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: 

## DEC16

## '1991 submitted: June 18, 1991 Decided: December 16, 1991Justice 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 theEleventh 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 threeclaims: wrongful discharge,breach of the implied covenantof good faithand fairdealing,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 faithand fairdealing 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 sufficientevidence to supportthe submissionof Kizertscase 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 corporationwith Raymon and Ladeine Thompson as its principal shareholders. Raymon Thompson also serves aspresident. The semiconductor industry is highly cyclical and intenselycompetitive; 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 customersand in theprocess of beingmanufactured). In the fall of 1986, Semitoolsuffered a significantdown-turn inboth 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 forSemitool 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 unsatisfactoryevaluations of his job performance. On February 16, 1987,Kizer's employmentwith Semitool ended. He was called into Thompson's office that day and, without any forewarning,told thathis employmentwas terminated. According to Kizerfstestimony, 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

journeymanmachinist. 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 fairdealing,and negligence. The casewas triedbefore 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, Semitoolmoved for judgmentnotwithstanding theverdict or, in the alternative,a new trial. At ahearing held onApril 26, 1990,the District Court denied Semitool's post-trial motions. This appeal followed. I Was Semitool's notice of appeal timely filed? Kizer contendsthat Semitool's notice of appealwas not timely filed and,therefore, itsappeal 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 formailing, Semitool's thirty-day period in which to file its notice of appeal expired onMay 30, 1990. OnMay 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 thedistrict 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 ~istrictCourt had denied Semitool's posttrial motions from the bench or would be making a decision posthearing. Under these circumstances, theDistrict Court found that good cause existed to extend the time for filing a notice of appeal. We hold that semitool's notice of appealwas timely filed. I1 Did the District Court err in allowing Kizerlsexpert 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,Kizerlscounsel established Brown's training and qualifications and knowledge of the facts surrounding Kizerlstermination of employment. Counselthen 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 actionsweren'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 foundwas that in thepast, Semitool, when they have had reductions 

### in force, have done things differently and they have treated their employeesmuch 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 intheemployer relationship,wasviolatedby theactions of Semitool. The fourth point that supports my opinion is the fact thatwhen an employerhas performanceproblems with anemployee, theydealwith thoseperformance problems as opposed to terminating or firing an employee for an alleged reductionin force,when inreality,theproblems 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 youmust-- MR. CHRISTENSEN: Your Honor, 

### I am going to object to any testimony ofwhat the SupremeCourt says. That is commenting on the law, and that 

### is your bailiwick. THE COURT: 

### I appreciate that. On the other hand, 

### Ithinkhe is looking 

### for standards

### to comparewith. 

### But Iwould 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 indicatestome that therewas, 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 differentpoints 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. Lettsdiscuss 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: Iwill object to this as invading the province of the jury. They decide this question. Theydon't need thisman telling themwhat 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. Ihave no problem tohis 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 

### Iwill 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 caseby the treatmentofMr. Kizerby 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. Doyoubelieve that the terminationof Bob Kizer by Semitoolwas 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 toyou 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: Inmy 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 thatBrown's testimonyconstituted 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 instructingthe jury onhow todecide the case. Kizer, on the other hand, contends that Brown's testimonywas 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 testimonywere 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 ofgood faith and fair dealing,was negligent in its reduction in force,and that the reduction in forcewas 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 isnot 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 issueto be decidedby the trier of fact." The Commission CommentstoRule 704,M.R.Evid., statethat "theCommission 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, 434U.S. 861,98S.Ct. 188, 54 L.Ed.2d 134 (1977),as follows: "[Sluch testimony 'amounts to no more than an expressionof the [witness1]generalbelief astohow the case shouldbe decided.' ~ccormick on Evidence, 5 12 at26-27. 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 lightof the applicablerules of law,and it is therefore erroneous for awitness to statehis 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 testimonyby Mr. Alan Brown constituteda legal conclusion on the precise issue presented to the jury, that is, whether defendant had breached the covenant of good faithand fairdealing. Moreover,hewas allowed to state his opinion that defendant was negligent in carrying out its reduction in force and that such reductionwas not legitimate;

# ...Mr. Brown's testimony wasextensive,andherepeatedly 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. Inorder topreserve an objectionto 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 ifit isaccompaniedby a reasonably definite statementof thegrounds forthe objection. McCormick onEvidence, (3rd.Ed. 1984)

## , 5 52 at p. 128. Failure tomake such an objection constitutesa 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 Semitoolviolated 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 regardingwhat "the Supreme Court has said,I1rather 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 awaiver of theobjectionand 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 qualificationsand knowledgeof 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, inhis opinion,Kizer Itwasnot treated fairly by the Defendant." He further testified that there were five bases for his opinion. Bases one, two, andfour related to Kizer's termination of employment with respect to

a legitimate reduction in force. Basis three involved the implied covenant and basis five involvedwhat IftheSupreme 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 sufficientproximity 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 theprovince of the jury. In Hart-Andersonv. Hauck (1988), 230 Mont. 63, 748 P.2d 937, the plaintiff's expert witness testified, over objection, that the defendant,State Farm InsuranceCompany, 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 inadmittingthetestimony,wediscussed the propriety of legal opinions under Rule 704, M.R.Evid., andstated that "[the expert's] challenged testimony, opining that State Farm violated Subsections (4), (6)and (7)of theAct invaded the province of the iurv and simply instructed the jury how to decide the case.

## " Hart-Anderson, 230Mont. at 72,748 

### P.2d at 943,

(emphasisadded). Thus,Hart-Anderson, decided more than twoyears 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 thevery issues tobe 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: INSTRUCTIONNO. 9 Everyperson isresponsible for injuryto theperson 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. INSTRUCTIONNO. 10Before 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 I1ordinarilycareful 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. Thismeans 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. InstructionNo. A reduction in force can constitute a just cause forterminationof 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, aspecial verdict form specifically directed the jury to consider whether thedefendanthad negligently breached the implied covenant of good faith and fair dealing. Weheld that thedistrictcourt improperly instructedthe jury

on the issueofnegligence,statingthat themanagement decisionto 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,inotherwrongful 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 separateand distinct cause of action, canbe a basis forrecovery. 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 handbookwasadmitted intoevidence. 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 assertionthat 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 Kizerrscase to the jury? Semitool contendsthat itwas imperative thatKizer offer some specific motive or reason to contradict that he was laid off as part of a reduction in force for economic reasons. Itargues that, having failed to do so, Kizer failed to rebut its claim that his employmentwas 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 employmentwas for other than legitimatebusiness reasons. In affirming summary judgment,

we stated that: Here,Cecil didnot offerany other motive or reason for his termination. He merely denied that the reasons were legitimatebusiness reasons. And while the record might arguably show that itwas 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 tomeet 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.Cecilwas governedby and decidedunder theWrongful DischargeFrom Employment Act, 88 39-2-901, et seq., MCA. Under the Act, an employermay discharge forgood cause an employeewhohas completed the employer's probationary period of employment. Section 39-2- 904(2),MCA. TheAct definesgood causeas I1reasonablejob-related grounds fordismissal based on a failureto 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 legitimatebusiness reasons. Although theplaintiff 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 insufficientto 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 favorableto theprevailing 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 areduction in force for economic reasonsdid 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 Kizerfstermination was a result of its pre-termination decision to eliminatehisposition in an effort to reduce its overhead costs. Significantly, however, Kizer was not told thathis employment was being terminated aspart 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 thathewas being l1letgof1 because themachine shopwas operating at thirtypercent less efficiency than theprevious year and because hewas not a I1journeyman machinist." Thompsonhimself testified that he terminated Kizerfsemploymentbecause of rising costs in ~izer'sareas 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. Inaddition,theevidence established that Kizer had issued memos to his supervisors offering suggestions on how to increase efficiency in the machine shop, including the suggestion topurchase a new lathe. Prior to Kizerlstermination, he suggestions were apparently not acted upon. However, shortly after Kizerfstermination, 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
18economic reasons. In addition, the evidence established that approximately twenty-six people were laid off around the time of Kizerrs termination. Of these twenty-sixpeople, twenty-fivewere 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 sameareas of responsibility. AlthoughThompsontestified that other employees had changed positions within the company in the past, he never discussed with Kizer the possibility of moving to anotherposition. He further testified thathe 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 Kizerrsemployment. Thus, the District Court properly submitted Kizer's case to the jury.
19To summarizeourholding 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 forcewas 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

JusticesJustice 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 therewas a timely and appropriate objection to the testimony ofAlan Brown, andwhich reverses theverdict in favorof the plaintiff on the basis of that objection. InHeltborg

### v. ModemMachinery (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 opinionthatdefendanthad breached the covenant of good faith and fair dealing because that testimony amounted to a legal conclusion. Heltborg, 795 P.2d at 959.
Inthiscase,Brown expressedwhat wepreviously 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 fairdealing. Therewas no objection to those opinions,nor anymotion to strike them. Later during that sameanswer the witnessbegan to discuss decisionsof this Court. That testimonywas objected to on

a proper basis and the witness was instructed to avoid discussing the law. He completedhis 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 themajority's reversal of the juryverdict in this case. The majority concludes that his answers to these questions were impermissible legal conclusions pursuanttoourdecision inHeltborg. However,neither of these questionswas objected to on that basis. Bothwere objected to for the reason that they went to theultimate issue in the case and invaded the province of the jury.'

'priorto trial thedefendant also filed amotion 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 opinionwas objectionablebecause it expressed a legal conclusion.Pursuant to Rule 704,M.R.Evid., and ourprevious 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 specificallyprovides: 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 Statev.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. Thisobjection isnot adequatetojustiJLexclusionofthetestimony. ~t is merely another way of saying that the testimony embraces an ultimate issue tobe decidedby the jury. Rule 704 of theMontana 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 inMontana. State V.Petko (1978)

## , 177Mont. 229, 581P.2d 425;McGuirev.Nelson

(1975), 167 Mont. 188, 536 P.2d 768;Rudev.Neal (1974), 165 Mont. 520, 530 P.2d 428; Statev. Campbell (1965), 146 Mont. 251, 405 P.2d 978;Statev.Shannon (1933), 95 Mont. 280, 26 P.2d 360;Kelleyv.JohnR.Daily Co. (1919), 56 Mont. 63,181P. 326. Thus, the fact that thedoctorlsopinion on intent went to an ultimate issue is not a basis for its exclusion. [Emphasisadded.]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: Errormay not bepredicated upon a ruling which admits or excludes evidence unless a substantial rightof theparty is affected, and (1) Objection. In case the ruling is one admitting evidence, a timely objectionormotion 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. Itspurpose is obvious. It is simply not fair to reverse averdict for eitherparty based upon

error which was not brought to the attention of the district judge and the otherparty. For one thing,thedistrict judge shouldhave

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,theparty offeringtheevidence shouldbe 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 theplaintiff's attorney were given that opportunity in this case because thedefendant's objection totheexpert'stestimonydid 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 theprovince of the jury. However,themajority's opinion demonstrates a lack of understanding about the division of responsibilitybetween 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 themajority has done in this case is extremelyunfair to the trial court and the plaintiff and will create uncertainty in all future trialsbecause of thepossibility 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 theplaintiff should be affirmed.

We concur in the foregoing concurring and dissenting opinion of Justice Trieweiler.