                                                                                          06/06/2017


                                          DA 16-0744
                                                                                      Case Number: DA 16-0744


              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2017 MT 135N



SANDRA D. FOX,

               Plaintiff and Appellee,

         v.

ETHAN FAIRBROTHER and CHRISTINA FAIRBROTHER,

               Defendants and Appellants.



APPEAL FROM:           District Court of the Twentieth Judicial District,
                       In and For the County of Sanders, Cause No. DV 14-80
                       Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Matthew H. O’Neill, O’Neill Law Office, PLLC, Polson, Montana

                For Appellee:

                       Douglas G. Skjelset, Suzanne E. Geer, Skjelset & Geer, PLLP,
                       Missoula, Montana



                                                 Submitted on Briefs: May 3, 2017

                                                            Decided: June 6, 2017


Filed:

                       __________________________________________
                                        Clerk
Justice Dirk M. Sandefur 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     Ethan and Christina Fairbrother (Fairbrothers) appeal the order of the Montana

Twentieth Judicial District Court, Sanders County, which awarded Fairbrothers litigation

costs as the prevailing party in an action for rescission of a real estate contract, but denied

their motion for attorney’s fees. We affirm.

¶3     The parties do not dispute the facts detailed by the District Court findings. In April

2013, Sandra Fox (Fox) executed a hand-written agreement to sell Fairbrothers a five-acre

parcel in Noxon, Montana, for $45,000 plus interest. The structured payment arrangement

involved a $9,000 down payment; monthly contributions totaling $19,200 to an escrow

account for Fox’s benefit; and an unsecured promissory note requiring Fairbrothers to pay

Fox $24,000 over ten years in $200 monthly installments.

¶4     Fairbrothers executed a Montana Trust Indenture with Clark Fork Title Co., which

established the escrow account and secured the $19,200 to be paid over a ten-year period.

A promissory note accompanied the trust indenture and memorialized Fairbrothers’

$19,200 debt, interest at 3%, and the monthly payment schedule. As the beneficiary of the

trust indenture, Fox had no role in negotiating, drafting, or executing the agreement. At

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closing, Fox received copies of two trust documents executed by the Fairbrothers with the

title company: the one-page trust promissory note and the two-page Montana Trust

Indenture (short-form trust). The short-form trust stated that “provisions numbered 1

through 25 of the Trust Indenture recorded April 15, 2005” and filed separately with the

Sanders County Clerk and Recorder were “incorporated and made an integral part hereof

for all purposes as though set forth herein in their entirety.” Fairbrothers did not provide

Fox with a copy of the seven-page Montana Trust Indenture (long-form trust), which

contained the trust’s boilerplate provisions and was incorporated by reference in the

short-form trust.

¶5     Tensions over the construction of an access road to Fairbrothers’ property through

an easement across Fox’s adjacent land aggravated deteriorating relations between the

neighbors. On August 14, 2014, Fox filed a complaint in district court seeking rescission

of the agreement to sell the five acres to Fairbrothers, alleging mistake, fraud, and undue

influence. Fox attached a copy of the short-form trust to her complaint, together with other

documents related to the five-acre sale. By the time of her filing, Fox had received

approximately $13,000 on the real estate contract. Fox made no offer or attempt to return

any money to Fairbrothers. While the legal action was pending, Fairbrothers continued to

make monthly payments of $200 to Fox and $160 to the escrow account at Clark Fork Title

Co. When Fox refused to accept payment, Fairbrothers deposited her $200 monthly

payments in their attorney’s trust account.




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¶6     At trial, Fairbrothers sought to have the long-form trust admitted into evidence for

the purpose of showing “the provisions for attorney fees” for “the prevailing party [in]

litigation over trust indentures.” Fox objected on the grounds of unfair surprise because

the long-form trust had not been shared in discovery. Although the long-form trust may

have been filed with the county and available to the public-at-large, Fox argued the

document did not appear on Fairbrothers’ pretrial exhibit list and Fox had no prior notice

of Fairbrothers’ intent to offer the long-form trust into evidence. The District Court

reserved ruling on the admission of the long-form trust, pending final briefing by the

parties.

¶7     Following the two-day bench trial in June 2016, the District Court determined that

Fairbrothers agreed to pay fair market value for the five-acre parcel and did not

misrepresent any material facts, commit fraud, coerce, or exert undue influence over Fox.

The court further determined that Fox was competent and fully capable of engaging in the

real estate sale. The court concluded that Fox failed to comply with the legal requirements

for rescission of a real estate contract pursuant to § 28-2-1713, MCA, by failing to act

promptly and failing to restore everything of value she had received from Fairbrothers.

Because the District Court found no evidence to support Fox’s claim for contract

rescission, the court held that Fox “takes nothing from her complaint.”

¶8     On November 18, 2016, in response to Fairbrothers’ M. R. Civ. P. 54(d) motion,

the District Court awarded litigation costs pursuant to § 25-10-501, MCA, but denied

attorney’s fees to Fairbrothers on the stated grounds that the “contract containing any

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requirement to pay attorney’s fees was not admitted during trial.” The stated reason for

the court’s refusal to admit the long-form Montana Trust Indenture was “because it was

not provided in discovery.”

¶9     The issues on appeal are whether the District Court abused its discretion by denying

admission of the long-form Montana Trust Indenture at trial and whether the court correctly

denied Fairbrothers’ request for attorney’s fees.

¶10    A district court has broad discretion to determine the admissibility of evidence.

Schuff v. Jackson, 2008 MT 81, ¶ 15, 342 Mont. 156, 179 P.3d 1169. Therefore, we review

a district court’s ruling on the admissibility of evidence for an abuse of discretion. West v.

Club at Spanish Peaks L.L.C., 2008 MT 183, ¶ 44, 343 Mont. 434, 186 P.3d 1228. We

review for correctness a district court’s conclusion regarding the existence of legal

authority to award attorney’s fees. Foss v. Melton, 2016 MT 232, ¶ 19, 385 Mont. 5, 386

P.3d 553.

¶11    Montana follows the general American Rule, which holds that a prevailing party is

not entitled to recover attorney’s fees unless expressly provided for by statute or contract.

Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 97, 303 Mont. 274, 16 P.3d 1002. When

legal authority exists to award attorney’s fees, § 28-3-704, MCA, provides that the right to

recover attorney’s fees is reciprocal.

¶12    Two contract documents involved in the Fox-Fairbrother real estate transaction

contain attorney fee provisions. One was the promissory note that accompanied the

Montana Trust Indenture, which states:

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         In the event of default of the payment of this note, it is agreed that the Holder
         of this note may recover such necessary expenses as may be incurred in the
         collection, including interest at the legal rate and a reasonable attorney’s fee.

The District Court determined that the promissory note, by its terms, applied only to

litigation on an alleged default. Because Fox never alleged a default pursuant to the

promissory note, the court determined that the attorney fee provision did not apply. We

agree.

¶13      The second document containing an attorney fee provision is the long-form

Montana Trust Indenture, which states, in pertinent part:

         Except as may be otherwise provided herein, Grantor agrees to pay to
         Beneficiary or Trustee the costs and expenses, including a reasonable
         attorney’s fee, incurred by either of them in instituting, prosecuting or
         defending any Court action in which Grantor does not prevail, if such action
         involves the interpretation hereof or performance thereunder by a party
         hereto of the breach of any provision hereof by a party hereto, including but
         not limited to an action to obtain possession of the above described property
         after exercise of the power of sale granted hereunder.

We agree that this provision for attorney’s fees would have applied if properly admitted

into evidence at trial. Fairbrothers claim the District Court abused its discretion by refusing

to admit the long-form trust into evidence pursuant to its admission of the properly

disclosed short form that expressly incorporated the long form by reference. Due to the

incorporation provision of the short form, Fairbrothers argue they had no duty to disclose

or produce the long form document in discovery.

¶14      Discovery promotes “the ascertainment of truth” by “assuring the mutual

knowledge of all relevant facts gathered by both parties which are essential to proper

litigation.” Richardson v. State, 2006 MT 43, ¶ 22, 331 Mont. 231, 130 P.3d 634 (quoting
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Massaro v. Dunham, 184 Mont. 400, 405, 603 P.2d 249, 252 (1979)). Modern discovery

rules and pretrial procedures “make a trial less a game of blindman’s buff and more a fair

contest with the basic issues and facts disclosed to the fullest practicable extent.”

Richardson, ¶ 22 (citing United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78

S. Ct. 983, 986-87 (1958)). M. R. Civ. P. 33 authorizes the use of interrogatories for the

purpose of pretrial discovery from an adverse party. We liberally construe this rule to make

all relevant facts available to parties in advance of trial and to reduce the possibilities of

surprise and unfair advantage. Perdue v. Gagnon Farms, Inc., 2003 MT 47, ¶ 15, 314

Mont. 303, 65 P.3d 570.

¶15    Although Fairbrothers assert that Fox never requested a copy of the long-form trust

indenture in discovery, the discovery requests indicate otherwise. By Interrogatory No.

14, Fox asked Fairbrothers to list any real property they have owned since January of 1995.

Interrogatory No. 15 sought specific information about each listed property. By Request

for Production No. 6, Fox asked Fairbrothers to provide “copies of all documents generated

in regard to any transactions described in response to Interrogatory No. 15.” Fairbrothers

neglected to produce a copy of the long-form Montana Trust Indenture.

¶16    Fairbrothers next argue that, because the long-form trust is a public record filed with

the county clerk and recorder, all parties had an equal ability to access the document and

Fairbrothers had no duty to specifically disclose the long form in discovery. The cases

cited in support of this proposition distinguish the duty to produce copies of public records

from the duty to disclose public documents prior to trial. See, e.g., Securities & Exchange

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Comm. v. Samuel H. Sloan & Co., 369 F.Supp. 994 (S.D.N.Y. 1973) (undue burden for

SEC to produce expensive copy of disclosed transcript of administrative proceedings,

which is a public record available to all at their own cost); Tequila Centinela, S.A. de C.V.

v. Bacardi & Co., 242 F.R.D. 1 (D.D.C. 2007) (courts may limit production of public

records when another source is more convenient, less burdensome, or less expensive).

While the cases cited by Fairbrothers offer authority allowing parties to avoid the cost and

inconvenience of producing copies of public documents in discovery, as provided by M. R.

Civ. P. 26(b)(2)(C)(i), neither ruling authorizes nondisclosure of public documents that are

within the permissible scope of a discovery request. In addition, the minimal cost and ease

of production for a seven-page contract does not justify Fairbrothers’ failure to provide Fox

the long-form trust prior to trial.

¶17    Disclosure of relevant information prior to trial is the essence of discovery. This

Court strictly adheres to the policy that dilatory discovery actions shall not be dealt with

leniently. Richardson, ¶ 56. The Court will generally defer to the decision of a trial court

regarding sanctions for failure to comply with discovery procedures because the trial court

is in the best position to know whether parties are disregarding the rights of opposing

parties in the course of litigation and which sanctions for such conduct are most

appropriate. McKenzie v. Scheeler, 285 Mont. 500, 506, 949 P.2d 1168, 1172 (1997).

M. R. Civ. P. 37(c)(1) sets forth various actions a district court may take to address a party’s

failure to disclose information requested during discovery, including disallowing the party

to use that information at trial.

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¶18    The interests of fairness and transparency demand that the complete contract, which

provides a legal basis for an attorney fee award, be disclosed to the opposing party prior to

trial. The District Court was in the best position to address the discovery failure, and the

court cited nondisclosure as the reason for denying the admission of the long-form Montana

Trust Indenture. Without the long-form trust before the court, the court concluded that

none of the contracts in evidence provided the necessary legal authority for an award of

attorney’s fees.

¶19    We conclude the District Court did not abuse its discretion when it declined to admit

the long-form Montana Trust Indenture into evidence for failure to share the document

with the opposing party in discovery. We further hold that the District Court correctly

determined that no legal basis exists in the record for an award of attorney’s fees to

Fairbrothers absent admission of the long-form Montana Trust Indenture. We affirm.

¶20    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.



                                                  /S/ DIRK M. SANDEFUR


We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
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Justice Jim Rice, concurring.

¶21    I believe the long-form Montana Trust Indenture was incorporated by reference

within the short form, was “part and parcel” to the original transaction, and thus should

have been admitted and considered in this matter. However, the language of the long form

did not, in my view, grant attorney fees to the prevailing party in the kind of action brought

here, for rescission, and therefore I would affirm the District Court’s denial of attorney fees

on that basis.

¶22    I concur.



                                                   /S/ JIM RICE




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