IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE MONTANA POWER COMPANY, 

a Montana Corporation, 

Plaintiff and Respondent, 

ROBERTA WAX, as Personal Representative 

of the estate of THEODORE SOLOMON, 

deceased, ROBERTA WAX, as Guardian of 

ROSEABELLE DIX SOLOMON, also known as 

ROSE SOLOMON, Incompetent; BARBARA 

WALLACE; and CLAYTON E. DeVOE, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

George C. DeVoe, is sou la, Montana 

For Respondent: C -- - 

: : William Evan Jones; Paul C. Meismer, Garlington, 

Lohn & Robinson, Missoula, Montana 

-- - 

. - ... . . - - - > ~1-T 

Filed-.: t,J <. - 

Submitted on Briefs: June 14, 1990 

~ecided: August 6, 1990 rn 

Clerk 
I # 

Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from a condemnation proceeding in the Fourth 

Judicial District, Ravalli County. Following the order of 

condemnation of a powerline easement, a hearing was held in order 

to determine compensation due the appellant, Clayton E. DeVoe. The 

District Court awarded damages in the sum of $5,000.00. We affirm. 

The sole issue on appeal is: 

Whether the District Court erred in striking and limiting certain 

witness testimony presented by the appellant. 

The respondent, Montana Power Company (MPC) sought to 

construct a three wire electrical transmission line from a 

substation in Missoula, Montana to a substation at Hamilton Heights 

in Ravalli County, Montana. This proposed powerline was to run 

immediately adjacent to an'existing powerline which ran along the 

same route. In order to construct the powerline, MPC needed to 

obtain an easement through private property. Suit was brought to 

acquire the necessary easement. The District Court issued findings 

of fact and the Preliminary Condemnation Order, establishing the 

necessity for the taking. 

The appellant, Clayton E. DeVoe (DeVoe), filed an answer 

seeking compensation in excess of $56,000.00. MPC submitted an 

Offer of Entry of Judgment in the sum of $5,000.00. The parties 

failed to reach an agreement concerning fair compensation due Mr. 

DeVoe and consequently a non-jury trial was set. 

Before trial MPC submitted interrogatories seeking information 

concerning the witnesses that DeVoe was planning to call. These 

2 
interrogatories requested information concerning identification of 

all expert witnesses expected to be called, the substance of their 

testimony and a summary of.the grounds for their opinion. 

The interrogatories were answered. At trial DeVoe called five 

witnesses on his behalf, including himself, Helen Hudson Rude, a 

local realtor, and Wayne Stephens a local landowner who had 

experience as a real estate developer, owner and supervisor of 

appraisers. 

As stated above, Ms. Rude is a local realtor who has lived in 

the Missoula area for a substantial number of years. She testified 

that she had considerable experience conducting market analysis of 

properties for prospective purchasers, as well as some appraising 

experience. For purposes of this trial, she did not prepare any 

type of appraisal showing a before-taking and after-taking 

evaluation of DeVoets property, however. When she attempted to 

testify concerning just compensation, MPC objected, and argued that 

DeVoe failed to provide foundational information on grounds which 

would support her opinion. The objection was sustained and Ms. 

Rude's testimony on this issue was stricken from the record. 

After Ms. Rude testified, Wayne Stephens was called. Mr. 

Stephens was personally acquainted with the property due to the 

fact that he once considered making an offer on separate parcels 

of the land for residential development. When Mr. Stephens 

attempted to offer testimony concerning value of the land, MPC once 

again objected on the grounds that a proper foundation was not laid 

in the interrogatories concerning his ability to testify on value 
and just compensation. This objection was also sustained. 

Following trial, the District Court concluded that DeVoe was 

entitled to just compensation in the amount of $5,000.00, plus 

interest. This appeal followed. 

DeVoe maintains that the District Court erred in striking Ms. 

Rude's testimony and in disallowing the testimony of Mr. Stephens. 

According to DeVoe, both of these witnesses were familiar with the 

subject property and therefore were entitled to render opinions 

concerning the market value of the property, as either lay or 

expert witnesses. DeVoe's argument is not valid when applied to 

the facts now before us. 

MPC's objection to the testimony of Stephens and Rude was 

primarily premised on the fact that DeVoe did not provide any 

foundational information in the interrogatories which would provide 

the basis of their opinions. The trial court sustained this 

objection. In making this ruling the District Court did not abuse 

its discretion and the answers provided by DeVoe read as follows: 

INTERROGATORY NO. 1: Identify each expert from who 

defendant or anyone acting on defendant's behalf has 

requested any advice, opinion, study, or report regarding 

the subject property since a time beginning 3 years prior 

to the filing of the complaint herein and continuing up 

to the present time including, but not limited to, 

surveyors, appraisers, real estate people, bankers or 

other lenders, developers, government officials, and 

experts whom defendant expects to call as witnesses at 

trial. 

ANSWER NO. 1: In addition to himself: 

2) Helen M. Hudson, of Stevensville, Montana, a 

real estate broker in the area who lived adjacent to the 

subject property and is familiar with the sale of 
comparable properties in the area. 

3) Wayne Stephens, of Missoula, Montana, formerly 

the director of planning support for the Department of 

Interior, Bureau of Indian Affairs; Superintendent of the 

Standing Rock Indian Reservation in South Dakota, and a 

real estate purchaser for his own account, who has 

purchased, developed, and sold a number of similar 

properties. 

INTERROGATORY NO. 2: For each person identified in 

Interrogatory No. 1, state the nature and subject matter 

of the advice, opinion, study, or report requested, 

including whether the person was retained or specially 

employed in anticipation of litigation or preparation for 

trial and state the date of the request. 

2) Helen M. Hudson will render opinions as to the 

highest and best use of the subject property, the value 

of the property and the diminution of value of the 

properties not actually taken by eminent domain. 

3) Wayne Stephens will render opinions on the same 

subjects as Helen M. Hudson. 

INTERROGATORY NO. 3: Name each person identified in the 

answer to Interrogatory No. 1 whom the defendant expects 

to call as an expert witness at trial, and "state the 

subject matter on which the expert is expected to 

testify, and * * * the substance of the facts and 

opinions to which the expert is expected to testify and 

a summary of the grounds for each opinion. l1 Rule 

26(b) (4) (A) For expert appraisers, state the 

conclusions of value, methods of appraisal used, and 

include a complete description of improvements, type of 

property, zoning at the time of sale, description of 

metes and bounds, and street address. Note: Each person 

not named in the answer to this Interrogatory who was 

named in the answer to Interrogatory No. 1 will be 

considered as an expert who is not expected to be called 

as a witness at trial. 

ANSWER NO. 3 : All of the experts and persons named in 

answer to interrogatory No. 1 are expected to testify at 

trial. Their general subject will be as stated in the 

forgoing answers. The substance of the anticipated 
testimony is that the highest and best use of the 

property affected was rural residential tracts, that the 

value of the property actually taken was approximately 

$1,000.00 per acre and that the diminution in value of 

the affected property not actually taken was at least 

one-half of the value of the property prior to 

construction of the subject power line. 

As is evident from these interrogatories, MPC sought 

information concerning the identity of witnesses and the basis for 

their opinions, which would be rendered at trial. The basis for 

the opinions was not set forth in the answers supplied by DeVoe. 

From the answers given there is no indication of how these 

witnesses arrived at their conclusion that DeVoe suffered a 

diminution in the value of his property as a result of the power 

line. MPC maintains in its brief, and we agree, that this failure 

severely limited its ability to cross-examine DeVoets witnesses. 

Normally, the determination regarding the ability of a witness 

to testify is in the sound discretion of the trial court. State 

Highway Commln v. Bennett (1973), 162 Mont. 386, 513 P.2d 5. Its 

determination will not be disturbed on appeal unless the appellant 

shows an abuse of discretion. State v. Smith (1986), 220 Mont. 

364, 715 P.2d 1301. This policy is especially applicable in cases 

of this kind, where it may be necessary to prevent the abuse of 

surprise on the part of the proponent and to prevent the opponent 

from lying in wait to object at time of trial. 

DeVoe has not come forth with any facts which make such a 

showing of abuse. The answers to the interrogatories clearly do 

not reveal any basis for the witnesses1 valuation of just 

compensation. Nor do they offer any insight into how these 
witnesses would arrive at before-taking and after-taking valuation 

of the properties. The trial court could therefore exclude the 

testimony without abusing its discretion. The ruling of the 

District Court is therefore affirmed. 

We concur: A