Kurth v


                                           Kurth v. Great Falls Tribune Co.
                                               Decided July 16, 1998
                                        (NOT TO BE CITED AS AUTHORITY)

                                                               No. 97-546

                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            1998 MT 178N

                                                       SIDNEY P. KURTH,

                                                      Plaintiff and Appellant,

                                                                      v.

                                   GREAT FALLS TRIBUNE COMPANY, et al.,

                                                 Defendants and Respondents.

                       APPEAL FROM: District Court of the Eighth Judicial District,

                                              In and for the County of Cascade,

                                 The Honorable Peter L. Rapkoch, Judge presiding.

                                                   COUNSEL OF RECORD:

                                                            For Appellant:

                                      Robert L. Stephens, Jr., R. L. Stephens, Ltd.,

                                                          Billings, Montana

                                                          For Respondents:

                                  Peter Michael Meloy; Meloy & Morrison, Helena,

                                                                 Montana



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 Kurth v


                               Robert C. Bernius; Nixon, Hargrave, Devans & Doyle,

                                                           Washington, D.C.

                                             Submitted on Briefs: April 23, 1998

                                                      Decided: July 16, 1998

                                JUSTICE GRAY delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.

¶2 Sidney P. Kurth (Kurth) appeals from the judgment entered by
the Eighth Judicial District Court, Cascade County, on its findings
of fact, conclusions of law and order in his defamation action
against the Great Falls Tribune Company and Cowles Media Company
(collectively, Tribune) and from its denial of his motion to amend
with regard to damages. We affirm.

¶3 We address the following issues on appeal:

¶4 1. Did the District Court abuse its discretion in admitting
expert testimony on the impact of the libelous article for a
limited purpose only and compound its error by entering findings
and conclusions contrary to the weight of scientific evidence?

¶5 2. Is the District Court's award of damages inadequate as a
matter of law?

¶6 Kurth was a successful Montana attorney who enjoyed a good
reputation for his abilities as a lawyer, particularly in the
fields of taxation, business, agricultural and real estate law. He
traveled extensively in connection with his representation of
various clients and, by the early 1980s, had become actively

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involved in an agri-business group called IFF which was interested
in establishing a grain processing plant in Great Falls, Montana.
In 1982, IFF merged with another corporation into Multi-Management,
Inc. (MMI), which was headed by Karl Herrmann (Herrmann). Kurth
became a director and stockholder of MMI and acted as its attorney.
Thereafter, Kurth was in Europe on MMI business for an extended
period of time; during that time, his law practice closed and the
closure was covered by both the Tribune and the Billings Gazette.

¶7 The Tribune is the principal newspaper in Great Falls and it
also is distributed statewide; its daily circulation during the
times at issue was approximately 33,000. The Tribune followed
events surrounding the grain processing plant efforts closely and
published numerous articles on the subject. On February 3, 1984,
the Tribune published, on the third page of Section B of the
newspaper, an article concerning Herrmann, MMI and others which was
written by a Tribune reporter who was still in high school. The
third paragraph of the article contained a statement that
"[Herrmann's] associate, Sidney Kurth, is sought for at least nine
criminal charges." The statement was not true.

¶8 Approximately 22 months later, Kurth's attorney demanded that
the Tribune print a correction and compensate Kurth for the libel
contained in the sentence quoted above. The Tribune printed a
correction admitting the falsity of the sentence about a week
later, but it did not compensate Kurth.

¶9 Kurth subsequently filed a complaint against the Tribune for
libel. Thereafter, the District Court granted the Tribune's motion
for summary judgment, concluding that Kurth was a public figure as
a matter of law. Kurth appealed and we reversed and remanded for
further proceedings, concluding that genuine issues of material
fact existed regarding whether Kurth became a public figure for a
limited purpose or remained a private figure involved in a matter
of public concern. Kurth v. Great Falls Tribune (1991), 246 Mont.
407, 413, 804 P.2d 393, 397.

¶10 On remand, the District Court bifurcated the public figure
question and held a bench trial. The court concluded that Kurth
was not a public figure during the times at issue.

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¶11 Prior to the bench trial on remaining issues, the Tribune
objected to the admissibility of deposition testimony by Professor
Maxwell McCombs (McCombs), an expert retained by Kurth. McCombs,
a journalism professor from Texas, had performed a "content" and
"agenda setting" analysis of various Tribune stories and determined
therefrom that the story at issue would have had a greater impact
on Kurth's reputation and the way people remembered him because of
the context in which the story appeared. After full briefing on
the Tribune's objections, the District Court determined that the
deposition testimony was admissible as "specialized knowledge"
which would aid the trier of fact pursuant to Rule 702, M.R.Evid.
The court also determined that an affidavit by McCombs, which set
forth the scientific validity of his "content analysis" for Daubert
purposes, was not admissible and, as a result, that the deposition
was not admissible as scientific evidence because it lacked a
scientific basis. Shortly thereafter, the District Court reversed
its ruling and determined that McCombs' deposition testimony would
not be admitted. Later, the court again reversed itself and
admitted the deposition and McCombs' related report for the limited
purpose of its use by Kurth's damages expert.

¶12 After the bench trial in November of 1996, the District Court
entered its findings, conclusions and order determining that the
Tribune article in question was libelous per se and that it was
published with reckless disregard for its truth or falsity. The
court also found, however, that the article had only minimal effect
on Kurth's reputation and that the decline in Kurth's income and
damage to his reputation were caused by the way he conducted his
practice. It awarded Kurth $2,000 as presumed damages for the
libel and entered judgment accordingly.

¶13 Kurth filed a motion to amend and for a new trial. The
District Court entered an order amending its judgment by taxing
certain costs against the Tribune, but denying all other relief
requested by Kurth. Notice of entry of judgment was filed and
Kurth timely appealed.

¶14 1. Did the District Court abuse its discretion in admitting
expert testimony on the impact of the libelous article for a

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limited purpose only and compound its error by entering findings
and conclusions contrary to the weight of scientific evidence?

¶15 As set forth above, the District Court ultimately admitted the
McCombs deposition for the limited purpose of reliance thereon by
Dr. Ann Adair, Kurth's expert witness on damages. Kurth contends
that the court abused its discretion in excluding the deposition
for purposes of proving the impact of the libelous Tribune article
because the content analysis meets the Daubert standard for
scientific evidence. Kurth relies on McCombs' affidavit, which
purported to establish the scientific validity of the content
analysis he had performed, as support for this contention. As set
forth above, however, the District Court ruled that affidavit
inadmissible, and Kurth has not appealed that determination. Since
Kurth points to no other evidence of record which purports to show
that McCombs' deposition testimony met the Daubert criteria for
admissibility as scientific evidence, he has failed to establish
error by the District Court in excluding the evidence under
Daubert.

¶16 In any event, however, no error can be predicated on an
evidentiary ruling unless a substantial right of the party is
affected. Rule 103(a), M.R.Evid. Here, even assuming arguendo
that the District Court erred in excluding the McCombs deposition
for purposes of proving the impact of the libelous Tribune story on
Kurth's reputation, that error did not affect any of Kurth's
substantial rights.

¶17 The District Court was the trier of fact in this case and one
of the facts at issue was the effect of the libelous story on
Kurth's reputation and income. The court made it clear that it had
not merely read the deposition, but studied it, and found it "not
helpful." As the court stated, "[w]e're not dealing with chemistry
or with things like that . . . , we're dealing here with language.
And language, gentlemen, is our stock and trade." The court
reiterated several times that, even taking the Rule 702, M.R.Evid.,
"specialized knowledge" factor into consideration, McCombs'
deposition simply was not helpful to it in understanding the
evidence. Moreover, the court observed that it had direct
knowledge concerning the readership of the Tribune and the persons

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who would be affected by the article and that McCombs' lack of
Montana knowledge or experience and his map-based approach for
demographic conclusions rendered his testimony fatally weak.
P18 On this record, it is clear that, even if the McCombs
deposition had been admitted, it would have been given little or,
more likely, no weight by the trier of fact. Thus, we conclude
that any error in excluding the McCombs deposition was harmless and
not reversible.

¶19 Finally, we observe that, while Kurth also argues in his first
issue that the District Court erred by entering findings of fact
and conclusions of law contrary to the weight of scientific
evidence, he does not separately argue this matter or cite to
authorities in support thereof. In any event, however, since no
"scientific evidence" was admitted, and Kurth has failed to
establish error in that regard, he cannot prevail on his argument
that the District Court entered findings and conclusions contrary
to the weight of scientific evidence.

¶20 2. Is the District Court's award of damages inadequate as a
matter of law?

¶21 The District Court entered extensive findings of fact relating
to the causes of the damage to Kurth's reputation over the time
period at issue. On the basis of those findings, it ultimately
concluded that "[t]he actual damage to Plaintiff's reputation as a
lawyer was not caused by the sentence in the Tribune February 3,
1984 article but by his conduct of his practice, as described in
the Findings of Facts" and awarded Kurth presumed damages in the
amount of $2,000.

¶22 Kurth subsequently filed a motion to amend arguing, in part,
that the District Court erred in its assessment of damages
by--inter alia--failing to accept his damage expert's testimony
which was based on McCombs' conclusion that Kurth's losses were
caused by the Tribune article at issue and finding that other
causes were the source of damage to Kurth. The District Court
denied the damages-related portion of Kurth's motion to amend and
Kurth asserts error in that regard.



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¶23 A trial court's ruling on a motion to amend, like its other
rulings on posttrial motions, is reviewed for manifest abuse of
discretion. See Allers v. Riley (1995), 273 Mont. 1, 4, 901 P.2d
600, 602 (citations omitted). Here, however, the court's ruling
specifically was based on "the reasons already set forth in the
Court's Findings and Conclusions" and, therefore, Kurth's argument
that the damages were inadequate as a matter of law is, in essence,
a challenge to the District Court's findings of fact regarding
causation and damages. We review a district court's findings of
fact to determine whether they are clearly erroneous. A finding is
clearly erroneous if it is not supported by substantial evidence,
if the trial court misapprehended the effect of the evidence, or if
this Court is left with the definite and firm conviction that a
mistake has occurred. Interstate Production Credit v. DeSaye
(1991), 250 Mont. 320, 322-23, 820 P.2d 1285, 1287 (citations
omitted).

¶24 Kurth raises a number of arguments regarding the damage award.
He argues, for instance, that the District Court erred in rejecting
his expert's testimony on damages sustained as a result of the
Tribune article after admitting McCombs' deposition testimony as
foundation for her testimony. What Kurth fails to understand in
this regard is that, the District Court having rejected McCombs'
deposition testimony as proof of the causal link between the
article and Kurth's purported damages, his expert's testimony that
she assumed the article caused all of Kurth's damages essentially
rendered her accounting of those damages of no value to the trial
court.

¶25 Kurth also reiterates his arguments about the District Court
rejecting McCombs' "scientific evidence" under this issue. We
concluded above, however, that no basis existed on the record to
admit the McCombs deposition as scientific evidence and that, even
if admissible, the exclusion of the deposition was harmless error.
We need not address those matters again here.

¶26 Kurth further argues that his own testimony "regarding his
inability to reestablish his practice, his own embarrassment and
chagrin, and his anger over the libelous article" was more than
adequate evidence to establish the damages he sought. As noted

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above, however, our first consideration in reviewing a trial
court's findings of fact is whether they are supported by
substantial evidence. See Interstate Production Credit, 250 Mont.
at 323, 820 P.2d at 1287. Our standard is not to determine whether
evidence of record would support different findings.

¶27 The testimony Kurth relies on to support his argument that the
damages awarded were inadequate ignores the District Court's
extensive findings regarding the lack of causation between the
article at issue and his damages, including that Kurth was already
"financially beleaguered" by the time of the Tribune article as a
result of the grain processing venture and numerous other civil
difficulties, his extended absences from his law offices on
sojourns to China, Europe and other states, and publicized
malpractice actions by former clients. After reviewing the record,
we conclude that those findings are supported by substantial
evidence and are not otherwise clearly erroneous.

¶28 Kurth essentially asks this Court to reweigh the evidence
presented at trial--and determine the credibility of his
witnesses--in his favor in order to produce a result more
advantageous to him. The weighing of evidence and the credibility
of witnesses are matters within the province of the finder of fact,
however, and we will not substitute our judgment for that of the
factfinder--here, the District Court--on such matters. See Werre
v. David (1996), 275 Mont. 376, 391, 913 P.2d 625, 635.

¶29 Finally, Kurth asserts legal error by the District Court in
failing to conduct an appropriate causation analysis under Busta v.
Columbus Hosp. Corp. (1996), 276 Mont. 342, 916 P.2d 122, and its
progeny. According to Kurth, Busta stands for the proposition that
he need only prove that the act at issue--here, the publication of
the libelous article--was a substantial factor in bringing about
the damage or injury.

¶30 Even assuming arguendo that Kurth properly characterizes Busta
and that the causation conclusions we reached in that negligence
case are applicable in this libel and defamation action, Busta is
of no assistance to Kurth here. While it is clear that the
District Court did not perform a Busta-type causation analysis, it

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is equally clear that the court's findings regarding causation
constitute a finding that the Tribune article was not a substantial
factor in bringing about his damage or injury. We upheld the
District Court's findings in that regard above and, therefore, need
not address those matters again here.

¶31 We hold that the District Court's causation and damage-related
findings are not clearly erroneous, the court did not abuse its
discretion in denying the damages portion of Kurth's motion to
amend, and the damages awarded are not inadequate as a matter of
law.

¶32 Affirmed.

                          /S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ WILLIAM E. HUNT, SR.




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