NO. 90-427 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

ROBERT G. KIZER, 

Plaintiff and Respondent, 

SEMITOOL, INC. , a Montana Corporation, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Debra D. Parker and Steven E. Cummings (argued), 

Dana L Christensen; Murphy, Robinson, Heckathorn & 

Phillips, P.C., Kalispell, Montana 

For Respondent: 

Daniel W. Hileman (argued); Murray & Kaufman, 

Kalispell, Montana 

Randall S. Ogle; Ogle & Worm, Kalispell, Montana 

Filed: DEC 16 '1991 

submitted: June 18, 1991 

Decided: December 16, 1991 
Justice Karla M. Gray delivered the Opinion of the Court. 

The defendant, Semitool, Inc. (Semitool) , appeals from a 

judgment entered on a jury verdict rendered in the District Court 

of the Eleventh Judicial District, Flathead County, in favor of the 

plaintiff, Robert G. Kizer (Kizer). Kizer filed suit in the 

District Court seeking to recover damages from Semitool based on 

three claims: wrongful discharge, breach of the implied covenant of 

good faith and fair dealing, and negligence. The jury, through the 

use of a general verdict form, awarded Kizer damages in the amount 

of $51,000. We reverse and remand. 

The issues are: 

1. Was Semitool's notice of appeal timely filed? 

2. Did the District Court err in allowing Kizer's expert 

witness to render legal conclusions that Semitool breached the 

implied covenant of good faith and fair dealing and that semitoolts 

reduction in force was not legitimate? 

3. Did the District Court err in instructing the jury on the 

issue of negligence? 

4. Was there sufficient evidence to support the submission of 

Kizerts case to the jury? 

Semitool is a manufacturer of specialized capital equipment 

for the semiconductor industry. Its plant and principal offices 

have been located near Kalispell, Montana since 1979. Semitool is 

a closely-held corporation with Raymon and Ladeine Thompson as its 

principal shareholders. Raymon Thompson also serves as president. 

The semiconductor industry is highly cyclical and intensely 
competitive; technology is continuously changing. Semitool's 

success is directly related to its ability to produce a state-ofthe-art product and respond to the fluctuating demands of its 

customers. Two important measures of customer demand and, thus, 

Semitool's economic prospects are (1) sales booked (representing 

orders received for products to be manufactured by Semitool and 

delivered in the future); and (2) backlog (representing products 

ordered by customers and in the process of being manufactured). In 

the fall of 1986, Semitool suffered a significant down-turn in both 

sales booked and backlog which continued through the spring of 

1987. During this period, Semitool reduced its number of 

employees. A total of thirty-five employees were terminated, 

including Kizer. Testimony at trial indicated that when Semitool's 

economic prospects improved after ~pril 1987, almost all of the 

employees were rehired or their previous positions were filled by 

new first-time employees. 

Kizer was employed with Semitool for nearly four years. In 

April 1983, he began working for Semitool as the supervisor of the 

polypropylene department. He was promoted two months later to 

supervisor of the polypropylene, welding, and electropolish 

departments. By 1987, Kizer held the position of fabrications 

manager, after having been given the additional responsibility of 

supervising the machine shop at Semitool. 

While employed by Semitool, Kizer received numerous verbal 

evaluations of his job performance, all of which were favorable. 

He also received one written performance evaluation which was 

favorable to him. ~izer did not receive any unsatisfactory 
evaluations of his job performance. 

On February 16, 1987, Kizer's employment with Semitool ended. 

He was called into Thompson' s office that day and, without any 

forewarning, told that his employment was terminated. According to 

Kizerfs testimony, Thompson told him that he was being "let go1! 

because the machine shop was operating at thirty percent less 

efficiency than the previous year and because he was not a 

j ourneyman machinist. 

On February 2, 1988, Kizer filed suit in the District Court 

seeking to recover damages from Semitool based on three claims: 

wrongful discharge, breach of the implied covenant of good faith 

and fair dealing, and negligence. The case was tried before a jury 

March 26 through March 29, 1990. The jury, through the use of a 

general verdict form, rendered a verdict in favor of Kizer and 

awarded damages in the amount of $51,000. Following trial, 

Semitool moved for judgment notwithstanding the verdict or, in the 

alternative, a new trial. At a hearing held on April 26, 1990, the 

District Court denied Semitool's post-trial motions. This appeal 

followed. 

I 

Was Semitool's notice of appeal timely filed? 

Kizer contends that Semitool's notice of appeal was not timely 

filed and, therefore, its appeal should be dismissed. We disagree. 

At the hearing on April 26, 1990, the District Court denied 

Semitool's post-trial motions from the bench and the Clerk of the 

District Court entered the court's denial into the record. 

Pursuant to Rule 5(a)(4), M.R.App.P., allowing three days for 
mailing, Semitool's thirty-day period in which to file its notice 

of appeal expired on May 30, 1990. On May 31, 1990, Semitool filed 

with the District Court a motion to extend the time of filing a 

notice of appeal. The District Court granted the motion and 

Semitool filed its notice of appeal on June 8, 1990. 

Rule 5(a) (5), M.R.App.P., allows the district court to extend 

the time for filing a notice of appeal upon a showing of excusable 

neglect or good cause. The request to extend the time for filing 

a notice of appeal must be made within thirty days after the 

initial thirty-day period for filing a notice of appeal has 

expired. Here, Semitool filed its motion to extend the time for 

filing a notice of appeal one day after the initial thirty-day 

period had expired. Apparently, it was unclear to counsel for 

Semitool whether the ~istrict Court had denied Semitool's posttrial motions from the bench or would be making a decision posthearing. Under these circumstances, the District Court found that 

good cause existed to extend the time for filing a notice of 

appeal. We hold that semitool's notice of appeal was timely filed. 

I1 

Did the District Court err in allowing Kizerls expert witness 

to render legal conclusions that semitool breached the implied 

covenant of good faith and fair dealing and that semitool's 

reduction in force was not legitimate? 

Alan Brown, an expert in employment relations, testified on 

behalf of Kizer at trial. On direct examination, Kizerls counsel 

established Brown's training and qualifications and knowledge of 

the facts surrounding Kizerls termination of employment. Counsel 
then elicited the following testimony from Brown: 

Q. Did you formulate any opinions in this case? 

A. Yes, I did. 

Q. And what are those opinions? 

A. My opinion is that Bob Kizer, the Plaintiff in 

this case, was not treated fairly by the Defendant, 

Semitool. 

Q. What forms the basis for your opinion that 

Semitool treated Mr. Kizer unfairly? 

A. I guess there are five bases for my opinion. 

The first of these bases is the fact that when you 

compare the actions of Semitool, the Defendant in this 

case, against widely accepted standards in the employee 

relations field, you find that their actions weren't fair 

and they weren't the actions that a company normally 

takes when they have a reduction in force. 

The second thing that I found was that in the past, 

Semitool, when they have had reductions in force, have 

done things differently and they have treated their 

employees much better than they have treated Mr. Kizer. 

The third point that I found was that the implied 

covenant of good faith and fair dealing, which is found 

in the employer relationship, was violated by the actions 

of Semitool. 

The fourth point that supports my opinion is the 

fact that when an employer has performance problems with 

an employee, they deal with those performance problems as 

opposed to terminating or firing an employee for an 

alleged reduction in force, when in reality, the problems 

lay elsewhere in the materials that I reviewed. And in 

my review with Mr. Kizer, I learned that in fact there 

were some performance problems that had existed. 

And the final point, or basis for my opinion, is 

that the State of Montana, if you terminate an employee, 

the Supreme Court has said that you must-- 

MR. CHRISTENSEN: Your Honor, I am going to object 

to any testimony of what the Supreme Court says. That is 

commenting on the law, and that is your bailiwick. 

THE COURT: I appreciate that. On the other hand, 

I think he is looking for standards to compare with. But 

I would tell you not to use the Supreme Court decision. 
If you have some knowledge of a standard, I would allow 

that. 

THE WITNESS: The standard in the State of Montana 

is that an employer, when they terminate an employee, 

must have a fair and honest reason for that termination. 

And my review indicates to me that there was, in fact, no 

fair and honest reason for this termination. 

BY MR. OGLE: 

Q. So, as I understand your answer to the last 

question, then there are five different points that led 

you to the conclusion that Mr. Kizer was not treated 

fairly in the situation. Is that right? 

A. Yes, that is correct. 

Q. Letts discuss them one at a time, then. One of 

your points was that the implied covenant of good faith 

and fair dealing applied to this case. Is that right? 

A. Yes, that is correct. 

Q. Did you believe it was adhered to by Semitool 

with regard to Bob Kizer? 

MR. CHRISTENSEN: I will object to this as invading 

the province of the jury. They decide this question. 

They don't need this man telling them what he thinks they 

should do. 

THE COURT: Well, certainly the mere fact that it 

goes to invading the province of the Jury does not 

prohibit the testimony. I am not sure where we are 

headed with this line. I have no problem to his setting 

forth facts that he found that might indicate in his 

opinion a violation of the covenant. But as to the 

ultimate conclusion, I think that is a Jury question and 

I will allow the Jury to resolve it. 

BY MR. OGLE: 

Q. I would rephrase the question, then, as to 

whether or not you found any facts in this particular 

case by the treatment of Mr. Kizer by Semitool from which 

you can tell in your opinion whether or not Semitool 

adhered to the implied covenant of good faith and fair 

dealing. 

MR. CHRISTENSEN: Same objection. Same question. 

THE COURT: Overruled. 
THE WITNESS: In my view, I don't believe that 

Semitool did in fact adhere to the covenant. . . . 

Q. Do you believe that the termination of Bob Kizer 

by Semitool was in fact a legitimate reduction in force? 

MR. CHRISTENSEN: Objection; goes to the ultimate 

issue in the case, invades the province of the Jury and 

isn't helpful to them. 

MR. OGLE: I believe an expert witness has a right 

to testify, Your Honor. 

THE COURT: Again, as to allowing him to give his 

opinions, I will allow it. I will remind the Jury the 

ultimate decision is up to you folks, of course, but he 

may give his opinion as an expert witness. 

You will be instructed later on that; you can give 

it such weight as you feel it entitled. 

THE WITNESS: In my opinion, I don't feel it was a 

legitimate reduction in force. 

Semitool, citing Heltborg v. Modern Machinery (1990), 244 

Mont. 24, 795 P.2d 954, contends that Brown's testimony constituted 

improper legal conclusions on the issues of whether Semitool 

breached the implied covenant of good faith and fair dealing and 

whether its reduction of force was legitimate. It argues that 

Brown's testimony amounted to instructing the jury on how to decide 

the case. Kizer, on the other hand, contends that Brown's 

testimony was admissible as opinions on ultimate issues of fact in 

accordance with Rule 704, M.R.Evid. Kizer also contends that even 

if Brown's testimony constituted legal conclusions, his testimony 

was properly admitted by the ~istrict Court because semitool did 

not make a timely and specific objection or motion to strike as 

required by Rule 103, M.R.Evid., and therefore, any objections to 

the admission of Brown's testimony were waived. 
In Heltborq, this Court considered testimony from this same 

expert which was substantially similar to the testimony in the 

present case. The defendant claimed that the plaintiff's 

employment was terminated as part of a reduction in force for 

economic reasons. The plaintiff asserted that the defendant 

breached the covenant of good faith and fair dealing, was negligent 

in its reduction in force, and that the reduction in force was not 

legitimate. 

In considering the expert testimony, we emphasized the 

distinction under Rule 704, M.R.Evid., between testimony on the 

ultimate factual issue, which is allowable, and testimony on the 

ultimate legal issue, which is not allowable. Rule 704, M.R.Evid., 

states that "[tlestimony in the form of an opinion or inference 

otherwise admissible is not objectionable because it embraces an 

ultimate issue to be decided by the trier of fact." The Commission 

Comments to Rule 704, M.R.Evid., state that "the Commission intends 

this rule to follow the existing Montana practice of not allowing 

the witness to give a legal conclusion or to apply the law to the 

facts in his answer." 

In discussing the propriety of expert legal testimony under 

Rule 704, we cited our decision in Hart-Anderson v. Hauck (1988), 

230 Mont. 63, 748 P. 2d 937, which quoted approvingly from Marx & 

Co., Inc. v. Diners1 Club, Inc. (2nd Cir. 1977), 550 F.2d 505, 

cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977), as 

follows: 

"[Sluch testimony 'amounts to no more than an 

expression of the [witness1] general belief as to how the 

case should be decided.' ~ccormick on Evidence, 5 12 at 
26-27. The admission of such testimony would give the 

appearance that the court was shifting to witnesses the 

responsibility to decide the case. McCormick on 

Evidence, 5 12 at 27. It is for the jury to evaluate the 

facts in the light of the applicable rules of law, and it 

is therefore erroneous for a witness to state his opinion 

on the law of the forum.I1 

Heltborq, 244 Mont. at 31, 795 P.2d at 958. 

We held that the expert's testimony in Heltborq was not 

admissible, stating: 

The testimony by Mr. Alan Brown constituted a legal 

conclusion on the precise issue presented to the jury, 

that is, whether defendant had breached the covenant of 

good faith and fair dealing. Moreover, he was allowed to 

state his opinion that defendant was negligent in 

carrying out its reduction in force and that such 

reduction was not legitimate; . . . Mr. Brown's testimony 

was extensive, and he repeatedly stated legal conclusions 

which amounted to instructing the jury on how to decide 

the case. 

Heltborq, 244 Mont. at 32, 795 P.2d at 958. 

In light of our decision in Heltborq, we agree with Semitool 

that Brown's testimony in the present case constituted legal 

conclusions on the very issues to be decided by the jury and 

exceeded the scope of allowable expert testimony under Rule 704, 

M.R.Evid. Having so concluded, we must now consider whether 

Semitool waived its objection to this evidence. 

In order to preserve an objection to the admission of evidence 

for purposes of appeal, the objecting party must make a timely 

objection or motion to strike and state its specific grounds. The 

objection must appear on the record. Rule 103, M.R.Evid. To be 

timely, the objection must be made as soon as the ground for the 

objection becomes apparent. McCormick on Evidence, (3rd. Ed. 

1984), § 52 at p. 126. The objection is sufficiently specific if 
it is accompanied by a reasonably definite statement of the grounds 

for the objection. McCormick on Evidence, (3rd. Ed. 1984) , 5 52 at 

p. 128. Failure to make such an objection constitutes a waiver of 

the right to claim error on appeal. Moore v. Hardy (1988), 230 

Mont. 158, 163, 748 P.2d 477, 481. The effect of waiver is that 

the evidence is treated the same as any other admissible evidence. 

Kizer asserts that the first objection made by Semitool to 

Brown's testimony was made after Brown rendered his opinions that 

Kizer's employment was not terminated as part of a legitimate 

reduction in force and that Semitool violated the implied covenant 

of good faith and fair dealing. He also asserts that the first 

objection made by Semitool related only to "commenting on the law" 

in response to Brown's testimony regarding what "the Supreme Court 

has said,I1 rather than that counsel's question called for a legal 

conclusion which invaded the province of the jury. Kizer argues 

that Semitool's failure to make a timely and specific objection 

constituted a waiver of the objection and rendered the opinions, as 

well as the subsequent discussions regarding the opinions, 

admissible. 

Our review of the record indicates that Semitool properly 

preserved its objection to Brown's testimony for purposes of 

appeal. After Brown's training and qualifications and knowledge of 

the facts surrounding Kizer's termination of employment were 

established, Kizer's counsel asked Brown if he had formed any 

opinions in this case. Brown responded that, in his opinion, Kizer 

Itwas not treated fairly by the Defendant." He further testified 

that there were five bases for his opinion. Bases one, two, and 
four related to Kizer's termination of employment with respect to 

a legitimate reduction in force. Basis three involved the implied 

covenant and basis five involved what Ifthe Supreme Court has said" 

which was objected to as gfcommenting on the law.I1 Immediately 

thereafter, Kizer's counsel delved into these bases "one at a 

time." It was during the discussion of these bases that counsel 

first asked Brown to state his opinion of whether Semitool adhered 

to the implied covenant of good faith and fair dealing. Semitool 

objected to this question as "invading the province of the jury." 

Thereafter, counsel also asked Brown for the first time if he 

believed that the termination of Kizerts employment was a 

legitimate reduction in force. semitool objected to this question 

as going to the "ultimate issuew and l1invad[ing] the province of 

the jury. 

Under these circumstances we conclude that Brown's initial 

testimony and the ensuing discussion, during which Semitool raised 

its objections, occurred in sufficient proximity in time to render 

Semitool's objections timely. We also conclude that ~emitool's 

objections were sufficiently specific. This Court has previously 

stated that expert legal opinions invade the province of the jury. 

In Hart-Anderson v. Hauck (1988), 230 Mont. 63, 748 P.2d 937, the 

plaintiff's expert witness testified, over objection, that the 

defendant, State Farm Insurance Company, violated Subsections (4), 

(6) and (7) of § 33-18-201, MCA, (Montana's Unfair Claims 

Settlement Practices Act). In holding that the district court 

committed reversible error in admittingthe testimony, we discussed 

the propriety of legal opinions under Rule 704, M.R.Evid., and 
stated that "[the expert's] challenged testimony, opining that 

State Farm violated Subsections (4), (6) and (7) of the Act invaded 

the province of the iurv and simply instructed the jury how to 

decide the case. " Hart-Anderson, 230 Mont. at 72, 748 P. 2d at 943, 

(emphasis added). Thus, Hart-Anderson, decided more than two years 

prior to the trial in the instant case, not only limited the scope 

of expert testimony but also set forth this Court's opinion that 

expert legal opinions were objectionable precisely because they 

invaded the province of the jury. 

We hold that in the present case the District Court erred in 

allowing Brown to render legal conclusions on the very issues to be 

decided by the jury. We further hold that Semitool properly 

objected to the admission of Brown's testimony. We thus reverse 

and remand to the District Court for a new trial. 

Notwithstanding our reversal, we will address the remaining 

two issues raised by Semitool for the court's guidance on retrial. 

I11 

Did the District Court err in instructing the jury on the 

issue of negligence? 

The District Court gave the following negligence instructions 

to the jury: 

INSTRUCTION NO. 9 

Every person is responsible for injury to the person 

of another, caused by his or her negligence. 

Negligence is the failure to use reasonable care. 

Negligence may consist of action or inaction. A person 

is negligent if he fails to act as an ordinarily careful 

person would act under the circumstances. 

INSTRUCTION NO. 10 
Before you can find the defendant liable, you must 

find the defendant's negligence was a cause of the 

plaintiff's damage. 

Citing Heltborq, Semitool contends that the court's 

instructions improperly authorized the decide whether 

Semitool was negligent in carrying out a reduction in force by 

suggesting that the jury could second guess Semitool's management 

decision in the context of what an I1ordinarily careful person" 

would have done "under the circurn~tances.~~ It also asserts that 

the instructions improperly allowed the jury to find that Semitool 

negligently breached the implied covenant of good faith and fair 

dealing. 

Heltborq distinguishable from the present case this 

regard. In Heltborq the challenged jury instructions read as 

follows: 

No. 

When the legal duty to act in good faith 

exists in the employment relationship, as it 

does in this case, then there is a duty 

imposed upon the employer to exercise 

reasonable care in carrying out decisions 

concerning employment. This means that there 

is a duty on the part of the employer to use 

reasonable care under the circumstances in 

carrying out its business decision-making. 

Instruction No. 

A reduction in force can constitute a just 

cause for termination of employment. However, 

you are instructed that the employer's right 

to reduce its personnel does not excuse its 

obligation to act fairly and in good faith or 

to use ordinary and reasonable care in the 

process and manner of termination of 

employment. 

Heltborq, 244 Mont. at 33-34, 795 P.2d at 959. In addition, a 
special verdict form specifically directed the jury to consider 

whether the defendant had negligently breached the implied covenant 

of good faith and fair dealing. 

We held that the district court improperly instructed the jury 

on the issue of negligence, stating that the management decision to 

implement a reduction in force for economic reasons is not 

susceptible to a negligence analysis by a jury. Heltborq, 244 

Mont. at 36, 795 P.2d at 961. We also held that a breach of the 

implied covenant of good faith and fair dealing does not involve 

negligent conduct, but rather involves intentional conduct. 

Heltborq, 244 Mont. at 37, 795 P.2d at 962. 

However, we did not hold in Heltborq that there can never be 

a claim for negligence in the termination of the employer-employee 

relationship. Indeed, in other wrongful termination cases arising, 

as did the instant case, prior to the Wrongful isc charge From 

Employment Act, this Court has recognized that negligence, as a 

separate and distinct cause of action, can be a basis for recovery. 

Flanigan v. Prudential Federal Savings & Loan (1986), 221 Mont. 

419, 720 P.2d 257; Crenshaw v. Bozeman Deaconess Hospital (1984), 

213 Mont. 488, 693 P.2d 487. We have held that an employer may be 

liable for negligence in violating its own written employment 

policies (Flaniqan) or for failing to make a proper investigation 

before discharge (Crenshaw). 

Here, Semitool's employee handbook was admitted into evidence. 

Kizer presented evidence at trial that Semitool violated its own 

employment policies and that it failed to make a proper 

investigation prior to discharge regarding Thompson's assertion 
that Kizer was not running the machine shop efficiently. Under 

these circumstances, we conclude that the District Court did not 

err in instructing the jury on the issue of negligence. 

Was there sufficient evidence to support the submission of 

Kizerrs case to the jury? 

Semitool contends that it was imperative that Kizer offer some 

specific motive or reason to contradict that he was laid off as 

part of a reduction in force for economic reasons. It argues that, 

having failed to do so, Kizer failed to rebut its claim that his 

employment was terminated out of economic necessity. 

In support of its argument, Semitool cites Cecil v. Cardinal 

Drilling Co. (1990), 244 Mont. 405, 797 P.2d 232. In that case, 

the district court granted summary judgment in favor of the 

employer on the basis that there was no genuine issue of material 

fact that the plaintiff's termination of employment was for other 

than legitimate business reasons. In affirming summary judgment, 

we stated that: 

Here, Cecil did not offer any other motive or reason 

for his termination. He merely denied that the reasons 

were legitimate business reasons. And while the record 

might arguably show that it was possible for Cardinal to 

keep Cecil employed during the decline in oil prices, 

this Court cannot speculate as to what Cardinal's real 

reasons may have been, if they were in fact not as 

claimed. Cecil has failed to meet his burden of raising 

a material fact issue sufficient to withstand a motion 

for summary judgment. 

Cecil, 244 Mont. at 410, 797 P.2d at 235. 

Cecil is factually distinguishable from the present case. 
Cecil was governed by and decided under the Wrongful Discharge From 

Employment Act, 88 39-2-901, et seq., MCA. Under the Act, an 

employer may discharge for good cause an employee who has completed 

the employer's probationary period of employment. Section 39-2- 

904 (2), MCA. The Act defines good cause as I1reasonable job-related 

grounds for dismissal based on a failure to satisfactorily perform 

job duties, disruption of the employerrs operation, or other 

legitimate business reason.l1 Section 39-2-903 (5), MCA. We 

recognized that economic conditions constituted a legitimate 

business reason or good cause for dismissal and held that the 

employer had met its burden of demonstrating that there was no 

genuine issue of material fact that the plaintiff was terminated 

for other than legitimate business reasons. Although the plaintiff 

asserted that he was not terminated for a legitimate business 

reason, he failed to present any evidence to meet his burden of 

raising a material fact issue. In other words, the plaintiff's 

assertion that he was not terminated for legitimate business 

reasons was nothing more than mere denial or speculation and was 

insufficient to raise a genuine issue. Cecil, 244 Mont. at 409-10, 

797 P.2d at 235. 

On appeal from a jury verdict, the evidence in the case is 

viewed in a light most favorable to the prevailing party. Sizemore 

v. Montana Power Co. (1990), 246 Mont. 37, 48, 803 P.2d 629, 636. 

In contrast to Cecil, the evidence presented at trial in this case 

was sufficient to raise a reasonable jury issue as to whether 

Semitool acted with other than purely economic motives when it 

terminated Kizerrs employment. Although it is apparent that a 
reduction in force for economic reasons did occur, the evidence is 

such that the jury could legitimately infer that Kizerls 

termination was not part of, or motivated by the need for, this 

reduction in force. 

Semitool asserts that Kizerfs termination was a result of its 

pre-termination decision to eliminate his position in an effort to 

reduce its overhead costs. Significantly, however, Kizer was not 

told that his employment was being terminated as part of a companywide reduction in force for economic reasons until after he filed 

the lawsuit against Semitool. According to Kizerls undisputed 

testimony, Thompson told him on the day his employment was 

terminated that he was being l1let gof1 because the machine shop was 

operating at thirty percent less efficiency than the previous year 

and because he was not a I1journeyman machinist." Thompson himself 

testified that he terminated Kizerfs employment because of rising 

costs in ~izer's areas of responsibility and because Kizer lacked 

technical expertise at the machine shop level. Evidence at trial 

indicated that Kizer was frequently promoted and that he never 

received an unsatisfactory job performance evaluation while 

employed with Semitool. In addition, the evidence established that 

Kizer had issued memos to his supervisors offering suggestions on 

how to increase efficiency in the machine shop, including the 

suggestion to purchase a new lathe. Prior to Kizerls termination, 

he suggestions were apparently not acted upon. However, shortly 

after Kizerfs termination, Semitool purchased the lathe at a cost 

of $86,000. In our view, the jury could have relied upon this 

evidence and concluded that Kizer was not terminated for purely 

18 
economic reasons. 

In addition, the evidence established that approximately 

twenty-six people were laid off around the time of Kizerrs 

termination. Of these twenty-six people, twenty-five were rehired 

or their positions were refilled because the employees had found 

other employment. The only person who was not rehired or whose 

position was not refilled was Kizer. Semitool argues that Kizer's 

management position was eliminated. However, semitool's 

organizational charts showing management before and after Kizer's 

termination were offered into evidence. The exhibits indicated 

that prior to Kizer's termination there were ten management 

positions; at the time of trial there were eleven people filling 

the same areas of responsibility. Although Thompson testified that 

other employees had changed positions within the company in the 

past, he never discussed with Kizer the possibility of moving to 

another position. He further testified that he never requested his 

subordinates to keep Kizer in mind for job openings after his 

termination because "that would have been stepping out of line. I' 

Contrary to Thompson's testimony, Semitool's chief Financial 

Officer, Larry Viano, testified that Kizer could have moved to 

another position and that Semitool explored that possibility. 

However, Viano testified that Semitool never discussed with Kizer 

the possibility of his moving to another position. 

We hold that sufficient evidence was presented to raise a 

factual issue as to whether Semitool acted with other than purely 

economic motives when it terminated Kizerrs employment. Thus, the 

District Court properly submitted Kizer's case to the jury. 

19 
To summarize our holding in this case, the District Court did 

not err in instructing the jury on the issue of negligence and 

submitting the case to the jury. The court did err, however, in 

allowing Kizer's expert witness to render legal conclusions that 

Semitool breached the implied covenant of good faith and fair 

dealing and that Semitool's reduction in force was not legitimate. 

Having no way of determining to what degree Brown's testimony 

influenced the jury's decision in this case, we cannot conclude 

that this error was harmless. We therefore reverse and remand to 

the District Court for a new trial. 

Reversed and remanded. 

We concur: / 

Chief Justi 

Justices 
Justice Terry N. Trieweiler concurring in part and dissenting in 

part. 

I concur with those parts of the majority's opinion which 

uphold the timeliness of Semitool's notice of appeal, affirm the 

District Court's instructions on the issue of negligence, and 

conclude that there was sufficient evidence to submit the 

plaintiff's case to the jury. 

I dissent from that part of the majority's opinion which 

concludes that there was a timely and appropriate objection to the 

testimony of Alan Brown, and which reverses the verdict in favor of 

the plaintiff on the basis of that objection. 

In Heltborg v. Modem Machinery (1990) , 244 Mont. 24, 795 P. 2d 954, 

we distinguished between expert opinions which express a factual 

conclusion, and expert opinions which express a legal conclusion. 

We held that the former were admissible even when they embrace an 

ultimate issue of fact. Heltborg, 795 P.2d at 958. We held that 

Brown could not express his opinion that defendant had breached the 

covenant of good faith and fair dealing because that testimony 

amounted to a legal conclusion. Heltborg, 795 P.2d at 959. 

In this case, Brown expressed what we previously characterized 

as a legal conclusion on three occasions. When first asked for his 

general opinions in this case, he expressed the opinion that 

plaintiff's termination was not a normal reduction in work force 

and that it violated the implied covenant of good faith and fair 
dealing. There was no objection to those opinions, nor any motion 

to strike them. Later during that same answer the witness began to 

discuss decisions of this Court. That testimony was objected to on 

a proper basis and the witness was instructed to avoid discussing 

the law. He completed his answer without further discussion of the 

law. 

Later in his testimony, he was asked specifically whether in 

his opinion Semitool violated the covenant of good faith, and 

whether their termination of the plaintiff was a legitimate 

reduction in force. His answers to these questions are the basis 

for the majority's reversal of the jury verdict in this case. The 

majority concludes that his answers to these questions were 

impermissible legal conclusions pursuant to our decision in Heltborg. 

However, neither of these questions was objected to on that basis. 

Both were objected to for the reason that they went to the ultimate 

issue in the case and invaded the province of the jury.' 

'prior to trial the defendant also filed a motion in limine to 

exclude certain opinions of Brown. However, the basis stated in 

that motion was not an appropriate basis for excluding the 

testimony. The reason given was as follows: 

[Flor the reason that said opinion is without adequate 

foundation, invades the province of the trier of fact, 

and is not helpful to the trier of fact in determining 

the ultimate issue involved in this case, pursuant to 

Rules 701 and 704, Montana Rules of Evidence. 

Nowhere in the motion in limine did defendant state that Brown's 

opinion was objectionable because it expressed a legal conclusion. 
Pursuant to Rule 704, M.R.Evid., and our previous decision in 

Heltborg, the fact that expert opinion testimony addresses the 

ultimate issue in the case is not a basis for excluding it. 

Rule 704 specifically provides: 

Testimony in the form of an opinion or inference 

otherwise admissible is not objectionable because it 

embraces an ultimate issue to be decided by the trier of 

fact. 

We have discussed the adequacy of the kind of objection made 

in this case previously. In State v. Howard (1981), 195 Mont. 400, 

404, 637 P.2d 15, 17, we stated in language clearly relevant to 

this case: 

The objection made by defense counsel to the question 

calling for the doctor's opinion on intent was that it 

"invades the province of the jury. This objection is not 

adequate to justiJL exclusion of the testimony. ~t is merely another 

way of saying that the testimony embraces an ultimate 

issue to be decided by the jury. Rule 704 of the Montana 

Rules of Evidence provides: 

"Testimony in the form of an opinion or 

inference otherwise admissible is not 

objectionable because it embraces an ultimate 

issue to be decided by the trier of fact." 

This rule reflects long-established law in Montana. State 

V. Petko (1978) , 177 Mont. 229, 581 P. 2d 425; McGuire v. Nelson 

(1975), 167 Mont. 188, 536 P.2d 768; Rude v. Neal (1974), 

165 Mont. 520, 530 P.2d 428; State v. Campbell (1965), 146 

Mont. 251, 405 P.2d 978; State v. Shannon (1933), 95 Mont. 

280, 26 P.2d 360; Kelleyv. John R. Daily Co. (1919), 56 Mont. 

63, 181 P. 326. Thus, the fact that the doctorls opinion 

on intent went to an ultimate issue is not a basis for 

its exclusion. [Emphasis added.] 
The fact that Brown's testimony was not objected to for an 

appropriate reason is significant because Rule 103(a) (1), 

M.R.Evid., provides as follows: 

Error may not be predicated upon a ruling which admits or 

excludes evidence unless a substantial right of the party 

is affected, and 

(1) Objection. In case the ruling is one admitting 

evidence, a timely objection or motion to strike appears 

of record, stating the specific ground of objection, if 

the specific ground was not apparent from the context 

By requiring that the specific ground for the objection be 

stated, it is implicit from Rule 103 that the objection must 

correctly state the reason for which the testimony objected to is 

inadmissible. 

Rule 103 is extremely important to attorney practitioners and 

trial judges in the district courts. Its purpose is obvious. It 

is simply not fair to reverse a verdict for either party based upon 

error which was not brought to the attention of the district judge 

and the other party. For one thing, the district judge should have 

an opportunity to consider the objection in light of the proper 

reason for the objection. The rule presumes that if he has that 

opportunity he is more likely to make a correct ruling. 

Just as importantly, the party offering the evidence should be 

given the opportunity to consider whether the evidence was 

inadmissible for a proper reason, and should have the option of 

withdrawing the evidence or restating the question to avoid the 

possibility of error. Neither the District Judge nor the 
plaintiff's attorney were given that opportunity in this case 

because the defendant's objection to the expert 's testimony did not 

identify an appropriate basis for excluding the testimony. 

In concluding that the defendant's objection was properly 

stated in this case, the majority rationalizes that expert legal 

opinions invade the province of the jury. However, the majority's 

opinion demonstrates a lack of understanding about the division of 

responsibility between juries and judges. 

Juries arrive at factual conclusions, not legal conclusions. 

Judges arrive at legal conclusions and instruct the jury on the 

law. The only "province of the jury" was to resolve the facts in 

this case. Rule 704 permits testimony from a qualified expert 

regarding the ultimate factual issue. Therefore, an objection 

which states that the plaintiff's question invades the ultimate 

province of the jury does not state a proper basis for excluding 

the expert testimony. 

What the majority has done in this case is extremely unfair to 

the trial court and the plaintiff and will create uncertainty in 

all future trials because of the possibility that legal issues can 

be raised and scrutinized on appeal that were never raised during 

trial. No party can be assured that he or she prevailed based on 

those issues that were addressed during the trial court 

proceedings. 
I conclude that there was not a proper objection to Brown's 

testimony. For that reason, any objection was waived and the 

verdict for the plaintiff should be affirmed. 

We concur in the foregoing concurring and dissenting opinion 

of Justice Trieweiler.