No. 84-394 INTHE SUPREMF:COURT OF THE STATEOF MONTANA 1985

PRICE BUILDING SERVICE INC., Plaintiffand Respondent,

JOHN CHRISTENSEN,d/b/a J.C. TILE, DefendantandAppellant.

APPEAL FROM: District Court of the Fourth JudicialDistrict, Inand for the County of Fllissoula, TheHonorable DouglasHarkin,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Timothy D. Geiszler,Missoula,Montana

For Respondent: Milodragovich, Dale & Dye; Michael J. Milodragovich, Missoula,Montana

Submitted on Briefs: Dec. 7, 1984 Decided: April 8, 1985

Filed: 

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ClerkMr. Chief Justice J. A. Turnagedelivered the Opinion of the Court.Defendant appeals a judgment entered by the Missoula County District Court in favor of Price Euildiny Service in its action for breach of warranty. Following a nonjury trial, Price was awarded $10,872.13 plus interest, fees and costs in a judgment dated June 8, 1984. Christensen appeals raising certainquestions concerning the trial court's admissionof expert testimony. This lawsuit was initiated by the general contractor, Price, against its subcontractor, Christensen, for damages resulting from a defective tile floor installed in the construction of the FissoulaArbytsrestaurant. Several months after thebuildingwas complete,the tile flooringcame loose in severalplaces. Price claimed that the problem was causedby defective bonding of the "thin-set" mortar and that the tile subcontractor, Christensen,was responsible. Christensen refused to replace the flooring as it was his position that the concrete slab surface to which the tile was bonded had settled. Christensen argued tha-tthis settling caused the tile to buckle and spring loose. After the owner,Arby's, threatened legal action against the general contractor, Price demanded Christensen replace the floor. Christensen eventually submittedabid for the replacement, but Price contracted with another tile company who submitted a lower bid to do the work. This lawsuit was filed against Christensen to recover the costs of the repairwork.Christensen's primary issue on appeal is whether Kevin. Price was properly allowed. to testify as an expert witness under Rule 702,M0nt.E.Evi.d. Kevin Pricewas an employee of theplaintiff contractingcompany and was generally responsible for supervising the various construction projects that

were undertaken. Price has a high school education but no technical training in tile-laying. He had worked as a general laborer for the companybefore assuminghis officeresponsibilities. Experience in tile-laying was gained through supervising subcontractors and preparing for the present litigation. Christensen takes exception to Kevin Price expressing his opinion of the cause of the tile failure. Appellant asserts that the trial court abused its discretion in allowing the testimony under Rule 702,Mont.R.Evid. This rule of evidence, adopted verbatim from the modern federal rule, provides as follows: "Testimony hy experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,training,or education,may testify thereto in the form of an opinion or otherwise." Christensen's appeal takes several tacks. First, it is argued that Price had no education, training or personal skill or experience with regard to tile installation. Secondly,appellant points out that t.heonly expertise Pricehad

was gained in preparation for this trial. The first contention is not supported by the record. The second contention may be true,butwe find no legal support,nordoes appellant provide such, for the proposition that one cannot become aRule 702 expert through knowledge gained.in preparation for litigation. Of greater importance to the issue is the standard of review to be applied to the expert witness determination by the trial court. Appellant acknowledgesthat a determination of whether an expertwitness is properly qualified is within the discretion of the trial judge. Haynes v. County of Missoula (1973), 163 Mont. 270, 290, 517 P.2d 3701 381- Absent a showing of abuse, the trial court's determination that a witness is qualified to testify as an expertwill not be disturbed. The District Court Judge in this case stated: "I find that this witness has met the threshold level to testify as an expert. He has read enough and spoken to enough knowledgeable people and he deals with it on a reasonably--not daily, but periodic basis that Iwill allowhim to testify as an expert onwhat he believes to be the cause of the tile failure." This pronouncement followed several objections to opinion testimonyby appellant's counsel that were sustainedbefore a proper foundationwas laid. The foll-owingdialoguepreceded the witness being qualified as an expert: 

### "Q. CPla.intifflsCounsel] In the past, ha.ve you, in terms of performance of other jobs, discussed methods and manners of laying tile with tile contractors? "A. [price]Yes. 

### "Q. As a matter of fact,have you used Mr. Christensen to lay tile in other iobs thatyou've had? "A. Yes. "Q. Have you discussed matters such as thiswithMr. Christensen? "A. It's been several vears ago, but I'm sure we did it from time to time."Q. And with other tile contractors as well?

''A. Yes. "Q. And as apart of those discussions, have you discussed appropriateways and proper ways to install given types of tile in given types of circumstances? "A. Yes, we have. "Q. Have those discussionsalso included the nature of, for example, surface preparation that needs to be done for proper tile installation? "A. Yes.

"Q. With respect to the potential problems that occur on a job site,have youdiscussedwith tile contractors that are working for you the nature of problems that can occur if a preliminary step is not done properly by either the artisan or perhaps some other subcontractor thatyou've got? [Objection] "A. Yes,

### we have,as far aspreparation of the surface to receive the tile and whatnot.

"Q. And apparently you've also discussedmethods ofdeterminingwhere tile is loose; is that correct? Cobjection] "A. Yes,

### we have. "Q. And 

# . .. you apparently had some tile problems in other jobs that you've had; is that correct? "A. Very minor ones,yes. 

### "Q. And I think you indicated they weren't to this magnitude, but there were other tile problems; is tha.t true?

''A. Yes. "Q. And Iwould presume as far as those problems are concerned, that you had to conduct some inquiry to determine the nature 

### of the failure 

### so that it wouldn't happen again; isn't that true?"A. Yes. "Q. And is the nature of the experience that you've had in excess of that that the ordinary 1ayma.n or home handyman would have in terms of technical knowledge and compliance with specifications and that type of particular knowledge? "A. Yes." On the ba.sisof this foundation, the lower court qua.lifi.ed thewitness. We are somewhat concerned that this witnesswas allowed to express his opinion on a skill to which he had no practical or personal involvement prior to preparation for trial. But the fact that we would reach a different conclusion on the determination than that of the trial court does not rend.erthe trial judgment infirm. The trial court'srulinq must be upheld unless shown to be clearly erroneous. Rule 52,M.R.Civ.P. ThisCourt will not overturn the holdings or findings of a trial court simply because the evidence furnishes reasonable grounds for different conclusions. Morgen & Oswood Const. Co. v. Big Sky of tlont. (1976), 171 Mont. 268, 557 P.2d 1017. This adage is particularly justified here, where the trial judgehad the benefit of observing the witness's demeanor and credibilitywhile we are reviewing a lifelessrecord. Two Colorado appellate decisions illustrate the degree of discretion trial courts have in resolving Rule 702determinations. In Sundance Develop., Inc. v. Standard Lbr. & Hard. Co. (Colo.App. 1974), 520 P.2d 1056, the owner of recently const.ructed tennis courts sued the contractor who installed fences around the courts after the fences were wind-damaged. The plaintiff attempted to qualify as an expert a vice president of a firm thatbuilt tennis courts,such that this individual could testify on the cause of the tennis fence failure. The trial court excluded the testimony after the expert conceded he had little personal experience in the construction of fencesbecause, in his firm,work of that nature was performed by subcontractors. This decision

was upheld by the court of appealswhich applied a "clearly erroneous" standard similar to Montana's standard set forth above. The Sundance courtnoted that the witness was generally knowledgeable with respect to tennis court construction but lacked knowledge and expertise in the matter at issue--construction of fencesaround tennis courts. A trial court's ruling on expert testimony was ultimately reversed by the Colorado Supreme Court in Freeman v. Gentry Builders, LTD. (Colo. 1974), 522 P.2d 739. In this

case owners of a home with alleged defects attempted to qualify a foundation contractor as an expert to testify on the cost of repairing defects to the home generally. The trial.court exclu.dedthe testimonybecause the contractorhad bid many repair icbs but not the particular type of job required by the home's defects (placing voids in the partitions 

### of the home). The court of appeals affirmed, Gentry Builders,LTD.

### v. Freema.n (Colo.App. 1973), 517P.2d 469,but the Supreme Court reversed. The Supreme Court found the trial court ruling clearly erroneous as the foundation contractor had considerable experience in the building trade: 

# ".

. . if it is shown that the trial court's ruling is clearly erroneous and results in the exclusion of conpetent and relevant evidence from the trial, reversal isrequired." 522 P.2d at 740. These two cases indicate the general rule followed across this country that the lower court decision will be upheld unless there has been some cl-earerror. In the caseat bar, the trial judge was presented with sufficient evidence of Kevin Price's competence to justify the Rule 702 determination. The opinion as to the tile failurewas properly admitted and questions as to Price's depth of knowledge or personal interest in the outcome are matters thatproperly affect the weight and reliability of the testimony, not its admissibility.

A second issue raised by appellant concerns the findings of fact made by the trial court. It is contended that Findings of FactNos. 9, 10, 12 and 13 are not supported by substantial credible evidence, and the judgment must be reversed. A.s noted above, findings of fact are not to be disturbed in a nonjury civil action unless clearly erroneous. Rule 52, M.R.Civ.P. Minor discrepancies do not provide grounds for reversal. Matos v. Rohrer (Mont. 1983), 661~.2d

Finding of FactNo. 9 states: "Although there may have been slab movement, this movement was minimal and did not contribute to the tile separation." Appellant's exception to this finding goes to the heart of the lawsuit. Appellant believes that the evidence,particularly the testimony 

### of his expert witnesses, supports a different conclusion--that the slab movement caused the tile floor failure. To comprehensively review such a finding would usurp the role of the trier of fact. Substantial evidence was presented that supports the "minimal slab movement" finding.The tile subcontractorwho replaced the flooringtestified on the condition of the slab and Kevin Price testified on the condition of adjoiningwalls, door jams and other ind-icators of whether there was substantial settling of the floor. The mere fact that some tiles buckled upwards and 1/16 to 1/8 Inch cracks were found in the concrete slab do not establish the conclusion appellantdesires. Finding of Fact No. 10 states in part that defendant Christensen did not "beat in" the ceramic tile. Beating in tile is a technique whereby the subcontractor "sets" the ceramic in the underlying bonding agent. Therewas voluminous testimonyoffered at trial concerning themanufacturer's recommendation and customary practice in the industry. This finding of fact isnot technically correct asChristensen did jn fact beat in the tile. He just did notbeat in the tile

as much as recommended. The subcontractor and other tile layers testified that they routinely did not heat in tile as much as recommended by the manufacturer as this was an inpractical standard. The discrepancy in the findingdoes not merit a new trial under the dictates of Matos

### v. Rohrer, 661 P.2d at 450. Similarly, the claimed error of Finding of Fact P7o. 12 is without substantive significance. In this finding the trial judge speculated that an inadequate amount of bans-ing agent, among other possibilities,may have been the cause of separation of the ceramic mosaics. The lower court went on to conclude in Finding of FactNo. 13 that the separationwas due to a defect inworkmanship by Christensen. Appellant claims that no testimony was offered in support of the inadequate amount of mastic (the bonding agent) theory. We have re~riewedthe record in detail andfind the court's finding to be a reasonable inference from what evidence was submitt-edto the court. In any case, the finding

### was not essential to the court's ultimate conclusion of defective workmanship. Appellant attacks this conclusion

as vigorously as the causation Find-ingNo. 9; yet we hold both findingsare supportedby substantialevidence. The judgment is affirmed.

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# T,,

Chief Justice

We concur:Mr. Justice John C. Sheehy,dissenting:

I dissent. The trial judge was clearly erroneous in permitting Price to testify as an expert on the cause of the ceramic tilepopping up. A witness who is not an expertmay give his opinions or inferences if they are (a)rationallybased on the perception of the witness, and (b)helpful to a clear understandi-ngof his testimony or the determination of a fact initial. Rule 701,Mont.R.Evid.. An expert witness must be qualified "by knowledge, skill, experience, training, or education" and his specialized knowledge must be such as to assist the trier of fact to understand the evidence or to determine a fact in issue. Rule 702,Mont.R.Evid. Price's "qualifications'bs an expert in problems of loose ceramic tile, as those qualifications appear from the portion of the transcript cited by the majority, are insubstantial on their face. "Methodsof determining where tile is loose1'is a far cry from determining why - tile is loose; experience with "very minor" loose tiles does not qualify one to be an expert inwhy the whole of a tile floor popped up. The trial court clearly abused its discretionby considering Price an expert on the basis of mere conversations with other contractors on unspecified subjects of til-e-laying. In truth, the District Court did not abuse itsdiscretion because ithad no discretion to exercise. The qualificationof the expertutterly failed. Rule 702,Mont.R.Evid., permits the admission of expert testimony whenever it will aid the trier of fact, but the admission of such evidence must be weighe2.against the otherparty's right to a fair trial. United Statesv. Erown (6th Cir. 1977), 557F.2d 541. Christensendid not get a fair trial in this case. Once the District Court permitted Price to testify as an expert, Price then offered and had admitted into evidence exhibits which were nothing more than hearsay. They were admitted because of Rule 703, Mont.R.Evid., which permits facts or data upon which an expert relies tobe introduced. Theworst example is Price's exhibit 10, a letter to Price from the Ti1.e Council of America. The letter stated that an examination of the tile samples taken from the restaurant revealed that Christensen used either a worn-out trowel or a trowel of incorrect size. It also steted that Christensen may have used an insufficient amount of mortar or in the alternative, failed to sufficiently press the tile into the mortar bed. The District Court relied on the latter portion of exh-ibit10 inholding that Christensenhad failed to "beat into" themortarbed the tilehe was installing. The finding of fact of a district court is "clearly erroneous" under Rule 52(a), when, although there isevidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co.

(1948), 333 U.S. 364, 394-395, 68 S.Ct. 525, 541-542, 92 L.Ed. 746, 765-766. Thus, as a supposed expert, Pricewas able to get into evidence exhibits and documents whose authors were not available for Christensen to cross-examine. Price produced

no other expert but himself. Thewhole proced-ureoffendsmy notions of fairplay.

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