                                                                                           September 3 2013
                                          DA 12-0506

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2013 MT 247



L. FRED WEAVER, JOAN WEAVER,
and VICKI WEAVER,

               Plaintiffs, Appellees, and Cross-Appellants,

         v.

STATE OF MONTANA and MONTANA
DEPARTMENT OF NATURAL RESOURCES
AND CONSERVATION,

               Defendants, Appellants, and Cross-Appellees.


APPEAL FROM:           District Court of the Third Judicial District,
                       In and For the County of Granite, Cause No. DV 02-25
                       Honorable Ray J. Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Robert E. Sheridan, Jeffrey M. Roth; Garlington, Lohn & Robinson,
                       PLLP; Missoula, Montana

                For Appellees:

                       Quentin M. Rhoades, Liesel Shoquist, Robert Erickson; Sullivan,
                       Tabaracci & Rhoades, P.C.; Missoula, Montana


                                                   Submitted on Briefs: June 12, 2013

                                                               Decided: September 3, 2013



Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     The State of Montana appeals a Granite County jury’s verdict awarding damages

to L. Fred Weaver, Joan Weaver and Vicki Weaver (the Weavers) from the State’s

negligent fire containment procedures on their real property. The Weavers cross-appeal

the Third Judicial District Court’s denial of their post-trial motion for sanctions. The

State raises the following issues on appeal:

¶2    1. Whether the District Court erred when it denied the State’s motion to dismiss
the Weavers’ negligence claim.

¶3    2. Whether the District Court erred when it granted the Weavers’ motion to strike
and prohibited the State from asserting a public duty doctrine defense.

¶4     3. Whether the District Court incorrectly allowed the jury to find the State
negligent in the absence of expert testimony establishing the standard of care.

¶5     4. Whether the District Court abused its discretion by denying the State’s motion
to change venue.

¶6     The Weavers raise one issue in their cross-appeal:

¶7     Whether the District Court abused its discretion by denying the Weavers’ motion
for discovery sanctions against the State.

¶8     We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶9     On August 7, 2000, a wildland fire started in the Ryan Creek drainage north of

Interstate 90 in Granite County, near the Weavers’ real property.         Among other

procedures employed to contain what became known as the Ryan Gulch Fire, the State

initiated a “back burn” fire, a technique used to decrease the amount of flammable


                                          2
material in the fire’s path. On August 13, 2000, fire spread onto the Weavers’ property,

causing substantial damage.

¶10    On December 17, 2002, the Weavers filed a complaint alleging that the State

failed to “exercise ordinary care in the control, suppression and containment of the Ryan

Gulch Fire.” The Weavers alleged that their property was not damaged by the original

Ryan Gulch Fire, but instead by the back burn fire, which the State had failed to control.

The Weavers alleged that the State negligently started the back burn fire, in “high wind

conditions without adequate means of control and/or suppression.” Additionally, the

Weavers alleged that the back burn fire was unnecessary because the original wildland

fire already had been contained through the efforts of local ranchers and farmers. The

Weavers sustained damage to “timber, grazing land, natural resources and other

property.”   On February 13, 2003, the State filed an answer denying liability for

negligence and inverse condemnation and pleading several defenses.             The parties

engaged in discovery for some period of time and the case then lay dormant for

approximately six years before the Weavers obtained new counsel in 2010. In November

2010, the District Court issued a scheduling order directing the parties to submit all

motions by December 16, 2011, and to present the pretrial order and file all trial briefs by

March 16, 2012. The court set the trial date for April 9, 2012.

¶11    The Weavers amended their complaint on April 21, 2011, to add a claim of inverse

condemnation, alleging that the State damaged their property for public use. The State




                                         3
answered the amended complaint, again asserting several defenses.          Neither answer

raised the public duty doctrine as a defense.

¶12     In accordance with the scheduling order, the parties submitted their proposed

pretrial order and respective trial briefs on March 16, 2012. The Weavers’ trial brief was

directed exclusively to their inverse condemnation claim. The pretrial order included the

State’s contention that it was not liable to the Weavers under the public duty doctrine

because, when a “governmental entity owes a duty to the general public, that duty is not

owed to any specific individual.” The State presented legal argument on this contention

in its trial brief.

¶13     Both parties filed motions in response to the other’s trial brief. The Weavers

moved to strike the public duty doctrine defense because the State raised it for the first

time in the proposed pre-trial order; they argued that the public duty doctrine is an

affirmative defense under M. R. Civ. P. 8(c) that is waived if not pleaded. The District

Court agreed that the State was required to plead the public duty doctrine as an

affirmative defense and granted the motion to strike. The court held that, even if it was

not an affirmative defense, the State’s “failure to plead or otherwise raise the defense has

prejudiced Plaintiffs.”

¶14     In response to the Weavers’ trial brief, the State moved to dismiss based on an

alleged judicial admission in the brief that the State’s fire management procedures were

“reasonable and necessary,” rather than negligent. The next day, the Weavers filed a

Notice of Errata to correct the language the State had cited in support of its motion.

                                          4
Following argument from both parties, the District Court denied the State’s motion in

open court at the conclusion of a pretrial hearing.

¶15    The State moved for a change of venue on March 29, 2012, due to publication of

three articles in the March 8, 2012 edition of the local newspaper, which the State argued

contained biased and inflammatory comments that contaminated the potential jury pool.

The District Court denied that motion in open court as well. The court considered

whether the State had shown either presumed or actual prejudice, pursuant to State v.

Kingman, 2011 MT 269, 362 Mont. 330, 264 P.3d 1104. The court determined that the

State failed to show presumed prejudice and that the existence of actual prejudice could

not be evaluated until the parties had conducted voir dire.

¶16    After eight days of trial, the jury reached a verdict against the Weavers on their

claim of inverse condemnation, but decided that the State negligently caused damage to

the Weavers’ property. By a vote of nine to three, the jury awarded damages to the

Weavers in the amount of $730,000. Following the trial, the Weavers filed a “Motion for

Entry of Judgment on Jury Verdict,” requesting sanctions on the ground that the State had

committed “prejudicial discovery abuse” by providing inaccurate dates in the captions of

photographs of the wildfire, some of which were produced during discovery. A witness

for the State had corrected the photograph dates at trial. The District Court denied the

motion, “given the verdict in favor of the Plaintiffs” and “lack of prejudice and bad

faith.” The State appeals the jury’s verdict and the Weavers cross-appeal the District




                                          5
Court’s denial of sanctions. Additional facts from the record and applicable standards of

review will be discussed with respect to each issue.

                                     DISCUSSION

¶17 1. Whether the District Court erred when it denied the State’s motion to dismiss
the Weavers’ negligence claim.

¶18    As noted, the State sought dismissal of the negligence claim based on the

statement in the Weavers’ trial brief that the State’s firefighting measures were

“reasonable and necessary”—a statement the State argues constituted a judicial

admission.

       Standard of Review

¶19    Where error has been predicated on the determination of a judicial admission, our

cases have applied the typical standard of review for findings of fact and conclusions of

law. That is, we review a district court’s factual findings to determine whether they are

clearly erroneous and its conclusions of law for correctness. See e.g. Hart v. Hart, 2011

MT 102, ¶ 10, 360 Mont. 308, 258 P.3d 389; Conagra, Inc. v. Nierenberg, 2000 MT 213,

¶¶ 22-23, 301 Mont. 55, 7 P.3d 369. 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 Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 75, 358 Mont.

474, 247 P.3d 244 (“The District Court correctly ruled that Stevens’ statements made in

prior pleadings were not judicial admissions because they were not statements of fact.”).

Ultimately, a district court’s determination whether a statement constitutes a judicial

admission “depends upon the circumstances of each case.” Kohne v. Yost, 250 Mont.
                                         6
109, 113, 818 P.2d 360, 362 (1991). As such, we will review that determination for an

abuse of discretion. American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 227 (9th

Cir. 1988) (“[S]tatements of fact contained in a brief may be considered admissions of the

party in the discretion of the district court.”); see also Gospel Missions of Am. v. City of

L.A., 328 F.3d 548, 557 (9th Cir. 2003) (“We have discretion to consider a statement

made in briefs to be a judicial admission, . . . binding on both this court and the trial

court.” (citations omitted)).

       Analysis

¶20    A judicial admission is a statement or “express waiver” made in a court

proceeding by a party or its counsel “conceding the truth of an alleged fact.” Bitterroot

Int’l Sys. v. Western Star Trucks, Inc., 2007 MT 48, ¶ 41, 336 Mont. 145, 153 P.3d 627.

Judicial admissions may be made at “‘any point during the litigation process,’ including

‘during discovery, pleadings, opening statements, direct and cross-examination, as well

as closing arguments.’” Novartis, ¶ 74 (quoting In re Est. of Hill, 281 Mont. 142, 149-50,

931 P.2d 1320, 1325 (1997)). “A judicial admission has a conclusive effect upon the

party who makes it, and prevents that party from introducing further evidence to prove,

disprove, or contradict the admitted fact.” Hart, ¶ 14 (quoting Bitteroot Int’l Sys., ¶ 41).

A judicial admission is not binding unless it is “an unequivocal statement of fact and not

the expression of an opinion or a legal conclusion.” Papich v. Quality Life Concepts,

Inc., 2004 MT 116, ¶ 31, 321 Mont. 156, 91 P.3d 553 (citation omitted).




                                         7
¶21    The Weavers’ trial brief did not address their claim of negligence, but focused

exclusively on their inverse condemnation claim:

       This was not an irrational decision given the cost to society in shutting
       down the power supply for hundreds of thousands of people in Missoula
       and the Inland Northwest, in destroying telephone and 911 equipment, in
       closing [Interstate 90], in burning up the radio gear at Union Peak or losing
       the historic site of Garnet. 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. But the destruction of the
       Weaver Ranch to serve the great[er] good was, ultimately, a taking.

¶22    The day after the State moved to deem the above statement a judicial admission,

the Weavers filed a notice of errata due to an alleged “scriveners’ error,” amending their

trial brief to read:

       Whether or not it was 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, the destruction of the Weaver Ranch to serve the greater
       good was, ultimately, a taking.

The State asserted that even the amended trial brief reflected a theme that the State’s

fire-fighting measures were reasonable and appropriate given the circumstances. The

District Court denied the State’s motion based on its observation that the statement

concerned the Weavers’ alternative inverse condemnation claim and its determination

that the disputed portion of the Weavers’ trial brief constituted a conclusion of law, not

an admission of fact.

¶23    The State argues that the above-quoted language characterizes what the

firefighting team did while suppressing the fire and thus constitutes an admission of fact.

According to the State, “the Weavers conceded the State acted reasonably.”              The

                                         8
Weavers assert that they “admitted no facts” in their trial brief and point out that the

issues of law stipulated in the pretrial order included whether the State’s actions in

fighting the fire were reasonable. In the event that the statement in their pretrial brief

amounted to a judicial admission, the Weavers argue that they promptly withdrew it upon

discovery of their “scrivener’s error.”

¶24    We agree with the District Court that the relevant language in the Weavers’

pretrial brief was not an “unequivocal statement of fact.” Papich, ¶ 31. As the District

Court noted, the trial brief addressed the Weavers’ inverse condemnation claim, not their

alternative claim of negligence. See Novartis, ¶ 70 (pleadings “permit hypothetical and

inconsistent claims”). Further, whether the State “acted reasonably” in directing the fire

to the east was not a fact, but a legal conclusion to be based on the facts found by the

jury. Novartis, ¶¶ 73-75 (statement in pleading that doctor was negligent for failure to

communicate risk was a conclusion of law and therefore not a judicial admission).

¶25    Kohne v. Yost, on which the State relies, is not controlling. There, we held that a

jury verdict finding the defendant not negligent could not stand where defense counsel

conceded negligence during closing arguments and admitted that his client had fired a

B.B. gun at the plaintiff. Kohne, 250 Mont. at 110-111, 818 P.2d at 360-361. We held

that the “[d]efense counsel’s unequivocal statements, taken in full context with the rest of

his closing argument, constituted judicial admissions on the issue of negligence binding

his client.” Kohne, 250 Mont. at 113, 818 P.2d at 362. The Kohne court did not analyze

separately which of counsel’s statements were admissions of fact as opposed to

                                          9
conclusions of law, but examined the statements as a whole in light of the circumstances

of the case. Kohne, 250 Mont. at 113, 818 P.2d at 362. Here, in contrast to Kohne, the

context surrounding the Weavers’ statement indicates it was not an admission of fact on

their alternative theory of negligence.

¶26    In further contrast to Kohne, the Weavers immediately modified the disputed

language to clarify their intended meaning. See Conagra, Inc., ¶ 45 (a judicial admission

is “not effective if it was subsequently modified or explained so as to show that the

litigant was mistaken” (quoting Griffin v. Superior Ins. Co., 338 S.W.2d 415, 418 (Tex.

1960)) (internal quotation marks omitted)). Based on its review of the circumstances of

this case, the District Court did not abuse its discretion in determining that the statement

did not constitute a judicial admission.

¶27 2. Whether the District Court erred when it granted the Weavers’ motion to strike
and prohibited the State from asserting a public duty doctrine defense?

       The District Court’s Ruling

¶28    The Weavers’ amended complaint alleged that the State “owed a duty to [the

Weavers] to act in a reasonable manner and to exercise ordinary care in the control,

suppression and containment of the Ryan Gulch Fire.”            The State answered that

allegation as follows: “Answering paragraph 13, admits that the State owed to the

Plaintiffs any duties prescribed by law, but deny the remaining assertions of said

paragraph.” The State did not mention the public duty doctrine in its answer or file any

pretrial motions on the issue.


                                           10
¶29    On March 16, 2012—three weeks before the trial began—the State filed its trial

brief. For the first time since the Weavers filed their complaint in 2002, the State

asserted in that brief that the Weavers’ negligence claim was fatally flawed because they

could not establish that the State owed them a duty of reasonable care pursuant to the

public duty doctrine. The State summarized its position in the Pretrial Order:

       The existence of a legal duty is a question of law to be determined by the
       Court. If there is no duty, there can be no breach of duty and a requisite
       element of a negligence claim is missing. Montana has adopted the public
       duty doctrine[,] which provides that where a governmental entity owes a
       duty to the general public, that duty is not owed to any specific individual.
       Montana Code Annotated § 76-13-115, which sets forth the State fire
       policy[,] provides in part, “(5) all private property in Montana has wildfire
       protection from a recognized fire protection entity.” Thus, with regard to
       [the State’s] efforts to suppress the Ryan Gulch fire, there was no duty to
       specific individuals such as the [Weavers,] but only to the general public.

¶30    In the Weavers’ motion to strike this argument from the Pretrial Order, they

argued that the “State should not be allowed to include . . . matters in the Pretrial Order

that it did not include in its pleadings” as either contentions or affirmative defenses

because allowing such a tactic deprived the Weavers of “fair notice, possibl[e] discovery,

and the opportunity for motion practice . . . .”

¶31    After determining that the public duty doctrine was an affirmative defense that

should have been raised in the State’s answer, the court ruled as follows:

       Even if the public duty doctrine does not constitute an “avoidance” or
       affirmative defense under M. R. Civ. P. 8(c), Defendants’ failure to plead
       or otherwise raise the defense has prejudiced Plaintiffs. Defendants’
       pleadings do not provide Plaintiffs with notice that the public duty doctrine
       would be asserted as a defense. The [State’s] Amended Answer does not
       assert any specific defenses with respect to a duty. The Court’s review of
       the file indicates that the public duty doctrine was not raised by Defendants
                                          11
       at any time prior to its inclusion in the [Pretrial Order]. Defendants’ failure
       to raise the public duty doctrine earlier in this case has prejudiced the
       ability of Plaintiffs to conduct discovery and gather facts that might defeat
       the defense. Under these circumstances, it would be prejudicial and unfair
       to permit Defendants to assert the public duty doctrine on the eve of trial.

       Standard of Review

¶32    Because the District Court granted the motion to strike based on its determination

that the Weavers would be prejudiced by the State’s failure to raise the issue until three

weeks before trial, we review its determination for abuse of discretion as a matter of trial

administration. Fink v. Williams, 2012 MT 304, ¶ 18, 367 Mont. 431, 291 P.3d 1140;

Blanton v. Dep’t of Pub. HHS, 2011 MT 110, ¶ 22, 360 Mont. 396, 255 P.3d 1229.

       Analysis

¶33    The State asserts that the District Court erroneously held that it was required to

plead the public duty doctrine as an affirmative defense. Since the public duty doctrine

“asks whether liability exists in the first place—whether a duty is owed under the facts—

not whether the defendant can avoid liability despite the existence of a duty,” the State

argues that it does not qualify as an affirmative defense. The State does not address the

District Court’s alternative rationale for striking the defense—that the State prejudiced

the Weavers by asserting it at such a late date.

¶34    M. R. Civ. P. 8(c)(1) provides that “[i]n responding to a pleading, a party must

affirmatively state any avoidance or affirmative defense . . . .” We have explained the

distinction between a denial under M. R. Civ. P. 8(b) and an affirmative defense under

Rule 8(c): “Rule 8(b), M.R.Civ.P., ‘is concerned with negative defenses—those that

                                          12
controvert the adversary’s claim. Rule 8(c), on the other hand, is concerned with

affirmative defenses—the pleading of matter that is not within the claimant’s prima facie

case.’” Burns v. Cash Constr. Lien Bond, 2000 MT 233, ¶ 32, 301 Mont. 304, 8 P.3d 795

(quoting Sterrett v. Milk River Prod. Credit Ass’n, 234 Mont. 459, 463-64, 764 P.2d 467,

469 (1988)).

¶35    The parties point out that this Court has not addressed whether the public duty

doctrine is an affirmative defense that must affirmatively be pleaded under M. R. Civ. P.

8(c). Given the manner in which this case was pleaded and in which it proceeded, and in

light of the District Court’s ultimate basis for its ruling, we determine that this is not the

appropriate case in which to decide that question. We have observed that Rule 8(c)

concerns the underlying principles of “fairness and notice.” Ammondson v. Northwestern

Corp., 2009 MT 331, ¶ 55, 353 Mont. 28, 220 P.3d 1. Likewise, under Rule 8(b), a

defendant’s pleading must “apprise the opponent of those allegations in the complaint

that stand admitted and will not be in issue at trial and those that are contested and will

require proof to be established to enable the plaintiff to prevail.” Wright & Miller,

Federal Practice and Procedure: Civil 3d § 1261, 526 (West 2004). Because the State

raised the public duty doctrine so close to the date of trial, the District Court concluded

that the Weavers would have no opportunity to explore applicability of the doctrine to

their case, such as whether any special relationship exception applied (e.g. Nelson v.

State, 2008 MT 336, ¶ 36, 346 Mont. 206, 195 P.3d 293); likewise, there was inadequate

time for the issue to be briefed and considered by the court before trial. Given that the

                                          13
State’s answer did not unequivocally deny the existence of a duty, and given further its

failure to raise the issue of duty—an issue of law—at any time prior to filing its trial

brief, the District Court was within its discretion to hold that the Weavers had not

sufficiently been put on notice that the State intended to invoke the public duty doctrine

and that it would unfairly prejudice them to allow the issue to be raised at that late stage

in the proceedings.

¶36    “In determining whether a trial court abused its discretion, the question is not

whether the reviewing court agrees with the trial court, but rather whether the trial court

acted arbitrarily without the employment of conscientious judgment or exceeded the

bounds of reason, resulting in substantial injustice.” State v. Price, 2006 MT 79, ¶ 17,

331 Mont. 502, 134 P.3d 45. We do not decide in this case whether or not the public

duty doctrine is an affirmative defense or whether or not it could apply to claims arising

from government efforts to suppress wildfires. We hold only that the District Court did

not abuse its discretion in striking the defense under the circumstances presented here.

¶37 3. Whether the District Court incorrectly allowed the jury to find the State
negligent in the absence of expert testimony establishing the standard of care.

       Standard of Review

¶38    This Court generally “do[es] not address issues raised for the first time on appeal.”

Robison v. Mont. Dept. of Revenue., 2012 MT 145, ¶ 26, 365 Mont. 336, 281 P.3d 218.

       Analysis

¶39    The State argues that the Weavers failed to establish through expert testimony the

standard of care for wildfire suppression and, as a result, also failed to establish the
                                         14
elements of breach and causation in support of their negligence claim. On that basis, the

State contends that the Weavers did not meet their burden of proof and “their negligence

claim failed as a matter of law.”

¶40    The Weavers argue that the State waived review of this issue by failing to raise it

before the District Court. In particular, the Weavers point out that the State did not

challenge the instructions provided to the jury regarding duty, breach and causation, nor

did it move at any time for judgment as a matter of law. The State does not address the

waiver argument in its reply brief.

¶41    The trial court instructed the jury on the standard of care as follows:

       Every person or entity is responsible for injury to the property of another,
       caused by its negligence.

       Negligence is the failure to use reasonable care. Negligence may consist of
       action or inaction. A person or entity is negligent if they fail to act as an
       ordinarily prudent person would act under the circumstances.

The State did not object to this instruction, and in fact proposed a virtually identical

instruction.   There was no discussion during settlement of instructions that expert

testimony had not been offered sufficient to establish the standard of care.

¶42    “Under Montana law, expert testimony is required to establish the standard of care

‘unless the conduct complained of is readily ascertainable by a lay[person].’” Brookins v.

Mote, 2012 MT 283, ¶ 63, 367 Mont. 193, 292 P.3d 347 (quoting Deaconess Hosp. v.

Gratton, 169 Mont. 185, 189, 545 P.2d 670, 672 (1976)). Where the standard of care

must be established by expert testimony, it is well-established that without such expert

testimony, “no genuine issue of material fact exists and the defendant is entitled to
                                         15
judgment as a matter of law.” Estate of Willson v. Addison, 2011 MT 179, ¶ 17, 361

Mont. 269, 258 P.3d 410 (citing cases). The State did not object to instructing the jury on

the Weavers’ claim of negligence on the basis that they had failed to prove an essential

element of their cause of action. Although the State argues on appeal that Richard

Mangan, the Weavers’ expert on fire suppression efforts, failed to establish the standard

of care for managing the fire, the State did not object to his testimony on that ground, nor

did the State move for judgment as a matter of law for the Weavers’ failure to present

evidence of breach of the applicable standard of care. Both cases the State cites in

support of its position that expert testimony was required are cases in which this Court

upheld summary judgment. Dayberry v. City of E. Helena, 2003 MT 321, 318 Mont.

301, 80 P.3d 1218; Dubiel v. Mont. Dept. of Transp., 2012 MT 35, 364 Mont. 175, 272

P.3d 66.

¶43    We agree with the Weavers that the State “cannot now claim that it was denied

something that was never requested of, or actually denied by, the District Court.”

Schwabe v. Custer’s Inn Assocs., 2000 MT 325, ¶ 57, 303 Mont. 15, 15 P.3d 903

(overruled on other grounds, Giambra v. Kelsey, 2007 MT 158, ¶ 58, 338 Mont. 19, 162

P.3d 134); see Horn v. Bull River Country Store Props., 2012 MT 245, ¶ 25, 366 Mont.

491, 288 P.3d 218 (“We will not place the District Court in error ‘for an action to which

the appealing party acquiesced . . . .’” (quoting In re A.A., 2005 MT 119, ¶ 26, 327 Mont.

127, 112 P.3d 993)); § 1-3-207, MCA. The State does not cite any instance in the record




                                         16
where it objected to the Weavers’ failure to present sufficient evidence on the standard of

care. We conclude that the State has waived review of this issue.

¶44 4. Whether the District Court abused its discretion by denying the State’s motion
to change venue.

       Standard of Review

¶45    We review a district court’s ruling on a motion for change of venue for an abuse of

discretion. Eklund v. Wheatland Co., 2009 MT 231, ¶ 15, 351 Mont. 370, 212 P.3d 297.

“The trial judge is uniquely positioned to assess whether a change of venue is called for

due to prejudice in the community.” State v. Kingman, 2011 MT 269, ¶ 40, 362 Mont.

330, 264 P.3d 1104.

       Analysis

¶46    Section 25-2-201, MCA, provides in relevant part that “[t]he court or judge must,

on motion, change the place of trial” when “there is reason to believe that an impartial

trial cannot be had therein,” or “when the convenience of witnesses and the ends of

justice would be promoted by the change.” Section 25-2-201(2)-(3), MCA. We recently

clarified that prejudice may be actual or presumed. Presumed prejudice occurs when

“prejudicial, inflammatory publicity about a case has so saturated the community as to

warrant a presumption that an impartial jury cannot be drawn therefrom.” Kingman,

¶ 42. Actual prejudice is established when it is shown, “through voir dire or other

means[,] that the jury pool harbors actual partiality or hostility against the defendant that

cannot be laid aside.” Kingman, ¶ 32.


                                         17
¶47    As noted, prior to trial, the State moved to change venue on the basis of articles in

the Philipsburg Mail that allegedly were “clearly biased in favor of Plaintiffs.” The State

asserted that, within one month before trial, the Philipsburg Mail published “three (3)

separate articles which indicted the Defendants for setting a fire that burned onto

Plaintiffs’ property and further reports that one of the supervisors on the fire apologized

for having burned across the Plaintiffs’ property.” The State suggested that these articles

were “prejudicial and inflammatory information about the alleged cause of the fire” and

that, given the large readership of the newspaper, small population of Granite County,

and small size of the jury pool, an impartial jury could not be obtained.

¶48    During its March 29, 2012 hearing, the District Court considered the parties’

arguments and denied the State’s motion to change venue. The court explained that the

State had not demonstrated presumed prejudice on the basis of “one edition of the

Philipsburg Mail that discussed the trial,” and also would not be able to demonstrate

actual prejudice until voir dire had taken place. To address the State’s concerns, the court

proposed a process by which it would attempt expeditiously to add thirty-five jurors to

the current pool. Both parties expressed agreement with that procedure:

       [THE COURT:] So Plaintiff are you okay with that process for going back
       to fill in the jury?

       MR. RHOADES: Yes, Your Honor, so stipulated.

       THE COURT: Okay. And Mr. Sheridan?

       MR. SHERIDAN: We would so stipulate, Your Honor.


                                         18
The District Court also stated that it would increase the amount of time permitted for jury

selection.

¶49    During voir dire, the State struck several prospective jurors for cause, but

ultimately agreed to the twelve empanelled jurors, stating, “[w]e would pass these jurors

for cause, Your Honor.” The State does not reference on appeal, and the record does not

reflect, any objection made by the State at trial that an impartial jury could not be

selected. Nor did the State renew its motion for change of venue at the conclusion of voir

dire. We made clear in Kingman the standards and procedures for analyzing presumed

and actual prejudice. Though analyzed in the context of a criminal proceeding, both

parties cite Kingman on this point and we agree that its analysis applies here:

       As the basis of a motion for change of venue, the defendant may allege
       presumed prejudice, actual prejudice, or both. Where presumed prejudice is
       alleged—meaning that the court is being asked to presume that jurors
       selected from the community cannot be impartial—the bar is extremely
       high. The defendant must demonstrate that an irrepressibly hostile attitude
       pervades the jury pool or that the complained-of publicity has effectively
       displaced the judicial process and dictated the community’s opinion as to
       the defendant’s [liability]. . . . Where such extreme circumstances are not
       present, and actual prejudice is alleged, the defendant must show through
       voir dire or other means that the jury pool harbors actual partiality or
       hostility against the defendant that cannot be laid aside.

Kingman, ¶ 32.

¶50    The State does not argue presumed prejudice on appeal. It argues, rather, that the

record shows actual prejudice demonstrated by the prospective jurors during voir dire.

By its failure to renew the motion, however, the State did not give the District Court an

opportunity to revisit the venue ruling on the basis of any “actual partiality or hostility”

                                         19
evidenced during voir dire. Under these circumstances, the State effectively acquiesced

in the District Court’s ruling denying the motion to change venue and failed to preserve

the issue for appeal. Section 1-3-207, MCA; Horn, ¶ 25; In re A.A., ¶ 26.

¶51 5. Whether the District Court abused its discretion by denying the Weavers’
motion for sanctions against the State.

       Standard of Review

¶52    This Court will reverse a trial court’s refusal to invoke M. R. Civ. P. 37 sanctions

“only when the trial court’s judgment materially affected the substantial rights of the

parties or allowed a possible miscarriage of justice.” In re Marriage of Rada, 263 Mont.

402, 406, 869 P.2d 254, 256 (1994). We review a trial court’s rulings on post-trial

motions for abuse of discretion. State ex rel. State Compen. Mut. Ins. Fund v. Berg., 279

Mont. 161, 175, 927 P.2d 975, 983 (1996).

       Analysis

¶53    The Weavers sought an award of attorneys’ fees and prejudgment interest as a

result of what they allege to be “egregious” discovery abuse by the State. The Weavers’

motion arose from their realization during trial that some photographs of the fire taken by

State witnesses had not been produced in discovery or bore incorrect dates, and their

claim that a video of the fire was untimely produced and also had an incorrect date. The

Weavers alleged that the State knowingly sponsored inaccurate trial exhibits and

deliberately failed to produce requested photographs until after the trial had concluded.

¶54    While the State admitted that the videotape of the Ryan Gulch Fire, which was

provided shortly before trial, should have been disclosed in a more timely manner, the
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District Court concluded that there was no indication that the State had acted in bad faith

and that the Weavers had not shown that the State had concealed, destroyed or altered

any documents. The court observed, rather, that it became apparent immediately before

and during the trial that some of dates captioned were inconsistent with metadata on the

photographs, which one witness explained during his testimony.           The court further

observed that the incorrect date on the video was brought out during cross-examination of

another witness. The District Court noted the importance of the evidence concerning the

status and location of the fire on various dates and commented that, had the trial produced

a different outcome, the dates on the photographs “might well be problematic.” In light

of the verdict, however, the court could “conceive of no prejudice to the Plaintiffs.”

¶55    On appeal, the Weavers have offered no additional reasons for concluding that the

State acted willfully or in bad faith. While they posit that the verdict on their inverse

condemnation claim “could well have” been different had the Weavers received accurate

and unedited photographs and video before trial, this claim is speculative. The Weavers

have failed to demonstrate that the trial court’s judgment “materially affected the

substantial rights of the parties or allowed a possible miscarriage of justice.” Marriage of

Rada, 263 Mont. at 406, 869 P.2d at 256. The trial court was in the best position to

evaluate the State’s lack of bad faith and the absence of prejudice to the Weavers and did

not abuse its discretion in denying their motion for sanctions.




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                                   CONCLUSION

¶56   The judgment of the District Court is affirmed.



                                               /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ BRIAN MORRIS




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