No. 90-079 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

STEVE KOONTZ, Plaintiff and Respondent,-vsSKY COUNTRY, INC.

### , Defendant and Appellant.

APPEAL FROM: DistrictCourt of the EighteenthJudicial District, In and for the County of Gallatin, The Honorable ThomasA. Olson, Judge presiding.

COUNSEL OF RECORD: For Appellant: John P. Atkins, Bryan & Atkins, Bozeman, Montana For Respondent: Karl Knuchel, Livingston,Montana

Submitted: July 15, 1990 Decided: ~ugust 17, 1990

CLERKOF SUPRTbIECOURT STATEOF i'fl3NTANA ClerkJustice John C. Sheehy delivered the Opinion of the Court. Sky Country, Inc. appeals from a judgment entered in the District Court, Eighteenth Judicial District, Gallatin County, awarding Steve Koontz $3,768.66 in damages. We reverse the District Court. The sole issue in this case iswhether Koontzwas entitled to $3,768.66 in ''invalidtrailer charges.'' Sky Country is an interstatemotor carrierbased in Bozeman, Montana. The company engages the services of owner\operators who lease their tractor-trailer units to Sky Country to haul freight throughout the lower 48 states. Sky Country and Steve Koontz entered into such a lease agreement in November of 1985. Koontz leased to Sky Country his Mack tractor. Sky Country provided the trailer. Koontz, under the contract,was to pay for all repairs, driver's wages, fuel, insurance and vehicle maintenance. Koontz
was to receive 75.43 percent of all profits in theventure. After each trip, Sky Country provided Koontz with settlement statements detailing gross revenuesplus costs and expenses. Theparties terminated their relationship inNovember of 1986. Koontz brought suit in February, 1988, claiming money for unpaid fuel credits,trailer repairs, fines, over advance charges and for a trip which Koontz allegedly had not been paid. No claim for freight adjustmentwas ever made by Koontz. Freight adjustments, in the words of Koontz, are made "whenever a load is short or damaged or late or something 

# . . .I1In more practical terms, freight adjustments come about in this manner: Thedriverof thetractor-trailerispaid accordingto the goods he delivers. If thecustomer is dissatisfied with theamount
or quality of the goods, he withholds a portion of the payment. As Sky Country has already made its estimate of the load'sworth, it must adjust its figures. This adjustedamount is then reflected
on the settlement statementprovided to Koontz. The procedure is set forth in the parties1contract as follows:

In the event damage or shortage is noted on a delivery receipt, Contractor [Koontz] assumes complete responsibility and liability for the contents of the load. Damages and shortages are to be charged back to the Contractor. Settlements may be withheld on the involved trip until the claim has been settled in full with the shipper or consignee, as the casemay be. While Koontz took issue at trial with freight adjustments totalling $3,768.66,he never included a claim for those charges inhis complaint. The District Court took the offered evidence of the settlement statementsdetailing the freight adjustmentsunder advisement. No testimony as to the validity or invalidity of the specific freight adjustments was offered at trial. In the court's conclusion of law no. 7, it stated that I1Plaintiff1s claim for freight charges was not raised by the pleadings and therefore is barred.l1 However, in the courtls settlingof accounts setout in conclusion of lawno. 10,the court awards Koontz $3,768.66 in "invalidtrailer charges." Sky Country made a motion for clarification of the award as to the I1invalid trailer charges.I1 The District Court denied the motion. Thisappeal ensued. Sky Country contends the lower court erred in awardingKoontz $3,768.66 in damages, denominated by the court as invalid trailer charges. Sky Countrypoints out that Koontz raised a claim inhis complaint for trailer repairs charged to him amounting to $4,774.24. The court ruled that those repairs were properly charged to Koontz. The only charges disputed by Koontz that totalled $3,768.66 were for freight adjustments. Sky Country submits that the lower court mistakenly awarded Koontz, in conclusion of lawno. 10,thevery same freight adjustment damages it had ruled were barred in conclusion of law no. 7. We must concur with Sky Country. It is clear from the facts and the court's conclusions that it mislabeled the award. The amount of $3,768.66 is clearly freight adjustment, and, as such,
was improperly awarded to Koontz, as (1) the contract provided that Koontz was to be responsible for such adjustments, and (2) the issue as to the validity of such charges was not properly raised in the initialoramended pleadings. Rule 15(a)

## ,M.R.Civ.P. We reverse the judgment of the District Court as to damages awarded Koontz in the sum of $3,768.66.Justices 

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