                              No.     94-402
           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    1995

JOHN WILLIAMS and BARBARA WILLIAMS
          Plaintiffs and Respondents,




APPEAL FROM:   District Court of the Eleventh Judicial District,
               In and for the County of Flathead,
               The Honorable Ted 0. Lympus, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Richard DeJana,       Kalispell, Montana
          For Respondent:
               Marshall     Murray,     Murray    &   Kaufman,   Kalispell,
               Montana


                              Submitted on Briefs:        January 12, 1995
                                               Decided:   March 7, 1995
Filed:



                                      I
                                    Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

      This is an appeal from the assessment of damages by the
Eleventh Judicial District Court, Flathead          County.     We affirm in
part and reverse in part, with instructions for the District Court
to modify its judgment by $1,100.
      We consider the following questions on appeal:
I.    Did the District Court err in determining the damage figures
owed to the Williamses by using the figures presented by the
Williamses'     expert witness?
II.   Did the District Court err in failing to award DeVinney his
offset award from the first case?
      This is the second time this        matter   has been before this
Court.      In Williams v. DeVinney (1993), 259 Mont. 354, 856 P.2d 546
(Williams    I), we held that Alvin DeVinney (DeVinney) was liable for
misrepresentation      concerning the real    estate    he    sold    to   the
Williamses.      The original controversy arises from the sale of a
modular home and a tract of real property upon which the home was
located.      The Williamses purchased the real property from DeVinney
and the modular home from Kalispell        Home    Center,    Inc.,   for whom
DeVinney was the selling agent.
         DeVinney suggested the use of concrete piers to support the
modular home, representing that the piers would provide an adequate
foundation.      DeVinney assured the couple that the ground was sound
and that the piers were an adequate foundation.                 However,   the
ground was not sound because a house had burned on the piece of
property and been bulldozed over.        Therefore, the piers that were

                                     2
set did not support the home properly, resulting in damage to the
home.
        The trial court       determined that DeVinney was guilty of
negligent     misrepresentation.     We remanded the case for trial on the
issue of damages.          At the second trial,   the court followed the
general damage outline set out by the first trial court.         The court
awarded $20,440 to the Williamses.          DeVinney appeals the Findings
of Fact and Conclusions of Law issued on May 19,             1994,   by the
court.

                                       I.
        Did the District Court err in determining the damage figures
owed to the Williamses by using the            figures presented by the
Williamses'        expert witness?
        The court made the following findings of fact:
        1 . Plaintiffs are entitled to damages as a result of the
        negligent misrepresentation of Defendant Alvin DeVinney
        in accordance with Judge Erickson's Findings of Fact and
        Conclusions of Law entered January 6, 1992, and the Order
        of the Montana Supreme Court above referenced.
        2.   Specific damages, which include damages outlined by
        Judge Erickson in his January 6, 1992, decision and
        which, by implication, are necessary to satisfy the
        general directives of that decision, are as follows:
             a.   Remove porches and deck, remove home,
             pour foundations in accordance with CAP0
             specifications, replace home in accordance
             with manufacturer's   original requirements,
             seal    all   joints in     accordance   with
             manufacturer's recommendations and reattach
             porches and deck............... $ 12,000
             b.   Reseal all exterior doors and windows,
             refinish and/or replace water damaged trim and
             adjust all doors and windows for proper
             operation......................  $ 2,000
              C.      Remove 260 cubic yards of in-place soil

                                        3
             d.   Furnish and place 260 cubic yards of
             compacted topsoil at $ 7.00 per cubic yard in-
             place after compaction......... $ 3,900
             e.   Furnish and replant small shrubs and
             trees planted by plaintiff in the area of soil
             removal........................  $    690
                                   SUBTOTAL       $ 20,670
                        Engineering fee...... $ 1,520
                        Backhoe.............. $      70
                        Living expense during
                        repair for four people:
                       10 days @ $180 per day $ 1,800
                                               __--_-__-
                                  TOTAL       $ 24,060
     3.   The cost of installing the proper foundation for
     Plaintiffs' home is $3,620, which sum should be deducted
     from the above found damages.
     DeVinney argues that the present court did not follow the
outline of damages as set down by the first court and that many of
the figures in the damage award are not "incidental" to the moving
of the house.     Further, DeVinney argues that the basis for these
figures    is hearsay and that the figures themselves cannot be
substantive evidence.        DeVinney argues that the expert witness who
testified was not       the witness that the Williamses stated in
discovery that they would put on the stand.             It is DeVinney's
contention      that   the    plaintiffs'     expert,   Robert   Hafferman
CHafferman),    admitted that he was not an expert qualified to make
these figures.
     The Williamses argue that the court had the discretion to
believe whichever witness it considered to be more credible.
Further,     the Williamses contend that their witness is clearly
qualified and that he was permitted by Montana law to testify based
upon any information that he himself felt to be appropriate.

                                      4
        A court has broad discretion in determining whether a witness
may qualify as an expert.     Little v. Grizzly Mfg. (1981), 195 Mont.
419,    636 P.2d 839.    A close review of the record discloses that
Hafferman has been a civil        engineer for forty years and was
thoroughly qualified to testify concerning the various amounts of
damage.     Hafferman did extensive testing on the piece of ground in
order to determine the problem.          By way of contrast, DeVinney's
expert witness was not a civil engineer and looked at the property
for an hour.       The District Court did not abuse its discretion in
accepting Hafferman as an expert witness.
        A district court's findings of fact are reviewed as to whether
they are clearly erroneous.     Williams v. DeVinney (1993), 259 Mont.
354,    856 P.2d 546.    In reviewing a district court's findings of
fact,    the Supreme Court will determine if substantial evidence
supports the findings and, if so, if the effect of the evidence has
been misapprehended by the court, or even if not misapprehended,
whether findings leave this Court with a firm conviction that a
mistake has been made.       Public Lands Access Ass'n,   Inc. v. Boone
and Crockett Club Foundation, Inc. (1993), 259 Mont. 279, 856 P.2d
525. We will review a district court's determination of the law as
to whether it is correct.      Doting v. Trunk (1993), 259 Mont. 343,
856 P.2d 536.
        DeVinney   would have us dismiss the figures submitted in
Hafferman's report as hearsay.           Hearsay evidence is an unsworn
statement made out of court with no opportunity afforded to
confront the speaker as to the veracity of the fact.            Matter of
Swan (1977), 173 Mont. 311, 567 P.2d 898.          However,   there is no

                                     5
requirement that the facts upon which an expert relies in forming
an opinion be themselves admitted in evidence.                    Matter of J.M.

(1985),     217 Mont. 300, 704 P.Zd 1037.          In   fact,   the estimates of
damage used in Hafferman's report were his own projections based

upon updated cost information from others.              As long as Hafferman is
an expert      in his field and DeVinney was presented with the

opportunity     to    cross-examine,      then Hafferman can testify to his

opinions based upon information provided by others.                 His    testimony
indicates that this is what happened.             The District Court did not
err in refusing to consider this evidence hearsay.

      The    court followed          the figures presented by Hafferman.

Contrary to DeVinney's           assertion that Hafferman was not listed as

testifying to the cost of foundation replacement, a review of the

record      indicates        that   in   Williamses'    answer    to      DeVinney's

Interrogatory        No.    1,   the Williamses noted that Hafferman would

testify to "the method and expense of curing the damages incurred

by   Plaintiffs."          While two other witnesses were also scheduled by

the Williamses to testify, but did not, that fact does not negate

the fact that DeVinney had full knowledge of Hafferman's testimony

as well as the content of that testimony.                       A review of the

transcript indicates that DeVinney had a chance to cross-examine

Hafferman as well as a chance to voir dire him on the stand.

      A review of the record also reveals that Hafferman never

admitted to not being an expert.                In fact,   he    quickly    rebutted

counsel's accusations of lack of expertise by stating that he was

skilled at making similar cost estimates--he just did not make the

original underlying cost estimates.              Hafferman did testify as to

                                            6
the generally accepted procedure for accepting bids such as the
ones he presented to the court.
       Hafferman did admit that the two witnesses who did not testify

and who submitted the figures that Hafferman ultimately used were

experts at setting the possible price of repair work.            That does
not mean that Hafferman's       forty years of construction work and

accepting bids on repairs from other workmen should be disregarded.

Nor does it mean that Hafferman admitted that he was not an expert.

       During the hearing on damages,       DeVinney   attempted to get
Hafferman to admit that all but part of the first total ($12,000)

were not attendant to the curing of defects in the foundation.

When we sent this case back in the original appeal, we did so

partly because the only evidence that supported the figures was in

the form of affidavits.       Williams I, 259 Mont. at 362, 856 P.2d at
551.       We stated in that appeal that the court had ordered a

determination of general damages and that a further hearing would

be necessary to determine the specific amount.            We stated that
I'[t]he    court should properly include in its damages award the

specific expenses which it finds, by implication, are necessary to

satisfy the general directives of the earlier decision."          Williams

I, 259 Mont. at 362, 856 P.2d at 551. Hafferman testified that all

the projected figures of damage he had submitted on his report were

incidental to damage caused by having to move the modular home.

       He was vigorously cross-examined by counsel whose questioning

elicited the response that the totals for shrub replacement etc.

were      not   "directly"   related to   the moving of    the    home   or

replacement of the foundation.        The fact that the damage was not
directly related to the cost of curing the foundation, does not

mean that the costs were not          "necessary    to   satisfy   the   general
directives of the earlier decision."          The totality of Hafferman's

testimony shows that he believed that the totals he submitted were

accurate and necessary.

        In its   conclusions    of law,     the court deducted from the

subtotal    of   all   individual   damage figures the amount of $3,620

which it determined that the Williamses would have had to pay for

a full foundation had the current turn of events not occurred.

Hafferman testified to the amount and to his way of determining

that amount.      DeVinney's expert presented an amount for the repair

of the foundation without presenting any testimony as to how he had

arrived at a         total figure that was about $3,900 less than
Hafferman's.      Credibility of a witness is within the trial court's
discretion.      Keebler v. Harding (1991), 247 Mont. 518, 807 P.2d

1354.     The District Court did not abuse its discretion in using
Hafferman's testimony as compared to DeVinney's            expert.

        We conclude that substantial evidence exists to support the

District Court's use of Hafferman's figures as the appropriate

damage     totals.     We further conclude         that the court did not
misapprehend the evidence that it had before it, nor are we firmly

convinced that any mistake has been made with the court's use of,

and subsequent awarding of, the Hafferman damage totals.
                                      11.

        Did the District Court err in failing to award DeVinney              his

offset award from the first case?

        The District court in the initial 1992 action awarded DeVinney

                                       8
offset award from the first case?
     The District court in the initial 1992 action awarded DeVinney

$1,100 because plaintiffs referred to DeVinney publicly as a crook.

When the case came back to the District Court, it did not mention

this amount in its subsequent ruling.        The Williamses do not

address the absence of this amount on appeal.

     We affirm the judgment of the District        Court   with the
exception that the District Court is instructed to subtract $1,100

from its May 19, 1994 judgment of $20,440.

     Affirmed in part, and reversed in part, with instructions to
the District Court to modify its previous judgment by $1,100.

     Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of this Court and by a report of its result to the

West Publishing Company.
                                          March 7. 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


Richard DeJana, Esq.
200 First Ave. East
P.O. Box 1757
Kalispell, MT 59903.1757

Marshall Murray
Murray & Kaufman, P.C.
P.O. Box 728
Kalispell, MT 59903-0728

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA

                                                     BY: oi%
                                                     Deputy                (J
