No. 91-360 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STEPHEN M. BARRETT, 

Plaintiff and Respondent, 

-vsHOWARD M. LARSEN, 

Defendant and Appellant. LA 3mid 

CLEW. OF SUPREME COURT 

STATE OF MONTANA 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary L. Beiswanger, Attorney at Law, Billings, 

Montana 

For Respondent: 

Steven B. Ungar, Attorney at Law, Bozeman, Montana 

Filed: 

Submitted on Briefs: February 20, 1992 

Decided: February 4, 1993 

Clerk 
Justice Karla M. Gray delivered the Opinion of the Court. 

The Eighteenth Judicial District Court, Gallatin County, 

entered judgment on a jury verdict awarding Stephen Barrett damages 

for Howard Larsenls breach of a partnership agreement. Howard 

Larsen appeals from the judgment and from the court's order denying 

his motion for judgment notwithstanding the verdict or for new 

trial. We affirm. 

We restate the issues on appeal as: 

1. Did the District Court err in instructing the jury? 

2. Did the District Court err in denying Larsen's motions 

for directed verdict and for judgment notwithstanding the verdict? 

3. Did the District Court err in admitting Barrett s Exhibit 

No. 21 into evidence? 

4. Did the District Court err in denying Larsen's 5 25-11- 

102, MCA, motion for a new trial? 

In September of 1979, Stephen Barrett (Barrett), Howard Larsen 

(Larsen) , and Michael Bartlett (Bartlett) purchased a 37 acre tract 

of undeveloped real estate near Bozeman, Montana. The three men 

were longtime friends; Barrett practiced law in Bozeman, Montana, 

and Larsen and Bartlett were attorneys in southern California. 

Barrett, Larsen and Bartlett each contributed $8,500 to the 

purchase of the property. Barrett signedthe purchase agreement on 

his own behalf, and for Larsen and Bartlett pursuant to power of 

attorney agreements. According to the purchase agreement, the men 

owned the property as tenants in common, each holding an undivided 

one-third interest. They intended to subdivide, and later resell, 

2 
the property for profit. No written partnership agreement was 

executed. 

The men agreed that Barrett would perform the tasks associated 

with subdividing the undeveloped real estate. Barrett divided the 

property into three tracts. Each of two tracts encompassed 

approximately 4.73 acres; Barrett conveyed one such tract to his 

wife, Janis Barrett, and the other tract to Larsenvs wife, Lana 

Larsen. The third tract encompassed the remaining 28 acres. 

In September of 1980, Barrett, Larsen and Bartlett each 

contributed $2,491.66 toward the first annual payment required by 

the purchase agreement. Barrett and Larsen made additional 

contributions the following September when the second annual 

payment was due. Bartlett was unable to contribute and, as a 

result, the respective interests in the property were no longer 

equal. Larsen sent Barrett a letter, dated September 28, 1981, 

acknowledging this change: 

Enclosed please find my check in the amount of 

$4,984. This letter confirmsthe agreement reached among 

you, Mike and myself whereby in consideration of 

additional contributions by you and me, the partnersv 

capital accounts are to be adjusted as follows: 

Steven M. Barrett 36.6% 

Michael J. Bartlett 25.7% 

Howard M. Larsen 37.7% 

In October, 1981, the three undeveloped tracts of real estate 

were exchanged for a fully-rented commercial building in Belgrade, 

Montana (Belgrade Property). The Agreement for Sale, Purchase and 

Exchange of Real Property was signed by the Barretts, and by 

Barrett for Larsen, Lana Larsen and Bartlett pursuant to power of 

attorney agreements. The Belgrade Property was conveyed by 
warranty deed to the Barretts. 

At the time of the exchange, the Belgrade Property was subject 

to an existing loan, which the Barretts assumed. The Barretts 

refinanced the loan before a balloon payment was due in 1983. The 

Barretts were the only signatories on the refinanced loan. 

Including Larsen and Bartlett as co-signors would have required 

obtaining updated financial information from Larsen and Bartlett, 

an inconvenience that Barrett sought to avoid. Barrett informed 

Larsen and Bartlett that the loan had been refinanced in this 

manner. 

In October, 1985, the major tenant of the Belgrade Property 

moved out at the expiration of its lease. Barrett's subsequent 

attempts to sell, lease or exchange the property were unsuccessful. 

In a letter dated February 24, 1986, Barrett informed Larsen and 

Bartlett of his plans to refinance the mortgage a second time in 

order to attract potential purchasers. Barrett sent a copy of the 

loan application to Larsen and Bartlett and indicated that they 

would be co-signing the loan. Barrett stated that he was reluctant 

to refinance the mortgage in the partnership's name because he did 

not have the required partnership documentation. Additionally, he 

requested, and Larsen and Bartlett sent, additional contributions 

based on their respective interests in the Belgrade Property to 

cover the ongoing expenses of the building. The Barretts 

ultimately refinanced the loan in their names only. 

Early in 1988, Bartlett informed Barrett and Larsen that he 

was withdrawing from the investment. Larsen discussed the 

withdrawal with Barrett and indicated that he would not increase 

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his interest in the Belgrade Property. Accordingly, Barrett 

assumed Bartlettls interest, increasing his interest to 62.3%. 

Larsen continued to have a 37.7% interest in the property. 

Barrettls ongoing attempts to sell or otherwise dispose of the 

Belgrade Property were unsuccessful. In December, 1987, Barrett 

found a tenant to lease a major portion of the building. However, 

the loan payments and the utility, insurance, and tax expenses 

associated with the property continued to exceed the rental income. 

Barrett and Larsen made additional contributions to supplement the 

rental income in March, May and November of 1988, and February of 

1989, according to their percentage interests in the property. In 

March of 1989, Larsen informed Barrett that he would not make 

additional contributions. 

On April 20, 1990, Barrett sued Larsen for breach of a 

partnership agreement. A jury trial began on February 12, 1991. 

Larsen moved unsuccessfully for a directed verdict after Barrettvs 

case-in-chief. The jury ultimately determined that a partnership 

existed between Barrett and Larsen with respect to the Belgrade 

Property and that Larsen breached the partnership agreement by 

failing to make contributions; it awarded Barrett $45,255 in 

damages, plus interest. The District Court denied Larsenvs motion 

for judgment notwithstanding the verdict or for new trial. Larsen 

appeals. 

Did the District Court err in instructing the jury? 

Larsen contends that the District Court improperly instructed 

the jury by refusing the following proposed instruction: 

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Instruction 20. Where purported partners did not hold 

property jointly, had unequal control over assets, held 

no joint bank accounts, and did not file partnership tax 

returns, no partnership existed. 

Larsen relied on Wiberg v. 17 Bar, Inc. (1990) , 241 Mont. 490, 498, 

788 P.2d 292, 297, citing Matter of Estate of Smith (1988), 230 

Mont. 140, 147-48, 749 P.2d 512, 516-17, as his sole authority for 

the instruction. 

Barrett contends Larsenls reliance on Wiberq is misplaced. 

According to Barrett, the Wiberq language upon which Larsen relies 

is a partial recitation of some, but not all, of the facts upon 

which we determined that there was insufficient evidence to support 

the jury's finding of a partnership in smith. Barrett asserts that 

Larsenls instruction is neither our holding in Wiberq nor an 

accurate statement of our holding in Smith. We agree. 

In Smith, we focused on 5 35-10-201(1), MCA, and the elements 

of a partnership set forth in Bender v. Bender (1965), 144 Mont. 

470, 397 P.2d 957, to determine whether evidence supported the 

existence of a partnership. Section 35-10-201(1), MCA, defines a 

partnership as "an association of two or more persons to carry on 

as co-owners a business for profit.It Bender set forth the 

following elements of a partnership: 

"To establish . . . a partnership, it is necessary to 

determine the intent of the parties: such business 

relationships arise only when the parties intend to 

associate themselves as such. There must be some 

contribution by each co-adventurer or partner or 

something promotive of the enterprise. There must be 

joint proprietary interest and a right of mutual control 

over the subject matter of the enterprise or over the 

property engaged therein, and there must be an agreement 

to share the profits. [Citation omitted.] The intention 

of the parties has to be clearly manifested, [citing 

cases] and must be ascertained from all the facts and 
circumstances and actions and conduct of the parties. 

[Citation omitted.]" 

Smith, 230 Mont. at 145, 749 P.2d at 515, quoting Bender, 144 Mont. 

at 480, 397 P.2d at 962. On the basis of 5 35-10-201(1), MCA, and 

the Bender elements, we determined in smith that the evidence did 

not support a finding that a partnership existed. 

Both Smith and Wiberq rely primarily on 5 35-10-201(1), MCA, 

and the criteria for a partnership set forth in Bender. Nothing in 

either Smith or Wiberq suggests that the four elements asserted by 

Larsen are the sole and exclusive elements of a partnership, as a 

matter of law. We hold that the District Court did not err in 

refusing Larsen's proposed jury instruction. 

Did the District Court err in denying Larsen's motions for 

directed verdict and for judgment notwithstanding the verdict? 

Our standard for reviewing a trial court's denial of a motion 

for judgment notwithstanding the verdict is the same as our 

standard for reviewing a motion for a directed verdict: a directed 

verdict may be granted only when it appears the non-moving party 

could not recover upon any view of the evidence, including the 

legitimate inferences to be drawn from it. Hash V. State (1991), 

247 Mont. 497, 500, 807 P.2d 1363, 1365. On appeal, we review the 

evidence in a light most favorable to the prevailing party to 

determine whether substantial evidence supports the jury's verdict. 

- Id. 

In support of his motion for directed verdict, Larsen 

contended that Barrett failed to present a prima facie case 
establishing the existence of a partnership. After the District 

Court entered judgment on the jury verdict in Barrett's favor, 

Larsen moved for judgment notwithstanding the verdict on 

essentially the same basis. The District Court denied both 

motions. As our discussion in the previous issue indicates, the 

elements required to establish a partnership are set forth in § 35- 

10-201(1), MCA, and Bender. 

Larsen asserts two arguments in support of his claim that the 

requirements for the existence of a partnership under 5 35-10- 

201(1), MCA, are not met. First, he argues that he and Barrett are 

not co-owners of the Belgrade Property. While it is true that the 

Barretts are the record title holders of the property and 

refinanced the loan in their names, substantial evidence indicates 

that Larsen is a co-owner. Larsen contributed to the purchase of, 

and was a record title holder for, the undeveloped real estate. He 

acknowledged that his "partners capital account" reflected a 37.7% 

interest in the property in a letter he sent Barrett. 

The undeveloped real estate was later exchanged for the 

Belgrade Property. Via an undisputed power of attorney agreement, 

Larsen was a party to the Agreement for Sale, Purchase and Exchange 

of Real Property. Barrett informed Larsen that while the Barretts 

were the record title holders, the actual interest was held by 

himself, Larsen and Bartlett. Larsen continued to contribute to 

the operating expenses of the building on that property for several 

years after the purchase in amounts reflecting his percentage 

interest. Larsen's co-ownership of the Belgrade Property is 

supported by substantial evidence. 

8 
Larsen next contends, without citing authority, that the 

purchase and sale of real estate does not constitute a business for 

prof it. It is well established in Montana, however, that a 

partnership may be created for the purchase and sale of real 

estate. Walsh v. Ellingson Agency (1980), 188 Mont. 367, 372, 613 

P.2d 1381, 1384. In Walsh, two defendants had purchased properties 

as tenants in common with equal contributions, and had shared the 

profits upon resale. One defendant collected rent generated by the 

property from which the suit arose, using the rental proceeds to 

pay property taxes and maintain the property. We upheld the 

district court's conclusion that the defendants were engaged in a 

partnership. 

The case before us is analogous to Walsh. Here, Barrett, 

Bartlett and Larsen purchased the undeveloped real estate as 

tenants in common with equal contributions, intending to resell the 

property for a profit. Barrett testified that Larsen consented to 

the exchange of the real estate for the commercial building. 

Larsen contributed to the investment according to his percentage 

interest. Barrett collected and applied the rent to the ongoing 

expenses of the building. Larsen testified that had the building 

sold, he would be entitled to 37.7% of any profit realized. 

Substantial evidence indicates that Barrettand Larsen were engaged 

together in a business for profit. 

The same evidence establishing co-ownership of a business for 

profit establishes certain partnership criteria under Bender: 

Larsen's contribution, joint proprietary interest, and the right to 

share the profits. Additionally, the record reflects that Larsen 

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had a right to mutually control the property. Larsen admitted that 

he delegated the management of the undeveloped real estate to 

Barrett, and that the delegation continued after the exchange for 

the Belgrade Property. Furthermore, Barrett testified that he 

exchanged the undeveloped property for the Belgrade Property with 

Larsen's consent and that he discussed the refinancing with Larsen. 

Reviewing the record in a light most favorable to Barrett, we 

conclude that the jury's determinations that a partnership existed 

between Barrett and Larsen with respect to the Belgrade Property 

and that Larsen breached the partnership agreement is supported by 

substantial evidence. We hold that the District Court did not err 

in denying Larsen's motion for directed verdict and for judgment 

notwithstanding the verdict. 

Did the District Court err in admitting Barrett's Exhibit No. 

21 into evidence? 

Larsen claims that the District Court erred in admitting 

Barrett's Exhibit No. 21, entitled Plaintiff's Damage Summary. The 

mortgage, insurance, tax, and utility payments made by Barrett 

after Larsen withdrew from the partnership; the outstanding taxes 

on the property; and the outstanding balance on the mortgage loan 

were summarized on the exhibit. The amounts were multiplied by 

37.7%, Larsen's interest in the property, to establish the amount 

of damages claimed by Barrett. 

The court admitted the exhibit into evidence under Rule 1006, 

M.R.Evid., which provides: 

The contents of voluminous writings, recordings or 

10 
photographs which cannot conveniently be examined in 

court may be presented in the form of a chart, summary, 

or calculation. The originals, or duplicates, shall be 

made available for examination or copying, or both, by 

other parties at a reasonable time and place. The court 

may order that they be produced in court. 

The admissibility of evidence is within the discretion of the 

district court; we will not reverse its ruling absent an abuse of 

discretion. Massman v. City of Helena (1989), 237 Mont 234, 240, 

773 P.2d 1206, 1210. 

Larsen contends that the documents which formed the basis for 

the summary exhibit were not sufficiently voluminous to allow the 

admission of the exhibit under the Rule. However, Rule 1006, 

M.R.Evid., does not require the underlying documents to be so 

voluminous that an in-court examination would be physically 

impossible, only that such examination would not be convenient. 

Here, the exhibit summarized mortgage, insurance, tax and utility 

payments Barrett made between the time Larsen withdrew from the 

partnership and the date of trial as well as outstanding taxes and 

the balance on the loan. The exhibit also reflected Barrett's 

calculation of his damages, made by multiplying the expenditures 

and outstanding balances by Larsen's percentage interest. Rule 

1006, M.R.Evid., expressly provides that the contents of the 

voluminous documents may be presented in the form of a calculation. 

Additionally, Larsen contends that the documents were not made 

available to him prior to trial with the knowledge that a summary 

would be prepared, a condition he asserts must be met before the 

exhibit can be admitted under the Rule. Larsen cites no authority 

to support his contention, nor does the plain language of the Rule 
impose such a requirement. Larsen admitted that he reviewed a box 

of documents pursuant to his request for production. He does not 

assert that the summarized documents were not among them. 

The record reveals that Barrett laid a proper foundation for 

the admission of the exhibit. Furthermore, Larsen was free to test 

the veracity of the summary exhibit through cross-examination or 

request the court to order Barrett to produce the underlying 

documents; he did neither. We hold that the District Court did not 

abuse its discretion in admitting Barrett's Exhibit No. 21 into 

evidence. 

Did the District Court err in denying Larsen's 5 25-11-102, 

MCA, motion for a new trial? 

Larsen contends that he is entitled to a new trial under 5 25- 

11-102(6), MCA, on the grounds that, as a matter of law, there is 

insufficient evidence of record to support the existence of a 

partnership. The decision to grant or deny a new trial is within 

the discretion of the district court; we will not overturn its 

decision absent an abuse of discretion. Tope v. Taylor (1988) , 235 

Mont. 124, 131-32, 768 P.2d 845, 849-50. As our previous 

discussion indicates, Barrett presented sufficient evidence to 

establish the existence of a partnership. We hold that the 

District Court did not err in denying Larsen's motion for new trial 

based on insufficient evidence. 

Larsen also contends that he is entitled to a new trial under 

5 25-11-102(5), MCA, on the basis that the jury awarded excessive 

damages. He asserts that the jury awarded damages based on 

12 
Barrett's damage summary exhibit and, therefore, that $37,700 of 

the $45,255 award represents 37.7% of the outstanding balance on 

the loan. Larsen contends that including his share of the 

outstanding balance as damages is excessive because the value of 

the property is not taken into consideration. According to Larsen, 

damages relating to the loan balance cannot be ascertained until 

foreclosure occurs and a deficiency determined. 

A district court may not grant a motion for new trial pursuant 

to 5 25-11-102(5), MCA, unless it appears that excessive damages 

were awarded under the influence of passion or prejudice. Gibson 

v. Western Fire Ins. Co. (1984), 210 Mont. 267, 290, 682 P.2d 725, 

738. Upon review, we will not disturb a district court's order 

denying a new trial when the damage award is supported by the 

record: 

"It is not a question of the amount this Court would have 

awarded under the circumstances. It is not the amount 

which in our opinion would compensate the injured party; 

rather, it is a question of what amount of damages will 

the record in the case support when viewed, as it must 

be, in the light most favorable to the plaintiff. . . . II 

French v. Ralph B. Moore, Inc. (1983), 203 Mont. 327, 336, 661 P.2d 

844, 849, quoting Ashley v. Safeway Stores, Inc. (1935), 100 Mont. 

Larsen has not asserted and, given the case before us, could 

not establish that the jury awarded excessive damages under the 

influence of passion or prejudice. The damage award mirrors 

Barrett's testimony and summary exhibit and, therefore, is 

supported by the record. Barrett and Larsen agreed to submit the 

issue of damages to the jury on the basis of breach of contract 
rather than the statutory provisions governing the dissolution of 

a partnership. Barrett testified that the $37,700 was a reasonable 

estimate of his future damages caused by Larsen's breach of the 

partnership agreement. Larsen did not object to the estimate of 

future damages during Barrettls direct testimony, challenge the 

estimate of future damages on cross-examination, or undermine it 

during his own case. We hold that the District Court did not abuse 

its discretion in denying Larsen's motion for new trial based on 

excessive damages. 

Af f inned. I 

We concur: 

Chief Justice 

Justices 
February 4, 1993 

CERTIFICATE OF SERVICE 

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

following named: 

Gary L. Beiswanger 

Attorney at Law 

P.O. Box 20562 

Billings, MT 59104 

Steven B. Ungar 

Attorney at Law 

P.O. Box 1348 

Bozeman, MT 59771 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA