No. 87-374 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

WILLIAM AND KAREN SEMENZA, 

Plaintiffs and Appellants, 

EARL LEITZKE, d/b/a/ LEITZKE 

MOBILE HOME TRANSPORT AND SERVICE 

Defendant and Respondent 

APPEAL FROM: District Court of the First Judicial District 

In and for the County of Lewis and Clark, 

The Honorable Gordon R. Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edmund F. Sheehy, Jr.; Cannon and Sheehy, 

Helena, Montana 

For Respondent: 

C. J. Seifert; Gough, Shanahan, Johnson and Waterman, 

Helena, Montana 

Holly J. Franz; Gough, Shanahan, Johnson and Waterman, 

Helena, Montana 

Submitted on Briefs: March 3, 1988 

Decided: May 5, 1988 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

The plaintiffs, William and Karen Semenza, appeal the 

judgment of the District Court of the First Judicial District, Lewis and Clark County, entered in favor of the defendant. We affirm in part and reverse in part. 

On March 17, 1984, the Semenzas' and Earl Leitzke entered into an oral contract in which Leitzke agreed to move 

and block a mobile home for the Semenzas' for $200; $100 to 

move the home and $100 to block it. Leitzke completed the 

blocking and leveling procedure. He testified that he informed the Semenzas' that the ground was soft and unstable 

and could lead to problems. The Semenzas' deny that Leitzke 

said anything about the quality of their homesite. 

In early May the Semenzas' began having trouble with 

their trailer that indicated it was not level. The Semenzas' 

contacted Leitzke who came out and rejacked and releveled the 

trailer. 

During the summer Mr. Semenza built a skirting frame 

around the base of the trailer. Once again in November the 

Semenzas began having problems that demonstrated that the 

trailer was not level. In December they contacted Leitzke 

who performed no more work but informed the Semenzas that 

their problems were a result of frost heaving the skirting 

frame against the bottom of the trailer. This was Leitzke's 

last visit to the Semenzas' trailer. 

In January the Semenzas' hired another mobile home 

service, Algra's, to work on the trailer and in February of 

1985 they hired Four Seasons Mobile Home Service to do further work. The issues presented for review are: 
1. Whether the District Court erred in answering a jury 

question submitted to the court after the jury had begun 

their deliberations? 

2. Whether the District Court erred in preventing the 

jury from considering the Semenzas' claim for breach of the 

covenant of good faith and fair dealing and negligent infliction of emotional distress? 

3. Whether the District Court erred in allowing deposition costs to the prevailing party, Earl Leitzke? 

ISSUE I 

After the jury began deliberating, they presented a 

question to the District Court: "Does the law state how long 

a contract (oral) is legal and binding?" Counsel for both 

parties participated in determining the proper answer. The 

jury was presented with this answer: "There is no statute 

that defines how long an oral contract is binding. It depends on the provisions of the contract itself, or, in the 

absence of such provisions, it depends on the intent of the 

parties. " 

The plaintiffs contend that they suffered substantial 

injustice because the answer was given after the jury began 

deliberating and the Semenzas' were denied the opportunity to 

argue the issue before the jury. They contend that there was 

no evidence to support the answer given to the jury and that 

the court should have answered the jury's question with a 

simple "no". The Semenzas' rely upon Simonson v. White 

(Mont. 1986), 713 P.2d 983, 43 St.Rep. 133, as authority for 

their position. In Simonson the jury posed a question of the 

court after they had begun deliberating. The court responded 

by instructing the jury on an issue that was not presented at 

trial. This Court reversed stating ". . . since White was 

denied the opportunity to argue that his conduct was not 

willful or wanton, it was error for the trial judge to later 
amend the pleadings and the special verdict forms to allow 

the jury to consider that issue." Simonson, 713 P.2d at 987. 

The present situation differs from the situation in 

Simonson. Section 25-7-405, MCA, provides the proper procedure to be followed when a jury submits a question to the 

court after it has begun deliberating: 

After the jury has retired for deliberations, 

if there be a disagreement among the jurors as to 

any part of the testimony or if they desire to be 

informed of any point of law arising in the cause, 

they may require the officer to conduct them into 

court. Upon their being brought into court, the 

information required must be given in the presence 

of or after notice to the parties or counsel. Such 

information must be given in writing or taken down 

by the stenographer. 

The District Court properly followed these procedures. 

Unlike the case in Simonson, the District Court's answer did 

not insert a new theory or defense into the case. The issue 

of whether Leitzke performed or breached the oral contract by 

making no further repairs in December was already before the 

court. The Semenzas suffered no substantial injustice. 

Affirmed. 

ISSUE I1 

At the end of the Semenzas' case in chief, Leitzke moved 

for a directed verdict on the implied covenant of good faith 

and fair dealing claim and the claim for damages for emotional distress. The District Court directed the verdict for 

both causes of action. 

The standard for reviewing a directed verdict was articulated in Cremer v. Cremer Rodeo Land & Livestock Co., 

(1979), 181 Mont. 87, 592 P.2d 485, "'the test commonly 

employed to determine if the evidence is legally sufficient 

to withdraw cases and issues from the jury is whether reasonable men could draw different conclusions from the evidence. 
(Citations omitted.) If only one conclusion is reasonably 

proper, then the directed verdict is proper.'" Cremer 592 

P.2d at 488, (quoting Sant v. Baril (1977), 173 Mont. 14, 566 

P.2d 48). 

In Parini v. Lanch (1966), 148 Mont. 188, 191, 418 P.2d 

861, 863, this Court held " [a] directed verdict may be 

granted when the evidence is so insufficient in fact as to be 

insufficient in law." In granting the directed verdict the 

District Court held that there was no evidence to support a 

claim for breach of the implied covenant of good faith and 

fair dealing. We agree with the District Court. 

The Semenzas' also argue that the District Court erred 

by not instructing the jury on their claim for emotional 

distress damages. Johnson v. Supersave Markets (Mont. 1984), 

686 P.2d 209, 41 St.Rep. 1495, articulated the requirements 

for recovery for negligent infliction of emotional distress. 

"In determining whether the distress is compensable absent a 

showing of physical or mental injury, we will look to whether 

tortious conduct results in a substantial invasion of a 

legally protected interest and causes a significant impact 

upon the person of plaintiff." Johnson, 686 P.2d at 213 

(emphasis in original). Here the Semenzas' failed to 

establish a legally protected interest. They rely upon 

French v. Ralph E. Moore, Inc. (1983), 203 Mont. 327, 661 

P.2d 844, to attempt to establish a legally protected 

interest in "a safe and comfortable home." However, the 

wrong done in French was not merely negligence but trespass 

to property. Affirmed. 

ISSUE I11 

The District Court entered a $950.35 judgment on behalf 

of Earl Leitzke, including $911.35 in deposition costs. The 

Semenzas' claim that Leitzke is not entitled to the $911.35 

for deposition costs. The Semenzas' argue that the 
depositions were taken simply for the purpose of discovery 

and were not used in lieu of witness testimony or for 

impeachment, thus their cost is not recoverable. 

Deposition costs may be recovered by the prevailing 

party when the deposition is used at trial. Section 

25-10-102, 201(2), MCA, Cash v. Otis Elevator Co. (Mont. 

1984), 684 P.2d 1041, 41 St.Rep. 1077. Use at trial encompasses use for impeachment or as evidence. Gee v. Egbert 

(Mont. 1984), 679 P.2d 1194, 41 St.Rep. 515. However, deposition costs may not be recovered if a deposition is taken 

solely for the party's own convenience. Morrison-Maierly, 

Inc. v. Selsco (1980), 186 Mont. 180, 606 P.2d 1085. "Our 

examination of record indicates that the depositions taken in 

this cause were in all cases for the purpose and convenience 

of the deposing party in marshaling their respective cases. 

Therefore the costs for such depositions must be borne by the 

deposing party (citation omitted) . Costs may be allowed 

against the losing party by the District Court only for such 

depositions as were used as evidence at the trial, or for 

purposes of impeachment during the trial." - Gee, 679 P.2d at 

1204. 

An examination of the record in this case reveals that 

only the depositions of Gregary Thackery, Robert McKenna, and 

William Semenza were used for impeachment, thus costs may be 

recovered for only those depositions. Clearly the deposition 

used to refresh I,eitzkels memory by his own attorney was not 

used or introduced as evidence at trial; nor was it used for 

purposes of impeachment. We affirm Issues I and I1 and 

reverse and remand Issue IT1 for proceedings in accordance 

with this opinion. 
We concur: 

Mr. Justice John C. Sheehy, deeming himself disqualified, 

did not participate.