                                                                                      November 14 2014


                                          DA 14-0201
                                                                                       Case Number: DA 14-0201

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 300



GLORIA BILESKY,

              Plaintiff and Appellant,

         v.

SHOPKO STORES OPERATING CO., LLC,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DV 11-1356(D)
                        Honorable David M. Ortley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Stephanie C. Kucera, Buxbuam, Daue & Fitzpatrick, PLLC;
                        Missoula, Montana

                For Appellee:

                        W. Adam Duerk, Dylan McFarland, Milodragovich, Dale &
                        Steinbrenner, P.C.; Missoula, Montana



                                                    Submitted on Briefs: October 21, 2014
                                                               Decided: November 14, 2014


Filed:




                                            Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Gloria Bilesky appeals from the order of the Eleventh Judicial District Court,

Flathead County, denying her motion to present to the jury factual statements Appellee

made in a written brief to the District Court.

¶2     The issue on appeal is whether factual statements Appellee made in a brief were

judicial admissions, and thus should have been presented to the jury as uncontested facts.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶3     On January 30, 2011, Appellant Gloria Bilesky entered Appellee Shopko Stores

Operating Co.’s (Shopko) Kalispell store and fell. Bilesky left the store without reporting

the incident. The next day, Bilesky called Shopko and reported the incident to Shopko’s

manager, Michael Beard. After speaking with Bilesky, Beard reviewed video from the

store’s surveillance cameras with the employee in charge of loss prevention, Jonathan

Kempff. Knowing that the surveillance system only retained footage for two to five

weeks, after which it would be automatically overwritten, Beard instructed Kempff to

copy footage showing Bilesky’s fall to a DVD for preservation.          Kempff recorded

footage to a DVD and sent it to the claims adjuster, Gallagher Bassett Services

(Gallagher Bassett).

¶4     Bilesky retained counsel to represent her regarding the fall. Bilesky’s attorney

requested a copy of the video footage from Gallagher Bassett on February 11, 2011, but

never received it. Bilesky’s attorney continued to request the footage from Gallagher

Bassett over the next few months, but Gallagher Bassett refused to provide any

information regarding the claim without a court order.

                                                 2
¶5       Bilesky filed suit November 3, 2011, alleging Shopko failed to maintain its

premises in a reasonably safe condition, which caused Bilesky’s fall and injury. In

February 2012, Bilesky sent her first set of discovery requests to Shopko, in which she

requested all photos, videos, or other material depicting the January 30, 2011 fall.

Shopko responded: “No photographs were taken and no video or audio recordings or

other data retained.” In July 2012, Shopko’s attorney wrote to Bilesky’s attorney to

explain that the footage of Bilesky’s fall had been accidentally recorded over.

Subsequent investigation by Bilesky revealed that Kempff had recorded footage to DVD;

however, the footage was from the day after Bilesky’s fall, and from the wrong cameras.

¶6       Bilesky filed a motion for sanctions based on Shopko’s spoliation of the video

footage. In her brief, Bilesky argued that destruction of the video unfairly disadvantaged

her because the video would have given objective evidence of highly probative facts.

Bilesky then listed which facts she believed the video would have shown:

        no maintenance had been done for an extended period prior to Gloria’s fall,
        the caution, wet floor signs were not out,
        the carpets were saturated with water,
        no employee had even checked the area for at least 35 minutes,
        Gloria’s pants were visibly wet,
        she wiped her wet hands on her clothes,
        she fell forward, hard, landing on her hands and knees,
        she needed assistance getting up,
        she got up slowly and was in visible pain/discomfort, and
        her gait was altered after falling.

Bilesky requested that the court sanction Shopko either by granting default judgment, or

by giving a negative inference jury instruction and precluding Shopko from raising

comparative negligence as a defense.


                                              3
¶7    Shopko responded to Bilesky’s motion (Response Brief), arguing that the motion

should be denied in its entirety because the accidental spoliation was not an abuse of

discovery, and Shopko should not be sanctioned in the absence of an abuse of discovery.

In its Response Brief, Shopko argued that the loss of the video resulted in no unfair

advantage to Shopko:

      Even if this court is inclined to rule otherwise, the loss of the video has
      resulted in no prejudice to Plaintiff or unfair advantage to Shopko. In fact,
      if anything, the loss of the video creates more prejudice for Shopko than
      Plaintiff.

Shopko then reinforced its argument that there was no unfair advantage by pointing out

that it agreed with most of Bilesky’s contentions about what the video would have

shown, stating:

      Furthermore, the Parties substantially agree on what the video would have
      shown. Plaintiff sets out in her brief what the video would have shown:
          Gloria’s pants were visibly wet;
          She wiped her wet hands on her clothes, she fell forward, hard,
            landing on her hands and knees;
          She needed assistance getting up, she got up slowly and was in
            visible pain/discomfort; and
          Her gait was altered after falling.
      Defendant will not disagree with these points. Eyewitness testimony and
      company records show what occurred on the day of Plaintiff’s fall.

Shopko then noted it disagreed with Bilesky’s other contentions about what the video

showed, stating:

      However, several other points Plaintiff claims the video would have shown
      is [sic] inaccurate based on eyewitness accounts. Those points are:
           The caution wet floor signs were not out;
           The carpets were saturated with water;
           No employee had even checked the area for at least 35 minutes; and



                                           4
           No maintenance had been done for an extended period prior to
             Gloria’s fall.
       These points remain in dispute.

¶8     Based on Shopko’s representations in its Response Brief that it agreed with certain

of Bilesky’s contentions regarding the contents of the video, Bilesky requested in her trial

brief that those facts about which Shopko stated it “will not disagree” be read to the jury.

Bilesky’s request pertained only to those facts that preceded Shopko’s statement,

“Defendant will not disagree with these points.” Her request did not include any of the

facts about which Shopko had stated, “These points remain in dispute.” In an ensuing

email between counsel for the parties, Shopko objected to Bilesky’s request. Bilesky

supplemented her trial brief in order to address Shopko’s objection, arguing Shopko’s

statements in its Response Brief were judicial admissions.

¶9     At trial, the District Court orally denied Bilesky’s request that the statements in

Shopko’s Response Brief be read to the jury, holding the statements were not judicial

admissions. Later in the trial, the District Court allowed Shopko to present testimony

contradicting the statements and limited Bilesky’s cross examination of witnesses

regarding the statements.     Bilesky appeals the District Court’s determination that

Shopko’s statements were not judicial admissions, and the resulting denial of her request

to introduce the statements into evidence.

                               STANDARD OF REVIEW

¶10    Whether a statement constitutes a judicial admission depends upon the

circumstances of each case. Weaver v. State, 2013 MT 247, ¶ 19, 371 Mont. 476, 310

P.3d 495 (citing Kohne v. Yost, 250 Mont. 109, 113, 818 P.2d 360, 362 (1991)). Whether

                                             5
a statement is one of fact or law, for the purpose of determining if the statement should be

considered a judicial admission, is a question of law we review for correctness. Weaver,

¶ 19 (citing Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 75, 358 Mont. 474, 247

P.3d 244). A district court’s determination of whether a statement constitutes a judicial

admission is reviewed for an abuse of discretion. Weaver, ¶ 19. The district court’s

discretion in this regard is not unlimited, however. See Cox v. Myllymaki, 231 Mont.

320, 322, 752 P.2d 1093, 1094 (1988) (trial courts’ discretion is not unlimited).

                                      DISCUSSION

¶11 Whether factual statements Appellee made in a brief were judicial admissions, and
thus should have been presented to the jury as uncontested facts.

¶12    A judicial admission is an express waiver made to the court by a party or its

counsel “conceding for the purposes of trial the truth of an alleged fact.” Kohne, 250

Mont. at 112, 818 P.2d at 362 (quoting 9 John Henry Wigmore, Evidence in Trials at

Common Law, § 2588, 821 (Chadbourn rev. 1981)). Judicial admissions have the effect

of stipulations, and were previously referred to as such. Wigmore at § 2588, 821. The

main characteristic of a judicial admission is the conclusive effect upon the party making

the admission; no further evidence can be introduced by the party making the admission

to prove, disprove, or contradict the admitted fact. Kohne, 250 Mont. at 112, 818 P.2d at

362 (citing Wigmore at § 2590, 823). Statements of fact contained in a brief may be

considered admissions of the party in the discretion of the district court. Weaver, ¶ 19.

This is so, in part, because “[a] written document, filed with a district court and signed by

either the party or the party's attorney, is assumed to be, to the best of the signer’s


                                             6
knowledge, information, and belief formed after reasonable inquiry well-grounded in

fact . . . as required by M. R. Civ. P. 11.” In re Marriage of Hart, 2011 MT 102, ¶ 16,

360 Mont. 308, 258 P.3d 389 (internal quotations and ellipses omitted). To determine

whether a statement is a judicial admission depends upon the circumstances of each case.

Kohne, 250 Mont. at 112, 818 P.2d at 362 (citations omitted).

¶13    A review of our case law evinces the following criteria must all be met in order for

a statement to constitute a judicial admission:

    1) There must be a statement made to the court. The statement can be made at any
       stage of the proceedings. See Kohne, 250 Mont. at 112, 818 P.2d at 362 (“[judicial
       admissions] may arise during discovery, pleadings, opening statements, direct and
       cross-examination, as well as closing arguments”). Statements made outside the
       litigation proceedings are not made to the court, and thus cannot be judicial
       admissions. See In re Estate of Hill, 281 Mont. 142, 150, 931 P.2d 1320, 1325
       (1997) (an inventory and appraisement of an estate was not a judicial admission
       because it was not made in the course of litigation proceedings).

    2) The statement must be made by a party, or the party’s attorney. See Hart, ¶ 16
       (response brief and proposed findings of fact signed by attorney and conceding
       former spouse was current on child support were judicial admissions).1


    3) The statement must be a statement of fact, and not a statement of opinion or law.
       See DeMars v. Carlstrom, 285 Mont. 334, 338, 948 P.2d 246, 249 (1997)
       (defendant’s testimony that automobile accident was all her fault was not a judicial
       admission because it was either a legal conclusion, or the expression of her
       personal opinion).



1
  Issues of judicial admissions usually arise in regard to statements of attorneys. Issues of
judicial admissions made directly by a party usually occur in the context of testimony,
particularly cross-examination. See DeMars, 285 Mont. at 338, 948 P.2d at 249; In re Raymond
W. George Trust, 1999 MT 223, ¶¶ 38-39, 296 Mont. 56, 986 P.2d 427. While we found in both
those cases that the statements were not judicial admissions because they were not statements of
fact, we later determined that, when an alleged judicial admission occurs in a party’s testimony, a
five-part test must be met before it may be held a judicial admission. Conagra, Inc. v.
Nierenberg, 2000 MT 213, ¶ 45, 301 Mont. 55, 7 P.3d 369.

                                                7
¶14    The three elements listed above provide a threshold determination of whether a

statement may be considered a judicial admission; a determination which we review for

correctness. See Weaver, ¶ 19 (“Whether a statement is one of fact or law, for the

purpose of determining if the statement should be considered a judicial admission, is a

question of law.”); see also In re Estate of Hill, 281 Mont. at 150, 931 P.2d at 1325

(district court incorrectly determined that a party made a judicial admission in a

document made outside the litigation proceedings). While these criteria must be met

before a court can determine a judicial admission has occurred, the court must still look at

the entire context in which the statements were made before determining whether a

statement constitutes a judicial admission. See Kohne, 250 Mont. at 113, 818 P.2d at 362

(“whether a statement is a judicial admission depends upon the circumstances of each

case”). That portion of the determination we review for an abuse of discretion.

¶15    In this case, the District Court held that Shopko’s statements were not judicial

admissions based on its determination that (1) they were not statements of fact, and (2)

witnesses were available to testify to the facts contained in the statements. Accordingly,

our inquiry here is two part. First, we review whether the District Court correctly

concluded the statements in questions were not statements of fact. Second, we determine

whether the District Court acted arbitrarily without conscientious judgment or exceeded

the bounds of reason when it determined the context did not warrant treating the

statements as judicial admissions. See State v. McLaughlin, 2009 MT 211, ¶ 9, 351

Mont. 282, 210 P.3d 694 (“An abuse of discretion occurs when a district court acts

arbitrarily without conscientious judgment or exceeds the bounds of reason.”).

                                             8
I. Did the District Court Correctly Determine that Shopko’s Statements Were Not
Statements of Fact?

¶16    In determining that Shopko’s statements were not statements of fact, the District

Court stated:

       I’m not inclined to treat these as judicial admissions for the following
       reasons. I don’t know that I believe there was a waiver. Each of these is
       very subjective, it’s not a fact as is in the cases that refer to that deal with
       financial information. . . . And I don’t know, I’m just sort of thinking down
       the road, but I think as we look at 12 people deciding this case I—the
       correct way is for them to hear from witnesses and judge for themselves the
       ability to recall what they saw, what they didn’t see, rather than me telling
       them these are presumed facts. Because the judicial admissions—there
       can’t be anything to contravene these. And visibly wet, well, what is
       visibly wet? Is it all wet, is it just the knees? I think this is going too far
       for the Court.

The District Court appears to have found Shopko’s statements distinguishable from the

statements in Hart (“It’s not a fact as is in the cases that refer to that deal with financial

information”). See Hart, ¶ 5 (holding party’s statement in response brief, “There is no

issue of [husband] having failed to pay child support,” was a judicial admission).        The

District Court’s distinction appears to be grounded in an apprehension that the jury could

interpret these agreed-upon facts in multiple ways (“Each of these is very subjective”).

The statements Shopko said it “will not disagree with” were unambiguously statements of

fact: “Gloria’s pants were visibly wet; she wiped her wet hands on her clothes, she fell

forward, hard, landing on her hands and knees; she needed assistance getting up, she got

up slowly and was in visible pain/discomfort; and her gait was altered after falling.”

These are not statements of law, nor are they opinions. See DeMars, 285 Mont. at 338,

948 P.2d at 249 (defendant’s testimony that automobile accident was all her fault was not


                                              9
a judicial admission because it was either a legal conclusion, or the expression of her

personal opinion).

¶17   The District Court expressed concerns—and the Dissent has adopted these

concerns—about the parties being unable to present evidence explaining to the jury how

wet is “visibly wet.”    This concern, however, misapprehends the effect of judicial

admissions. While the party who makes a judicial admission cannot introduce evidence

contradicting or disproving the admission, nothing prevents a party from introducing

evidence elaborating on it. The conclusive effect of judicial admissions means only that

no further evidence can be introduced by the party making the admission to prove,

disprove, or contradict the admitted fact. Kohne, 250 Mont. at 112, 818 P.2d at 362.

Thus, Shopko can introduce testimony as to how wet Bilesky’s pants appeared in the

video, so long as the testimony does not contradict that her pants were “visibly wet” in

the video. The use of adjectives or adverbs that may occur in varying degrees (wet, hard,

slowly), however, does not prevent a statement from being a statement of fact.

¶18   Shopko’s statements were not statements of law or opinion. They were statements

of fact. We accordingly conclude the District Court incorrectly determined Shopko’s

statements were not statements of fact.

II. Did the District Court Abuse Its Discretion When It Determined the
Circumstances Made It Inappropriate to Hold Shopko’s Statements to Be Judicial
Admissions?

¶19   The next question is whether the District Court properly exercised its discretion in

determining the circumstances did not warrant treating the statements as a judicial

admission.

                                           10
¶20    When determining whether the circumstances warrant holding a statement to be a

judicial admission, the court’s analysis should be informed by the twofold policy

underpinning the rule of judicial admissions.       First, like other stipulations, judicial

admissions facilitate judicial efficiency and save the parties time, labor, and expense. See

Wigmore at § 2597, 851–852. Second, judicial admissions protect the integrity of the

judicial process by preventing parties from playing fast and loose with the facts to suit the

exigencies of self-interest.   Judicial admissions prevent intentional self-contradiction

from being used as a means of obtaining unfair advantage. As we have previously held, a

party may not benefit from asserting one position and later assert a contrary position to

the detriment of its opponent at trial. Rasmussen v. Heebs Food Ctr., 270 Mont. 492,

496, 893 P.2d 337, 339-40 (1995).

¶21    Here, the circumstance the District Court relied on in determining a judicial

admission had not been made was the availability of witnesses to testify to the contents of

the video:

       We have fact witnesses on both sides that can testify to these things. And in
       fact the Defendant’s witnesses can be subject to cross-examination as to
       their ability to perceive the items that I’m assuming your client and her
       daughter will testify to. So I don’t see this as that sort of scenario where
       there needs to be a judicial admission because we now have no other way
       of proving those things and that the party clearly intended.

¶22    The availability of witnesses to testify to the facts contained in an alleged judicial

admission is not a circumstance relevant to a determination of whether a statement is a

judicial admission. Were the availability of other evidence part of the analysis, there

would be no need for the rule that no further evidence may be admitted to prove,


                                             11
disprove, or contradict the admission. The very meaning of a judicial admission is that a

fact has been removed from contention, making any evidence proving or disproving that

fact immaterial. See Mo. Hous. Dev. Comm’n v. Brice, 919 F.2d 1306, 1314 (8th Cir.

1990) (holding the presence of evidence controverting statements in pleadings was

immaterial because statements were judicial admissions which preclude all evidence

disproving the statements); accord Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105

(5th Cir. 1987).

¶23    Two of our prior opinions on judicial admissions illustrate how the circumstances

can either warrant or not warrant holding a statement to be a judicial admission. In our

first case recognizing judicial admissions, Kohne v. Yost, defense counsel argued at

closing that both parties were at fault, and conceded numerous times that the defendant

was at fault. Kohne, 250 Mont. at 111, 818 P.2d at 361. The jury nonetheless returned a

verdict that neither party was at fault. The plaintiff moved for a new trial on the basis

that the defendant had judicially admitted fault in his closing argument. The defendant’s

sole argument in opposition was that counsel’s statements in closing were not judicial

admissions because counsel was merely arguing an alternative legal theory and merely

suggesting the defendant was negligent. The district court held it was not a judicial

admission and denied the motion for a new trial.

¶24    Kohn appealed and we reversed, holding that defense counsel’s intentional

strategy of admitting fault was a circumstance that warranted treating counsel’s

statements in closing argument as judicial admissions. We noted that defense counsel’s

strategy, both pre-trial and at trial, was to pursue a comparative negligence argument and

                                           12
claim that his client was at fault, but less at fault than the plaintiff. Kohne, 250 Mont. at

114, 818 P.2d at 363. In that context, we held that defense counsel’s statements were

judicial admissions.

¶25    In contrast, in Weaver v. State, we held that the context of alternative, inconsistent

claims was a circumstance that did not warrant treating counsel’s statements in a trial

brief as judicial admissions. Weaver, ¶¶ 24-26. Weaver involved a decision by the State

to start a back-burn fire in order to contain a wildfire. The Weavers alleged that the State

negligently failed to control the back burn resulting in damage to their property. They

amended their complaint to allege, in the alternative to negligence, that the State’s actions

in starting or managing the back burn constituted inverse condemnation. In their trial

brief, the Weavers focused solely on their inverse condemnation claim, stating: “It was

surely a reasonable and necessary decision to direct the fire to the east, or to at least let it

move across the Weaver property to flatter, defensible space.” Weaver, ¶ 21. The State

moved to dismiss the negligence claim on the basis that the Weavers’ statement that the

State’s actions were “reasonable and necessary” was a judicial admission that the State

was not negligent. The district court denied the State’s motion, holding that the Weavers’

statement was not a judicial admission because it was made in the context of an

alternative, inconsistent claim.

¶26    The State appealed and we affirmed on the basis that the context in which the

Weavers’ statement was made did not warrant treating it as a judicial admission. We

held the statement was not a judicial admission, in part, because parties are permitted to

plead hypothetical and inconsistent claims. See M. R. Civ. P. 8(d)(3). We distinguished

                                              13
Kohne, because the context of hypothetical, inconsistent claims does not warrant binding

a party to a statement made in relation to one claim, so that the statement applies to a

separate and inconsistent claim.    Had we allowed a judicial admission under such

circumstances, we would have limited the ability of parties to plead mutually inconsistent

claims and defenses in the alternative. See Garman v. Griffin, 666 F.2d 1156, 1159 (8th

Cir. 1981) (“To allow [claims pleaded in the alternative] to operate as admissions would

render their use ineffective and frustrate their underlying purpose. Hence the decisions

with seeming unanimity deny them status as judicial admissions, and generally disallow

them as evidential admissions.” (quoting McCormick on Evidence, § 265, 634 (2d ed.

1972))).

¶27   Kohne and Weaver illustrate that although a trial court retains discretion to

determine whether a statement is a judicial admission, that discretion must be exercised

in light of the circumstances in the case and the policies underlying the rule of judicial

admissions. In Kohne, we did not allow a party to admit fault at one stage, and then

disavow that admission at a later stage when the admission was no longer useful. In

Weaver, we did not bind a party, for purposes of its negligence claim, to a statement it

made in the context of an alternative claim because the circumstances of alternative,

inconsistent claims allow a party to intentionally contradict itself. The circumstances in

Kohne implicated concerns about intentional self-contradiction being used as a means of

obtaining unfair advantage. The circumstances in Weaver did not.

¶28   It is readily apparent from comparing the circumstances in this case to Kohne and

to Weaver that this case is much more similar to Kohne than to Weaver. In Kohne, we

                                           14
reversed the district court’s determination that counsel’s statements were not judicial

admission because the circumstances showed counsel’s statements were part of an

intentional tactical decision. Kohne, 250 Mont. at 113, 818 P.2d at 362. In this case,

Shopko sought to avoid sanctions for spoliation of the video by ostensibly removing any

prejudice to Bilesky. Its tactic for removing any prejudice was to stipulate to certain

assertions about the contents of the video. This is evident from the language Shopko

used: “[T]he loss of the video has resulted in no prejudice to the Plaintiff or unfair

advantage to Shopko. . . . Furthermore, the parties substantially agree on what the video

would have shown. Plaintiff sets out in her brief what the video would have shown . . . .

Defendant will not disagree with these points.” As in Kohne, Shopko’s actions evince an

intentional, tactical decision.

¶29    Further, like the defendant in Kohne, Shopko’s sole argument on appeal is that its

statements say something which the statements plainly do not say.           In Kohne, the

defendant argued the statements were merely “suggestions.” See Kohne, 250 Mont. at

113, 818 P.2d at 362 (“Defense counsel contends he was only arguing an alternative legal

theory and merely suggesting that the defendant was negligent. . . . [D]efense counsel

failed to preface these admissions to the jury that the statements were only suggestions.”).

Here, Shopko has argued only that its waiver (“Defendant will not dispute these points”)

was conditioned on the District Court finding sanctions appropriate. However, Shopko’s

brief contains no language indicating its admissions were conditional.

¶30    If we found any language in Shopko’s brief reflecting this claimed limitation, our

decision today might be entirely different. As the Dissent correctly notes, an offer to

                                            15
accept a particular sanction in lieu of a harsher sanction is not a judicial admission.

Dissent, ¶ 53. There is a significant difference, however, between an offer to admit facts

and an admission of facts. “The parties substantially agree on what the video would have

shown,” and “Defendant will not disagree with these points” are not offers to admit, they

are admissions.

¶31    The circumstances of this case bring it squarely within the ambit of Kohne. If the

circumstances in Kohne warranted reversing the district court’s determination that there

was no judicial admission, then the circumstances here warrant reversal. Accordingly,

we hold the District Court exceeded the bounds of discretion when it determined the

circumstances did not warrant holding Shopko’s statements to be judicial admissions.

¶32    The Dissent is concerned that we are holding Shopko’s statements to be a judicial

admission when Shopko “consistently maintained that when it referenced the four points

in its answer brief to the motion for sanctions, it was merely reciting what Bilesky had set

forth in her opening brief.” Dissent, ¶ 47. Shopko, however, did not merely recite what

Bilesky set forth in her brief. What dispels any doubt about our decision here is the

language that precedes and follows the list of facts: “Furthermore, the Parties

substantially agree on what the video would have shown.” (Emphasis added.) Shopko

then recites those facts from Bilesky’s proposed instruction it agreed with and followed

the list with an unambiguous stipulation to these facts: “Defendant will not disagree with

these points.” (Emphasis added.) Shopko then concluded with a separate list of facts it

disagreed with, followed by the statement, “These points remain in dispute.” These

statements fit exactly within the definition of a judicial admission: an express waiver of

                                            16
the right to dispute certain facts at trial. It is the statements before and after the recitation

of facts that leave us with no doubt that this was a judicial admission, not merely the

recitation of facts from Bilesky’s proposed instruction. While such language need not

always be present to create a judicial admission, its presence in this case convinces us

that Shopko admitted to the facts in question. This language also leads us to disagree

with the Dissent’s assertion that “Shopko was consistent in its position that these points

were in dispute.” Dissent, ¶ 48. Saying the parties “agree” on listed facts, and asserting

that “[we] will not disagree with” those facts, is inconsistent with a desire to dispute those

facts—especially when those facts are kept carefully segregated from the list of facts that

“remain in dispute.”

                                       CONCLUSION

¶33    Shopko’s statements were statements of fact made by a party’s attorney to the

court. None of the circumstances of this case warrant treating the statements as anything

other than judicial admissions. Bilesky was entitled to prepare her case in reliance on the

written admissions Shopko made in its Response Brief. The District Court abused its

discretion when it denied Bilesky’s request to present the admissions to the jury as

uncontested facts, and when it allowed Shopko to present evidence contradicting these

admissions.

¶34    Reversed and remanded for a new trial consistent with this opinion.



                                                    /S/ JAMES JEREMIAH SHEA




                                               17
We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE



Justice Laurie McKinnon, dissenting.

¶35    I am not as confident as the Court in concluding that Shopko’s statements were

unequivocal and constituted a deliberate waiver, expressly conceding certain facts. As

discussed below, the statements originally were made by Bilesky’s counsel, not Shopko’s

counsel, in the context of a motion for sanctions under M. R. Civ. P. 37 for spoliation of

evidence. Shopko’s counsel never asserted unequivocally that the statements were true,

nor did Shopko’s counsel indicate that he had confirmed the truth of the statements with

someone affiliated with Shopko. Indeed, Shopko employees ultimately contradicted

some of the statements at trial. What Shopko’s counsel did was express willingness to

admit four “points” that the lost video surveillance footage allegedly would have shown,

as an alternative to the harsher remedy of having a default judgment entered against

Shopko on liability. The District Court considered whether sanctions should be imposed

and determined that Shopko had made a mistake and that sanctions were not appropriate.

That decision, which is not on appeal, mooted Shopko’s offer to admit certain points. We

thus should not attempt to impose a sanction indirectly by finding a judicial admission.

¶36    After rendering its decision on sanctions, the District Court considered Bilesky’s

claim that Shopko had made judicial admissions, thereby conclusively preventing Shopko

                                            18
from offering evidence on the subject of the purported admissions. The District Court

did not believe that Shopko had made such a waiver. The District Court knew the

context in which the statements had been made. Based on its review of the record and the

discussions with counsel, the District Court found that Shopko’s statements were too

equivocal to constitute judicial admissions. Further, in exercising its discretion, the

District Court determined that eyewitness testimony would be more valuable to the jury

than the “subjective” statements of counsel about what the video would have shown. The

District Court did not find that Shopko was “playing fast and loose with the facts to suit

the exigencies of self-interest,” as this Court determines on the basis of a cold record.

Opinion, ¶ 20. Nor did the District Court find that Shopko was attempting to change its

position, as the Court also implies. Opinion, ¶ 20. The District Court concluded that the

jury needed to hear the eyewitness testimony regarding the particular facts in order to

fulfill its fact-finding function. The District Court thus concluded that the supposed

judicial admissions by both parties—Shopko’s four points, and Bilesky’s references in

her briefs to the puddle of water as being “invisible”—would not be presented to the jury

as judicial admissions. I believe the District Court was in the best position to interpret

the statements made by counsel within the context of these proceedings.

¶37    In nevertheless holding that the District Court “exceeded the bounds of reason” in

refusing to treat the statements as judicial admissions, Opinion, ¶¶ 15, 31, the Court

ignores the established principle that trial judges have broad discretion to relieve a party

from the consequences of a judicial admission. Thus, even if the statements in Shopko’s

brief were judicial admissions, as the Court opines, we must defer to the District Court’s

                                            19
decision about whether Shopko must bear the consequences of those admissions. On the

record before us, I believe the District Court in no way “exceeded the bounds of reason”

in deciding to relieve Shopko of its supposed admissions. For these reasons, I dissent.

¶38    To understand the District Court’s decision, and why I believe we should defer to

that decision, it is necessary to provide greater context of the pretrial proceedings. In her

brief in support of her motion for sanctions, Bilesky requested that Shopko be sanctioned

for losing the video surveillance footage. Citing M. R. Civ. P. 37(c)(1), Bilesky argued

that the possible remedies for this alleged discovery violation included barring Shopko

from relying, in support of its defense, on what the video would have shown. She also

argued that default judgment on liability was a possible sanction, citing Richardson v.

State, 2006 MT 43, 331 Mont. 231, 130 P.3d 634. Bilesky asked the court to grant her

default judgment on the issue of liability and to instruct the jury that it could draw

negative inferences against Shopko. Alternatively, she requested that the court preclude

Shopko from asserting a comparative negligence defense. Within the context of arguing

that she had suffered prejudice due to the loss of the video footage, Bilesky asserted that

the footage would have proved certain facts, which she then listed in her brief.

¶39    In its answer brief, dated December 7, 2012, Shopko contended that no discovery

abuse had occurred. But should the District Court disagree with this contention, Shopko

argued that Bilesky’s proposed remedy of a default judgment on liability was too harsh.

Shopko indicated that it would not disagree with certain “points” in Bilesky’s list of what

the video footage allegedly would have shown. This is one of the available sanctions

specified in Rule 37. See M. R. Civ. P. 37(b)(2)(A)(i), (c)(1)(C) (the court may order that

                                             20
“designated facts be taken as established for purposes of the action, as the prevailing

party claims”). At the same time, however, Shopko noted that eyewitness testimony and

company records would show what had actually occurred. Moreover, Shopko indicated

that other points in Bilesky’s list were disputed. Shopko’s statements are set forth, in

their entirety, as follows:

              Even if this court is inclined to rule otherwise [i.e., that an abuse of
       discovery has occurred], the loss of the video has resulted in no prejudice to
       Plaintiff or unfair advantage to Shopko. In fact, if anything, the loss of the
       video creates more prejudice for Shopko than Plaintiff.
              Furthermore, the Parties substantially agree on what the video would
       have shown. Plaintiff sets out in her brief what the video would have
       shown:

              •       Gloria’s pants were visibly wet;
              •       She wiped her wet hands on her clothes[;] she fell forward,
                      hard, landing on her hands and knees;
              •       She needed assistance getting up, she got up slowly and was
                      in visible pain/discomfort; and
              •       Her gait was altered after falling.

       Defendant will not disagree with these points. Eyewitness testimony and
       company records show what occurred on the day of Plaintiff’s fall.
       However, several other points Plaintiff claims the video would have shown
       [are] inaccurate based on eyewitness accounts. Those points are:

              •       The caution, wet floor signs were not out;
              •       The carpets were saturated with water;
              •       No employee had even checked the area for at least
                      35 minutes; and
              •       No maintenance had been done for an extended period prior
                      to Gloria’s fall.

       These points remain in dispute. A video would have confirmed [whether
       these points are true].


                                             21
¶40    Bilesky filed a reply brief on December 24, 2012. At the outset, she articulated

her view of the specific issue before the court: “Shopko does not deny destroying critical

video evidence. Gloria Bilesky has been prejudiced because of Shopko’s actions. The

issue is, what is the appropriate remedy?” Bilesky maintained that a “default judgment

on liability” was the proper remedy. However, recognizing that the District Court might

find this remedy “too harsh under the circumstances presented,” Bilesky proposed an

alternative remedy that included the following jury instruction:

               The Defendant admits that the video proved that:
               i.     Gloria’s pants were visibly wet;
               ii.    She wiped her wet hands on her clothes;
               iii.   She fell forward, hard, landing on her hands and knees;
               iv.    She needed assistance getting up, she got up slowly and was
       in visible pain/discomfort; and
               v.     Her gait was altered after falling.

Again, this instruction was offered as a proposed sanction for Shopko’s loss of the video

evidence. As such, the instruction was derivative of Bilesky’s motion for sanctions and

was dependent upon the District Court’s determining, as a threshold matter, that Shopko

should indeed be sanctioned. The proposed jury instruction was not premised on an

independent theory of judicial admissions.

¶41    The District Court denied Bilesky’s motion for sanctions in an order dated

December 31, 2012. The court found as follows:

       Shopko attempted to preserve the evidence in question, albeit in vain.
       Shopko was under no general duty to preserve the surveillance footage and
       could have just let the footage be recorded over; however, an attempt to
       download the footage onto a DVD was made when the Store Manager
       became aware that an accident occurred in the store. Once on notice of a

                                             22
       potential lawsuit, and the potential evidentiary value of the video, Shopko
       had a duty not to destroy the potential evidence with the design to disrupt or
       defeat the potential lawsuit. There is no reason to believe that the mistake
       in downloading the footage was anything other than inadvertent. Further,
       the attempt to download the footage to a DVD does not change the fact that
       the footage from the day of the accident was recorded over as a result of
       regular scrubbing of the digital recording system’s surveillance videos. . . .
       The surveillance footage was destroyed pursuant to the good-faith
       operation of the digital recording system and there are no exceptional
       circumstances present; therefore, the Court may not impose sanctions.

In finding that Shopko should not be sanctioned, the District Court necessarily denied

Bilesky’s proposed remedy of a jury instruction stating that Shopko had admitted to

certain matters that the video footage would have shown. Likewise, the District Court

necessarily rejected Shopko’s offer to concede these points in lieu of suffering a default

judgment on liability.

¶42    The Pretrial Order was entered on January 2, 2013. Among other things, the

Pretrial Order sets forth the Agreed Facts in the case—i.e., those which “are admitted,

agreed to be true, and require no proof.” Two, and only two, facts are listed:

               1.     Jurisdiction and venue are proper in this Court.
               2.     Surveillance video footage captured Gloria Bilesky entering,
       falling, and leaving Shopko on the afternoon of Sunday, January 30, 2011.

There is no mention, in the Agreed Facts, of Shopko’s supposed judicial admissions. To

the contrary, the points that we now hold were “judicial admissions” are instead listed in

the Pretrial Order under the heading “Plaintiff’s Contentions,” along with the points that

Shopko stated in its answer brief “remain in dispute.” Counsel for Bilesky approved and

signed the Pretrial Order “as to form and content.” It was also approved and signed by


                                            23
counsel for Shopko and the District Court judge. Thus, the position of the parties at this

juncture was that the points which the video would have shown were “Plaintiff’s

Contentions,” not “Agreed Facts.”

¶43    Bilesky then changed her position. On January 29, 2013—six days before trial—

Bilesky filed a Trial Brief in which she asserted that the District Court should read to the

jury the instruction that she had previously proposed as an alternative sanction for

Shopko’s loss of the video footage:

              In order to use the Court’s time most effectively, during Plaintiff’s
       case-in-chief, Plaintiff’s counsel will ask the Court to read the following
       undisputed facts:

                                         .   .    .

              3.     The surveillance video showed that:
                     –     Gloria fell forward, hard, landing on her hands and
                           knees,
                     –     she needed assistance getting up; she got up slowly
                           and was in visible pain/discomfort,
                     –     her pants were visibly wet,
                     –     she wiped her wet hands on her clothes, and
                     –     her gait was altered after falling.

¶44    Shopko promptly objected to Bilesky’s proposal that the District Court read the

foregoing points to the jury, observing that “[t]hey are not undisputed.”           Shopko

indicated that the only undisputed facts in the case were the two listed in the “Agreed

Facts” section of the Pretrial Order. In response, Bilesky filed a supplemental brief on

February 4, 2013—the first day of trial—raising the theory that Shopko’s statements in

its December 7, 2012 brief opposing sanctions were “judicial admissions.”


                                             24
¶45    The District Court considered Bilesky’s request at the pretrial conference that

morning and determined that the four points listed in Shopko’s brief (which Bilesky’s

counsel listed as five points in the proposed jury instruction) were subjective and that

Shopko had not made an express waiver of these points. The District Court determined

that eyewitness testimony, rather than the subjective statements of counsel about what the

video presumably would have shown, should be submitted to the trier of fact. Thus, the

District Court declined to treat the four points as judicial admissions.

¶46    At trial, Bilesky again attempted to introduce language regarding the four points.

When Shopko’s employee (the local store manager) did not testify consistently with some

of the four points, Bilesky sought to impeach him with the language in Shopko’s brief.

Shopko objected that Bilesky could not impeach a witness with statements that the

witness did not make. M. R. Evid. 801. A mid-trial conference ensued during which the

District Court entertained further arguments on whether to treat the statements in

Shopko’s December 7, 2012 brief as judicial admissions. The court ultimately reaffirmed

its initial ruling that the statements should not be treated as judicial admissions. In so

doing, the District Court supplemented its reasoning, explaining that the four points were

not “facts” that had been provided to Shopko’s counsel by his client, and that the parties

had not agreed that the four points could not be disputed at trial. The court’s ruling,

however, was not as one-sided as the Court implies. Opinion, ¶ 9. The District Court

told Bilesky’s counsel that she could cross-examine Shopko employees by asking them:

“If someone else in your organization said this [i.e., one of the four points], do you agree




                                             25
or disagree with it?”      After trial resumed, Bilesky proceeded to question Shopko’s

manager in this fashion.

¶47    Shopko has consistently maintained that when it referenced the four points in its

answer brief to the motion for sanctions, it was merely reciting what Bilesky had set forth

in her opening brief. Shopko has also consistently maintained that it never expressly

waived contesting these points, and that the purpose in reciting these points was to

propose a concession as an alternative to the harsher remedy of having a default judgment

entered against it on liability. This explanation is consistent with what transpired in the

briefing on Bilesky’s motion for sanctions. In her opening brief, Bilesky proposed that

the District Court—as a sanction against Shopko—give the jury three instructions, none

of which included Shopko’s admission to certain facts. The three instructions simply

allowed the jury to draw negative inferences against Shopko for its loss of the video

footage, and directed the jury that Bilesky was not comparatively at fault for her injury as

a matter of law. Following Shopko’s answer brief, Bilesky filed a reply brief in which

she added a fourth proposed instruction (quoted at ¶ 40 above) directing the jury that

Shopko had admitted certain points. Again, Bilesky proposed this as a sanction, which

the District Court rejected when it found that Shopko should not be sanctioned.

¶48    Shopko’s pretrial contentions and correspondence to Bilesky indicated that the

four points were disputed. Shopko was consistent in its position that these points were in

dispute. Shopko explained during the mid-trial conference:

              THE COURT: But Mr. Duerk, they’re in your brief, so presumably
       they’re not made up, somebody must have told you or someone in your law
       firm at some point that these were the facts.

                                            26
              MR. DUERK: That came from Plaintiff’s counsel. And not
       knowing the facts myself, and as a concession here at the time as a fallback
       argument if we were going to be sanctioned for losing this surveillance
       video that was the concession that I was willing to make at that time. They
       are part of a sanction, though, and we have not been sanctioned for this, and
       under Rule 37(e) this is not sanctionable activity.
              So to now go back and sanction us and permit that sanction to be the
       basis for the impeachment of a fact witness who unequivocally and
       unambiguously has a different recollection, it doesn’t make sense, Your
       Honor.

Bilesky herself conceded during this mid-trial conference that Shopko had set forth the

four points in its December 7, 2012 brief in order “to avoid sanctions.”

¶49    The principle is well established that, in order to qualify as a judicial admission, an

attorney’s statement must be deliberate, clear, and unambiguous. Lima v. Holder, 758

F.3d 72, 79 (1st Cir. 2014); Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 347 (4th

Cir. 2014); Lee v. Smith & Wesson Corp., 760 F.3d 523, 528 (6th Cir. 2014); Robinson v.

McNeil Consumer Healthcare, 615 F.3d 861, 872 (7th Cir. 2010); Phys. Comm. for

Responsible Med. v. Applebee’s Intl., Inc., 168 Cal. Rptr. 3d 334, 345 (Cal. Ct. App.

2014); Walter v. Wal-Mart Stores, Inc., 2000 ME 63, ¶ 12, 748 A.2d 961; Lebeck v.

Lebeck, 1994 NM Ct. App. 103, ¶ 14, 881 P.2d 727; Coleman v. Wyeth Pharms., Inc.,

6 A.3d 502, 524-25 (Pa. Super. Ct. 2010). The statement must be an express waiver

conceding the truth of an alleged fact, and it must be an unequivocal statement of fact.

Kohne v. Yost, 250 Mont. 109, 112-13, 818 P.2d 360, 362 (1991) (citing Childs v.

Franco, 563 F. Supp. 290, 292 (E.D. Pa. 1983)); see also Hart v. Hart, 2011 MT

102, ¶ 18, 360 Mont. 308, 258 P.3d 389; Bitterroot Intl. Sys., Ltd. v. W. Star Trucks, Inc.,



                                             27
2007 MT 48, ¶ 41, 336 Mont. 145, 153 P.3d 627; Conagra, Inc. v. Nierenberg, 2000 MT

213, ¶ 45, 301 Mont. 55, 7 P.3d 369. “‘An unequivocal statement is one that is clear,

unambiguous and expresses only one meaning.’” John B. Conomos, Inc. v. Sun Co., 831

A.2d 696, 713 (Pa. Super. Ct. 2003) (quoting Phila. Reinsurance Corp. v. Emplrs. Ins. of

Wausau, 61 Fed. Appx. 816, 819 (3d Cir. 2003)). “A judicial admission must be a

statement of fact within the speaker’s personal knowledge.” Lebeck, ¶ 14 (citing Derby

Meadows Util. Co., Inc. v. Inter-Contl. Real Estate, 559 N.E.2d 986, 991 (Ill. App. Ct.

1990)). The expression of an opinion does not qualify as a judicial admission. DeMars

v. Carlstrom, 285 Mont. 334, 338, 948 P.2d 246, 249 (1997). Likewise, a court “should

not consider statements of counsel’s conception of the legal theories of the case to be

binding.”   Kohne, 250 Mont. at 113, 818 P.2d at 362.             Because of their binding

consequences, judicial admissions generally arise only from deliberate and voluntary

waivers that expressly concede for the purposes of trial the truth of an alleged fact.

United States v. Belculfine, 527 F.2d 941, 944 (1st Cir. 1975).

¶50    Whether a particular statement constitutes a judicial admission “depends upon the

circumstances of each case,” Kohne, 250 Mont. at 113, 818 P.2d at 362, and is committed

to the sound discretion of the trial court, Weaver v. State, 2013 MT 247, ¶ 19, 371 Mont.

476, 310 P.3d 495. Given the context in which Shopko made the statements now in

dispute—i.e., in responding to Bilesky’s motion for sanctions—I am not convinced the

District Court abused its discretion in determining that those statements did not constitute

an express waiver conceding the truth of the “points” set forth by Bilesky, such that




                                            28
Shopko would be prevented “from introducing further evidence to prove, disprove, or

contradict the admitted fact.” Weaver, ¶ 20 (internal quotation marks omitted).

¶51    First, the District Court found some doubt as to whether the statements in

Shopko’s brief constituted clear and unambiguous statements of fact. The court noted

that the statements were the opinions of the attorneys about what the lost video footage

presumably would have shown. The statements themselves were subjective. “Gloria’s

pants were visibly wet.” How wet? A couple of spots? Her entire pants? Gloria fell

“hard.” Twelve jurors could have twelve different ideas of what constitutes a “hard” fall.

She “got up slowly.” How slowly? Ultimately, given the availability of eyewitnesses

who could testify and be cross-examined as to these issues, the District Court ruled that

the matter should be left to the determination of the jury. I cannot find this to be an abuse

of discretion.

¶52    The Court ignores the principle that a statement must be clear, unambiguous, and

express only one meaning in order to qualify as a judicial admission. Instead, the Court

manufactures a new rule that, although no further evidence may be introduced to prove,

disprove, or contradict a judicially admitted fact, evidence may be introduced to

“elaborate” on the admitted fact. Opinion, ¶ 17. The Court cites no authority for this

rule. Moreover, the need for “elaboration” only confirms that the supposed “facts” here

are not clear, unambiguous, and unequivocal. Indeed, they are the subjective opinions of

Bilesky’s counsel about what the jurors would have perceived from the lost video

footage. “Gloria fell forward” is plausibly an unambiguous fact—one that Shopko’s

manager admitted under questioning by Bilesky’s counsel. But “Gloria fell forward

                                             29
hard” is an opinion. Likewise, Gloria “got up slowly” is an opinion, as is Gloria was in

“visible pain” and her “gait was altered.” As noted, a judicial admission must be a

statement of fact within the speaker’s personal knowledge. Shopko’s counsel had no

personal knowledge that “Gloria fell forward hard,” that she “got up slowly,” that she

was in “visible pain,” and that her “gait was altered.” Accordingly, I disagree with the

Court’s holding that all of the statements here were statements of fact. Opinion, ¶ 18.

¶53    Second, the District Court determined that the circumstances did not warrant

treating Shopko’s statements as judicial admissions. Originally, Shopko was willing to

concede the four “points” as a possible sanction. Shopko’s theory was this: (1) we are

not liable for sanctions, but (2) if the court concludes otherwise, then we are willing to

concede certain points as an alternative to the entry of a default judgment against us.

M. R. Civ. P. 37(b)(2)(A)(i), (c)(1)(C) (the court may sanction a party by ordering that

“designated facts be taken as established for purposes of the action, as the prevailing

party claims”). Ordering that “designated facts be taken as established for purposes of

the action” is comparable to treating those facts as judicial admissions. See Card Tech.

Corp. v. DataCard Inc., 249 F.R.D. 567, 571 (D. Minn. 2008) (referring to a sanction

under Rule 37(b)(2)(A)(i) as “[t]he judicial admission of certain facts as established”);

2 Kenneth S. Broun et al., McCormick on Evidence § 254, 262 (7th ed. 2013) (explaining

that judicial admissions, as contrasted with evidentiary admissions, “are formal

concessions in the pleadings in the case or stipulations by a party or counsel that have the

effect of withdrawing a fact from issue and dispensing wholly with the need for proof of

the fact” (emphasis added)). Thus, Shopko’s counsel essentially offered, as a lesser

                                            30
sanction under Rule 37, to have certain points, which the video allegedly would have

shown, treated by the court as judicial admissions. However, a conditional offer of this

nature to accept a particular sanction in lieu of a harsher sanction is not, in my view, the

same as making an express and unconditional waiver conceding unequivocally the truth

of an alleged fact—especially where, as here, the trial court declines to impose any

sanctions at all. The Court, notably, concedes this point. Opinion, ¶ 30.

¶54    Bilesky’s approach at this point in the proceedings was the same as Shopko’s. She

proposed instructing the jury that Shopko had admitted the listed points as a possible

sanction for Shopko’s loss of the video footage, not based on the theory of judicial

admissions. Bilesky only articulated a judicial admission theory after her motion for

sanctions had failed (and, notably, after signing the Pretrial Order which stated that the

four points were Plaintiff’s Contentions, not Agreed Facts). As explained, this occurred

when Bilesky filed her January 29, 2013 Trial Brief, requesting that certain “undisputed

facts” be read to the jury. This apparently came as a surprise to Shopko, given that these

had not been listed as Agreed Facts in the Pretrial Order. Shopko promptly responded on

January 30, 2013, that the alleged “undisputed facts” in Bilesky’s Trial Brief were, in

fact, disputed.   Bilesky then filed her supplemental brief on February 4, 2013—the

morning of trial—raising for the first time her judicial admission theory.

¶55    Contrary to the foregoing procedural history, the Court announces that Shopko did

not offer to admit facts, but instead actually admitted facts. Opinion, ¶ 30. In so doing,

the Court errs by reading passages from Shopko’s December 7, 2012 brief in isolation

and by failing to give proper deference to the District Court judge’s evaluation of

                                            31
Shopko’s explanation. Opinion, ¶¶ 28-32. Focusing on particular statements in the brief,

the Court announces that Shopko intended to unequivocally admit the four points.

Opinion, ¶¶ 28, 30. Could Shopko’s counsel have articulated his purpose more concisely,

using the “conditional” language that the Court now opines should have been used?

Opinion, ¶¶ 29-30. Perhaps. However, prior to today’s decision, the law has never

involved such technical requirements. According to the Court’s own two-pronged test,

Opinion, ¶ 14, we must consider “the entire context” and “circumstances” of Shopko’s

statements—not only what was written in a single brief, but also what was discussed

thereafter among the District Court judge and the attorneys.

¶56   When Bilesky finally raised her judicial admission theory on the morning of trial,

Shopko’s counsel explained the purpose of his statements: they were an offer to admit

certain points that Bilesky’s counsel claimed the lost video footage would have shown, in

lieu of suffering a default judgment on liability. Shopko’s counsel did not represent that

these points were actually true; he simply expressed willingness to concede the points as

a remedy should the District Court find that a discovery violation had occurred. The

District Court judge believed this explanation. The judge made a critical finding: that

Shopko’s counsel did not intend to unequivocally concede the truth of the four points.

The judge recognized that an offer to have certain points deemed established as a lesser

sanction for discovery abuse, M. R. Civ. P. 37(b)(2)(A)(i), is not the same as a judicial

admission. Bilesky’s counsel, no less, conceded that Shopko’s intent was “to avoid

sanctions.”




                                            32
¶57    In these circumstances, it is wrong for this Court to announce, based on the cold

record before us, that we know better than everyone else what was really going on: that

Shopko’s counsel was engaging in “intentional self-contradiction” and “playing fast and

loose with the facts to suit the exigencies of self-interest.” Opinion, ¶ 20. In case after

case, this Court has stated that the trial court is in the best position to determine

credibility, since the trial judge is the one who is intimately familiar with the details of

the case and who personally hears and observes the witness or, as here, the attorney.

Ditton v. Dept. of Just., 2014 MT 54, ¶ 33, 374 Mont. 122, 319 P.3d 1268; Benjamin v.

Anderson, 2005 MT 123, ¶ 37, 327 Mont. 173, 112 P.3d 1039; State v. Kaufman, 2002

MT 294, ¶ 12, 313 Mont. 1, 59 P.3d 1166. Moreover, this Court has stated repeatedly

that our review of factual determinations is not whether the record supports different

findings, but whether the record supports the findings actually made. Lyndes v. Green,

2014 MT 110, ¶ 15, 374 Mont. 510, 325 P.3d 1225; Deschamps v. Treasure State Trailer

Court, Ltd., 2010 MT 74, ¶ 45, 356 Mont. 1, 230 P.3d 800. The District Court evaluated

the credibility of Shopko’s explanation and determined that Shopko did not intend to

unequivocally concede the truth of the four points. The record supports this finding, and

it is not our prerogative to impugn the District Court’s decision based on conjecture about

what we think Shopko really meant.

¶58    In Weaver v. State, 2013 MT 247, 371 Mont. 476, 310 P.3d 495, we observed that

“a judicial admission is not effective if it was subsequently modified or explained so as to

show that the litigant was mistaken.” Weaver, ¶ 26 (internal quotation marks omitted).

Thus, since “the Weavers immediately modified the disputed language to clarify their

                                            33
intended meaning,” we held that the district court did not abuse its discretion in

determining that the statement did not constitute a judicial admission. Weaver, ¶ 26.

Here, Shopko promptly objected to Bilesky’s claim in her Trial Brief that the four points

were undisputed. To the extent it had made a judicial admission—which Shopko has

never conceded—Shopko clearly withdrew it, and did so in advance of trial. Weaver thus

supports the District Court’s ruling in the present case and undermines the Court’s

decision to impose a judicial admission on Shopko based solely on what Shopko said in

its December 7, 2012 brief.

¶59    Furthermore, “considerations of fairness and the policy of encouraging judicial

admissions require that trial judges be given broad discretion to relieve parties from the

consequences of judicial admission in appropriate cases.” Belculfine, 527 F.2d at 944;

accord MacDonald v. Gen. Motors Corp., 110 F.3d 337, 340 (6th Cir. 1997). Thus, even

if Shopko’s statements met all the criteria of a judicial admission, the District Court had

discretion to relieve Shopko of the admissions. See Coral v. Gonse, 330 F.2d 997, 998

n.1 (4th Cir. 1964) (“Of course, even a judicial admission does not always foreclose a

different position. If the District Court, convinced that an honest mistake had been made,

the original allegation was untrue and that justice required relief, it may, in its discretion,

relieve the party of its otherwise binding consequence.”); Elec. Mobility Corp. v. Bourns

Sensors/Controls, Inc., 87 F. Supp. 2d 394, 406 (D.N.J. 2000) (“While it is true that a

judicial admission normally binds the party making it throughout the course of the action,

it is also well-established that trial judges are given broad discretion to relieve parties

from the consequences of judicial admissions in appropriate cases.”); 30B Michael H.

                                              34
Graham, Federal Practice and Procedure § 7026, 331 (interim ed. 2011) (“The trial court

possesses discretion to relieve a party from the consequences of a judicial admission.”);

9 John Henry Wigmore, Evidence in Trials at Common Law § 2590, 822-23 (Chadbourn

rev. 1981) (“In view . . . of the commendable purpose which leads (or ought to lead) to

the voluntary making of admissions, it is always said—and properly so—that the trial

court has discretion to avoid the consequence of conclusiveness of an admission.”).

¶60    The Court fails to apply the foregoing principle and to accord proper deference to

the District Court’s discretionary decision to relieve Shopko of the consequences of its

supposed judicial admissions. Instead, the Court selects two precedents—Kohne and

Weaver—and announces it is “readily apparent” that the present case is closer to Kohne

than to Weaver. Opinion, ¶¶ 23-28. I do not agree with the Court’s implicit premise that

trial courts are required to fit the unique circumstances of a given case into the

framework of either Kohne or Weaver. Each case must turn on its unique facts, and it is

wrong to suggest, as the Court does, that Kohne and Weaver reflect all of the pertinent

considerations in deciding whether to relieve a party of its admissions. As discussed, the

present case is unique in that the statements at issue were made in the context of a motion

for sanctions under M. R. Civ. P. 37. Shopko’s counsel explained his intent in offering to

admit the truth of certain points. The District Court found counsel’s explanation credible.

If anything, the present case is closer to Weaver in that Shopko “immediately modified

the disputed language to clarify [the] intended meaning.” Weaver, ¶ 26. In my view, the

subjective nature of the supposed admissions, Shopko’s prompt objection to Bilesky’s

Trial Brief, Shopko’s explanation that it had not intended to make any judicial

                                            35
admissions, and the availability of eyewitness testimony, together, constituted proper

circumstances for the District Court to exercise its discretion and relieve Shopko of the

judicial admissions it allegedly had made.

¶61    In sum, it is my view that this Court has not given proper deference to the

discretion of the trial court in making its evidentiary ruling. The Court has failed to

appreciate the entire context of Shopko’s statements and the District Court’s ruling, and

has failed to respect the trial court’s determination that the trier of fact should hear

eyewitness testimony rather than the subjective impressions of counsel. While this Court,

had it been presiding over the trial proceedings, might have arrived at a different

evidentiary decision, our task is to determine whether the District Court abused its

discretion. I am not convinced that Shopko’s statements constitute an express waiver and

I, therefore, cannot find that the District Court abused its discretion. Furthermore, even

assuming, for the sake of argument, that the statements constituted judicial admissions,

the District Court had discretion to relieve Shopko from the admissions, which the court

obviously did.      It is thus inappropriate for this Court to usurp the District Court’s

discretionary decision-making and to impose on Shopko an express waiver conceding the

truth of the four points.

¶62    I dissent.


                                                  /S/ LAURIE McKINNON




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