No. 84-394 

IN THE SUPREMF: COURT OF THE STATE OF MONTANA 

1985 

PRICE BUILDING SERVICE INC., 

Plaintiff and Respondent, 

JOHN CHRISTENSEN, d/b/a 

J.C. TILE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Fllissoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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: APR 8 * 1985 

Clerk 
Mr. Chief Justice J. A. Turnage delivered 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 certain questions concerning the trial court's admission of 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 Fissoula Arbyts restaurant. Several months 

after the building was complete, the tile flooring came loose 

in several places. 

Price claimed that the problem was caused by 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-t this 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 submitted a bid 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 repair work. 
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 Price was an employee of 

the plaintiff contracting company 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 company before assuming his office responsibilities. 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.he only expertise Price had 

was gained in preparation for this trial. The first contention is not supported by the record. The second contention 

may be true, but we find no legal support, nor does appellant 

provide such, for the proposition that one cannot become a 
Rule 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 acknowledges that a determination 

of whether an expert witness 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 expert will 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 I will allow him to 

testify as an expert on what he believes 

to be the cause of the tile failure." 

This pronouncement followed several objections to opinion 

testimony by appellant's counsel that were sustained before a 

proper foundation was laid. The foll-owing dialogue preceded 

the witness being qualified as an expert: 

"Q. CPla.intiffls Counsel] 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 that you've had? 

"A. Yes. 

"Q. Have you discussed matters such as 

this with Mr. 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 a part of those discussions, 

have you discussed appropriate ways and 

proper ways to install given types of 

tile in given types of circumstances? 

"A. Yes, we have. 

"Q. Have those discussions also 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 

you discussed with 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 that you've got? 

[Objection] 

"A. Yes, we have, as far as preparation 

of the surface to receive the tile and 

whatnot. 

"Q. And apparently you've also discussed methods of determining where tile 

is loose; is that correct? 

Cob jection] 

"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 I would 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.sis of this foundation, the lower court qua.lifi.ed 

the witness. 

We are somewhat concerned that this witness was 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.er the trial judgment infirm. The trial court's rulinq 

must be upheld unless shown to be clearly erroneous. Rule 

52, M.R.Civ.P. This Court 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 judge had the benefit of observing the 

witness's demeanor and credibility while we are reviewing a 

lifeless record. 

Two Colorado appellate decisions illustrate the degree 

of discretion trial courts have in resolving Rule 702 determinations. 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 that built 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 fences because, in his firm, work of 

that nature was performed by subcontractors. This decision 

was upheld by the court of appeals which applied a "clearly 

erroneous" standard similar to Montana's standard set forth 

above. The Sundance court noted that the witness was generally knowledgeable with respect to tennis court construction 

but lacked knowledge and expertise in the matter at 

issue--construction of fences around 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.ded the testimony because the contractor had 

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), 517 P.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 is required." 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-ear error. In the case 
at 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 failure was properly admitted and questions as to Price's depth of knowledge 

or personal interest in the outcome are matters that properly 

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 Fact Nos. 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 Fact No. 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 subcontractor who replaced the flooring testified on 

the condition of the slab and Kevin Price testified on the 

condition of adjoining walls, 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 appellant desires. 

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. There was voluminous testimony offered at trial concerning the manufacturer's 

recommendation and customary practice in the industry. This 

finding of fact is not technically correct as Christensen did 

jn fact beat in the tile. He just did not beat 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 finding does 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 Fact No. 13 that the separation was 

due to a defect in workmanship by Christensen. 

Appellant claims that no testimony was offered in 

support of the inadequate amount of mastic (the bonding 

agent) theory. We have re~riewed the record in detail and 
find the court's finding to be a reasonable inference from 

what evidence was submitt-ed to 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-ing No. 9; yet we hold 

both findings are supported by substantial evidence. 

The judgment is affirmed. 

,--' 

, 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 tile popping up. 

A witness who is not an expert may give his opinions or 

inferences if they are (a) rationally based on the perception 

of the witness, and (b) helpful to a clear understandi-ng of 

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. "Methods of 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 in why the whole of a tile floor 

popped up. The trial court clearly abused its discretion by 

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 

its discretion because it had no discretion to exercise. The 

qualification of the expert utterly 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 other 
party's right to a fair trial. United States v. Erown (6th 

Cir. 1977), 557 F.2d 541. 

Christensen did 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 to be introduced. The worst 

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-ibit 10 in holding that Christensen had failed to "beat 

into" the mortar bed the tile he was installing. 

The finding of fact of a district court is "clearly 

erroneous" under Rule 52(a), when, although there is evidence 

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, Price was 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. The whole proced-ure offends my 

notions of fair play. ".-.^*\