                                                                                                 10/04/2016


                                            DA 15-0697
                                                                                             Case Number: DA 15-0697

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 248N



DONALD K. KLEPPER, KAREN H. HAGGLUND,
and DENNIS R. ELLIOTT,

              Plaintiffs and Appellants,

         v.

STATE OF MONTANA, and the MONTANA
DEPARTMENT OF TRANSPORTATION,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DV 12-1107
                        Honorable Karen Townsend, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Donald K. Klepper (Self-Represented), Missoula, Montana

                        Karen H. Hagglund (Self-Represented), Missoula, Montana

                        Dennis R. Elliott (Self-Represented), Missoula, Montana

                For Appellees:

                        Mark S. Williams, Susan Moriarity Miltko, Williams Law Firm, P.C.,
                        Missoula, Montana


                                                    Submitted on Briefs: August 3, 2016

                                                                Decided: October 4, 2016


Filed:

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


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

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

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

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

Reports.

¶2        Donald K. Klepper, Karen H. Hagglund, and Dennis R. Elliot (collectively

Plaintiffs) appeal multiple rulings by the Fourth Judicial District Court, Missoula County,

in favor of the Montana Department of Transportation (MDOT or the Department). We

affirm.

¶3        In 2004, MDOT began reconstruction of Highway 93.         To accommodate the

construction of the wider roadway, MDOT entered into right-of-way agreements with

adjacent landowners Klepper and Hagglund on June 25, 2004, and with Elliot on July 25,

2007.      In March 2009, reconstruction excavation caused water runoff to flow onto

Klepper and Hagglund’s land and sediment to enter Elliot’s water system. On September

27, 2012, Klepper, Hagglund, and Elliot filed a complaint alleging negligence per se,

breach of contract, and violations of Article II, Sections 3 and 17 of the Montana

Constitution, and requesting compensatory, punitive, and exemplary damages. The State

generally denied the Plaintiffs’ allegations.

¶4        On August 20, 2013, MDOT moved for partial summary judgment on the

Plaintiffs’ constitutional claims and Elliot’s tort and contract claims. The Department


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argued that because the Plaintiffs’ tort and contract claims could entitle them to complete

relief and because they claimed no separate or distinct constitutional damages, their

constitutional claims could not stand as a matter of law. MDOT further argued that

Elliot’s tort claims were barred by the statute of limitations. Lastly, the Department

claimed Elliot had no third-party beneficiary rights under the construction permit issued

to MDOT by the U.S. Army Corps of Engineers (USACE), nor did MDOT orally

contract with Elliot with respect to his water system. MDOT also filed motions in limine,

asking the District Court to, among other things, preclude Klepper from offering

testimony on the Plaintiffs’ restoration damages and contract claims.

¶5     On December 30, 2013, the District Court granted MDOT summary judgment on

the Plaintiffs’ constitutional claims and partial summary judgment on Elliot’s tort and

contract claims.   The court dismissed the constitutional claims, determining that no

separate and distinct constitutional claims existed. It also dismissed Elliot’s tort claims,

finding that his property damage and negligence claims were barred by Montana’s statute

of limitations after March of 2011 and 2012, respectively. The court dismissed Elliot’s

USACE contract claim, finding that he was not a third-party beneficiary under the

MDOT-USACE construction permit.          However, the court found a genuine issue of

material fact as to whether an oral contract existed between MDOT and Elliot.

¶6     On February 7, 2014, the District Court granted MDOT’s motions in limine. The

court precluded Klepper from offering his own personal expert testimony on the

Plaintiffs’ restoration damage claims because Klepper refused to disclose the basis for his



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opinions during his deposition testimony.         The court also prohibited Klepper from

testifying on questions of law relating to the Plaintiffs’ contract claims.

¶7     On December 29, 2014, the parties submitted their proposed jury instructions and

special verdict form to the District Court. The court settled instructions on February 5,

2015, noting that the Plaintiffs raised no objections to the instructions. On September 1,

2015, the Plaintiffs attempted to submit new jury instructions. The court refused to

re-open jury instructions and informed the parties that the special verdict form would be

addressed following trial.

¶8     On September 16, 2015, the Plaintiffs moved for leave to amend their complaint,

seeking to conduct additional discovery and expert analysis. The District Court denied

the motion on the grounds that the Plaintiffs failed to provide good cause for such an

amendment.

¶9     The District Court conducted a trial in October 2015. The Plaintiffs initially

requested an annoyance and discomfort interrogatory in the special verdict form, but

subsequently elected to argue the issue instead. On October 26, 2015, the jury returned a

special verdict in favor of MDOT on all issues. The Plaintiffs filed a timely appeal.

¶10    We review a district court’s grant of summary judgment de novo, applying the

same criteria of M. R. Civ. P. 56 as the district court. Pilgeram v. GreenPoint Mortg.

Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. We review a district

court’s conclusions of law to determine whether they are correct and its findings of fact

to determine whether they are clearly erroneous. Pilgeram, ¶ 9. Under Rule 56(c),

summary judgment will be granted if the moving party can show there is no genuine

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issue as to any material fact and the moving party is entitled to a judgment as a matter of

law. Roe v. City of Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200.

¶11    We review a district court’s evidentiary rulings, jury instruction decisions, and

denial of a motion for leave to amend a complaint for abuse of discretion. Beehler v. E.

Radiological Assocs., P.C., 2012 MT 260, ¶ 17, 367 Mont. 21, 289 P.3d 131 (evidentiary

rulings); Goles v. Neumman, 2011 MT 11, ¶ 9, 359 Mont. 132, 247 P.3d 1089 (jury

instructions); Hickey v. Baker Sch. Dist. No. 12, 2002 MT 322, ¶ 12, 313 Mont. 162, 60

P.3d 966 (amended complaints).

¶12    On appeal, Plaintiffs contend that the District Court erred in dismissing their

constitutional claims. A constitutional tort can only be supported if no other adequate

remedy exists under Montana’s statutory and common law. Sunburst Sch. Dist. No. 2 v.

Texaco, Inc., 2007 MT 183, ¶ 64, 338 Mont. 259, 165 P.3d 1079. In this case, the

Plaintiffs had the opportunity for complete relief under their tort and contract claims.

Thus, the District Court properly granted summary judgment on the Plaintiffs’

constitutional claims.

¶13    Elliot contends that the District Court erred in determining the statute of

limitations period for his tort claim. Under §§ 27-2-204 and -207, MCA, Elliot had three

years to commence his negligence claim and two years to commence his property

damage claim. The record shows that his cause of action accrued in March of 2009,

when sediment began to enter his water system, but that he did not file his complaint until

September 27, 2012. Elliot also attempts to argue the continuing tort doctrine for the first

time on appeal; however, “[i]t is well established that this Court will not review an issue

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that was not raised in the district court.” Paulson v. Flathead Conservation Dist., 2004

MT 136, ¶ 37, 321 Mont. 364, 91 P.3d 569.

¶14    Elliot also argues that the District Court improperly dismissed his contract claim

upon finding that the USACE permit failed to identify him as a third-party beneficiary.

However, the USACE-MDOT permit, on its face, does not contain any language that can

lead this Court to conclude that the agencies intended Elliot to be a third-party

beneficiary. See Dick Anderson Const., Inc. v. Monroe Const. Co., 2009 MT 416, ¶ 46,

353 Mont. 534, 221 P.3d 675; Williamson v. Mont. Pub. Serv. Comm’n, 2012 MT 32,

¶ 40, 364 Mont. 128, 272 P.3d 71. Accordingly, the District Court properly granted

partial summary judgment on Elliot’s tort and contract claims.

¶15    Plaintiffs further argue that the District Court improperly excluded Klepper’s

proposed expert testimony on Plaintiffs’ restoration damage claim and his interpretation

of the contracts between Plaintiffs and MDOT. With respect to the restoration damage

claim testimony, the District Court excluded Klepper as an expert witness after reviewing

his deposition testimony and finding that he refused to disclose the basis for his opinions.

At the same time, the court gave the Plaintiffs an opportunity to offer lay testimony on

the issue upon an offer of proof to the court that expert testimony was not required.

Plaintiffs failed to do so and thus waived their opportunity to present this evidence at

trial. Plaintiffs also argue that the court improperly precluded Klepper from offering

opinions interpreting the contracts involved in this case. We have held that expert

witnesses may not offer testimony on an ultimate legal issue and that “[t]he interpretation

and construction of a contract is a question of law” for a court to determine. Krajacich v.

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Great Falls Clinic, LLP, 2012 MT 82, ¶ 13, 364 Mont. 455, 276 P.3d 922; see Heltborg

v. Modern Mach., 244 Mont. 24, 29-31, 795 P.2d 954, 957 (1990). As such, we conclude

that the District Court did not abuse its discretion when it excluded testimony that would

have, in effect, instructed the jury on how to decide the contract interpretation questions

at issue here. Thus, upon review of the record, we conclude that the District Court did

not abuse its discretion in granting MDOT’s motions in limine.

¶16    Plaintiffs argue that the District Court erred in denying their motion for leave to

amend their complaint, claiming they met the good cause standard because they

discovered scientifically significant new evidence. A trial court acts within its discretion

in denying such a motion if undue delay or prejudice to a party would result, or if the

motion is made in bad faith or is based upon a dilatory motive. Bitterroot Int’l. Sys. v.

W. Star Trucks, Inc., 2007 MT 48, ¶ 50, 336 Mont. 145, 153 P.3d 627. The court found

that granting the motion so close to trial would unduly prejudice MDOT and that

Plaintiff’s failure to disclose part of the evidence to MDOT was an unacceptable

litigation tactic. We conclude the District Court did not abuse its discretion in denying

Plaintiff’s motion.

¶17    Finally, Plaintiffs contend that the District Court abused its discretion by refusing

to instruct the jury on Klepper and Hagglund’s annoyance and discomfort claims and by

not including such claims in the special verdict form. However, the Plaintiffs’ original

proposed instructions did not include an instruction for annoyance and discomfort, nor

did Plaintiffs object to the State’s proposed instructions during pretrial proceedings. It is

well-established that “[w]e will not put a district court in error for a ruling or procedure in

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which the appellant acquiesced, participated, or to which the appellant made no

objection.” In re Caras, 2012 MT 25, ¶ 22, 364 Mont. 32, 270 P.3d 48. Additionally,

while the Plaintiffs attempted to re-submit new jury instructions after the trial date was

set, the District Court found the prior agreed upon instructions to be binding on the

parties and the law of the case. As for the special verdict form, the record shows that

Klepper acquiesced to the exclusion of the annoyance and discomfort interrogatory at the

close of trial. Thus, we cannot conclude that the District Court abused its discretion in

settling the jury instructions or the special verdict form.

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

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

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

application of applicable standards of review.

¶19    Affirmed.

                                                   /S/ MICHAEL E WHEAT



We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA




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