No. 90-168 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

FLORIAN EBERL and GEORGE ULRICH 

d/b/a STARLINE BRAUNVIEH, 

Plaintiffs and Appellants, 

WAYNE SCOFIELD, an individual; AMERICAN 

AGRINOMICS, a Missouri corporation; 

HOLLAND RANCH COMPANY, a Montana corporation; and BEAVERHEAD LIVESTOCK AUCTION, 

a Montana corporation, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Max A. Hansen, Esq., Dillon, Montana 

For Respondents: 

'Xl ='a 

=E o) LC Thomas R. Scott, Esq., Dillon, Montana (Beaverhead 

L-J L. I 

-J :< 

Livestock Auction) 

,o "L.. William M. Kebe, Jr., Esq., Johnson, Skakles & Kebe, - (Y d ir LL Butte, Montana (American Agrinomics) 

2: CQ ---- John W. Larson, Esq., Missoula, Montana (Holland 

25 L2) Ranch Company) 

Q w(r 

Lu a2 

a LUz 

Filed: 

Submitted on Briefs: August 7, 1990 

Decided: September 18, 1990 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Plaintiffs Eberl and Ulrich brought this suit in the District 

Court for the Fifth Judicial District, Beaverhead County, to 

recover seventeen purebred Braunvieh bulls or the value thereof, 

plus related damages. The court granted the motion of Beaverhead 

Livestock Auction for summary judgment on the claim against it. 

Plaintiffs obtained certification of that ruling under Rule 54(b), 

M.R.Civ.P., and appealed. We affirm. 

The issues are: 

1. Did the District Court err in granting Beaverhead 

Livestock Auction's motion for summary judgment? 

2. Did the court err in striking the affidavit of Wayne 

Scof ield? 

3. Did the court err in allowing the Montana Department of 

Livestock to file an amicus curiae brief? 

The plaintiffs live in Alberta, Canada. They do business as 

Starline Braunvieh, raising and selling purebred Braunvieh cattle. 

In March 1987, defendant Scofield, then a resident of Montana, 

negotiated with plaintiffs for the purchase of forty-four purebred 

Braunvieh bulls. Fourteen of the bulls were selected from 

plaintiffs1 stock in Canada, three were shipped from plaintiffs' 

Idaho stock, and plaintiffs helped Scofield locate the rest of the 

bulls from other Canadian sellers. 
Scofield provided plaintiffs with business cards indicating 

that he was an employee of American Agrinomics. He told them that 

he was authorized to buy the bulls for Holland Ranch Company, 

located outside Dillon, Montana. Scofield obtained plaintiffs' 

agreement that the purchase price for the bulls Starline Braunvieh 

sold him would not be paid until one week after the bulls were 

delivered to Montana. Plaintiffs did not, however, convey title 

to the bulls to Scofield. 

On April 3, 1987, the forty-four bulls were shipped to Beaverhead Livestock Auction (BLA) in Dillon, Montana. The other sellers 

required payment for their bulls before the bulls were unloaded. 

BLA paid those sellers with the understanding that Scofield would 

reimburse it. 

The bulls were checked into the yard by Jack Ripley, a State 

Department of Livestock inspector. Ripley indicated on his 

inspection reports that payment for the bulls should be delivered 

to the shipper, Scofield. 

Scofield transported twenty-four of the bulls to Holland 

Ranch Company but Holland Ranch Company then determined that it 

could not pay the purchase price Scofield had promised. Those 

bulls were returned to BLA and resold at a lower price through the 

ring. The buyers of the remaining bulls also paid less than the 

purchase price Scofield had promised plaintiffs. After BLA 

deducted its commission and costs and the money Scofield owed for 
the bulls of the other sellers from the money paid for the bulls, 

only about $1,000 remained. Plaintiffs have never been paid for 

the bulls, which they value at $26,000. 

Plaintiffs brought this suit in June 1987. Their claim 

against BLA is that BLA should have held the proceeds of the sale 

of their bulls for them, the rightful owners. Following discovery, 

BLA moved for summary judgment, which was granted in an omnibus 

order from which the plaintiffs appeal. 

Did the District Court err in granting Beaverhead Livestock 

Auction's motion for summary judgment? 

Plaintiffs argue that genuine issues of material fact exist 

which preclude summary judgment for BLA. specifically, they argue 

that there is a question as to whether BLA had a duty to determine 

who owned the bulls before it made payment of the proceeds of sale. 

They cite B 81-8-233, MCA: 

A livestock market is liable to the rightful 

owner of all livestock sold for the net proceeds for such livestock whether or not the 

rightful owner was known to the market at the 

time of the sale. 

The depositions on file indicate that the longstanding 

practice in Montana is that a livestock market pays the proceeds 

of a cattle sale according to the directions of the state livestock 

inspector, who investigates title to the animals. Section 81-3- 

203(1), MCA, requires that a state livestock inspector must issue 
a certificate of inspection as to any livestock for sale, stating 

that the livestock is being sold by the rightful owner or person 

with lawful right of possession. Section 81-8-231 (3), MCA, 

provides that the Department of Livestock shall 

supervise and regulate livestock markets in 

all matters affecting the relationship between 

the livestock market and owners of livestock 

and between the livestock market and purchasers of livestock. 

Section 81-8-261, MCA, provides that livestock sold at a livestock 

market may not be delivered to a purchaser until the purchaser has 

received an inspection certificate stating that the state livestock 

inspector is satisfied as to the ownership of the livestock. 

In his deposition, state livestock inspector Jack Ripley 

stated that he determined that title to the bulls was in scofield 

because the cattle were shipped to him. "When you ship the cattle 

from you to me and it shows shipped to, we understand, off of our 

Canadian records, that that means that the guy down here has title 

to the cattle." He stated that his determination was in accord 

with an unwritten policy which had existed in the Department of 

Livestock since at least 1963. 

We conclude that any duty of BLA to go beyond the directions 

of the state inspector in ascertaining the name of the true owner 

of cattle would conflict with the statutory scheme. Accordingly, 

we conclude that the term Itrightful owner" in 5 81-8-233, MCA, 
refers to the owner as determined by the Montana Department of 

Livestock. We therefore conclude that the District Court was 

correct in stating that all of the evidence indicates that BLA has 

fully complied with the applicable laws and rules. We hold that 

the court did not err in granting BLAts motion for summary 

judgment . 

Did the court err in striking the affidavit of Wayne Scofield? 

The District Court ordered stricken an affidavit by Scofield 

which plaintiffs had submitted. The court stated that tt[t]he 

allegations therein contain no admissible evidence as to any 

genuine issue of material fact as between Plaintiffs and [BLA].It 

Plaintiffs argue that the court should have considered the affidavit in ruling on the summary judgment motion, because the 

affidavit met the criteria of Rule 56, M.R.Civ.P. 

Rule 56(e), M.R.Civ.P., provides that 

[slupporting and opposing affidavits shall be 

made on personal knowledge, shall set forth 

such facts as would be admissible in evidence, 

and shall show affirmatively that the affiant 

is competent to testify to the matters stated 

therein. 

We have reviewed the proposed affidavit of Scofield, containing his 

statement concerning the circumstances surrounding the sale of the 

bulls. We conclude that the District Court was correct in ruling 

that Scofield did not therein make any statements which were of his 
personal knowledge and related to the issue on which summary 

judgment was granted. All his statements relating to that issue 

were hearsay. We therefore hold that the District Court did not 

err in striking Scofield's affidavit. 

Did the court err in allowing the Montana Department of 

Livestock to file an amicus curiae brief? 

The District Court, in allowing the Montana Department of 

Livestock to file its amicus brief, stated that: 

The Court finds that this brief and its supporting exhibits to be relevant to the principal issues as between Plaintiffs and the 

Defendant BEAVERHEAD LIVESTOCK AUCTION and has 

been adopted by the latter in support of its 

motion for summary judgment. 

The amicus motion and brief is fully within 

the intent and purpose of a long established 

procedure therefor. It gives the Court invaluable information on a question of law in 

respect to which the Court was doubtful and 

especially from one who, in the Courtls judgment, should have been a named defendant under 

Plaintiffs1 various theories of liability. 

Plaintiffs argue that the amicus brief was untimely, was not 

supported by the rules, and was inaccurate. They point out that 

the brief was filed less than three weeks prior to the trial date 

and almost two months after the pretrial motion deadline. Plaintiffs assert that it should be stricken. 

The Montana Rules of Civil Procedure and the Uniform District 

Court Rules neither provide for nor prohibit the use of briefs by 
amicus curiae in the district courts. This Court has stated that 

I8[t]he right to be heard as amicus curiae is within the discretion 

of the court." State v. Bonner (1950), 123 Mont. 414, 420-21, 214 

P.2d 747, 751. In this case, we conclude that it was within the 

District Court's discretion to allow the brief of the Montana 

Department of Livestock to be filed. 

The inaccuracies reported in the amicus brief concern conclusions drawn from a letter written by the Head of the Regulatory Services Branch of the Animal Industry Division of Alberta 

Agriculture. The conclusions were that the documents conveyed with 

plaintiffs1 bulls effectively conveyed title to the bulls to 

Scofield. Because our holding that it was not error to grant 

summary judgment for BLA is based on the absence of a duty of BLA 

to determine the true owner of the bulls in contradiction to the 

determination of the Montana Department of Livestock, we conclude 

that this argument is irrelevant. 

Affirmed . 
We concur: