 1
     c. 8. YcNeil
     Distriot Judge
 2   Lake County Courthouse
 3
     106 Fourth Avenue Rast
     Poison, X!E 69860-2171
 4   Telephone: (406) 883-7250
 5
 6
 7
 8
 9   KATRERINE GAIL DURBIN and         *    CAUSE NO. DV-93-91
     PHIL F. DURBIN,                    *
10
                                        *
11                    Plaintiffs,       *
                                        *
12                                      *
            vs.                                  ORDER GRANTIWG
13                                      *      MOTION POR SUMMARY
     BARBARA ROSS, an individual,       *           JUDGMEWT
14                                      *
     d/b/a ROSS REALTY; LYNNR                         and
15   PIAZZOLA, an individual;           *       SUWRARYJUDGRPBT
     WAYNE A. SHRRRILL and RACHRL       *
16                                      *
     SHERRILL, individuals: and
17   MICHAEL J. SHRRRILL, an            *
     individual,                        *
18                                      *
19                   Defendants.       *
                                       *
20   *************** * *
21
            This matter came before the Court April 25, 1995 for
22
     hearing on the Motion for Summary Judgment of Defendant
23
     Barbara ROSS,     d/b/a Ross Realty, and LWe Piazzola
24
      (hereinafter the "Realtor Defendants"). Attorney Don Snavely
25
     appeared on behalf of the Plaintiffs, Katherine Gail Durbin
26
     and Phil F. Durbin.        Attorneys Tracy Axelberg and Gary
27
     Kalkstein appeared on behalf of said Realtor Defendants.
28
     Defendants Wayne A. Sherrill, Rachel Sherrill and Michael J.
29
     Sherrill (hereinafter the "Seller Defendants") did not appear
30
     and have not appeared in this action. Said Seller Defendants#
31
     default has been taken by the Plaintiffs.
32
            The Court, having considered the briefs submitted by the
33
     parties, the affidavits and record before the Court and
34
     arguments of counsel, enters the following:
                                              B-x J--NT
                   1.The Realtor Defendants' Motion for Summary Judgment
                is hereby granted.
                2.   Summary judgment against Plaintiffs and in favor of
                said Realtor Defendants is hereby awarded upon all
                claims in Plaintiffs' Complaint against said individual
                Realtor Defendants.
     8          3,   Pursuant to Rule 54(b), N.R.Civ.Pro., final judgment
                is hereby directed to be entered against the Plaintiffs
                and in favor of the Realtor Defendants as to all claims
                asserted in Plaintiffs' Complaint against said Realtor
                Defendants individually, and the Court determines that
                there is no just reason for delay of entry of such
                judgment.
                4.  This summary judgment does not in any manner affect
                the default previously entered by Plaintiffs against the
                Seller Defendants nor does it affect Plaintiffs' right
L
    18          t o obtain default judgment against         said Seller
                Defendants for all claims in Plaintiffs' Complaint for
    20
                damages caused by the Seller Defendants as well as those
    21
                caused by the Realtor Defendants as agents for said
    22
                Seller Defendants.
    23
                                        inion
    24
                The Realtor Defendants are entitled to summary judgment
    25
         pursuant to Rule 56, H.R.Civ.Pro. only if there are no genuine
    26
         issues as to any material facts and only if said defendants
    27
         are entitled to judgment as a matter of law.
    28
         Uncontested Facts
    29
                1 . The Agreed Facts, Paragraphs 1-4 from the Pretrial
    30
         Order dated April 4, 1995 and filed April 11, 1995, are
    31
         incorporated herein by reference.
    32
                2.  The Realtor Defendants were the agents of the Seller
    33
         Defendants.
    34
         O&ER UUWTING   MOTION FOR sumrf   J~J~I~ENT - Page 2
 1                3.
                 The Default of each of the Seller Defendants was
 2   entered February 2, 1994, pursuanttoRule 55(a), W.R.Civ.Pro.
 3          4.   The Plaintiffs are entitled to, but have not yet
 4   sought, judgment by default against said Seller Defendants,
 5   pursuant to Rule 55(b), M.R.Civ.Pro., for all claims asserted
 6   in Plaintiffs' Complaint against said Seller Defendants.
 7          5.   During pretrial discovery the Plaintiffs had
 8   designated an expert realtor witness, but by letter dated
 9   February 17, 1995 (Exhibit "An to Realtor Defendants' summary
10   judgment motion), Plaintiffs withdrew said expert witness and
11   advised that no specific real estate expert witness would be
12   called by Plaintiffs at trial.
13          6.   At oral argument opposing the Realtor Defendants'
14   summary judgment motion, Plaintiffs confirmed that they did
15
     not have and did not need a realty expert witness to establish
16
     any standard of care owed by the Realtor Defendants, as the
17   sellers' agent-broker, to the Plaintiffs as buyers of the real
18   property in question.
19
            7.   The cause was set for trial to commence May 1, 1995
20
     and discovery has closed, the deadline for exchange of expert
21
     witnesses and summaries of their testimony has passed and no
22
     motions were made for the extension of time or the addition of
23
     witnesses.
24
     Conttiollincz Law
25
            Plaintiffs are entitled, as a matter of law, to judgment
26
     against the Seller Defendants for any and all damages arising
27
     out of the real estate transaction herein involved.        This
28
     includes damages not only resulting           from the Seller
29
     Defendants' conduct but also for those damages suffered by
30
     Plaintiffs resulting from any intentional or negligent
31
     misrepresentations by the Realtor Defendants acting as the
32
     sellers' agent as well as any constructive fraud or statutory
33
34
     ORDER   GRARTIWG   RDTIW FDR -Y JlOGHEWT   - Page 3
      violations by said Realtor Defendants in their capacity as the
      sellers' agent.
            However, the Court holds that in order for the Realtor
      Defendants to be found personally liable as individuals for
      their conduct toward the plaintiffs-purchasers, the Plaintiffs
     must first establish a duty owed by the sellers' broker to the
 7
     purchasers and that the standard of care relating to such duty
 8    and a breach thereof must be established by expert testimony
 9
     as a matter of law.
10
            In support of the Realtor Defendants' summary judgment
11
     motion, a series of cases are cited, incorporated herein by
12
     reference, for the proposition that expert testimony is
     essential to establish the standard of care and a breach
     thereof in professional negligence actions and that is the
15
     established law of Montana. Although most of the cases deal
16
     with medical doctor and lawyer malpractice, the principle
17
     extends to other professional fields, and the Court herein
18
     holds is likewise applicable to the equivalent of realtor
19
     malpractice.
20
            In arguing that the Plaintiffs do not need expert
21
     witness testimony to establish any duty or standard of care,
     Plaintiffs disavow that their claims are based upon the breach
23
     of professional responsibility on the part of the Realtor
24
     Defendants and instead assert that Plaintiffs' claims are
25
     based simply upon allegations of fraud, negligent and
26
     intentional misrepresentations and statutory violations for
27
     which no expert witness testimony is needed relative to the
28
     issues of duty and standard of care.       The Court does not
29
     accept such argument.
30
            The only causal connection between the Plaintiffs as
31
     buyers of the realty and the Realtor Defendants is the
32
     agreement for the sale of the property by the Seller
33
     Defendants to the Plaintiffs. The Realtor Defendants acted as
34
     O R D E R GRAWTXWC UOTIOR FOR SMHARY JIBGUENT - Pw 4
     1    the sellers' agent for the transaction and in that       capacity
     2    have a professional responsibility which is the sole     basis of
     3    any liability on their part.
     4           In opposing the Realtor Defendants' summary        judgment
     5    motion, the Plaintiffs rely principally upon the case    of Wagner
     6
          v.(%Z& 232 Mont. 332, 757 P,2d 779 (1988). The Court herein
     i
          does specifically follow the Mqnercase and holds that expert
     8
     9    testimony is not required to establish the standard of care
 10       owed by the seller of realty to the purchaser and the Seller
 11       Defendants are liable for all damages suffered by the
 12      plaintiffs-purchasers whether caused by the conduct of the
13        sellers or their realtor agents without the necessity of
14       expert testimony.
15              However, the issue raised by the summary judgment motion.
16       herein was not an issue in the Wagnercase.      The realtor was
17       not a party to that action and the issue of individual
18       liability of a sellers‘ realtor-agent to the buyer was not
19       raised in Wagner nor in any other authority cited by the
20       Plaintiffs in opposing the instant motion.
21              Most professional liability actions arise out of claims
22       by a patient against his own doctor or a client against his
23       own attorney. In this case the professional responsibility of
24       the realtor to his principal, the seller, is clear as is the
25       duty owed by the seller to the buyer. What is not so clear is
26       the individual and personal duty, if any, owed by the realtor
27
         to the buyer, the standard of care and whether there has been
28
         a breach of any such duty. Those issues must be established
29
         by expert witness testimony.
30
                The Court recognizes that in most routine real estate
31
         transactions there usually is but one professional realtor-
32
         broker who is most commonly the agent of the seller. It also
33
         is wel.1 established law that a seller is held responsible for
34
         GROER G R A N T I N G UOTION FOR SWARY JWGMENT - Pale 5
     1   representations of the sellers'                               agent-broker made.to the
 2       purchasers. Sec. 28-10-602, MCA.                              ~ag?z~so held as does this
 3
         Court herein.
 4
                In this case the plaintiffs-purchasers also seek damages
 5
         for alleged breaches of the Realtor Defendants professional
 6
         responsibility beyond that of the Seller Defendants as the
 7
         responsible principal and extend liability directly to the
 8
         Realtor Defendants individually and personally. This Court
 9
         also holds that in order for the plaintiffs-purchasers to
10
         establish individual, personal liability on the part of the
11
         sellers' agent-broker, the Plaintiffs must first establish a
12
         duty owed by the sellers' agent to the buyer, the standard of
13
         care owed by the sellers * agent to the buyer and a breach of
14
         that standard and that such duty, standard of care and breach
15
         thereof must be established by expert witness testimony as in
16
         any professional liability action,
17
                The Court finds that there are no genuine issues as to
18
         any material facts. The Seller Defendants are liable to the
19
         plaintiffs-purchasers whether caused directly by said Seller
20
         Defendants or by their agents, the Realtor Defendants.
21
               The Plaintiffs failed to produce a realtor expert to
22
         establish a duty, standard of care and a breach of duty on the
23
         part of the individual Realtor Defendants personally, and
24
         summary judgment is therefore granted as a matter of law.
25
               DATED this 3rd day of May, 1995.
26
27
                                                                    C.B. McN8k
28
29                                                                   C. B. McNeil
                                                                    District Judge
30
31       S/3/%
         Copies to:
32         Don Snaveiy
           Tracy Axclbetfj
33         Gwy Kalkstcin
                 vs
34
         ORDER GRARTING   CK)TICRl FOR SUMARY JIJDWENT   - Pa@e 6
   HONORABLE C.B. McNEIL
1 District Court Judge
   Lake County Courthouse
2 Polson, Montana 59860
3 Phone (406) 883-6211 Ext. 308

4
5
 6
 7
          MONTANA TWENTIETH JUDICIAL DISTRICT COURT, SANDERS COUNTY
 8

 9
     _-_-----____________---------------------------------------------------------------------------------------------
10
11   KATHERINE GAIL DURBIN and PHIL F.                                 ) Cause No. DV 93-91
     DURBIN, individuals,                                              1
12                                                                     >
                                  Plaintiffs,                          1
13
                                                                       )
14                         -vs-                                        1
                                                                       ) PRETRIAL ORDER
15  BARBARA ROSS, an individual, d/b/a
    ROSS REALW, LYNNE PIAZZOLA, an                                     ;
I6 individual; WAYNE, A. SHERRILL and
17 RACHEL SHERRILL, individuals; and                                   ;
    MICHAEL J. SHERRILL, au                                            )
18 individual,                                                         )

19                                Defendants.                          ;
                                                                       )
20   -----_-------_---__*-----------------------------------------------------------------------------------------------
21
              Pursuant to Rule 16 of the Montana Rules of Civil Procedure, a pre-trial
22
     conference was held in the above-entitled cause. Donald V. Snavely represented
23
24   Plaintiffs Phil and Katherine Durbin (the “Durbins”). Tracy Axelberg and Gary

25   Kalkstein represented Defendants Barbara Ross and Lyme Piazzola (the “Realtor

26   Defendants”). The defaults of Defendants Wayne and Rachel Sherrill and Michael
27   Sherrill (the “Sherrills”) have been entered for their failure to appear as required by
28

     PRETRIAL ORDER                                                                                                Page    1
          law. The Sherrills did not participate in the preparation of this Pretrial Order.
  1
                 The Court hereby enters the following Pretrial Order in this action pursuant to
  2
  3       agreement of the parties.

  4
  5                                             AGREED FACTS

                 The following facts are admitted, agreed to be true, and require no proof:

                 1.        Plaintiffs Phil and Katherine “Gail” Durbin are husband and wife. On
  8
  9       April 26, 1993 the Durbins purchased for the sum of $35,000.00 a piece ‘of property

 10       consisting of 20 acres and a single-family residence located at 209 Upper River Road,

 11       Heron, Montana (the “Property”) from Defendants Wayne, Rachel and Michael Sherrill,
 12       the sellers of the Property.
 13
                 2.        Defendants Wayne and Rachel Sherrill and their children resided on the
 14
          Property from May of 1987 until they sold the Property to the Durbins. Defendant
 15
          Michael Sherrill resided on the Property for part of that time.
 16
1 7              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

 l9       listing and sales agent for the sale of the Property to the Durbins. Barbara Ross was
 20
          the supervising broker for Defendant Piazzola for this sale. Defendants Piazzola and
 21
          Ross both worked for Ross Realty, a real estate office located in Noxon, Montana.
 22
 23       Defendant Ross was the owner of Ross Realty at the time of-this sale.

 24              4.        This case involves claims by Plaintiffs Durbin that the condition of the

 25       Property was misrepresented to them. The Durbins contend, among other things, that
 26       the septic system, household water system, and other aspects of the Property were not
 27
          accurately represented by the Defendants. Defendants Ross and Piazzola deny these
 28


      I   PRETRIAL ORDER                                                                       Page   2
       contentions. Defendants Ross and Piazzola contend, among other things, that they did
 1
 2     not make any misrepresentations to the Durbins. The various contentions of the parties

 3     are explained in more detail below. The purpose of this trial will be to resolve the

 411   various factual disputes between the parties regarding the sale of the Property.




                  Plaintiffs Durbin contend as follows:
 8
                  1. Plaintiffs’ General Factual Contentions: The Durbins contend that during the
 9
10     sale negotiations the Realtor Defendants told them things about the Property which

11     were not true. The Durbins further contend that during the sale negotiations the
12     Realtor Defendants failed to tell them other important facts about the Property which
13
       were important to normal home buyers. In general, the Realtor Defendants told the
14
       Durbins that the Property was in good condition and was only in need of cosmetic
15
16     repairs.     In fact, there were several major problems with the Property.

17                The.Durbins were told that the Property had a legal septic system with a 750

18     gallon septic tank. ‘In fact, there was no septic tank, and the sewage drained into an
19     approximate 200 gallon dry well with no drain field. The sewage disposal system was
20
       not operable and needed to be completely replaced. In addition, raw sewage from the
21
       system ran out on to the surface of the ground, which was a serious health hazard for
22
23     residents of the Property.

24                The Durbins were told that the household water was provided by a seep well

25     located on the Property and that the water was safe for all household purposes except

26     drinking. In fact, the water from this well was contaminated with coliform bacteria and
27
       was not safe for any household purposes.
28

       PRETRIAL ORDER                                                                     Page   3
                The Realtor Defendants told the Durbins that the westerly boundary of the
1
         Property ran along an existing fence line. In fact, this fence line was as much as 45 feet
2
3        on to the neighbor’s property. An access road which ran along the fence line to the

4        back of the Property was located on the neighbor’s property as well.
5               The Realtor Defendants failed to disclose to the Durbins that there were several
6
         plumbing problems in the house. There were no hot water pipes and no running hot
7
         water. The drain pipes for the washer were not connected to the sewer lines and
 8
         drained on to the surface of the ground underneath the house.
 9
10              Plaintiffs Durbin contend that the Realtor Defendants knew or should have

11       know about the problems with the Property. The Durbins contend that even, if the

12       Realtor Defendants did not know about these problems, they spoke as if they knew
13       what they were talking about, yet they failed to check out any of the important
14
         information before they passed it on to the Durbins.
15
                Plaintiffs Durbin contend that they have suffered damages as a result of the
16 ’
17       Defendants’ conduct. They have repaired defects in the Property, including installation

18       of a new septic system, installation of a new water well, repair of the plumbing

19       problems, and repair of other defects in the home. They will also incur expenses to
20       install a roadway to the back of the Property. The Durbins have suffered serious stress,
21
         strain, anxiety and other emotional distress as a result of the Defendants’
22
         misrepresentations. The amount of these damages will be proven during the trial of
23
24       this case. The Durbins also seek treble damages and attorney’s fees under the Montana

25       Consumer Protection Act because of the unfair and deceptive acts of the Realtor

26       Defendants. The Durbins may also seek punitive damages for any fraudulent or
27       malicious conduct of the Defendants proven during the trial.
28

     I   PRETRIAL ORDER                                                                     Page    4
                 2. Plaintiffs’ General Legal Contentions:
1
2                A.        The Defendants are liable for intentionally misrepresenting important

3         facts about the Property to Plaintiffs. The Defendants are also liable for intentionally

4         concealing facts about the Property from Plaintiffs, knowing that these facts were
5         important to Plaintiffs and would be for any normal purchaser.
6
                 B.        Alternatively, the Defendants are liable for negligently misrepresenting
7
          important facts about the Property ‘to Plaintiffs, even if they believed their statements to
8
9         be true, because they failed to exercise reasonable care in investigating the truth of the

10        facts which they represented to Plaintiffs and failed to exercise reasonable care in

11        communicating information to Plaintiffs.
12               C.        The Defendants are liable for constructive fraud by failing to disclose to
13
          Plaintiffs important information about the Property which they had reason to know
14
          would affect the value or desirability of the Property to Plaintiffs and any normal
15
16 purchaser.
   II
17        D.               The Realtor Defendants are liable for violating the Montana real estate

18        licensing laws, including M.C.A. $0 37-51-321 and A.R.M. 60 8.58.419(3), by among

I9        other things misrepresenting facts and concealing information about the Property, by
20
          failing to adequately investigate the truth of the information which they conveyed to
21
    Plaintiffs, by failing to refer Plaintiffs to an independent attorney or advisor, and by
22
23 generally failing to act competently in the transaction.           -

24               E. The real estate agents and their employers are liable for violating the

25        Montana Consumer Protection Act [M.C.A. $0 30-14-101 et seq] by (a) committing

26        unfair and deceptive acts [false statements and non-disclosures of important facts about
27        the Property], (b) in the conduct of their businesses, (c) by which Plaintiffs suffered an
28
     I/
     I    PRETRIAL ORDER                                                                        Page 5
I




              ascertainable loss of money, (d) in a transaction in which Plaintiffs engaged primarily
     1
     2        for personal, family or household purposes. Plaintiffs are thus entitled to an award of

     3        three times their damages plus reasonable attorneys’ fees.

     4               F. Plaintiffs are entitled to an award of punitive damages should the conduct of

     5        the Defendants, or any of them, be found by the jury to be fraudulent or malicious as
     6
              provided in M.C.A. 0 27-1-223..
     7


                                            DEFENDANT?? CUmmONS

                     Defendants Ross and Piazzola contend as follows:

                     1. Defendants Ross and Piazzola dispute all of Plaintiffs’ contentions.

                     2. The Plaintiffs have failed to mitigate their damages.
    13
                     3. Plaintiffs’ damages, if any, were caused by Plaintiffs’ own actions and inactions
    14
             constituting     negligence.
    15
                     4. Defendants Ross and Piazzola dispute the nature and amount of damages
    16
    17 claimed by Plaintiffs.

    18               5. Defendants Ross and Piazzola deny liability on each and every theory of

    lg liability’alleged by Plaintiffs.
    20
                    6. Plaintiffs independently inspected the Property and met with the Sherrills to
    21
             discuss and examine the property on several occasions without Lynne Piazzola and
    22
             made an informed purchase of the Property based on those inspections and discussions
    23
    24 with Defendants Sherrill.

    25              7. Defendant Piazzola performed a diligent inspection of the Property and

    26       disclosed to the Plaintiffs all information gleaned as a result of that inspection as well
    27
             as information gleaned from her conversations with Wayne and Rachel Sherrill.
    28

         I   PRETRIAL ORDER                                                                      Page 6
                     8. Plaintiffs knew or should have known of the condition of the Property based

             on their own inspections and independent visits with the sellers.
 2
 3                   9. Plaintiffs were fully informed of the Property’s shortcomings and those

 4           shortcomings were disclosed by the sellers and were reflected in the purchase price of
 5           the Property.
 6
                     10. The alleged violations of the Montana Licensing la&s are not actionable
 7
             because this Court lacks jurisdiction over the subject matter of such a determination
 8
             and a violation of those laws does not give rise to a claim for citi! damages,
 9
     /I
10                   11. The Montana Consumer Protection Act does not apply to any of the claims

11           of the Plaintiffs levied against the Realtor Defendants.
12                   12. Most if not all of the repairs undertaken by the Plaintiffs were
     I
13           improvements required for refinancing and/or to enhance the value of the Property by
14
15   I/I     an amount equal to or exceeding their cost.

                     13. The property and residence purchased by Plaintiffs from Defendants Sherrill
16
         I
17           had an actual Fair Market Value at or above the purchase price of $35,000.00.

18
19
20
21
                    Attached to this Pre-trial Order are exhibit lists for each party, identifying by
22
             number and brief description each exhrbit which that party intends to offer on its case-
23
24           in-chief and stating any objections by the other parties to the exhibits. Any exhibit

25           offered at the trial to which no objection was made in the Pre-trial Order will be
26           admitted into evidence.’ The parties reserve the right to supplement their exhrbit lists at
27
             or prior to trial, subject to any objections of the other parties.
28


     I       PRETRIAL ORDER                                                                       Page 7
                                                 WPTNESSES
 3

 s             The following witnesses may be called to testify on the parties’ cases-in-chief:
 d
 c             A.       Plaintiffs
 4             1.       Calkins, Kathy -- Wisdom, Montana
 *-t
               2.       Durbin, Gail -- Heron, Montana
 f
 ,
               3.       Durbin, Josette -- Heron, Montana
 4
               4.       Durbin, Phil -- Heron, Montana
 t

 5
               5.       Fallon, MarshaIl -- Noxon, Montana

l(             6.       Hilt, Jim -- Noxon, Montana

11             7.       Hudson, Jim -- Heron, Montana      - (+-y Q+*J$
                                                                   i J
12             8.       Hudson, Trish ---Heron, Montana
1:
               9.       Kiefer, Bobbie -- Heron, Montana
14
               10.      Kiefer, John -- Heron, Montana
1:
If             11.      Lamruth, Robert -- Clark Fork, Idaho

17            12.       Larson, Kathy -- Noxon, Montana

18            13.       Piazzola, Lynne -- Noxon, Montana
19         1 4 .        Ross, Barbara -- Noxon, Montana
20
              15.       Shannon, Jon -- Missoula, Montana (Expert)
21
              16.       Simonson, Darryl -- Noxon, Montana
22
23            17.       Sorlie, Dell -- Trout Creek, Montana          -

24            18.       Tionovich, Phil -- Bonners Ferry, Idaho

25            19.       Foundational witness from Mt. Environmental Laboratory (if needed)
26            19.       Any witnesses listed by the Defendants
27
              20.       Any rebuttal witnesses
28

       'RETRIAL ORDER                                                                     Page a
            21.       Any witnesses identified through remaining discovery to be undertaken
 1
2
3           B.        Defendants

 4          1.        Boots, Debbie
 5          2.        Burlingame, Claude
 6
            3.        Compton, Kent
 7
            4.        Crisp, Ken (expert)
 8
            5.        Dominick, Bruce
 9
10          6.        Durbin, Gail

11          I.        Durbin, Josette

12          8.        Durbin, Phil
13          9.        Fitch, Dan
14
            10.       Foss, Merilynn (expert)
15
            11.       HiIt, Jim
16
17          12.       Ivers, Jan

18          13.       Moats, Ralph

19          14.       Moats, Sandy
20          15.       Nichol, Peggy
21
            16.       Norton, Larry
22
            17.       Piazzola, Lynne
23
24          18.       Ross, Barbara

25          19.       Russell, Ron

26          20.       Sherrill,    Michael
27          21.       Sherrill, Rachel (or by deposition)
28

     PRETRIAL OROER                                                                    Page 9
             22.      Sherrill, Wayne (or by deposition)
 1
             23.      Simonson, Darryl
 2
 3           24.      Slomski, Robert

 4           25.      Sorlie, Dell
 5           26.      Mrs. Swant
 6           27.      Whittenberg, Dan
 7
             28.      Willis, Russ
 8
             29.      Woods, Bill
 9
10           30.      Any witnesses listed by the Plaintiffs; and

11           31.      Such witnesses as are needed for rebuttal.
12          32.       Any witnesses identified through the remaining discovery to be
13          undertaken.
14
15
16
17                                         ISSUES OF FACT

18          All issues of fact encompassed by the parties’ contentions (except those stated in
19   the Agreed Facts) remain to be litigated at trial.
20
21
                                           ISSUES OF LAW
22
23          All issues of law encompassed by the parties’ contentions remain to be litigated

24   at trial and will be resolved by the Court’s settlement of jury instructions or in ruling

25   upon the pretrial motions referenced below.
26
27
28

     PRETRIAL ORDER                                                                     Page 10
                                                 DrscomRY
1
2               The final Pre-trial Order shall refer to all those portions of depositions upon oral

3        examination and interrogatories, requests for admissions, and answers and responses

4        that the parties intend to introduce into evidence. Any objections to the use of the
 5       above documents shall be stated, and if not stated, shall be deemed waived. (Because
 6
         this Rule relates to filing and is designed to consolidate in one place all of the fruits of
 7
         discovery, and because there can be no surprise element involved, the Court shall be
 8
 9       Irberal in permitting the amendment of the Pre-trial Order to include any material not

lOI1
11
         originally listed.)

                 At this time, the parties only intend to use at trial fruits of discovery for the

l2       purpose of impeachment. The parties reserve the right to use any discovery as
13
         substantive evidence as permitted by law. The Realtor Defendants intend to use the
14
         depositions of Wayne and Rachel Sherrill as substantive evidence. Plaintiffs object to
15
16       the use of these depositions for any purpose at trial on the following grounds: (1) no

17       foundation has been established for their use under Rule 32, M.R.Civ.P.; (2) use of

18       these depositions, from critical witnesses, would deprive Plaintiffs’ of their constitutional
19       rights of confrontation and cross-examination of adverse witnesses; (3) the depositions
20
         should be excluded under Rule 611(e), M.R.Evid., and Bonamarte v. Bonamarte, 263 ’
21
         Mont. 170,866 P.2d 1132,1136        (Mt. 1994) as denying Plaintiffs effective confrontation
22
         and cross-examination of adverse witnesses; (4) all of the deposition testimony is
23                                                                        *
24       hearsay evidence without circumstantial guarantees of trustworthiness; (5) the Realtor

25       Defendants have failed to specifically identify which specific portions of the depositions
26 will be utilized, as required by the applicable procedural rules, and thereby prevented
27
   Plaintiffs from raising objections to inadmissible testimony; (6) all questions asked by
28


     I   PRETRIAL ORDER                                                                       Page 11
          counsel for the Realtor Defendants were leading and improper as these witnesses are
 1
          not adverse to the Realtor Defendants; (7) Plaintiffs restate their objections to
 2
 3         testimony as set forth in the deposition transcripts; and (8) the depositions should be

 4        excluded under Rule 403, M.R.Evid. as their probative value is exceeded by the

 5        potential for jury misuse in that the jury does not have the opportunity to assess the
 6
          credibility of these witnesses through live testimony.
 7
 8
                                   ADDITIONAL, PRE-TRXAL           DISCOVERY
 9
10                The parties have agreed to complete discovery by April 14, 1995. At the present

11        time Plaintiffs do not anticipate any further depositions. The Defendants anticipate

12        deposing a few additional percipient witnesses and Plaintiffs’ expert and will be allowed
13
          to perform an inspection of Plaintiffs’ Property with their expert realtor prior to trial at
14
          a time convenient to Plaintiffs and their attorney. Other than supplementation of their
15
          responses to prior discovery requests, the parties do not contemplate any additional
16
I7 discovery at this time.                 *



                                               Sl7PULATIoNS
20
                 The parties anticipate stipulating to the authenticity of exhibits, subject to any
21
          substantive objections (relevancy, hearsay, Rule 403, etc.). No further stipulations are
22
23 anticipated.
     II
24
     II
25                            DETERMINAnON OF LEGAL OUESTIONS
                                    INADVANCE OF TRIAL
26
27               On March 17, 1995 the Realtor Defendants served a Motion for Summary

28        Judgment. By this motion the Realtor Defendants seek to remove Plaintiffs’


     I    PRETRIAL ORDER                                                                     Page        12   I
         professional negligence claim and emotional distress damage claim from this case.
1
2        Plaintiffs will be opposing this motion on all grounds and contend that the motion

3        should be denied in its entirety. It is Defendants’ position that the motion for summary

4        judgment is dispositive and if successfui will dispose of this matter in its entirety.
5                  All motions in limine are due to be filed by the parties on April 14, 1995. Both
 6
         Plaintiffs and Defendants anticipate serving motions in limine.
 7
                   No further motions are anticipated at this time.
 8


                                             ADDITIONfi        ISSUES

11                 There are no additional issues to be determined prior to trial excepting those
12       framed by the Defendants’ summary judgment motion and the parties’ motions &J
13
         limine.
14
15
                                       JURY SELEC?7h & PROCESS
16
17                 The trial jury shall consist of twelve (12) jurors and shall be selected in the

18       manner provided by law. Each party shall serve and file proposed jury instructions no
19       later than April 24, 1995, with any written objections to said jury instructions being
20
         served and filed by April 28, 1995.
21
22
23
24                 It is estimated that the case will require 4--5 days for trial. The case will be tried
25       to the Court sitting with a jury, commencing on May 1, 1995 at the Sanders County

         Courthouse.




         PRETRIAL ORDER
     I                                                                                         Page 13
                  IT IS HEREBY ORDERED that this Pre-trial Order shall supersede the
 1
       pleadings and govern the course of the trial of this cause, unless modified to prevent
 2
 3     manifest injustice.

 4                IT IS HEREBY ORDERED that all pleadings herein shah be amended to
 5    conform to this Pre-trial Order.
 6
  7
                  DATED this jr ‘day of April, 1995.
  8
  9
10
                                                          C.B. McNElL
11
                                                        HONORABLE C.B. MCNEIL
12                                                      District Court Judge
13
14
15    APPROYED            AS TO FOR&lAND    CONTENT:
16
17    SNAVELY LAW OEFICES
      Attorneys for Plaintiffs
18
19
20
      By:
21
22
23    CUCELBERG & KALKSTEIN,
      Attorneys for Defendants
24’   Ross & Piazzola
25’
26
27
28

      F‘RETRIAL   ORDER                                                                Page     14   ,
                                                                                        RECORD OF EXHIBITS FOR
KATHERINE GAIL DURBIN and PHIL F.                                                            PLAINTIFFS DURBIN
DURBIN, individuals,

                          PIaintiffs,

                -vs-                                                                              CAUSE NO. DV 93-91
                                                                                                    DATE: May 1,199s
BARBARA ROSS, an individual, dba ROSS REALTY,
LYNNE PIAZZOLA, an individual, WAYNE A. SHERRILL
and RACHEL SHERRILL, individuals; and
MICHAEL J. SHERRILL, an individual,

                          Defendants.

       Plaintiffs Katherine Gail Durbin and Phil F. Durbin may offer the following documents and/or
things as exhibits on their case-in-chief at the trial of this matter:
                                                     OBJECT
NO.         DESCRIPTION                               (Y/N)                 GROUNDS                 ADMIT   REFUSE   RESERVE




1.      "Country Living" Sheet                         NO


2.     Seller's Property                               NO
       Disclosure Statement


3.      Photographs (Deposition                        NO
        Exhibits BA--8FF)


4.     Bill for Septic Installation                    NO


5.     Bill for Well Installation                      NO


6.     Summary of Expenses to Repair                   YES                     ALL AVAILABLE
       the Defects and Related Expenses
       (per Rule 1006, M.R.Evid.)


7.     Montana Environmental Lab                      YES                      FOUN, OPIN, HSAY
       Water Test Report (5/21/93)


a.     Lamruth Survey (11/93)                         YES                      FOUN, HSAY


9.     Shannon Water Test Report (3/95)               YES                      ALL AVAILABLE


                    CODES FOR OBJECTION
1. REL = RELEVANCY                        5.   BE = EESC EVIDENCE
2 403 = M.R.E 4 0 3                       6    OPIN = OPINION
3. FOUN = FOUNDATION                      7.   HSAY = HfZARSAY
4. AUTX = AUTHENTICITY                    8.   REFERENCES TO NUMBERS ARE TO THE M.R.E


PLAINTIFFS'EXHIBITLIST                                                                                               Page 1
                                                                                     OBJECT
    NO.         DESCRIPTION                                  U/N)                   GROUNDS            ADMIT   REFUSE   RESERVE




            Shannon Report                                    YES                      ALL AVAILABLE


    11.     Residence Property Data Sheet                     NO
            (Ross Realty)


    12.    Ross Realty Listing                                NO
           Agreement (g/13/91)


    13.    Ross Realty Listing                                NO
           Agreement (2/28/92)


r
    14.    Ross Realty Listing                                NO
           Agreement @O/29/92)


    15.    Ross to Sherrill                                   NO
           Letter (2128192)


    16.    Simonson Fact                                      YES                     REL, BE
           Statement (a/17/93)


    17.     Impeachment       Exhibits                        YES                     ALL AVAILABLE


    18.    Exhibits   Subsequently       Discovered           YES                     ALL AVAILABLE




                       CODES FOR OEJECnON
    1. REL = RELEYANCY                          5.    BE = BEST EVIDENCE
    2.403 = M.R.E. 403                          6     OPIN = OPINION
    3. FOUN = FOUNDATION                        7.    HsAY=HEARsAY
    4. AUW = AUTHENTIClTY                       8.    REFERENCES TO NUMBERS ARE TO THE M.R.E


    PIANTFFS’ EXHIBIT LIST                                                                                              Page 2
      .


                                                                                 RECORD OF EXHIBITS FOR
KATHERINE GAIL DURBIN and PHIL F.                                          DEFENDANTS ROSS AND PIAZZOLA
DURBIN, individuals,

                             PkilltiffS,

                                                                                                CAUSE NO. DV 93-91
                                                                                                  DATE: May 1, 1995
BARBARA ROSS, an individual, dba ROSS REALTY;
LYNNE PLAZZOLA, an individual, WAYNE A. SHERRILL
and RACHEL SHERRILL, individuals; and
MICHAEL J. SHERRILL, an individual,

                             Defendants.

       Defendants Barbara Ross and Lynne Piazzola may offer the following documents and/or things
as exhibits on their case-inchief at the trial of this matter:
                                                     OBJECT
NO.            DESCRIPTIOR                            U/N)                  GROUNOS                   ADMIT   REFUSE   RESERVE




A,        FSrst State Bank Photographs                 YES                     FOUN, REL


B.        First State Bank File re: Durbin             YES                     FOUN, REL, 403, HSAY
          Purchase

                                                                                                                         ,
C.        Certified   Weather    Records--Heron        YES                     FOUN, HSAY


D.        Sorlie Estimate, 5/12/93                     NO


E.        First American Title Insurance Co.           YES                     REL, FOUN, HSAY, 403
          Comitment for Title Insurance


F.        Closing Statement, 4/26/93                  NO


G,        Buy-Sell Agreement, Z/24/93                  NO


H.        Hilt Statement,    6/22/93                  NO


I.        Sot-1 i e Invoice, 6/27/93                  NO


J.        Septic Permit Application                   NO


                   CODES FOR OBJECTION
1.w =RELEvANcY                               5 . B E =BEsTEVIDENQE
2.403 =M.R.E403                              6 OPIN = OPINION
3. FOUN = FOUNDATION                         7. HSAY =HEhR!&%Y
4. AUI-H = AUTHENTICITY                      8. REFERENCES TO NUMBERS ARFi TO THE MAE


DEFENDANTS EXHIBIT LIST                                                                                                Page 1
.




                                                                                  OBJECT
    NO.           DESCRIPTION                              (Y/N)                 GROUNDS                     ADMIT   REFUSE   RESERVE




    K.    Fax from Manley Realty                            YES                     REL, HSAY


    L.    Sellers' Property Disclosure Statement NO


M.        Residence Property, Informative Data              NO
          Sheet and Attachment


N.        Tract Drawing of Plaintiffs' Property YES                                 FOUN, AUTH, HSAY


0.        Broker Employment Contract (Ross and              NO
          Sherrill--10/29/92)

P.        Broker Employment Contract (Ross and              NO
          Sherrill--g/13/91


0.        Durbin Policy of Title Insurance                  YES                     REL, FOUN, HSAY, 403


R.        Gail Durbin Notes of Telephone                    NO
          Conversation on Phonebook Page


s.        Noxon     Septic      Services   Invoice, 4/29/93 NO

T.        Residential        Lease--Linzmaier               YES                     REL, FOUN, HSAY, 403
          and Durbin


U.        Ross Realty Photographs of Property               NO


V.        Broker Employment         Contract--Fitch         YES                     REL, FOUN, HSAY,   403
          and Ross Realty


W.        Phil Durbin's Criminal File, State                YES                     REL, HSAY, 403, 609
          of Montana v. Phil Durbin


X.        1993 Calendar (Blank)                             NO


Y.        Exhibits for Impeachment                         YES                      ALL AVAILABLE- _


Z.        Any documents uncovered in future                YES                      ALL AVAILABLE
          discovery


                    CODES FOR OBJECMON
1. REL = RELEVANCY                               5. BE = BEsr EVIDENCE
2.403 = M.R.E. 403                               6 OPM = OPINION
3. FOUN = FOUNDATION                             7. HSAY = HEARSAY
4. AUTH = AUTHENTIC!lTY                          8. REFERENCES TO NUMBERS ARE TO THE M.R.E


DEFENDANTS’ EXHAIBIT LIST                                                                                                     P a g e   2
                                                                                 RECORD OF EXHIBITS FOR
KATHERINE GAIL DURBIN and PHIL F.                                         DEFENDANTS ROSS AND PIAZZOLA
DURBIN, individuals,

                           Plaintiffs,

                   -vs-

BARBARA ROSS, an individual, dba ROSS REALW,
LYNNE PIAZZOLA, an individual, WAYNE A SHERRILL
and RACHEL SHERRI& individuals; and
MICHAEL J. MERRILL, an individual,

                           Defendants.
                                                                      66@
        Defendants Barbara Ross and Lynne Piazzola may offer the f$%ving documents and/or things
as exhl%its on their case-in-chief at the trial of this matter:    .K
                                                                 /
                                             OBJECT             &’
NO.         DESCRIPTION                       (Y/lo                          AOMIT R E F U S E
                                                                          NW’NOS               RESERVE




A.      First State Bank Photographs                                          FOUN, REL


6.     First State Bank File re: Ourbin
       Purchase


c.     Certiffed      Weather Records--Heron                                  FOUN, HSAY


D.     Sorlie Estimate,     S/12/93


E.     First American Title Insurance Co             YES                      REL, FOUN,   HSAY, 403
       Comitment for Title Insurance


F.     Closing Statement, 4/26/93                    NO


6.     Buy-Sell     Agreement,                       NO


H.                                                   NO


1.                                                   NO


J.                                                   NO


                     CODES FOR OBJEKXION
                                           5. BE = BESI- EVIDENCE
2ur3 = M.R.E.403                           6 OPtN * OPINION
3. FOUN = FOUNDATION                       7 . HsAY+HEARsAY
4. AUTH = AIJTHFZWCXI’Y                    a REFERENCE!5 TO NUMBERS ABE TO THB M.R.E

DEFENDANTS'EXHIBITLIST                                                                                 Page 1
                            INSTRUCTION NO.

           A     seller's    broker    in    a   residential      real     estate
 transaction is under a duty to disclose facts materially affecting

 the value or desirability of the property which through reasonable

 diligence should be known to him.




                              Given:
                                            District Judge




Defendants Barbara Ross, d/b/a Ross Realty and Lynne Piazzola's
Proposed Jury Instruction No.

R
Source: Easton   V. Strassburoer,
                     p                 (Ca. 1984),
                                              t      1199 Cal .          r.
                                                                            383,
390
                          INSTRUCTION NO.

             The duty of a real estate agent, representing the seller,

to disclose facts includes the affirmative duty to conduct a

reasonably    competent   and    diligent   inspection   of   the   residential

property listed for sale and to disclose to prospective purchasers

all facts materially affecting the value or desirability of the

property that such an investigation would reveal.




                                Given:
                                            District Judge




Defendants Barbara Ross, d/b/a Ross Realty and Lynne Piazzola's
Proposed Jury Instruction No.

Source:   Easton vs. Strassburger, (Ca. 119841,      1199 Cal. Rptr. 383,
390
