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c. 8. YcNeil

Distriot Judge

Lake County Courthouse

106 Fourth Avenue Rast

Poison, X!E 69860-2171

Telephone: (406) 883-7250

KATRERINE GAIL DURBIN and

PHIL F. DURBIN,

Plaintiffs,

vs.

BARBARA ROSS, an individual,

d/b/a ROSS REALTY; LYNNR

PIAZZOLA, an individual;

WAYNE A. SHRRRILL and RACHRL

SHERRILL, individuals: and

MICHAEL J. SHRRRILL, an

individual,

Defendants.

***************

* CAUSE NO. DV-93-91

*

*

*

*

* ORDER GRANTIWG

* MOTION POR SUMMARY

* JUDGMEWT

* and

* SUWRARYJUDGRPBT

*

*

*

*

*

*

*

* *

This matter came before the Court April 25, 1995 for

hearing on the Motion for Summary Judgment of Defendant

Barbara ROSS, d/b/a Ross Realty, and LWe Piazzola

(hereinafter the "Realtor Defendants"). Attorney Don Snavely

appeared on behalf of the Plaintiffs, Katherine Gail Durbin

and Phil F. Durbin. Attorneys Tracy Axelberg and Gary

Kalkstein appeared on behalf of said Realtor Defendants.

Defendants Wayne A. Sherrill, Rachel Sherrill and Michael J.

Sherrill (hereinafter the "Seller Defendants") did not appear

and have not appeared in this action. Said Seller Defendants#

default has been taken by the Plaintiffs.

The Court, having considered the briefs submitted by the

parties, the affidavits and record before the Court and

arguments of counsel, enters the following:
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B-xJ--NT

1. The Realtor Defendants' Motion for Summary Judgment

is hereby granted.

2 . Summary judgment against Plaintiffs and in favor of

said Realtor Defendants is hereby awarded upon all

claims in Plaintiffs' Complaint against said individual

Realtor Defendants.

3, Pursuant to Rule 54(b), N.R.Civ.Pro., final judgment

is hereby directed to be entered against the Plaintiffs

and in favor of the Realtor Defendants as to all claims

asserted in Plaintiffs' Complaint against said Realtor

Defendants individually, and the Court determines that

there is no just reason for delay of entry of such

judgment.

4 . This summary judgment does not in any manner affect

the default previously entered by Plaintiffs against the

Seller Defendants nor does it affect Plaintiffs' right

t o obtain default judgment against said Seller

Defendants for all claims in Plaintiffs' Complaint for

damages caused by the Seller Defendants as well as those

caused by the Realtor Defendants as agents for said

Seller Defendants.

inion

The Realtor Defendants are entitled to summary judgment

pursuant to Rule 56, H.R.Civ.Pro. only if there are no genuine

issues as to any material facts and only if said defendants

are entitled to judgment as a matter of law.

Uncontested Facts

1 . The Agreed Facts, Paragraphs 1-4 from the Pretrial

Order dated April 4, 1995 and filed April 11, 1995, are

incorporated herein by reference.

2 . The Realtor Defendants were the agents of the Seller

Defendants.

O&ER UUWTING MOTION FOR sumrf J~J~I~ENT - Page 2
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3 . The Default of each of the Seller Defendants was

entered February 2, 1994, pursuanttoRule 55(a), W.R.Civ.Pro.

4 . The Plaintiffs are entitled to, but have not yet

sought, judgment by default against said Seller Defendants,

pursuant to Rule 55(b), M.R.Civ.Pro., for all claims asserted

in Plaintiffs' Complaint against said Seller Defendants.

5 . During pretrial discovery the Plaintiffs had

designated an expert realtor witness, but by letter dated

February 17, 1995 (Exhibit "An to Realtor Defendants' summary

judgment motion), Plaintiffs withdrew said expert witness and

advised that no specific real estate expert witness would be

called by Plaintiffs at trial.

6 . At oral argument opposing the Realtor Defendants'

summary judgment motion, Plaintiffs confirmed that they did

not have and did not need a realty expert witness to establish

any standard of care owed by the Realtor Defendants, as the

sellers' agent-broker, to the Plaintiffs as buyers of the real

property in question.

7 . The cause was set for trial to commence May 1, 1995

and discovery has closed, the deadline for exchange of expert

witnesses and summaries of their testimony has passed and no

motions were made for the extension of time or the addition of

witnesses.

Conttiollincz Law

Plaintiffs are entitled, as a matter of law, to judgment

against the Seller Defendants for any and all damages arising

out of the real estate transaction herein involved. This

includes damages not only resulting from the Seller

Defendants' conduct but also for those damages suffered by

Plaintiffs resulting from any intentional or negligent

misrepresentations by the Realtor Defendants acting as the

sellers' agent as well as any constructive fraud or statutory

ORDER GRARTIWG RDTIW FDR -Y JlOGHEWT - Page 3
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violations by said Realtor Defendants in their capacity as the

sellers' agent.

However, the Court holds that in order for the Realtor

Defendants to be found personally liable as individuals for

their conduct toward the plaintiffs-purchasers, the Plaintiffs

must first establish a duty owed by the sellers' broker to the

purchasers and that the standard of care relating to such duty

and a breach thereof must be established by expert testimony

as a matter of law.

In support of the Realtor Defendants' summary judgment

motion, a series of cases are cited, incorporated herein by

reference, for the proposition that expert testimony is

essential to establish the standard of care and a breach

thereof in professional negligence actions and that is the

established law of Montana. Although most of the cases deal

with medical doctor and lawyer malpractice, the principle

extends to other professional fields, and the Court herein

holds is likewise applicable to the equivalent of realtor

malpractice.

In arguing that the Plaintiffs do not need expert

witness testimony to establish any duty or standard of care,

Plaintiffs disavow that their claims are based upon the breach

of professional responsibility on the part of the Realtor

Defendants and instead assert that Plaintiffs' claims are

based simply upon allegations of fraud, negligent and

intentional misrepresentations and statutory violations for

which no expert witness testimony is needed relative to the

issues of duty and standard of care. The Court does not

accept such argument.

The only causal connection between the Plaintiffs as

buyers of the realty and the Realtor Defendants is the

agreement for the sale of the property by the Seller

Defendants to the Plaintiffs. The Realtor Defendants acted as

ORDER GRAWTXWC UOTIOR FOR SMHARY JIBGUENT - Pw4
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the sellers' agent for the transaction and in that capacity

have a professional responsibility which is the sole basis of

any liability on their part.

In opposing the Realtor Defendants' summary judgment

motion, the Plaintiffs rely principally upon the case of Wagner

v.(%Z& 232 Mont. 332, 757 P,2d 779 (1988). The Court herein

does specifically follow the Mqnercase and holds that expert

testimony is not required to establish the standard of care

owed by the seller of realty to the purchaser and the Seller

Defendants are liable for all damages suffered by the

plaintiffs-purchasers whether caused by the conduct of the

sellers or their realtor agents without the necessity of

expert testimony.

However, the issue raised by the summary judgment motion.

herein was not an issue in the Wagnercase. The realtor was

not a party to that action and the issue of individual

liability of a sellers‘ realtor-agent to the buyer was not

raised in Wagner nor in any other authority cited by the

Plaintiffs in opposing the instant motion.

Most professional liability actions arise out of claims

by a patient against his own doctor or a client against his

own attorney. In this case the professional responsibility of

the realtor to his principal, the seller, is clear as is the

duty owed by the seller to the buyer. What is not so clear is

the individual and personal duty, if any, owed by the realtor

to the buyer, the standard of care and whether there has been

a breach of any such duty. Those issues must be established

by expert witness testimony.

The Court recognizes that in most routine real estate

transactions there usually is but one professional realtorbroker who is most commonly the agent of the seller. It also

is wel.1 established law that a seller is held responsible for

GROER GRANTING UOTION FOR SWARY JWGMENT - Pale 5
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representations of the sellers' agent-broker made.to the

purchasers. Sec. 28-10-602, MCA. ~ag?z~so held as does this

Court herein.

In this case the plaintiffs-purchasers also seek damages

for alleged breaches of the Realtor Defendants professional

responsibility beyond that of the Seller Defendants as the

responsible principal and extend liability directly to the

Realtor Defendants individually and personally. This Court

also holds that in order for the plaintiffs-purchasers to

establish individual, personal liability on the part of the

sellers' agent-broker, the Plaintiffs must first establish a

duty owed by the sellers' agent to the buyer, the standard of

care owed by the sellers * agent to the buyer and a breach of

that standard and that such duty, standard of care and breach

thereof must be established by expert witness testimony as in

any professional liability action,

The Court finds that there are no genuine issues as to

any material facts. The Seller Defendants are liable to the

plaintiffs-purchasers whether caused directly by said Seller

Defendants or by their agents, the Realtor Defendants.

The Plaintiffs failed to produce a realtor expert to

establish a duty, standard of care and a breach of duty on the

part of the individual Realtor Defendants personally, and

summary judgment is therefore granted as a matter of law.

DATED this 3rd day of May, 1995.

C.B. McN8k

C. B. McNeil

District Judge

S/3/%

Copies to:

Don Snaveiy

Tracy Axclbetfj

Gwy Kalkstcin

vs

ORDER GRARTING CK)TICRl FOR SUMARY JIJDWENT - Pa@e 6
HONORABLE C.B. McNEIL

1 District Court Judge

Lake County Courthouse

2 Polson, Montana 59860

3 Phone (406) 883-6211 Ext. 308

4

5

6

7

MONTANA TWENTIETH JUDICIAL DISTRICT COURT, SANDERS COUNTY

8

9

10 _-_-----____________---------------------------------------------------------------------------------------------

11 KATHERINE GAIL DURBIN and PHIL F. ) Cause No. DV 93-91

DURBIN, individuals, 1

12 >

13 Plaintiffs, 1

)

14 -vs- 1

) PRETRIAL ORDER

15 BARBARA ROSS, an individual, d/b/a

ROSS REALW, LYNNE PIAZZOLA, an ;

I6 individual; WAYNE, A. SHERRILL and

17 RACHEL SHERRILL, individuals; and ;

MICHAEL J. SHERRILL, au )

18 individual, )

19 Defendants. ;

2 0 )

-----_-------_---__*-----------------------------------------------------------------------------------------------

21

Pursuant to Rule 16 of the Montana Rules of Civil Procedure, a pre-trial

2 2

23

conference was held in the above-entitled cause. Donald V. Snavely represented

24 Plaintiffs Phil and Katherine Durbin (the “Durbins”). Tracy Axelberg and Gary

25 Kalkstein represented Defendants Barbara Ross and Lyme Piazzola (the “Realtor

26 Defendants”). The defaults of Defendants Wayne and Rachel Sherrill and Michael

27 Sherrill (the “Sherrills”) have been entered for their failure to appear as required by

28

PRETRIAL ORDER Page 1
1

2

law. The Sherrills did not participate in the preparation of this Pretrial Order.

The Court hereby enters the following Pretrial Order in this action pursuant to

3 agreement of the parties.

4

5 AGREED FACTS

The following facts are admitted, agreed to be true, and require no proof:

1.

8

Plaintiffs Phil and Katherine “Gail” Durbin are husband and wife. On

9 April 26, 1993 the Durbins purchased for the sum of $35,000.00 a piece ‘of property

10 consisting of 20 acres and a single-family residence located at 209 Upper River Road,

11

12

13

14

15

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1 7

Heron, Montana (the “Property”) from Defendants Wayne, Rachel and Michael Sherrill,

the sellers of the Property.

2 . Defendants Wayne and Rachel Sherrill and their children resided on the

Property from May of 1987 until they sold the Property to the Durbins. Defendant

Michael Sherrill resided on the Property for part of that time.

3 . Defendants Lynne Piazzola and Barbara Ross are real estate agents

licensed by the State of Montana. Lynne Piazzola is a licensed sales agent and was the

l9 listing and sales agent for the sale of the Property to the Durbins. Barbara Ross was

2 0

the supervising broker for Defendant Piazzola for this sale. Defendants Piazzola and

21

2 2

Ross both worked for Ross Realty, a real estate office located in Noxon, Montana.

23 Defendant Ross was the owner of Ross Realty at the time of-this sale.

24 4 . This case involves claims by Plaintiffs Durbin that the condition of the

25 Property was misrepresented to them. The Durbins contend, among other things, that

26

27

28

the septic system, household water system, and other aspects of the Property were not

accurately represented by the Defendants. Defendants Ross and Piazzola deny these

II PRETRIAL ORDER Page 2
1

contentions. Defendants Ross and Piazzola contend, among other things, that they did

2

not make any misrepresentations to the Durbins. The various contentions of the parties

3 are explained in more detail below. The purpose of this trial will be to resolve the

411 various factual disputes between the parties regarding the sale of the Property.

Plaintiffs Durbin contend as follows:

8

9

1. Plaintiffs’ General Factual Contentions: The Durbins contend that during the

10 sale negotiations the Realtor Defendants told them things about the Property which

1 1 were not true. The Durbins further contend that during the sale negotiations the

12 Realtor Defendants failed to tell them other important facts about the Property which

13

were important to normal home buyers. In general, the Realtor Defendants told the

14

15

Durbins that the Property was in good condition and was only in need of cosmetic

16 repairs. In fact, there were several major problems with the Property.

17 The.Durbins were told that the Property had a legal septic system with a 750

18 gallon septic tank. ‘In fact, there was no septic tank, and the sewage drained into an

19 approximate 200 gallon dry well with no drain field. The sewage disposal system was

2 0

not operable and needed to be completely replaced. In addition, raw sewage from the

21

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system ran out on to the surface of the ground, which was a serious health hazard for

23 residents of the Property.

24 The Durbins were told that the household water was provided by a seep well

25 located on the Property and that the water was safe for all household purposes except

26 drinking. In fact, the water from this well was contaminated with coliform bacteria and

27

was not safe for any household purposes.

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PRETRIAL ORDER Page 3
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The Realtor Defendants told the Durbins that the westerly boundary of the

Property ran along an existing fence line. In fact, this fence line was as much as 45 feet

on to the neighbor’s property. An access road which ran along the fence line to the

back of the Property was located on the neighbor’s property as well.

The Realtor Defendants failed to disclose to the Durbins that there were several

plumbing problems in the house. There were no hot water pipes and no running hot

water. The drain pipes for the washer were not connected to the sewer lines and

drained on to the surface of the ground underneath the house.

10 Plaintiffs Durbin contend that the Realtor Defendants knew or should have

1 1 know about the problems with the Property. The Durbins contend that even, if the

12 Realtor Defendants did not know about these problems, they spoke as if they knew

13 what they were talking about, yet they failed to check out any of the important

14

information before they passed it on to the Durbins.

15

16 ’ Plaintiffs Durbin contend that they have suffered damages as a result of the

17 Defendants’ conduct. They have repaired defects in the Property, including installation

18 of a new septic system, installation of a new water well, repair of the plumbing

19 problems, and repair of other defects in the home. They will also incur expenses to

2 0 install a roadway to the back of the Property. The Durbins have suffered serious stress,

2 1

strain, anxiety and other emotional distress as a result of the Defendants’

22

23

misrepresentations. The amount of these damages will be proven during the trial of

24 this case. The Durbins also seek treble damages and attorney’s fees under the Montana

25 Consumer Protection Act because of the unfair and deceptive acts of the Realtor

26 Defendants. The Durbins may also seek punitive damages for any fraudulent or

2 7 malicious conduct of the Defendants proven during the trial.

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II PRETRIAL ORDER Page 4
2. Plaintiffs’ General Legal Contentions:

1

2 A. The Defendants are liable for intentionally misrepresenting important

3 facts about the Property to Plaintiffs. The Defendants are also liable for intentionally

4 concealing facts about the Property from Plaintiffs, knowing that these facts were

5 important to Plaintiffs and would be for any normal purchaser.

6

B. Alternatively, the Defendants are liable for negligently misrepresenting

7

8

important facts about the Property ‘to Plaintiffs, even if they believed their statements to

9 be true, because they failed to exercise reasonable care in investigating the truth of the

10 facts which they represented to Plaintiffs and failed to exercise reasonable care in

1 1 communicating information to Plaintiffs.

12 C . The Defendants are liable for constructive fraud by failing to disclose to

13 Plaintiffs important information about the Property which they had reason to know

14

would affect the value or desirability of the Property to Plaintiffs and any normal

15

16 purchaser.

II

17 D. The Realtor Defendants are liable for violating the Montana real estate

18 licensing laws, including M.C.A. $0 37-51-321 and A.R.M. 60 8.58.419(3), by among

I9 other things misrepresenting facts and concealing information about the Property, by

2 0 failing to adequately investigate the truth of the information which they conveyed to

21

Plaintiffs, by failing to refer Plaintiffs to an independent attorney or advisor, and by

22

23 generally failing to act competently in the transaction. -

24 E. The real estate agents and their employers are liable for violating the

25 Montana Consumer Protection Act [M.C.A. $0 30-14-101 et seq] by (a) committing

26 unfair and deceptive acts [false statements and non-disclosures of important facts about

2 7 the Property], (b) in the conduct of their businesses, (c) by which Plaintiffs suffered an

28

I/II PRETRIAL ORDER Page 5
I

1

ascertainable loss of money, (d) in a transaction in which Plaintiffs engaged primarily

2 for personal, family or household purposes. Plaintiffs are thus entitled to an award of

3 three times their damages plus reasonable attorneys’ fees.

4 F. Plaintiffs are entitled to an award of punitive damages should the conduct of

5 the Defendants, or any of them, be found by the jury to be fraudulent or malicious as

6

provided in M.C.A. 0 27-1-223..

7

DEFENDANT?? CUmmONS

13

Defendants Ross and Piazzola contend as follows:

1. Defendants Ross and Piazzola dispute all of Plaintiffs’ contentions.

14

2. The Plaintiffs have failed to mitigate their damages.

3. Plaintiffs’ damages, if any, were caused by Plaintiffs’ own actions and inactions

15

constituting negligence.

16 4. Defendants Ross and Piazzola dispute the nature and amount of damages

17 claimed by Plaintiffs.

18 5. Defendants Ross and Piazzola deny liability on each and every theory of

lg liability’alleged by Plaintiffs.

2 0

21

6. Plaintiffs independently inspected the Property and met with the Sherrills to

22

discuss and examine the property on several occasions without Lynne Piazzola and

23 made an informed purchase of the Property based on those inspections and discussions

24 with Defendants Sherrill.

2 5

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7. Defendant Piazzola performed a diligent inspection of the Property and

disclosed to the Plaintiffs all information gleaned as a result of that inspection as well

2 7

as information gleaned from her conversations with Wayne and Rachel Sherrill.

28

II PRETRIAL ORDER Page 6
8. Plaintiffs knew or should have known of the condition of the Property based

2

on their own inspections and independent visits with the sellers.

3 9. Plaintiffs were fully informed of the Property’s shortcomings and those

4

5

10. The alleged violations of the Montana Licensing la&s are not actionable 6

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/I

and a violation of those laws does not give rise to a claim for citi! damages,

because this Court lacks jurisdiction over the subject matter of such a determination

10

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shortcomings were disclosed by the sellers and were reflected in the purchase price of

the Property.

11. The Montana Consumer Protection Act does not apply to any of the claims

of the Plaintiffs levied against the Realtor Defendants.

12. Most if not all of the repairs undertaken by the Plaintiffs were

improvements required for refinancing and/or to enhance the value of the Property by

15 I/ an amount equal to or exceeding their cost.

16

I

I

13. The property and residence purchased by Plaintiffs from Defendants Sherrill

17 had an actual Fair Market Value at or above the purchase price of $35,000.00.

18

19

2 0

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2 2

Attached to this Pre-trial Order are exhibit lists for each party, identifying by

23 number and brief description each exhrbit which that party intends to offer on its case2 4 in-chief and stating any objections by the other parties to the exhibits. Any exhibit

2 5 offered at the trial to which no objection was made in the Pre-trial Order will be

2 6 admitted into evidence.’ The parties reserve the right to supplement their exhrbit lists at

2 7 or prior to trial, subject to any objections of the other parties.

28

II PRETRIAL ORDER Page 7
3

s

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WPTNESSES

The following witnesses may be called to testify on the parties’ cases-in-chief:

A.

1 .

2 .

3 .

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

19.

20.

'RETRIAL ORDER

Plaintiffs

Calkins, Kathy -- Wisdom, Montana

Durbin, Gail -- Heron, Montana

Durbin, Josette -- Heron, Montana

Durbin, Phil -- Heron, Montana

Fallon, MarshaIl -- Noxon, Montana

Hilt, Jim -- Noxon, Montana

Hudson, Jim -- Heron, Montana - (+-y Q+*J$

i J

Hudson, Trish ---Heron, Montana

Kiefer, Bobbie -- Heron, Montana

Kiefer, John -- Heron, Montana

Lamruth, Robert -- Clark Fork, Idaho

Larson, Kathy -- Noxon, Montana

Piazzola, Lynne -- Noxon, Montana

Ross, Barbara -- Noxon, Montana

Shannon, Jon -- Missoula, Montana (Expert)

Simonson, Darryl -- Noxon, Montana

Sorlie, Dell -- Trout Creek, Montana -

Tionovich, Phil -- Bonners Ferry, Idaho

Foundational witness from Mt. Environmental Laboratory (if needed)

Any witnesses listed by the Defendants

Any rebuttal witnesses

Page a
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B.

1.

2 .

3.

4.

5.

6.

I.

8.

9 .

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

PRETRIAL OROER

21. Any witnesses identified through remaining discovery to be undertaken

Defendants

Boots, Debbie

Burlingame, Claude

Compton, Kent

Crisp, Ken (expert)

Dominick, Bruce

Durbin, Gail

Durbin, Josette

Durbin, Phil

Fitch, Dan

Foss, Merilynn (expert)

HiIt, Jim

Ivers, Jan

Moats, Ralph

Moats, Sandy

Nichol, Peggy

Norton, Larry

Piazzola, Lynne

Ross, Barbara

Russell, Ron

Sherrill, Michael

Sherrill, Rachel (or by deposition)

Page 9
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2 2

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22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

Sherrill, Wayne (or by deposition)

Simonson, Darryl

Slomski, Robert

Sorlie, Dell

Mrs. Swant

Whittenberg, Dan

Willis, Russ

Woods, Bill

Any witnesses listed by the Plaintiffs; and

Such witnesses as are needed for rebuttal.

Any witnesses identified through the remaining discovery to be

undertaken.

ISSUES OF FACT

All issues of fact encompassed by the parties’ contentions (except those stated in

the Agreed Facts) remain to be litigated at trial.

ISSUES OF LAW

All issues of law encompassed by the parties’ contentions remain to be litigated

at trial and will be resolved by the Court’s settlement of jury instructions or in ruling

upon the pretrial motions referenced below.

PRETRIAL ORDER Page 10
DrscomRY

1

2

The final Pre-trial Order shall refer to all those portions of depositions upon oral

3 examination and interrogatories, requests for admissions, and answers and responses

4 that the parties intend to introduce into evidence. Any objections to the use of the

5 above documents shall be stated, and if not stated, shall be deemed waived. (Because

6

this Rule relates to filing and is designed to consolidate in one place all of the fruits of

7

8

discovery, and because there can be no surprise element involved, the Court shall be

9 Irberal in permitting the amendment of the Pre-trial Order to include any material not

lOI1 originally listed.)

1 1

l2

At this time, the parties only intend to use at trial fruits of discovery for the

purpose of impeachment. The parties reserve the right to use any discovery as

13 substantive evidence as permitted by law. The Realtor Defendants intend to use the

14

15

depositions of Wayne and Rachel Sherrill as substantive evidence. Plaintiffs object to

16 the use of these depositions for any purpose at trial on the following grounds: (1) no

17 foundation has been established for their use under Rule 32, M.R.Civ.P.; (2) use of

18 these depositions, from critical witnesses, would deprive Plaintiffs’ of their constitutional

19 rights of confrontation and cross-examination of adverse witnesses; (3) the depositions

2 0 should be excluded under Rule 611(e), M.R.Evid., and Bonamarte v. Bonamarte, 263 ’ 21

2 2

Mont. 170,866 P.2d 1132,1136 (Mt. 1994) as denying Plaintiffs effective confrontation

23 and cross-examination of adverse witnesses; (4) all of the deposition testimony is *

24 hearsay evidence without circumstantial guarantees of trustworthiness; (5) the Realtor

25 Defendants have failed to specifically identify which specific portions of the depositions

2 6 will be utilized, as required by the applicable procedural rules, and thereby prevented

2 7 Plaintiffs from raising objections to inadmissible testimony; (6) all questions asked by

2 8

II PRETRIAL ORDER Page 11
1

counsel for the Realtor Defendants were leading and improper as these witnesses are

2

not adverse to the Realtor Defendants; (7) Plaintiffs restate their objections to

3 testimony as set forth in the deposition transcripts; and (8) the depositions should be

4 excluded under Rule 403, M.R.Evid. as their probative value is exceeded by the

5 potential for jury misuse in that the jury does not have the opportunity to assess the

6

credibility of these witnesses through live testimony.

7

8

9

ADDITIONAL, PRE-TRXAL DISCOVERY

1 0 The parties have agreed to complete discovery by April 14, 1995. At the present

11 time Plaintiffs do not anticipate any further depositions. The Defendants anticipate

12 deposing a few additional percipient witnesses and Plaintiffs’ expert and will be allowed

13 to perform an inspection of Plaintiffs’ Property with their expert realtor prior to trial at

14

15

a time convenient to Plaintiffs and their attorney. Other than supplementation of their

16

responses to prior discovery requests, the parties do not contemplate any additional

I7 discovery at this time. *

Sl7PULATIoNS

2 0

21

The parties anticipate stipulating to the authenticity of exhibits, subject to any

2 2

substantive objections (relevancy, hearsay, Rule 403, etc.). No further stipulations are

23 anticipated.

II

24

II

25 DETERMINAnON OF LEGAL OUESTIONS

2 6 INADVANCE OF TRIAL

2 7 On March 17, 1995 the Realtor Defendants served a Motion for Summary

28 Judgment. By this motion the Realtor Defendants seek to remove Plaintiffs’

II PRETRIAL ORDER Page 12 I
1

professional negligence claim and emotional distress damage claim from this case.

2 Plaintiffs will be opposing this motion on all grounds and contend that the motion

3

should be denied in its entirety. It is Defendants’ position that the motion for summary

4 judgment is dispositive and if successfui will dispose of this matter in its entirety.

5

6

All motions in limine are due to be filed by the parties on April 14, 1995. Both

Plaintiffs and Defendants anticipate serving motions in limine.

7

8

No further motions are anticipated at this time.

ADDITIONfi ISSUES

1 1

12

There are no additional issues to be determined prior to trial excepting those

framed by the Defendants’ summary judgment motion and the parties’ motions &J

13 limine.

14

15

16 JURY SELEC?7h & PROCESS

1 7 The trial jury shall consist of twelve (12) jurors and shall be selected in the

18 manner provided by law. Each party shall serve and file proposed jury instructions no

1 9 later than April 24, 1995, with any written objections to said jury instructions being

2 0

served and filed by April 28, 1995.

21

2 2

2 3

24 It is estimated that the case will require 4--5 days for trial. The case will be tried

2 5 to the Court sitting with a jury, commencing on May 1, 1995 at the Sanders County

Courthouse.

II PRETRIAL ORDER Page 13
1

2

3

4

5

6

7

8

9

1 0

1 1

12

13

14

15

16

17

18

19

20

21

22

23

24’

25’

26

27

28

F‘RETRIAL ORDER

IT IS HEREBY ORDERED that this Pre-trial Order shall supersede the

pleadings and govern the course of the trial of this cause, unless modified to prevent

manifest injustice.

IT IS HEREBY ORDERED that all pleadings herein shah be amended to

conform to this Pre-trial Order.

DATED this jr ‘day of April, 1995.

C.B. McNElL

HONORABLE C.B. MCNEIL

District Court Judge

APPROYED AS TO FOR&lAND CONTENT:

SNAVELY LAW OEFICES

Attorneys for Plaintiffs

By:

CUCELBERG & KALKSTEIN,

Attorneys for Defendants

Ross & Piazzola

Page 14 ,
KATHERINE GAIL DURBIN and PHIL F.

DURBIN, individuals,

PIaintiffs,

-vsRECORD OF EXHIBITS FOR

PLAINTIFFS DURBIN

CAUSE NO. DV 93-91

DATE: May 1,199s

BARBARA ROSS, an individual, dba ROSS REALTY,

LYNNE PIAZZOLA, an individual, WAYNE A. SHERRILL

and RACHEL SHERRILL, individuals; and

MICHAEL J. SHERRILL, an individual,

Defendants.

Plaintiffs Katherine Gail Durbin and Phil F. Durbin may offer the following documents and/or

things as exhibits on their case-in-chief at the trial of this matter:

NO. DESCRIPTION

OBJECT

(Y/N) GROUNDS ADMIT REFUSE RESERVE

1. "Country Living" Sheet NO

2. Seller's Property

Disclosure Statement

NO

3. Photographs (Deposition

Exhibits BA--8FF)

N O

4. Bill for Septic Installation NO

5. Bill for Well Installation NO

6. Summary of Expenses to Repair

the Defects and Related Expenses

(per Rule 1006, M.R.Evid.)

YES ALL AVAILABLE

7.

a .

9.

Montana Environmental Lab

Water Test Report (5/21/93)

YES FOUN, OPIN, HSAY

Lamruth Survey (11/93) YES FOUN, HSAY

Shannon Water Test Report (3/95) YES ALL AVAILABLE

CODES FOR OBJECTION

1. REL = RELEVANCY 5. BE = EESC EVIDENCE

2 403 = M.R.E 403 6 OPIN = OPINION

3. FOUN = FOUNDATION 7. HSAY = HfZARSAY

4. AUTX = AUTHENTICITY 8. REFERENCES TO NUMBERS ARE TO THE M.R.E

PLAINTIFFS'EXHIBITLIST Page 1
r

NO. DESCRIPTION

OBJECT

U/N) GROUNDS ADMIT REFUSE RESERVE

Shannon Report

11. Residence Property Data Sheet

(Ross Realty)

12. Ross Realty Listing

Agreement (g/13/91)

13. Ross Realty Listing

Agreement (2/28/92)

14. Ross Realty Listing

Agreement @O/29/92)

15. Ross to Sherrill

Letter (2128192)

16. Simonson Fact

Statement (a/17/93)

17. Impeachment Exhibits

18. Exhibits Subsequently Discovered

CODES FOR OEJECnON

1. REL = RELEYANCY 5.

2.403 = M.R.E. 403 6

3. FOUN = FOUNDATION 7.

4. AUW = AUTHENTIClTY 8.

YES ALL AVAILABLE

N O

NO

NO

N O

N O

YES

YES

YES

REL, BE

ALL AVAILABLE

ALL AVAILABLE

BE = BEST EVIDENCE

OPIN = OPINION

HsAY=HEARsAY

REFERENCES TO NUMBERS ARE TO THE M.R.E

PIANTFFS’ EXHIBIT LIST Page 2
.

KATHERINE GAIL DURBIN and PHIL F.

DURBIN, individuals,

RECORD OF EXHIBITS FOR

DEFENDANTS ROSS AND PIAZZOLA

PkilltiffS,

CAUSE NO. DV 93-91

DATE: May 1, 1995

BARBARA ROSS, an individual, dba ROSS REALTY;

LYNNE PLAZZOLA, an individual, WAYNE A. SHERRILL

and RACHEL SHERRILL, individuals; and

MICHAEL J. SHERRILL, an individual,

Defendants.

Defendants Barbara Ross and Lynne Piazzola may offer the following documents and/or things

as exhibits on their case-inchief at the trial of this matter:

NO. DESCRIPTIOR

OBJECT

U/N) GROUNOS ADMIT REFUSE RESERVE

A,

B .

C.

D.

E .

F.

G,

H.

I.

J.

FSrst State Bank Photographs

First State Bank File re: Durbin

Purchase

Certified Weather Records--Heron

Sorlie Estimate, 5/12/93

YES FOUN, REL

YES FOUN, REL, 403, HSAY

YES FOUN, HSAY

N O

First American Title Insurance Co.

Comitment for Title Insurance

YES REL, FOUN, HSAY, 403

Closing Statement, 4/26/93 NO

Buy-Sell Agreement, Z/24/93 N O

Hilt Statement, 6/22/93 NO

Sot-1 i e Invoice, 6/27/93 N O

Septic Permit Application N O

CODES FOR OBJECTION

1.w =RELEvANcY 5. BE =BEsTEVIDENQE

2.403 =M.R.E403

3. FOUN = FOUNDATION

4. AUI-H = AUTHENTICITY

6 OPIN = OPINION

7. HSAY =HEhR!&%Y

8. REFERENCES TO NUMBERS ARFi TO THE MAE

DEFENDANTS EXHIBIT LIST

,

Page 1
.

NO. DESCRIPTION

OBJECT

(Y/N) GROUNDS ADMIT REFUSE RESERVE

K .

L .

M.

N.

0.

P .

0.

R.

s.

T.

U.

V.

W.

X.

Y.

Z.

Fax from Manley Realty YES

Sellers' Property Disclosure Statement NO

REL, HSAY

Residence Property, Informative Data N O

Sheet and Attachment

Tract Drawing of Plaintiffs' Property YES

Broker Employment Contract (Ross and N O

Sherrill--10/29/92)

FOUN, AUTH, HSAY

Broker Employment Contract (Ross and N O

Sherrill--g/13/91

Durbin Policy of Title Insurance YES REL, FOUN, HSAY, 403

Gail Durbin Notes of Telephone

Conversation on Phonebook Page

NO

Noxon Septic Services Invoice, 4/29/93 NO

Residential Lease--Linzmaier

and Durbin

YES

Ross Realty Photographs of Property

Broker Employment Contract--Fitch

and Ross Realty

Phil Durbin's Criminal File, State

of Montana v. Phil Durbin

1993 Calendar (Blank)

Exhibits for Impeachment

Any documents uncovered in future

discovery

NO

YES

YES

N O

YES

YES

REL, FOUN, HSAY, 403

REL, FOUN, HSAY, 403

REL, HSAY, 403, 609

ALL AVAILABLE- _

ALL AVAILABLE

CODES FOR OBJECMON

1. REL = RELEVANCY 5. BE = BEsr EVIDENCE

2.403 = M.R.E. 403

3. FOUN = FOUNDATION

4. AUTH = AUTHENTIC!lTY

6 OPM = OPINION

7. HSAY = HEARSAY

8. REFERENCES TO NUMBERS ARE TO THE M.R.E

DEFENDANTS’ EXHAIBIT LIST Page 2
KATHERINE GAIL DURBIN and PHIL F.

DURBIN, individuals,

RECORD OF EXHIBITS FOR

DEFENDANTS ROSS AND PIAZZOLA

Plaintiffs,

-vsBARBARA ROSS, an individual, dba ROSS REALW,

LYNNE PIAZZOLA, an individual, WAYNE A SHERRILL

and RACHEL SHERRI& individuals; and

MICHAEL J. MERRILL, an individual,

Defendants.

66@ Defendants Barbara Ross and Lynne Piazzola may offer the f$%ving documents and/or things

as exhl%its on their case-in-chief at the trial of this matter: .K

NO. DESCRIPTION

OBJECT &’

/

(Y/lo NW’NOS AOMIT REFUSE RESERVE

A.

6.

c.

D.

E .

F.

6.

H.

1 .

J.

First State Bank Photographs

First State Bank File re: Ourbin

Purchase

FOUN, REL

Certiffed Weather Records--Heron

Sorlie Estimate, S/12/93

FOUN, HSAY

First American Title Insurance Co

Comitment for Title Insurance

YES REL, FOUN, HSAY, 403

Closing Statement, 4/26/93

Buy-Sell Agreement,

CODES FOR OBJEKXION

5.

2ur3 = M.R.E.403 6

3. FOUN = FOUNDATION 7 .

4. AUTH = AIJTHFZWCXI’Y a

DEFENDANTS'EXHIBITLIST

NO

N O

NO

N O

NO

BE = BESI- EVIDENCE

OPtN * OPINION

HsAY+HEARsAY

REFERENCE!5 TO NUMBERS ABE TO THB M.R.E

Page 1
INSTRUCTION NO.

A seller's broker in a residential real estate

transaction is under a duty to disclose facts materially affecting

the value or desirability of the property which through reasonable

diligence should be known to him.

Given:

District Judge

Defendants Barbara Ross, d/b/a Ross Realty and Lynne Piazzola's

Proposed Jury Instruction No.

Rptr Source: Easton V. Strassburoer, (Ca. 1984), 1199 Cal

. .

390 383,
INSTRUCTION NO.

The duty of a real estate agent, representing the seller,

to disclose facts includes the affirmative duty to conduct a

reasonably competent and diligent inspection of the residential

property listed for sale and to disclose to prospective purchasers

all facts materially affecting the value or desirability of the

property that such an investigation would reveal.

Given:

District Judge

Defendants Barbara Ross, d/b/a Ross Realty and Lynne Piazzola's

Proposed Jury Instruction No.

Source: Easton vs. Strassburger, (Ca. 119841, 1199 Cal. Rptr. 383,

390