DA 12-0088

IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 286N

DAVID KAESTNER, CESAR HERNANDEZ,

and COLLEEN HINDS-HERNANDEZ,

 Plaintiffs and Appellants,

 v.

MIKE and NANCY MASTEN, and AMBER

BEAR FARM, LLC,

 Defendants and Appellees

___________________________________

 and

MIKE and NANCY MASTEN, and

AMBER BEAR FARM, LLC,

 Third-Party Plaintiffs and Appellees,

 v.

HANNAH HERNANDEZ,

 Third-Party Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and For the County of Sanders, Cause No. DV-10-95

Honorable C.B. McNeil, Presiding Judge

COUNSEL OF RECORD:

For Appellants and Third-Party Appellant Hernandez, Hinds-Hernandez, and

Hernandez:

David K.W. Wilson, Jr., Jonathan R. Motl, Morrison, Motl & Sherwood,

PLLP, Helena, Montana

Elizabeth A. Brennan, Attorney at Law, Missoula, Montana

December 11 2012
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For Appellant David Kaestner:

Christopher W. Froines, Geiszler & Froines, Missoula, Montana

For Appellees and Cross-Appellants:

Quentin M. Rhoades, Liesel Shoquist, Sullivan, Tabaracci

& Rhoades, P.C., Missoula, Montana

Submitted on Briefs: October 24, 2012

 Decided: December 11, 2012

Filed:

__________________________________________

Clerk
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating 

Rules, this case is decided by memorandum opinion and shall not be cited and does not 

serve as precedent. Its case title, cause number, and disposition shall be included in this 

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana 

Reports.

¶2 This dispute arises over water distribution and use rights. The parties to this case 

are owners of contiguous real property located in Heron, Montana. Nancy and Mike 

Masten currently own the land from which the water source originates. David Kaestner 

and Cesar, Colleen, and their adult daughter Hannah Hernandez (Hernandez) own 

adjacent properties. In litigation dating back to the 1970s, the predecessors in interest of 

the parties litigated a water dispute, and the court issued a decree in which the water was 

essentially divided between the parcels, with Kaestner’s predecessor being given a 

perpetual easement for construction and maintenance of a pipeline to his property. The 

court ordered that the water rights would run with the land. Kaestner and Cesar and 

Colleen Hernandez sued the Mastens over use and distribution of the water and the 

Mastens counterclaimed. A jury ruled in favor of the Mastens. Kaestner and Hernandez 

moved to have the verdict set aside but the District Court denied their motion. They 

appeal. We affirm in part and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND
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¶3 After the various parties acquired their parcels of property, their relationship went 

from cordial to contentious. Mastens were unsure whether Kaestner and Hernandez had 

legitimate water rights and Mastens claim the men would not provide proof of such 

rights. In fact, Mastens’ attorney subsequently concluded Kaestner and Hernandez did 

not have water rights and deemed them trespassers. The relationship worsened and 

ultimately became dangerous in April 2010 when Mike Masten accused Kaestner and 

Cesar of unlawful trespassing. Masten aimed and discharged a rifle near the men and 

told them to get off his land. 

¶4 In June 2010, Kaestner and Hernandez filed a complaint against Mastens which 

included two counts: negligence and punitive damages. The Mastens answered the 

Complaint, denied the charge of negligence, asserted affirmative defenses and set forth a 

third-party complaint against Hannah. Mastens also counterclaimed against Kaestner and 

Hernandez for intentional and negligent infliction of emotional distress, trespass, 

nuisance, interference with business opportunity,1 punitive damages and conversion. 

They asserted the same claims, with the exception of conversion, against Hannah, whose 

name is also on the land deed with her mother. Kaestner and Hernandez subsequently 

filed an amended complaint in May 2011. In it they again asserted negligence and 

requested punitive damages, but added charges of civil assault and intentional infliction 

of emotional distress. 

¶5 A jury trial was conducted in October 2011. Over the course of the five-day trial, 

the jury heard copious and conflicting testimony pertaining to water rights and trespass, 

 

1

 Mastens built and operate the Amber Bear Bed & Breakfast on their property.
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as well as allegations of racial slurs, threats of murder and mayhem, and repeated 

incidents of general rude, boorish behavior on the part of all parties. At the close of 

testimony, the jury was presented with a Special Verdict Form. The jury determined that 

the Mastens: (1) assaulted Kaestner and Cesar and committed intentional acts that caused 

emotional distress to the two men but that such acts had not caused injury warranting 

payment of damages; (2) had not acted negligently toward Kaestner or Cesar; (3) had 

neither caused emotional distress nor acted negligently toward Colleen Hernandez; and 

(4) were justified in the use of force or the threat to use force in the protection of their 

property. The jury also found that Kaestner and Hernandez: (1) had committed 

intentional acts causing compensable emotional distress to the Mastens; and (2) acted 

intentionally and willfully with calculation to damage the Mastens’ bed and breakfast 

business. The jury awarded Mastens $141,000 in business-related damages, and Nancy 

and Mike Masten were each awarded $25,000 for emotional distress. Lastly, the jury 

determined that Kaestner and Hernandez acted with actual malice toward the Mastens 

and awarded the Mastens $50,000 in punitive damages. Kaestner and Hernandez moved 

to have the verdict set aside but the District Court denied their motion. They appeal.

ISSUES

¶6 Kaestner and Hernandez raise the following issues on appeal:

¶7 Did the District Court err in denying their M. R. Civ. P. 50(b) (Rule 50(b)) motion 

on:

a. Mastens’ intentional interference with business claim;

b. the jury’s verdict awarding Mastens punitive damages;
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c. Mastens’ claim that Cesar acted as an agent of Hannah and Colleen 

Hernandez;

d. the jury’s verdict that Kaestner and Hernandez are jointly and severally 

liable to the Mastens;

e. Mastens’ affirmative defense of justified use of force; and 

f. Mastens’ intentional infliction of emotional distress claim?

¶8 Did the District Court err in denying Kaestner and Hernandez’s Rule 59 motion on 

the grounds that the jury’s verdict evidenced such confusion and misunderstanding as to 

require a new trial?

¶9 Mastens cross-appeal on the following issue:

¶10 Did the District Court err in denying their motion for attorney fees on the issue of 

justifiable use of force?

DISCUSSION

¶11 Did the District Court err in denying Kaestner and Hernandez’s Rule 50(b) 

motions for judgment as a matter of law?

¶12 As we have established previously, “Unless there is a complete absence of any 

credible evidence in support of the verdict, a [judgment as a matter of law] motion is not 

properly granted.” Massee v. Thompson, 2004 MT 121, ¶ 26, 321 Mont. 210, 90 P.3d 

394. “A judgment as a matter of law entered pursuant to Rule 50(b), M.R.Civ.P., may be 

granted only where it appears as a matter of law that a party could not prevail upon any

view of the evidence including the legitimate inferences to be drawn therefrom.” 

Massee, ¶ 25 (citations omitted).
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¶13 Rule 50 provides generally that if the court does not grant a motion for judgment 

as a matter of law made under Rule 50(a), the movant may, following trial, file a renewed 

motion for judgment as a matter of law and may include an alternative or joint request for 

a new trial under Rule 59.

¶14 At the close of Mastens’ case, Kaestner and Hernandez moved to dismiss most of 

Mastens’ causes of action under Rule 50(a). The District Court granted the motion as it 

pertained to trespass, conversion and nuisance. On October 28, 2011, the fifth day of 

trial, after the jury returned its verdict in favor of Mastens, Kaestner and Hernandez

moved for judgment as a matter of law. They primarily claimed that the evidence 

presented was insufficient to justify the verdict. The District Court denied the motion.

¶15 On December 22, 2011, Kaestner and Hernandez renewed their motion for 

judgment as a matter of law and also moved to set aside the jury verdict, or in the 

alternative, for a Rule 59 order for a new trial. They claimed the verdicts against Hannah 

and Colleen based upon agency principles should be set aside as should the verdict 

against Kaestner and Hernandez that was based upon joint and several liability. They 

also moved to set aside the entire verdict, arguing that the Verdict Form was confusing

and inconsistent. The District Court denied the motion to set aside the verdict and 

refused to order a new trial.

Kaestner and Hernandez claims: Intentional Interference with Mastens’ Business

¶16 There are four elements to an intentional interference with a business claim, also 

known as “intentional interference with prospective economic advantage.” In this case, 

the jury was required to determine whether Kaestner and the Hernandez’s acts were: (1) 
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intentional and willful; (2) calculated to cause damage to Mastens’ business; and (3) were 

done with the unlawful purpose of causing damage or loss, without right or justifiable 

cause on the part of Kaestner and Hernandez. And lastly, the tortious acts had to result in 

actual damage or loss. Maloney v. Home & Inv. Ctr., Inc., 2000 MT 34, ¶ 41, 298 Mont. 

213, 994 P.2d 1124. 

¶17 Mastens claimed that Kaestner and Hernandez: (1) repeatedly vandalized the 

Amber Bear Inn signage; (2) posted other signage on the driveway to their bed and 

breakfast that was intended to discourage or dissuade potential guests; (3) put up a locked 

gate that blocked the entrance to the inn; (4) vandalized Mastens’ rental house by putting 

a dead animal in it; (5) distributed handbills in the community implying that the Amber 

Bear Inn was a “sex club”; and (6) disrupted Mastens’ duties to their guests by coming 

onto the property causing trouble, thereby pulling Mastens away from attending to their 

business. Kaestner and Hernandez denied these claims but the jury ruled in favor of the 

Mastens. 

¶18 This Court gives deference to a jury’s verdict if it is supported by evidence. 

Additionally, as we stated in Sandman v. Farmers Ins. Exch., 1998 MT 286, 291 Mont. 

456, 969 P.2d 277, our review of jury verdicts is very limited and we will not reverse 

such a verdict if it supported by “substantial credible evidence.” We have defined 

“substantial credible evidence” as evidence—even weak and conflicting evidence—that a 

“reasonable mind might accept as adequate to support a conclusion.” Moreover, upon 

reviewing a jury verdict to determine if substantial credible evidence exists to support the 
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verdict, this Court must view the evidence in the light most favorable to the prevailing 

party. Sandman, ¶ 40 (citations omitted).

¶19 In this case, the jury’s verdict was supported by Mastens’ evidence which the jury 

chose to believe over Kaestner and Hernandez’s testimony. Based upon the standards set

forth in Sandman, the District Court did not err in denying judgment as a matter of law 

and declining to order a new trial.

Punitive Damages

¶20 Section 27-1-221, MCA, allows reasonable punitive damages to be awarded when 

a defendant has been found guilty of actual malice. Kaestner and Hernandez claim the 

evidence presented to the jury did not establish “actual malice” and therefore cannot 

support an award of punitive damages. However, the jury was presented with evidence 

that Kaestner and Hernandez intentionally committed numerous torts against Mastens

with intent to inflict emotional distress and to interfere with their business. The 

intentional nature of these acts justified the finding that Kaestner and Hernandez had 

acted with “actual malice.” For this reason, the District Court did not err in denying their 

Rule 50(b) motion. However, that is not the end of our analysis.

¶21 Section 27-1-221(7)(c), MCA, requires a judge to review a jury award of punitive 

damages, giving consideration to each of the matters listed in § 27-1-221(7)(b), MCA.

After such a review, the judge must clearly state the reasons for increasing, decreasing, or 

not increasing or decreasing the punitive damages award of the jury in findings of fact 

and conclusions of law, demonstrating consideration of each of the factors listed in 

subsection (7)(b). The District Court did not comply with this statutory obligation.
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¶22 While we affirm the determination that a punitive damage award was justified in 

this case, we remand this matter to the District Court for consideration of the statutory

factors and the issuance of amended Findings of Fact, Conclusions of Law, and Order. 

Cesar Hernandez as agent for Hannah and Colleen Hernandez

¶23 Kaestner and Hernandez moved for dismissal of all claims against Hannah and 

Colleen, arguing that Cesar was not Hannah or Colleen’s agent; therefore, they could not 

be held liable for his actions. Kaestner and Hernandez argue that the jury was not 

presented with evidence of an agency relationship nor did the Jury Verdict Form address 

liability based upon agency. However, the jury was presented with evidence of tortious 

acts and wrong doing on the part of Kaestner, Cesar, Hannah and Colleen Hernandez, and 

the Jury Verdict Form specifically inquired, for each claimed tort, whether Kaestner, 

Cesar, Hannah and Colleen engaged in the tortious conduct. The jury concluded that 

each plaintiff and the third-party defendant had committed the acts and were therefore 

liable. As a result, Kaestner and Hernandez’s agency argument is moot and we affirm the 

District Court’s denial of their Rule 50(b) motion as it pertains to agency liability.

Joint and Several Liability

¶24 Kaestner and Hernandez argue that the District Court erred in denying their Rule 

50(b) motion on the issue of joint and several liability. Again, the jury found each of the 

individual plaintiffs and the third-party defendant were “liable for having caused 

damages” to Mastens. As such, individual liability has been established. Because each 

of these parties is liable for the full amount of damages due to Mastens, a holding by the 
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District Court that the tortfeasors are joint and severally liable for the damages to 

Mastens need not be further addressed.

Justified Use of Force

¶25 During the trial, Mastens claimed Mike’s use of a rifle to fire shots in the general 

direction of Kaestner and Cesar was a justified use of force. The jury agreed and 

concluded Masten was justified in his use of force. Kaestner and Hernandez claim there 

was a lack of evidence to support the jury’s finding. 

¶26 Section 45-3-101(1)(a), MCA, defines “force likely to cause death or serious 

bodily harm” as “the firing of a firearm in the direction of a person, even though no 

purpose exists to kill or inflict serious bodily harm.” “Forcible felony” is defined as “any 

felony which involves the use or threat of physical force or violence against any 

individual.” Section 45-3-101(2), MCA. Section 45-3-104, MCA, states that 

A person is justified in the use of force or threat to use force against another 

when and to the extent that the person reasonably believes that the conduct 

is necessary to prevent or terminate the other person’s trespass on or other 

tortious or criminal interference with either real property, other than an 

occupied structure, or personal property lawfully in the person’s possession 

or in the possession of another who is a member of the person’s immediate 

family or household or of a person whose property the person has a legal 

duty to protect. However, the person is justified in the use of force likely to 

cause death or serious bodily harm only if the person reasonably believes 

that the force is necessary to prevent the commission of a forcible felony.

(Emphasis added.)

¶27 Mastens testified that, on the day Mike Masten took his gun and followed 

Kaestner and Cesar to the water site, they reasonably believed Kaestner and Cesar were 

trespassers intent on carrying out their threats to destroy the water source. While 

destruction of the water supply for several families is a serious matter, under the 
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applicable statutes, it does not warrant the use of lethal force in an attempt to protect it. 

Section 45-3-104, MCA, would allow Mike Masten to fire a weapon, i.e., use “force 

likely to cause death or serious bodily harm,” only if he reasonably believed he had to 

prevent Kaestner and Cesar from using or threatening physical force or violence against a 

person. As a result, the defense of “justified use of force” should never have reached the 

jury as the elements were not satisfied. Accordingly, we reverse the jury’s determination 

that Mike Masten was justified in his use of force. 

¶28 The jury determined that Kaestner and Hernandez suffered no compensable 

damages for emotional distress or as a result of other intentional acts committed by 

Mastens; thus, reversal on this issue does not otherwise alter the jury’s determination. It 

does, however, affect Mastens’ counterclaim as addressed below.

Intentional Infliction of Emotional Distress

¶29 The jury unanimously concluded that Kaestner and Hernandez committed 

intentional acts against Mastens that caused emotional distress. The jury was presented 

with considerable evidence of emotional distress purported to be caused by Kaestner and 

Hernandez’s actions. As there was evidence to support the jury’s determination, we 

affirm the District Court’s denial of Kaestner and Hernandez’s Rule 50(b) motion to set 

aside the ruling.

Rule 59 Motion for a New Trial

¶30 Kaestner and Hernandez base their Rule 59 request for a new trial on their claim 

that “the jury evidenced such confusion in its verdict that a new trial is required.” 

Kaestner and Hernandez point out specific flaws with the Verdict Form and maintain that 
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the District Court should have granted their motion for a new trial. We disagree. The 

record unequivocally reflects that all counsel agreed to the Special Verdict Form after 

lengthy discussion with the District Court. We will not put a district court in error for an 

action in which the appealing party acquiesced. Horn v. Bull River Country Store Props., 

2012 MT 245, ¶ 25, 366 Mont. 491, ___ P.3d ___. 

¶31 Mastens’ Counterclaim: Did the District Court err in denying their motion for 

attorney fees on the issue of justifiable use of force?

¶32 As we have reversed the jury’s determination that Mike Masten was justified in 

his use of force, the Mastens are not entitled to attorney fees under § 27-1-722, MCA. 

Accordingly, we need not address their argument of District Court error as it pertains to 

this issue. 

¶33 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of 

our Internal Operating Rules, which provides for noncitable memorandum opinions. The 

District Court’s denial of Kaestner and Hernandez’s motions for judgment 

notwithstanding the verdict is supported by substantial evidence and the legal issues are 

controlled by settled Montana law, which the District Court correctly interpreted.

¶34 We reverse the jury’s verdict that Mike Masten was justified in his use or threat of 

use of lethal force and we remand for amended Findings of Fact, Conclusions of Law, 

and Order as it pertains to the value of the punitive damages award under 

§ 27-1-221(7)(c), MCA. We affirm on all remaining issues.

/S/ PATRICIA COTTER
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We concur:

/S/ MIKE McGRATH

/S/ JAMES C. NELSON

/S/ MICHAEL E WHEAT

/S/ BRIAN MORRIS