                                                                                           09/20/2016


                                      DA 15-0499
                                                                                       Case Number: DA 15-0499

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     2016 MT 238



DAVID W. FOLSOM and ALANA L. FOLSOM,

           Plaintiffs, Appellants, and Cross-Appellees,

     v.

CITY OF LIVINGSTON, a political subdivision of the
State of Montana,

           Defendant, Appellee, and Cross-Appellant,

EAGLE’S REST, LLC, a Montana limited liability company,
JOHN DOES 1-X,

           Defendants and Appellees.


APPEAL FROM:       District Court of the Sixth Judicial District,
                   In and For the County of Park, Cause No. DV 13-25
                   Honorable Brenda Gilbert, Presiding Judge


COUNSEL OF RECORD:

            For Appellants:

                   Terry F. Schaplow, Terry F. Schaplow, P.C.; Bozeman, Montana

            For Appellees:

                   Michael J. Lilly, Berg, Lilly & Tollefsen, P.C.; Bozeman, Montana
                   (for City of Livingston)

                   Susan B. Swimley, Attorney and Counselor at Law; Bozeman, Montana
                   (for Eagle’s Rest LLC)

                   Alison P. Garab, Lund Law PLLC; Bozeman, Montana
                   (for Eagle’s Rest LLC)
                                 Submitted on Briefs: July 20, 2016

                                            Decided: September 20, 2016


Filed:

         __________________________________________
                           Clerk




                             2
Justice Jim Rice delivered the Opinion of the Court.

¶1    Following a jury trial, Plaintiffs/Appellants David W. and Alana L. Folsom

(Folsoms) appeal from the orders of the Sixth Judicial District Court, Park County,

granting motions in limine by Defendant/Appellee Eagle’s Rest, LLC (Eagle’s Rest).

The Folsoms also challenge the jury instructions. On cross appeal, Defendant City of

Livingston (Livingston) challenges the District Court’s awards for damages and attorney

fees to the Folsoms.     We affirm in part, reverse in part, and remand for further

proceedings.

      1. Did the District Court err by excluding expert testimony of a professional
appraiser?

      2. Did the District Court err in granting the motion in limine that prevented
David Folsom from testifying as an expert at trial?

      3. Did the District Court properly instruct the jury regarding unjust enrichment?

       4. Did the District Court err by awarding negligence damages to the Folsoms in
view of their election of breach of contract damages?

      5. Did the District Court err in awarding attorney fees to the Folsoms?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2    In 1990, Recreational Leasing Inc., the Folsoms’ predecessor in interest,

constructed sewer and water lines and a sewer lift station outside of the City of

Livingston, and transferred these utilities to Livingston pursuant to a Reimbursement

Agreement (Agreement).       The Agreement provided that Livingston would collect

proportional reimbursement fees (referred to herein as “payback fees”) when new


                                            3
development connected to the water and sewer lines, and pay these fees to Recreational

Leasing, Inc. The Folsoms succeeded to this contractual interest.

¶3    Eagle’s Rest acquired property near Livingston in 2006 and began constructing

Eagle’s Landing Condominiums.        It constructed Buildings A and B, which were

condominiums, and Building K, which was a clubhouse. These units were connected to

the sewer and water lines covered by the Agreement. Livingston initially calculated a

payback fee for the hookups, but the fee was not paid by Eagle’s Rest or collected by

Livingston, and the Folsoms were not paid as provided in the Agreement.

¶4    In 2012, the Folsoms made an initial inquiry about the payback fees for the

Eagle’s Landing Condominiums hookups and then filed this lawsuit. Based upon the

amount of the payback fees due under the Agreement, Livingston made an offer of

judgment to the Folsoms “in the amount of $25,693.70, together with costs and

reasonable attorney’s fees to be determined by the Court.” The Folsoms rejected the

offer, and the case proceeded against both Livingston and Eagle’s Rest, with the Folsoms

claiming breach of contract, negligence, unjust enrichment, and quantum meruit. The

District Court issued a Scheduling Order setting an expert disclosure deadline of July 11,

2014, and setting a deadline of October 31, 2014, for all “pretrial motions, including

motions in limine and motions for summary judgment.”

¶5    Meanwhile, Livingston sought and received payment of $25,693.70 in fees from

Eagle’s Rest on May 22, 2014. Livingston then delivered a check for that amount to the

Folsoms. The Folsoms returned the check uncashed on July 9, 2014.

                                            4
¶6    Counsel for the Folsoms sent a draft of their pretrial order submissions to the

counsel for the Defendants in February 2015, listing professional appraiser William

Bridwell as an expert witness regarding the value of the Eagle’s Landing Condominiums,

and Bridwell’s written appraisal as an exhibit. Eagle’s Rest filed a motion to exclude

Bridwell’s expert testimony and his appraisal on March 2, 2015, well after the motions

deadline in the scheduling order, arguing that Bridwell had not been disclosed as an

expert witness and permitting him to testify would be prejudicial.         After hearing

arguments at the pretrial conference, the District Court issued an order excluding

Bridwell and his appraisal.

¶7    The next day, the Folsoms filed a notice stating they would instead rely on David

Folsom’s testimony regarding the value of the Eagle property. Eagle’s Rest filed a

second motion, this one to likewise exclude David Folsom’s testimony as undisclosed

expert testimony, which was also granted by the District Court.

¶8    These motions were disposed of on the eve of trial, which was conducted from

March 23 to 27, 2015. The jury was instructed by the court as follows:

      The Court has decided some issues as a matter of law in this case.
      Specifically, the Court has ruled that the City of Livingston breached the
      parties’ Reimbursement Agreement by failing to pay Plaintiffs the sum of
      $25,436.40 for Buildings A and B in Eagle’s Rest at the time they were
      connected to the water and sewer lines on October 4, 2006.

      The Court has further decided that the City of Livingston cured this breach
      of contract in June of 2014, when it tendered the sum of $25,693.70 to the
      Plaintiffs. The City will be obligated, by the Court’s Order, to pay this sum
      to the Plaintiffs.


                                            5
Because the payback fee issue regarding Buildings A and B was decided as a matter of

law, the special verdict form asked the jury to consider the issue of a payback fee only for

the clubhouse. The form asked: “Did the City of Livingston breach the Agreement with

Recreational Leasing, Inc., by failing to calculate and collect a payback fee for the

Eagle’s Landing clubhouse?”       In answering, the jury selected “no.”      In answer to

questions about the Folsoms’ negligence claim, the jury first found that Livingston was

60% negligent, while the Folsoms were 40% negligent. In answer to the question, “What

amount of money will reasonably compensate Plaintiffs for the injuries caused by

negligence?”, the jury answered: “$17,742 which is 60% of $25,000 error plus $2[,]742

travel compensation.” Additionally, the jury specifically found that no implied contract

existed between the Folsoms and Eagle’s Rest, that Eagle’s Rest did not retain a benefit

conferred by the Folsoms by connecting to Livingston’s water and sewer lines, and that

the Folsoms’ expectation to receive compensation from Eagle’s Rest in the matter was

unreasonable.

¶9     After trial, and upon a motion from Livingston, the District Court ordered the

Folsoms to make an election of remedies—either for breach of contract or for negligence.

The Folsoms elected to recover under breach of contract. The District Court then entered

judgment, specifying that the Folsoms recovered nothing from Eagle’s Rest, but

awarding as to Livingston $25,460.40 in contract damages for Buildings A and B, $2,742

for the Folsoms’ travel expenses, and $2,571 “in damages relative to payback fees for the

clubhouse, which sum is reasonably construed as damages for negligence and is not a

                                             6
form of double damages as the clubhouse payback fee was left to the jury’s

determination.”   The District Court also awarded $140,980 in attorney fees to the

Folsoms as the prevailing party, pursuant to the fee provision in the Agreement. The

District Court awarded almost all of the attorney fees claimed by counsel for the

Folsoms, minus only the billable time spent in pursuing an injunction against the

Defendants.

¶10   The Folsoms appeal the District Court’s decisions in granting the motions in

limine and in instructing the jury. Livingston cross-appeals the award of negligence

damages to the Folsoms, and the award of attorney fees.

                              STANDARD OF REVIEW

¶11   “A motion in limine can seek to prevent or limit the introduction of evidence at

trial, and the authority to grant or deny the motion rests in the inherent power of the

district court to admit or exclude evidence so as to ensure a fair trial. Where a decision

on a motion in limine involves the exercise of discretion, this Court will not overturn the

district court absent an abuse of discretion.” Meek v. Mont. Eighth Judicial Dist. Court,

2015 MT 130, ¶ 9, 379 Mont. 150, 349 P.3d 493 (internal citations omitted) (citing Hulse

v. Dep’t of Justice, 1998 MT 108, ¶ 15, 289 Mont. 1, 961 P.2d 75; and State v. Weldele,

2003 MT 117, ¶ 41, 315 Mont. 452, 69 P.3d 1162). “We review for an abuse of

discretion a district court’s rulings on the admissibility of expert testimony.” Norris v.

Fritz, 2012 MT 27, ¶ 17, 364 Mont. 63, 270 P.3d 79 (citing Weber v. BNSF Ry. Co., 2011

MT 223, 362 Mont. 53, 261 P.3d 984).

                                            7
¶12    “We review jury instructions for an abuse of discretion to determine whether, as a

whole, they fully and fairly instruct a jury on the law applicable to the case.”

Ammondson v. Northwestern Corp., 2009 MT 331, ¶ 30, 353 Mont. 28, 220 P.3d 1 (citing

State v. English, 2006 MT 177, 333 Mont. 23, 140 P.3d 454). “The district court

maintains broad discretion when instructing the jury. The instructions must prejudicially

affect the defendant’s substantial rights to constitute error.” State v. Hudson, 2005 MT

142, ¶ 10, 327 Mont. 286, 114 P.3d 210 (internal citations omitted) (citing State v.

Nelson, 2001 MT 236, 307 Mont. 34, 36 P.3d 405; and State v. Goulet, 283 Mont. 38,

938 P.2d 1330 (1997)).

¶13    Livingston challenges the District Court’s award of negligence damages to the

Folsoms. We review a district court’s conclusion of law for correctness. See Slater v.

Cent. Plumbing & Heating Co., 1999 MT 257, ¶ 13, 297 Mont. 7, 993 P.2d 654. “This

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

authority to award attorney fees. If legal authority exists, we review for an abuse of

discretion a district court’s order granting or denying attorney fees.” City of Helena v.

Svee, 2014 MT 311, ¶ 7, 377 Mont. 158, 339 P.3d 32 (internal citation omitted) (citing

Hughes v. Ahlgren, 2011 MT 189, 361 Mont. 319, 258 P.3d 439).

                                      DISCUSSION

¶14 1. Did the District Court err by excluding expert testimony of a professional
appraiser?

¶15    The Folsoms argue the District Court abused its discretion by excluding the

testimony and report of appraiser Bridwell concerning the value of the Eagle’s Rest
                                             8
property. Eagle’s Rest moved to exclude this testimony because the Folsoms had not

disclosed Bridwell as an expert witness. The Folsoms argue the motions deadline had

long passed and the District Court “should have denied [Eagle Rest’s] motion

immediately for this reason alone.” They also argue that the District Court failed to take

into account that Eagle’s Rest had ample notice of their reliance on Bridwell’s testimony

and report, noting that they had listed Bridwell as a fact witness and had referenced his

report in their pleadings and discovery responses. Eagle Rest responds that it became

aware of the Folsoms’ intention to rely on Bridwell as an expert only when the Folsoms’

pretrial order submissions were received, and promptly sought to exclude this testimony.

¶16   A district court has “broad discretion over the admissibility of evidence and

control of pretrial and trial proceedings.” Stevenson v. Felco Indus., 2009 MT 299, ¶ 32,

352 Mont. 303, 216 P.3d 763. Given the last minute identification of Bridwell as an

expert, we do not fault either the timing of Eagle Rest’s motion or the District Court’s

discretionary determination to take up the issue instead of dismissing it as untimely. See

State v. Wedele, 2003 MT 117, ¶ 66, 315 Mont. 452, 69 P.3d 1162 (it was a matter of the

District Court’s discretion to either “modify the scheduling order and accept the motions”

or to “deny such motions as untimely based upon [a party’s] failure to comply with the

scheduling order.”).

¶17   Further, the District Court correctly cited Superior Enters. LLC v. Mont. Power

Co., 2002 MT 139, 310 Mont. 198, 49 P.3d 565, where, as here, a witness had been

disclosed as a lay witness, but ended up providing expert testimony. Superior Enters.,

                                            9
¶ 14. We reversed, concluding that because the defendant did not identify the witness as

an expert in discovery disclosures, it was an abuse of discretion for the District Court to

allow the expert testimony. Superior Enters., ¶ 20. We conclude the District Court did

not abuse its discretion in excluding Bridwell’s expert testimony.

¶18 2. Did the District Court err in granting the motion in limine that prevented
David Folsom from testifying as an expert at trial?

¶19    The District Court also granted Eagle’s Rest’s motion to exclude David Folsom’s

testimony about the value of the Eagle’s Rest property because he had not previously

been disclosed as an expert witness.       The Folsoms argue that the District Court

erroneously classified David Folsom’s testimony as expert in nature and that this Court

has held that a lay person may testify as to the value of real property if she or he is

familiar with the property in question, citing State v. Peterson, 134 Mont. 52, 328 P.2d

617 (1958).

¶20    Folsom’s proposed testimony about the subject property’s value included average

sale prices of Eagle’s Rest condominiums and Eagle’s Rest’s net land development

profit, “based on public information and the land development experience of David

Folsom.” The District Court reasoned that the proposed testimony was “beyond what is

presumed to be possessed by men generally[,]” and did not abuse its discretion by ruling

that Folsom’s testimony was expert in nature.        See Superior Enters., ¶ 14 (“[The

witness’] testimony relates information which is not within common knowledge or

experience of lay people and is, therefore, in the nature of expert testimony.”). Despite

the fact that Folsom was essentially attempting to provide the same testimony that
                                            10
Bridwell would have offered, he had likewise not been disclosed as an expert witness.

The Folsoms argue that David Folsom’s land development experience was revealed in

discovery, early in the litigation, but at that point in time, David Folsom was simply a

plaintiff and a potential lay witness. As we said in Superior Enters., ¶ 19, “[f]or purposes

of trial preparation, there is a big difference between knowing about a factual witness and

understanding that he will be called as an expert witness by your opponent.”

¶21    As with Bridwell, the District Court did not abuse its discretion in excluding

David Folsom’s expert testimony at trial.

¶22    3. Did the District Court properly instruct the jury regarding unjust enrichment?

¶23    The Folsoms argue that the unjust enrichment instruction erroneously excluded the

requirement of necessary restitution in the event the jury found that Eagle’s Rest had

been unjustly enriched, and erroneously stated that the plaintiff must show misconduct on

the part of the defendant in order to recover for unjust enrichment. However, the jury

was instructed about the basic elements of unjust enrichment (“the retention of a benefit

conferred . . . in circumstances where compensation is reasonably expected”), and

specifically found these basic elements had not occurred. Therefore, the jury never

reached further issues involved in a claim of unjust enrichment. Reviewed as a whole,

we find no reversible error in these instructions.

¶24    The Folsoms argue the instructions regarding implied contracts incorrectly

included superfluous instructions regarding express contracts.         The District Court

instructed the jury that an agreement can be reached between two parties by their conduct

                                             11
if it appears that the parties mutually intended to agree. However, the jury specifically

found that no implied contract existed between the Folsoms and Eagle’s Rest, and

therefore, any additional instructions regarding the elements of express contracts would

have been unnecessary. Reviewed as a whole, we find no reversible error.

¶25     The Folsoms argue that the District Court erroneously instructed the jury that if

the plaintiffs did not prove unjust enrichment, then the jury must dismiss the claim for

quantum meruit damages. The Folsoms argue that they “may prove unjust enrichment in

the form of ELC’s increased property value, even if they don’t prove quantum meruit.”

We have previously held that quantum meruit is the measure of equitable damages in an

unjust enrichment action. See Storms v. Bergsieker, 254 Mont. 130, 133, 835 P.2d 738,

740-41 (1992). The jury was instructed that “[i]f you determine that Eagle’s Rest, LLC

has been unjustly enriched, you must calculate the damages based upon the evidence

provided by the plaintiffs. The measure of damages for a claim of unjust enrichment is

. . . quantum meruit. . . .” However, the jury found that no unjust enrichment had

occurred to entitle the Folsoms to any equitable damages. It was not error for the District

Court to instruct the jury not to consider the damages that would follow unjust

enrichment if that claim had been not proven. We affirm the instructions given to the

jury.

¶26 4. Did the District Court err by awarding negligence damages to the Folsoms in
view of their election of breach of contract damages?

¶27     The question of Livingston’s failure to collect payback fees for the clubhouse as a

breach of contract claim, and damages to compensate the Folsoms for Livingston’s
                                            12
negligence, were separate questions of fact asked of the jury on the verdict form. The

issue of breach of contract damages for the payback fees for Buildings A and B was

never put to the jury. Instead, the District Court instructed the jury that this issue had

already been decided as a matter of law. Accordingly, the verdict form asked the jury to

find whether Livingston breached the Agreement by failing to collect a payback fee for

the clubhouse.    The jury stated “No.”      However, the jury nonetheless found that

Livingston was 60% negligent and that the Folsoms were entitled to 60% of the damages

associated with failure to pay the payback fees for Buildings A and B ($15,000), and 60%

of the claimed travel expenses ($2,742). Livingston moved the District Court to require

the Folsoms to elect their remedy either under breach of contract or negligence, and the

District Court did so. The Folsoms chose breach of contract. Thus, they received an

award of $25,436.40 in contract damages—decided as a matter of law before trial—but

also were granted $2,742 for travel expenses the jury had awarded in negligence, and

$2,571 for clubhouse payback fees. On cross-appeal, Livingston argues that the District

Court erred by awarding the travel expenses as negligence damages because it contradicts

the District Court’s own reasoning that the Folsoms must choose one remedy or the other.

In addition, Livingston argues that the District Court erred in awarding the payback fee

for the clubhouse, as this award of damages had no basis whatsoever in the jury’s verdict.

¶28   In response to the election of remedy motion, the District Court initially observed

that “the jury could not consider any damages for [Livingston’s] failure to pay [the

Folsoms] for the connection of [Eagle Rest’s] Buildings A and B” because the jury had

                                            13
been instructed that this breach had been cured by Livingston and that Livingston was

already obligated to pay these fees. It thus concluded that a damage award for payback

fees on Buildings A and B based upon breach of contract and a negligence damage award

based upon the same issue would constitute a double recovery, and required the Folsoms

to elect their remedy between breach of contract and negligence.                 It has been

acknowledged that potential liability in tort may coexist with potential liability in

contract, and in such a case, “an injured party has the right to elect which form of action

he will pursue.” Corp. Air v. Edwards Jet Ctr. Mont. Inc., 2008 MT 283, ¶ 49, 345 Mont.

336, 190 P.3d 1111 (citing Thiel v. Taurus Drilling, 218 Mont. 201, 710 P.2d 33 (1985)).

An exclusive availability of remedy is not always the case, as we have previously stated:

       A cause of action may sound in tort although it arises out of a breach of
       contract, if a defaulting party, by breaching the contract, also breaches a
       duty which he owes to the other party independently of the contract. . . .
       [A] tort arises out of a breach of contract if the party also breaches a duty
       which he owes to another independently of the contract, and which duty
       would exist even if no contract existed.

Boise Cascade Corp. v. First Sec. Bank, 183 Mont. 378, 392, 600 P.2d 173, 181 (1979)

(internal quotation marks and citation omitted). Here, there were not independent duties,

and the District Court was well within its power to direct the Folsoms to elect one form

of remedy over another for the fees on Buildings A and B, citing for additional support

§ 27-1-303, MCA (“A person may not recover a greater amount in damages for the

breach of an obligation than the person could have gained by the full performance of the

obligation on both sides unless a greater recovery is specified by statute.”).


                                             14
¶29    It is clear that the District Court understood the election of remedies requirement

to apply only to the damages associated with the payback fees for Buildings A and B.

The jury specifically awarded damages of $2,742 for “travel compensation” under

negligence, which the District Court determined did not duplicate any damages Fossums

had obtained by their breach of contract claim. See Renville v. Taylor, 2000 MT 217,

¶ 14, 301 Mont. 99, 7 P.3d 400 (“The function of this Court is not to agree or disagree

with a jury’s verdict.”); Sandman v. Farmers Ins. Exchan., 1998 MT 286, ¶ 41, 291

Mont. 456, 969 P.2d 277 (“Moreover, in our review of jury verdicts in civil cases, we

have stated . . . that we do not decide whether the verdict was correct or whether the jury

made the right decision; that we will not lightly overturn the verdict of a finder of fact,

especially a jury . . . .”) (citation omitted). We therefore affirm the District Court’s

judgment of $2,742 in travel expenses.

¶30    However, the District Court’s decision to award the $2,571 for payback fees for

the clubhouse is without basis in the jury’s verdict. In awarding this amount, the District

Court stated, “[the Folsoms] are further entitled to the $2[,]571 in damages relative to

payback fees for the clubhouse, which sum is reasonably construed as damages for

negligence and is not a form of double damages as the clubhouse payback fee was left for

the jury’s determination.” The jury did make a determination on this issue, specifically

finding that Livingston had not breached the contract in regard to the clubhouse fees.

Neither did the jury award these damages under negligence. There being no award of this




                                            15
amount by the jury, the District Court contradicted the verdict and erred by granting this

amount, and we reverse this award of damages.

¶31    5. Did the District Court err in awarding attorney fees to the Folsoms?

¶32    Livingston argues “the District Court abused its discretion by awarding Folsoms

attorney fees incurred in prosecuting all of their tort claims.” Notably, Livingston does

not dispute the District Court’s conclusion that the Folsoms were the prevailing party and

were entitled to an award of reasonable attorney fees, but, rather, argues that the amount

of the award—$140,980—was not reasonable. We affirm an award of attorney fees to

the Folsoms, but reverse the amount of the award as unreasonable, and remand to the

District Court for reconsideration.

¶33    In general, attorney fees are available only when provided for by statute or by

contract. See Blue Ridge Homes, Inc. v. Thein, 2008 MT 264, ¶ 78, 345 Mont. 125, 191

P.3d 374 (“A court may award attorney fees only where a statute or contract provides for

their recovery.”) (citation omitted). Fees are not generally available for tort claims. The

Agreement provided for attorney fees to the prevailing party for claims arising

thereunder. Further, “[alt]hough reviewed for abuse of discretion, an award of attorneys’

fees must be reasonable.” Houden v. Todd, 2014 MT 113, ¶ 37, 375 Mont. 1, 324 P.3d

1157 (citation omitted).    In determining whether an award is reasonable, we have

previously articulated non-exclusive guidelines for the district courts to consider. These

guidelines include: “(1) the amount and character of the services rendered; (2) the labor,

time and trouble involved; (3) the character and importance of the litigation in which the

                                            16
services were rendered; (4) the amount of money or the value of the property to be

affected; (5) the professional skill and experience called for; (6) the attorneys’ character

and standing in their profession; and (7) the results secured by the services of the

attorneys.” Plath v. Shonrock, 2003 MT 21, ¶ 36, 314 Mont. 101, 64 P.3d 984 (citation

omitted).

¶34    Livingston argues that the “results secured” in this case highlight that the award of

almost all of the Folsoms claimed attorney fees was unreasonable. Early in the case,

Livingston made a formal offer of judgment for the breach of contract damages, in the

amount of $25,693.70, “together with costs and reasonable attorney’s fees to be

determined by the Court.” This offer was rejected, and the case was litigated through

trial. In 2014, once Eagle’s Rest had been named a defendant in the Second Amended

Complaint, Livingston delivered a check to Alana Folsom in the amount of $25,693.70.

The check was returned to the city, uncashed. The Folsoms ultimately claimed over

$1,000,000 in damages stemming from the breach of the Agreement, but, after trial,

received a small damage award in the range of the pretrial offers.

¶35    As the District Court noted, the Folsoms’ actual recovery was “minimal in light of

their demand.” After several years of litigation, the Folsoms essentially received what

Livingston had offered them all along, making the “results secured” factor a significant

one in the determination of reasonable attorney fees here. We conclude it was an abuse

of discretion for the District Court to award essentially all of the attorney fees incurred by

the Folsoms, including those associated with their tort claims, and we, therefore, reverse

                                             17
the award. We remand for consideration of an award that would more appropriately

reflect what the litigation accomplished.

¶36    Affirmed in part, reversed in part, and remanded for further proceedings consistent

with this opinion.



                                                 /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA


Justice James Jeremiah Shea, concurring.

¶37    I concur fully with the Court’s opinion. I write separately to address the Folsoms’

counsel’s baseless, and completely inappropriate, ad hominem attack on the District

Court Judge who presided over this case.

¶38    The Folsoms’ counsel devotes an entire section of his opening brief before this

Court to allegations that the District Court Judge essentially engaged in public

malfeasance because she “was simply not going to allow the Plaintiffs the potential of a

large jury verdict, and the ensuing publicity for the Court.” I will not go into the

substance—or, more appropriately, lack thereof—of these allegations because, aside from

the fact that the record divulges no basis for them, their lack of merit and relevancy is

best illustrated by the Folsoms’ counsel’s own admission that “these actions of the Court
                                            18
are not part of this appeal.” This then begs the question: So why make these allegations

if not to gratuitously malign a member of the judiciary?

¶39    The Folsoms’ counsel’s criticism of the District Court Judge is further belied by

the fact that this Court has unanimously affirmed the District Court’s rulings on all of the

Folsoms’ assignments of error. Ironically the only error we have found in this case is the

District Court’s award to the Folsoms of some damages to which they were not entitled,

Opinion, ¶ 30, and the District Court’s award of essentially all of the Folsoms’ attorney

fees, which we have concluded is incommensurate with what the Folsoms’ counsel

actually accomplished with this litigation, Opinion, ¶ 35.

¶40    Eagle’s Rest points out in its brief that the Folsoms’ counsel’s attack on the

District Court Judge appears to violate M. R. Prof. Conduct 8.2(a), which provides, in

pertinent part:

       A lawyer shall not make a statement that the lawyer knows to be false or
       with reckless disregard as to its truth or falsity concerning the qualifications
       or integrity of a judge, adjudicatory officer or public legal officer . . . .

Eagle’s Rest’s point may be well taken. If there is a legitimate basis for the Folsoms’

counsel’s allegations of malfeasance towards the District Court Judge in this case, I

cannot find it in the record before this Court. That being noted, due process requires that

we refrain from making that judgment at this juncture. This is more appropriate for

consideration by the Commission on Practice.


                                                  /S/ JAMES JEREMIAH SHEA


                                             19
