment, including emotional

distress, proximately caused by the other party’s tortious conduct. First Bank (N.A.)-

Billings v. Clark, 236 Mont. 195, 771 P.2d 84 (1989). As noted above, the amount of

compensatory damages awarded is properly left to the finder of fact, and we will not

substitute our judgment unless we conclude the judgment to be the product of passion or

prejudice. In this case, the Meyers asked for $100,000.00 in compensatory damages and

the District Court granted $50,000.00. We conclude that this amount is not grossly out of

proportion to the injury, and was not an abuse of the District Court’s discretion.

¶40 Issue Three: Did the District Court err when it awarded punitive damages to the
Meyers?

¶41 The Czajkowskis assert that the District Court erred in awarding $10,000.00 in

punitive damages to the Meyers because the court lacked the necessary evidence to find

that the Czajkowskis acted maliciously or that the Meyers suffered severe emotional

distress. Having determined that the District Court did not err when it concluded that the

Meyers experienced severe emotional distress we look exclusively at whether the

Czajkowskis’ actions were malicious.

¶42 An award of punitive damages is designed to punish or modify the behavior of a

defendant. Deonier, ¶ 53. Under § 27-1-221, MCA, punitive damages may be awarded

17
when the defendant has been found guilty of actual malice. A defendant is guilty of

actual malice if the defendant has knowledge of facts or intentionally disregards facts that

create a high probability of injury to the plaintiff and: (a) deliberately proceeds to act in

conscious or intentional disregard of the high probability of injury to the plaintiff; or (b)

deliberately proceeds to act with indifference to the high probability of injury to the

plaintiff. Section 27-1-221(2), MCA. Additionally, Sacco authorizes a request for

punitive damages in an intentional infliction of emotional distress action. Sacco, 271

Mont. at 239, 896 P.2d at 429.

¶43 All elements of the claim for punitive damages must be proved by clear and

convincing evidence. Clear and convincing evidence means evidence in which there is

no serious or substantial doubt about the correctness of the conclusions drawn from the

evidence. It is more than a preponderance of evidence but less than beyond a reasonable

doubt. Section 27-1-221(5), MCA.

¶44 Section 27-1-221(7)(b), MCA, dictates that when an award of punitive damages is

made by the judge, the judge must clearly state the reasons for making the award in

findings of fact and conclusions of law, demonstrating consideration of each of the

following matters:

(i) the nature and reprehensibility of the defendant’s wrongdoing;

(ii) the extent of the defendant’s wrongdoing;

(iii) the intent of the defendant in committing the wrong;

(iv) the profitability of the defendant’s wrongdoing, if applicable;

(v) the amount of actual damages awarded by the jury;

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 (vi) the defendant’s net worth;

(vii) previous awards of punitive or exemplary damages against the defendant

based upon the same wrongful act;

(viii) potential or prior criminal sanctions against the defendant based upon the

same wrongful act; and

(ix) any other circumstances that may operate to increase or reduce, without

wholly defeating, punitive damages.

¶45 The same District Court findings used to analyze whether the Meyers experienced

severe emotional distress as a result of the Czajkowskis’ behavior establish the nature,

reprehensibility, extent and intent of the Czajkowskis’ wrongdoing. Sections 27-1-

221(7)(b)(i)-(iii). Based on these findings, the District Court concluded:

The Czajkowskis deliberately and systematically ruined the Meyers’
enjoyment of their property by directing the most vile gestures, epithets,
and names at them whenever they would step outside to enjoy their
property. The Czajkowskis deliberately harassed the Meyers by
extensively surveilling them with binoculars and a spotting scope. The
Czajkowskis tormented the Meyers by photographing their every move
outdoors. The testimony revealed that this pattern of conduct lasted for
over four years. Clearly the Czajkowskis maliciously intended to destroy
the Meyers’ quality of life and destroy their quiet enjoyment of their
property.

¶46 The factors listed in § 27-1-221(7)(b)(iv), (v) and (vii) are inapplicable, and

subsection (vi)—the Czajkowskis’ net worth—was considered at a subsequent hearing on

damages. While there was mention of a disorderly conduct complaint that the Meyers

lodged against the Czajkowskis for this same conduct, the District Court did not

19
specifically address § 27-1-221(7)(b)(viii), MCA. However, under subsection

§ 27-1-221(7)(b)(ix), the District Court concluded:

The Czajkowskis’ conduct is particularly egregious since this was not an
isolated incident, as it appears they have a pattern and practice of
tormenting their neighbors. Testimony reveals that they have bragged to
several of their Montana neighbors about how they delighted in tormenting
neighbors they did not like in New Jersey.

¶47 We conclude that the record supports the District Court’s findings in this case and

that the Czajkowskis acted with malice as defined in § 27-1-221, MCA. The District

Court’s award of punitive damages was not clearly erroneous.

CONCLUSION

¶48 For the foregoing reasons, we affirm the District Court.

/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART

Justice Jim Rice specially concurring.

¶49 I concur completely with the Court’s opinion. In challenging the award of punitive

damages, Czajkowskis offer that their behavior was “misunderstood” by the District

Court, explaining as follows:

There exists in this case a cultural chasm. The Czajkowskis, from New
Jersey, were accustomed to the gritty, raw, abrupt, in-your-face habits and

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 customs of the industrial cities of the northeast. The Meyers on the other
hand were accustomed to the subtler southern charms of suburban Georgia
where they had a lovely acre on which to retire at the end of each day.

The potential slight to New Jerseyans aside, the offensive and invasive actions of the

Czajowskis in this case, which the opinion necessarily only briefly summarizes, cannot

be justified by distinctions within the country’s regional cultures. I dare say that their

extreme behavior would be unacceptable anywhere. And even if their experiences in the

Garden State had somehow predisposed them to engage in aggressive behavior toward

others, they would have been well-advised to remember “When in Rome . . .” and other

common human decencies. The District Court’s punitive damage award was very modest

and very appropriate.

/S/ JIM RICE

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