No. 94-402

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

JOHN WILLIAMS and BARBARA WILLIAMS

Plaintiffs and Respondents,

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Ted 0. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard DeJana, Kalispell, Montana

For Respondent:

Marshall Murray, Murray & Kaufman, Kalispell,

Montana

Filed:

Submitted on Briefs: January 12, 1995

Decided: March 7, 1995

I

Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from the assessment of damages by the

Eleventh Judicial District Court, Flathead County. We affirm in

part and reverse in part, with instructions for the District Court

to modify its judgment by $1,100.

We consider the following questions on appeal:

I . Did the District Court err in determining the damage figures

owed to the Williamses by using the figures presented by the

Williamses' expert witness?

II. Did the District Court err in failing to award DeVinney his

offset award from the first case?

This is the second time this matter has been before this

Court. In Williams v. DeVinney (1993), 259 Mont. 354, 856 P.2d 546

(Williams I), we held that Alvin DeVinney (DeVinney) was liable for

misrepresentation concerning the real estate he sold to the

Williamses. The original controversy arises from the sale of a

modular home and a tract of real property upon which the home was

located. The Williamses purchased the real property from DeVinney

and the modular home from Kalispell Home Center, Inc., for whom

DeVinney was the selling agent.

DeVinney suggested the use of concrete piers to support the

modular home, representing that the piers would provide an adequate

foundation. DeVinney assured the couple that the ground was sound

and that the piers were an adequate foundation. However, the

ground was not sound because a house had burned on the piece of

property and been bulldozed over. Therefore, the piers that were

2
set did not support the home properly, resulting in damage to the

home.

The trial court determined that DeVinney was guilty of

negligent misrepresentation. We remanded the case for trial on the

issue of damages. At the second trial, the court followed the

general damage outline set out by the first trial court. The court

awarded $20,440 to the Williamses. DeVinney appeals the Findings

of Fact and Conclusions of Law issued on May 19, 1994, by the

court.

I .

Did the District Court err in determining the damage figures

owed to the Williamses by using the figures presented by the

Williamses' expert witness?

The court made the following findings of fact:

1 . Plaintiffs are entitled to damages as a result of the

negligent misrepresentation of Defendant Alvin DeVinney

in accordance with Judge Erickson's Findings of Fact and

Conclusions of Law entered January 6, 1992, and the Order

of the Montana Supreme Court above referenced.

2 . Specific damages, which include damages outlined by

Judge Erickson in his January 6, 1992, decision and

which, by implication, are necessary to satisfy the

general directives of that decision, are as follows:

a . Remove porches and deck, remove home,

pour foundations in accordance with CAP0

specifications, replace home in accordance

with manufacturer's original requirements,

seal all joints in accordance with

manufacturer's recommendations and reattach

porches and deck............... $ 12,000

b. Reseal all exterior doors and windows,

refinish and/or replace water damaged trim and

adjust all doors and windows for proper

operation...................... $ 2,000

C . Remove 260 cubic yards of in-place soil

3
d . Furnish and place 260 cubic yards of

compacted topsoil at $ 7.00 per cubic yard inplace after compaction......... $ 3,900

e . Furnish and replant small shrubs and

trees planted by plaintiff in the area of soil

removal........................ $ 690

SUBTOTAL $ 20,670

Engineering fee...... $ 1,520

Backhoe.............. $ 70

Living expense during

repair for four people:

10 days @ $180 per day $ 1,800

__--_-__-

TOTAL $ 24,060

3 . The cost of installing the proper foundation for

Plaintiffs' home is $3,620, which sum should be deducted

from the above found damages.

DeVinney argues that the present court did not follow the

outline of damages as set down by the first court and that many of

the figures in the damage award are not "incidental" to the moving

of the house. Further, DeVinney argues that the basis for these

figures is hearsay and that the figures themselves cannot be

substantive evidence. DeVinney argues that the expert witness who

testified was not the witness that the Williamses stated in

discovery that they would put on the stand. It is DeVinney's

contention that the plaintiffs' expert, Robert Hafferman

CHafferman), admitted that he was not an expert qualified to make

these figures.

The Williamses argue that the court had the discretion to

believe whichever witness it considered to be more credible.

Further, the Williamses contend that their witness is clearly

qualified and that he was permitted by Montana law to testify based

upon any information that he himself felt to be appropriate.

4
A court has broad discretion in determining whether a witness

may qualify as an expert. Little v. Grizzly Mfg. (1981), 195 Mont.

419, 636 P.2d 839. A close review of the record discloses that

Hafferman has been a civil engineer for forty years and was

thoroughly qualified to testify concerning the various amounts of

damage. Hafferman did extensive testing on the piece of ground in

order to determine the problem. By way of contrast, DeVinney's

expert witness was not a civil engineer and looked at the property

for an hour. The District Court did not abuse its discretion in

accepting Hafferman as an expert witness.

A district court's findings of fact are reviewed as to whether

they are clearly erroneous. Williams v. DeVinney (1993), 259 Mont.

354, 856 P.2d 546. In reviewing a district court's findings of

fact, the Supreme Court will determine if substantial evidence

supports the findings and, if so, if the effect of the evidence has

been misapprehended by the court, or even if not misapprehended,

whether findings leave this Court with a firm conviction that a

mistake has been made. Public Lands Access Ass'n, Inc. v. Boone

and Crockett Club Foundation, Inc. (1993), 259 Mont. 279, 856 P.2d

525. We will review a district court's determination of the law as

to whether it is correct. Doting v. Trunk (1993), 259 Mont. 343,

856 P.2d 536.

DeVinney would have us dismiss the figures submitted in

Hafferman's report as hearsay. Hearsay evidence is an unsworn

statement made out of court with no opportunity afforded to

confront the speaker as to the veracity of the fact. Matter of

Swan (1977), 173 Mont. 311, 567 P.2d 898. However, there is no

5
requirement that the facts upon which an expert relies in forming

an opinion be themselves admitted in evidence. Matter of J.M.

(1985), 217 Mont. 300, 704 P.Zd 1037. In fact, the estimates of

damage used in Hafferman's report were his own projections based

upon updated cost information from others. As long as Hafferman is

an expert in his field and DeVinney was presented with the

opportunity to cross-examine, then Hafferman can testify to his

opinions based upon information provided by others. His testimony

indicates that this is what happened. The District Court did not

err in refusing to consider this evidence hearsay.

The court followed the figures presented by Hafferman.

Contrary to DeVinney's assertion that Hafferman was not listed as

testifying to the cost of foundation replacement, a review of the

record indicates that in Williamses' answer to DeVinney's

Interrogatory No. 1, the Williamses noted that Hafferman would

testify to "the method and expense of curing the damages incurred

by Plaintiffs." While two other witnesses were also scheduled by

the Williamses to testify, but did not, that fact does not negate

the fact that DeVinney had full knowledge of Hafferman's testimony

as well as the content of that testimony. A review of the

transcript indicates that DeVinney had a chance to cross-examine

Hafferman as well as a chance to voir dire him on the stand.

A review of the record also reveals that Hafferman never

admitted to not being an expert. In fact, he quickly rebutted

counsel's accusations of lack of expertise by stating that he was

skilled at making similar cost estimates--he just did not make the

original underlying cost estimates. Hafferman did testify as to

6
the generally accepted procedure for accepting bids such as the

ones he presented to the court.

Hafferman did admit that the two witnesses who did not testify

and who submitted the figures that Hafferman ultimately used were

experts at setting the possible price of repair work. That does

not mean that Hafferman's forty years of construction work and

accepting bids on repairs from other workmen should be disregarded.

Nor does it mean that Hafferman admitted that he was not an expert.

During the hearing on damages, DeVinney attempted to get

Hafferman to admit that all but part of the first total ($12,000)

were not attendant to the curing of defects in the foundation.

When we sent this case back in the original appeal, we did so

partly because the only evidence that supported the figures was in

the form of affidavits. Williams I, 259 Mont. at 362, 856 P.2d at

551. We stated in that appeal that the court had ordered a

determination of general damages and that a further hearing would

be necessary to determine the specific amount. We stated that

I'[t]he court should properly include in its damages award the

specific expenses which it finds, by implication, are necessary to

satisfy the general directives of the earlier decision." Williams

I, 259 Mont. at 362, 856 P.2d at 551. Hafferman testified that all

the projected figures of damage he had submitted on his report were

incidental to damage caused by having to move the modular home.

He was vigorously cross-examined by counsel whose questioning

elicited the response that the totals for shrub replacement etc.

were not "directly" related to the moving of the home or

replacement of the foundation. The fact that the damage was not
directly related to the cost of curing the foundation, does not

mean that the costs were not "necessary to satisfy the general

directives of the earlier decision." The totality of Hafferman's

testimony shows that he believed that the totals he submitted were

accurate and necessary.

In its conclusions of law, the court deducted from the

subtotal of all individual damage figures the amount of $3,620

which it determined that the Williamses would have had to pay for

a full foundation had the current turn of events not occurred.

Hafferman testified to the amount and to his way of determining

that amount. DeVinney's expert presented an amount for the repair

of the foundation without presenting any testimony as to how he had

arrived at a total figure that was about $3,900 less than

Hafferman's. Credibility of a witness is within the trial court's

discretion. Keebler v. Harding (1991), 247 Mont. 518, 807 P.2d

1354. The District Court did not abuse its discretion in using

Hafferman's testimony as compared to DeVinney's expert.

We conclude that substantial evidence exists to support the

District Court's use of Hafferman's figures as the appropriate

damage totals. We further conclude that the court did not

misapprehend the evidence that it had before it, nor are we firmly

convinced that any mistake has been made with the court's use of,

and subsequent awarding of, the Hafferman damage totals.

11.

Did the District Court err in failing to award DeVinney his

offset award from the first case?

The District court in the initial 1992 action awarded DeVinney

8
offset award from the first case?

The District court in the initial 1992 action awarded DeVinney

$1,100 because plaintiffs referred to DeVinney publicly as a crook.

When the case came back to the District Court, it did not mention

this amount in its subsequent ruling. The Williamses do not

address the absence of this amount on appeal.

We affirm the judgment of the District Court with the

exception that the District Court is instructed to subtract $1,100

from its May 19, 1994 judgment of $20,440.

Affirmed in part, and reversed in part, with instructions to

the District Court to modify its previous judgment by $1,100.

Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of this Court and by a report of its result to the

West Publishing Company.
March 7. 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Richard DeJana, Esq.

200 First Ave. East

P.O. Box 1757

Kalispell, MT 59903.1757

Marshall Murray

Murray & Kaufman, P.C.

P.O. Box 728

Kalispell, MT 59903-0728

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BY: oi%

Deputy (J