                                                                                              June 7 2016


                                            DA 15-0463
                                                                                           Case Number: DA 15-0463

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 140N



CREED MILES EVANS,

              Plaintiff and Appellee,

         v.

STEVEN D. DOW, individually,
MUNSON RADIO, INC., and
STEVEN D. DOW d/b/a/ KEIN-AM,

              Defendants and Appellants.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. CDV-12-375
                        Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        James F. Gardner, Big Sky Justice, P.C., Great Falls, Montana

                For Appellee:

                        William J. Levine, Attorney at Law, Great Falls, Montana



                                                     Submitted on Briefs: April 20, 2016

                                                                 Decided: June 7, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Steven D. Dow, Munson Radio, and Steven D. Dow, d/b/a KEIN-AM, appeal

from the Order of the Montana Eighth Judicial District Court, granting summary

judgment to Creed Miles Evans (“Evans”) and the final judgment determining that Dow

and Munson shall pay damages to Evans in the amount of $261,000 for wrongful

occupation and unlawful detainer of property. We affirm.

¶3     Evans is the owner of real property in Cascade County, Montana, part of which

was leased to a business called Roan Communications and subsequently assigned to

Munson Radio, Inc. Dow, as the owner of Munson Radio, Inc., occupied the leased

premises which included a radio tower, transmitter and studio sites, and parking and

improvements (“Property”). The Property was the subject of a prior civil dispute. The

District Court determined on October 29, 2010, that Dow was liable for damages to

Evans resulting from Dow’s violations of lease obligations (the “McKittrick Ruling”).

On December 26, 2012, this Court affirmed the McKittrick Ruling in Evans v. Dow, 2012

MT 308N, concluding that Dow’s lease was terminated and that he must pay damages to

Evans and vacate the Property.


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¶4     Evans filed this second civil action on May 15, 2012, to seek damages for

wrongful occupation under § 27-1-318, MCA, and unlawful detainer § 70-27-108, MCA,

because Dow failed to vacate the Property in violation of the McKittrick Ruling. Evans

then filed a motion for summary judgment requesting damages for the reasonable rental

value of the Property during the holdover period which ended April 25, 2013, when Dow

finally vacated the Property. On May 5, 2014, the District Court concluded that pursuant

to the McKittrick Ruling, Evans and Dow were parties to the lease of the Property, the

lease was terminated by the McKittrick Ruling, and Dow was ordered to vacate by

November 29, 2010. The court found that Dow did not vacate until April 25, 2013, and

as a result, Dow was in wrongful occupation and unlawful detainer and Evans was

entitled to damages. The District Court awarded Evans $261,000 in damages based on

$87,000 actual damages of unpaid rent which was trebled under the unlawful detainer

statute, § 70-27-207, MCA.

¶5     Dow raises four issues on appeal. He argues that the District Court erred when it

denied his Rule 15(b) Motion to Amend Pleadings; allowed Evans’ rental value expert to

testify; determined fair rental value of $3,000 per month; and determined that Dow was

personally liable.

Denial of Motion to Amend

¶6     Dow argues the District Court abused its discretion when it denied his Motion to

Amend the Pleadings to Conform to the Evidence at trial. The deadline to amend the

pleadings passed over seven months prior to Dow’s amendment request and accordingly,

the court denied the request.

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¶7     We review a district court’s denial of a motion to amend a pleading for an abuse of

discretion. Farmers Coop. Ass’n v. Amsden, LLC, 2007 MT 286, ¶ 12, 339 Mont. 445,

171 P.3d 690. A district court may deny a motion to amend “for an apparent reason such

as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue prejudice to the opposing

party by allowance of the amendment, futility of the amendment, etc.” Farmers Coop.,

¶ 12 (citation omitted). Dow’s evidence at trial related to personal property claims that

were present from the outset of the case which he failed to properly raise during the

allotted time period. The District Court did not abuse its discretion when it denied the

motion to amend.

Expert Testimony

¶8     The District Court admitted the expert testimony of William Reier, Sr. because it

found that he has worked in the radio broadcasting industry for 50 years and is familiar

with the market for leasing radio towers and broadcasting facilities. Dow argues that the

District Court improperly admitted the expert opinion of Mr. Reier because he lacked a

sufficient factual basis for his opinion.

¶9     We review a district court’s evidentiary ruling for an abuse of discretion including

rulings on the admissibility of expert testimony. Beehler v. E. Radiological Assocs.,

P.C., 2012 MT 260, ¶ 17, 367 Mont. 21, 289 P.3d 131. M. R. Evid. 702 provides that if

“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 this

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case, the District Court did not abuse its discretion when it admitted the testimony of Mr.

Reier, because he possessed substantial specialized knowledge and experience that

assisted with a fact issue in the case.

Fair Market Rental Value

¶10    The District Court heard testimony on the fair market rental value of the Property

and concluded that the rental value during the holdover period was $3,000 per month.

Dow argues that this finding is erroneous and not based on substantial evidence.

¶11    Dow claims that no facts were presented at the District Court that reflect the

court’s $3,000 rental value determination. Specifically, Dow claims the value range for

properties was from $0 to $1,500 with a high valuation of $3,600 per month for a similar

property near Bozeman. Dow asserts that the District Court erred in considering the

higher valuation because Great Falls real estate is unrelated to property in Bozeman. The

District Court reviewed Mr. Reier’s rental value testimony that the Property was worth

$3,600 per month and also noted that Mr. Reier’s disclosure estimated the value at $3,000

per month. The court made a final determination that $3,000 per month was the proper

rental value.

¶12    We review a district court’s finding of fact for clear error. “A finding of fact is

clearly erroneous if it is not supported by substantial evidence, if the trier of fact

misapprehended the effect of the evidence, or if a review of the record leaves the

reviewing court with the definite and firm conviction that a mistake has been made.”

Robison v. Mont. Dep’t Revenue, 2012 MT 145, ¶ 10, 365 Mont. 336, 281 P.3d 218

(citation omitted). This Court has held that the district court is “in the best position to

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observe and judge witness credibility and we will not second guess its determination

regarding the strength and weight of conflicting testimony.” Kulstad v. Maniaci, 2009

MT 326, ¶ 90, 352 Mont. 513, 220 P.3d 595 (citation omitted). The District Court’s

determination of fair rental value is based on substantial evidence. The court did not

misapprehend the evidence and we conclude the court did not err in the fair rental value

determination.

Personal Liability

¶13    Finally, Dow argues that the District Court erred by concluding that he and

Munson Radio are jointly and severally liable. This issue was settled in Evans v. Dow,

2012 MT 308N. “Collateral estoppel, or issue preclusion, bars the reopening of an issue

that has been litigated and determined in a prior suit.” Baltrusch v. Baltrusch, 2006 MT

51, ¶ 15, 331 Mont. 281, 130 P.3d 1267 (citation omitted). This issue will not be

reopened and re-litigated because it was determined in the prior action. Steven D. Dow

and Munson Radio are jointly and severally liable for the damages resulting from Dow’s

actions in this case.

¶14    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶15    Affirmed.


                                                 /S/ MICHAEL E WHEAT


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We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




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