No. 88-45
INTHE SUPREME COURTOF THE STATE OF MONTANA
1988

PATRICKD. VINION, Plaintiffand Respondent,-vsTHEWOOD YARD, INC., aMontana corporation,
Defendantand Appellant.

APPEAL FROM: District Court of the Nineteenth JudicialDistrict, In and for the County of Lincoln, TheHonorable Robert Holter, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Warden,Christiansen, Johnson & Berg;Kelly M. Wills, Kalispell,Montana
For Respondent: DouglasLaw Firm;William Douglas, Libby,Montana

Submittedon Briefs: April 21, 1988 Decided: May 19, 1988

ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

This is an appeal from findings of fact,conclusions of law and judgment of the Nineteenth Judicial District Court, Lincoln County, awarding the plaintiff/respondentPatrick D. Vinion (Vinion), $23,651 indamages. We affirmbut remand to theDistrictCourt for revision of the amountawarded. The issues presented to the Court are as follows: 1. Did the District Court err in awarding damages for reduced market value of Vinionlsbuilding and was the award based on substantialevidence? 2. Did the District Court err by failing to deduct the salvage value ofVinionlsjukebox and recordswhen it awarded damages? On January 16, 1987, a truck belonging to defendantlappellant The Wood Yard, Inc. (Wood Yard), which

was being operated by a Wood Yard employee, backed into a building owned by Vinion. The accidentoccurred as the truck

was being positioned to unload a number of logs at the building owned by Vinion which is located next to 

### U.S. Highway 2 in Libby,Montana. The logs dislodged as the truck hit the building and damage occurred to the cement block building and certain personalproperty ofVinion. A complaint was filed by Vinion on January 30, 1987. Wood Yard admitted damaging the building and the personal property but disputed the extent and amount ofdamage claimed by Vinion. The amount of damageWood Yard admitted totalled $2,446. At trial,held October 27, 1987, a number of claims for damages were left for determination by the District Court. After hearing testimony from Vinion, a number of experts,and partieswhohad soldVinion someof thepersonalproperty, along with two witnesses for Wood Yard, the District Court determined that Vinion was entitled to $600 for replacement of theblock walls; $18,500 fordiminution in value of the building; $1,425 for damage to a jukebox and records; and $680 for the value of an unsalvageable damaged sofa. Wood Yard contends the District Court erred in the award of $18,500 for the diminution in value to thebuilding and in failing to deduct $100 as salvageable value from the jukebox and record award. The standard for review in this case is clear that this Court will not reverse the District Court absent a showing that its determinationswere clearly erroneous. Rule 52(a)

## , M.R.Civ.P. On appeal, the findings of the trial court are presumed to be correct if supported by substantial evidence and we refuse to substitute our judgment for that of the District Court where the District Court is acting as the trier of fact and there is substantial evidence to support its decision. Department of Revenue v. New Life Fellowship of Montana, Inc. (Mont. 1985), 703 P.2d 860, 862, 42 St.Rep. 1129;Robinsonv. Schrade (Mont. 1985), 697P.2d 923, 925,42 St.Rep. 401. The filed complaintrequested $20,000 for the diminution of value of the building. Vinion first stated at trial that he believed $50,000was aproper recovery but upon advice of his attorney stated he would accept $20,000. In its findings of fact,theDistrict Court found the following: Diminution in value of building. Plaintiff's building is constructed of concrete blocks which typically after completion show some small cracks between the blocks because of settling. There were no such cracks in the walls which were affected by the collision. As a result of the collision, large portions of the south and west walls of the building were knocked down. When the

### support of these walls was taken away, three continuous cracks in the structure occurred in the immediate area of physicaldamage. These cracks started in the bottom portion of the walls and went to the second floor of the building, passing throughbond beams. These cracks are unsightly and are inconsistent with the appearance of the remainder of the building. While the cracks are probably not of a nature to greatly affect the structural soundness of the building, they do affect its [aesthetics]. To prospective buyers of the building, they represent defectswhich will diminish the attractiveness, hence the value of the building. The building in its intact condition had a reasonable value on the local market of $185,000.00, and the damage to the building by Defendant reasonably reduces that value by $18,500.00. While the cracks can be cosmetically hidden, they represent a defectwhich cannotreasonablybe removed and which, if cosmetically cured,would become a hidden defect in the building.
Wood Yard argues the evidence presented at trial failed to conclusively establish thatVinion suffered an actual loss in the market value of thebuilding and that Vinion failed to present evidence of the amount of damage with as much precision aspossible. Wood Yard's initial argument rests on the claim that "a judgment for damagesmust be supported by substantialevidence that is not theproduct ofmere guess or speculation." Lenz Construction Company v. Cameron (Mont.

However, when there is strong evidence of the fact of damage, the defendant should not escape liability because the amount of damage cannotbe proven with precision. Albers v. Bar ZF 

### Ranch, Inc. (Mont. 19871, 747 P.2d 1347, 44 St-Rep2081; Jarussi v. Board of Trustees of School Dist. No. 26, Lake County (1983), 204 Mont. 131, 136-137, 664 P.2d 316,

### 318. Jarussi, supra, is instructive in this casebecause it involved a jury award of damagesbased on the claimant's own testimony. Jarussi testified that he lost between $16,000 and $17,000 when he was forced to hastily sell most of his personal property to move to Alaska for work. He also testified that his moving expenseswere $2,901.50. The jury awarded $16,500 for losses on the sale of Jarussi'spersonal property and $2,900 for moving costs. This Court affirmed. Of significance is the fact that the defendant in Jarussi presented no evidence refuting Jarussi's claimed damages. In the case at bar, the damage award was based largely
on the testimony of Vinion himself who claimed $20,000 was the minimum required to compensate him for diminution in value. The District Court awarded $18,500. Although Vinion's expert testified, he could not place a dollar value
on the loss without further investigation. This is the gravamen of the second reasonable argumentpresented by Wood Yard that thebest evidenceavailableunder the circumstances should be produced to supporttheplaintiff'sclaim. Sackv. A.V. Design, Inc. (Mont. 1984), 683 P.2d 1311, 1314, 41 St.Rep. 1272. Nonetheless, it is important to note that the expert that Wood Yard produced also did not, or could not, dispute thedollarvalue expressedby Vinion. Wood Yard admitted that it caused the damages in this
case. If it is reasonably certain that damages were sustained by the wrongful act or breach of the defendant, then reasonable damages rationally supported by the evidence will be upheld. Castillo v. Franks (Mont. 1984), 690 P.2d 425, 431, 41 St.Rep. 2071. The District Court clearly set out the basis upon which it founddiminution invalue in this
case and this basis was grounded on substantial credible evidence.It is undisputed that the owner of property may testify

as to its value. Cremer v. Cremer Rodeo Land and Livestock Co. (Mont. 1981), P.2d 1199, 1202, 38 St.Rep. 574. Under the circumstancesof this case,whereWood Yard did not offer any contrary amount to the actual figurespresented by Vinion,we have no alternative than to affirm the District Court's award. The law requiresonly that the trier of fact exercise calm and reasonable judgment, and the amount of award rests of necessity in the sound discretion of the trier of fact. Johnson v. Murray (1982), 201 Mont. 495, 506, 656 P.2d 170, 175. As to the failure on the part of the District Court to deduct from the reasonable value of the jukebox and records the $100 salvage value, we note that this appears to be a mere mathematical error. Vinion admits the error and we therefore remand to the District Court to enter a revised judgment reflecting the $100 salvagevalue. We affirm and remand for entry of a r

We concur: