### No. 80-280 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

OSCARA. SWENSON,M.D.; RICHARD A. NELSON, M.D.; ABC COLLECTORS, INC., et al., Plaintiffs and Respondents,

BUFFALO BUILDING CO., a Montana Corporation, Defendant and Appellant.

Appeal from: District Court of the Eleventh Judicial District, In and for the County of Flathead. Honorable James Salansky,Judge presiding. Counsel of Record: For Appellant: Warden, Christiansen & 

### Johnson,Kalispell,Montana Merritt C. Warden argued,Kalispell, Montana For Respondents: E. EuqeneAt.hertonargued and Jim Moore 'argued,

Kalispell,Montana Morrison Law Firm,Missoula, Montana Frank Morrison Sr. argued, Missoula, Montana McGarvey, Lence and Heberling, Kalispell,Montana

Submitted: June 16, 1981 Decided: September 28, 1981

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

Defendant Buffalo Building Company (Buffalo) appeals from the jury verdict and judgment of the DistrictCourt, Flathead County, The issues center on the Uniform Building Fire and Safetycodes

### of Kalispell. Buffalo presents the following issues for review: 1. Defendant Buffalo's main issue 

### iswhether the trial court properly denied 

### itsmotion to retract certain admissions regarding the effectand validity of uniform building, fire, and safety codes purportedly adopted by the City of Kalispell, the motion toretract having been made two work days before trial. 2. To show that such denial constitutes reversible

error Buffalo presents the issue whether citieshad the power toadopt technical codes by reference prior to 1967, when theMontana legislaturepassed a bill specifically giving to cities such power. Included as subissues are:

a. Did the trial courtproperly deny Buffalo's motion inlimine to excludemention of the technical codes, and properly grant tenants' motion in limine to prevent Buffalo from contesting the validity of the codes? b. Were exhibits concerning the codes properly received into evidence?

c. Was the jury properly instructed as to the applicability and effects of the codes? 

### 3. Buffalo argues that the codes were irrelevant inany event under their own 

### terms. 4. Buffalo asserts that certain of 

### itsproposed instructions concerning landlord/tenant relationships should have been given and certain of the court's instructions should not have been given.5. 

### ~uffalo citesaserror the awarding of prejudgment interest, and of costs for telephone charges, photocopies, exhibits and supplies, consultant fees, and witness fees to the tenants. We affirm the lower court's denial of Buffalo's motion to retract the admissions. Therefore, 

### we need not discuss issue no. 2 

### or its three subissues. Many of the instructions which Buffalo cites aserror also need not be addressed because they involved provisions of the technical codes. We 

### affirm the awarding of costs, but

### we reverse the award of prejudgment interest. Buffalo purchased an older building inKalispell in 1956, renovated it, 

### and rented it 

### outascommercial and office space. The plaintiffs were all separate tenants in the building. In 1976, the building caught fireand was totallydestroyed, the fireapparently caused by the acts and nature of work of another tenant, the Flathead Dental Laboratory. Two separate actions

### werebrought, on June 20, 

### 1978, and September 6, 1978, which 

### were eventually consolidated into this case. The tenants alleged negligence by Buffalo in failing to install adequate fireprotection materials intothe building, and negligence per 

## -- se in failing to fullycomply with citybuilding, fireand safetycode specifications. Buffalo denied allallegations. The codes involved here are the 1946 and 1973Uniform Building Codes, the 1973Life SafetyCode, and the 1970 Fire Prevention Code. The tenants sought to establish certain elements of their

case during discovery through the use of requests for admissions, pursuant toRule 36, M.R.Civ.P. Section 104(b)of the uniform Building Code, 1946 Edition, provides that if the costofalterations to an older building inany one year exceeds 50 percent of the value of the building itself, the building shallbe made to conform to the requirements for new buildings. The tenants requested Buffalo to admit that the costof repairs and remodeling inthe year of purchase had exceeded 50 percent of the building's value. The request for admission was dated May 9, 1979. Buffalo admitted the allegationby default asprovided by Rule 36(a),M.R.Civ.P. : 

### "

# . .

# . . The matter 

### is admitted unless, within 30 days after service of the request 

# . .

# . the party towhom the request 

### is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney

# . . ." The admission by default was not mere oversight by counsel for Buffalo; tenants' counsel wrote to Buffalo's counsel on June 13, 1979, to inquire about the status of the request for admissions, and Buffalo's counsel responded, by letter dated June 18, 1979, "Ihave not felt that

### itwas necessary to prepare a formal reply to your Request forAdmissions dated May 9, 1979, for the reason thatunder Provisions of Rule 36, those matters 

### were deemed automatically admitted inthe absence of a denial or other response." The DistrictCourt scheduled trial for October 9, 1979, and a pretrial conference forAugust 29. The tenants prepared

a pretrial order, which was signed by the districtjudge and by allparties on August 15. Buffalo asserts that the pretrial order was never adopted by the DistrictCourt. The order

was signed by the judge and 

### itwas entered inthe docket, although it apparently 

### was never filed, 

### as the original 

### isnot contained inthe districtcourt file (thetenants include a copy of the pretrial order in the separate appendix to their brief). The tenants itemized 30 alleged violations of the uniform codes in the "Plaintiff's Contentions" portion of the pretrial order. It

### isclear, therefore, thatBuffalo

was aware of the basis for the tenants' claim of negligence per 

### se. The order also contained 31 requests for admissions, 

### -- the most crucial of which are as follows: "9. That Kalispell City ordinance #515was duly adopted by the City Council of Kalispell on September 3, 1946 and was infull force and effectat the time of the purchase of said building by the Defendant Buffalo Building Company, and atall times during the alteration of said building by said company during the year 1956. "10. That the Uniform Building Code, as adopted and published by the Pacific Coast Building OfficialsConference, on January 1, 1946 

### is that identifiedmarked Exhibit A and atthe time of the pre-trial conference, placed in the custody of the Court. That such code 

### is that referred to inOrdinance #515 asaforementioned." On the same day that the pretrial order was signed, August 15, Buffalo moved the court for an order permitting 

### it towithdraw 

### itsprevious admission regarding the value of the building and of improvements made therein (theadmissions dated May 9). Buffalo sought to revoke 

### its former admission for the reason that 

### it had "mistakenly and inadvertently failed to analyze the wording contained" inthe firstrequest. Leave torevoke the admission was granted by the court over objection by the tenants. The tenants then requested a sixmonth continuance of trial "reluctantly", because they were

now "faced with the necessity of independently proving" the values of the building and repair work. Trialwas 

### reset for April 14, 1980. Buffalo filed 

### itsresponses to the requests for admissions contained in the pretrial order on August 27, 1979. Requests9 and 10 

### set forth above, and other, similar requests, were specifically admitted. Three months prior to trial the tenants moved for summary judgment based upon allof Buffalo's admissions. Buffalo opposed themotion, arguing in

### itsbrief, for the firsttime, that

### it had never admitted the city technical codes were pertinent or applicable or had been validly adopted by the citycouncil. The court then ordered counsel toprepare an amended pretrial order, specifically directing Buffalo to include inthe amended order 

### its contentions and position on nonapplicability of the various codes and the specific reasons for such nonapplicability. Neither party

ever prepared an amended pretrial order. Buffalo argues that

### itwas plaintiffs' responsibility to prepare allpretrial orders. Two work days prior to 

### trial, Buffalo moved to revoke 

### its admissions contained inthe pretrial order for the

reason that the citytechnical codes had never been validly adopted and thus, any admissions based thereon were incorrect and not pertinent. A hearing was held where Buffalo argued that citieshad been granted no power by the legislature to adopt a technical code by refence in 1946, any such adoption

was a void act, and no evidence concerning the codes should be received attrial. Buffalo's reason for requesting leave to amend this 

### time: "[Counsel for Buffalo] assumed that counsel for Plaintiffs had investigated the assertion and honestly and correctly stated the factual situationbut [Counsel for ~uffalo] has

now learned that such was not the case and that such assertion



### was incorrect and false." The court denied Buffalo's motion, specifically finding thatBuffalo had already delayed 

### trial once by retracting anadmission and that 

### itsnew motion went to the very foundation of the tenants' case, was not timely made, would cause another lengthy delay, and would subvert the rules of procedure and the orderly disposition of cases. Buffalo moved inlimine to exclude allmention of the technical codes attrial. The motion was denied. The tenants moved inlimine toprevent Buffalo from arguing the invalidity of the codes attrial. That motion was granted. Jury trialwas held. The courtreceived exhibits concerning the technical codes, and instructed the jury on the codes' applicability and effects. The jury returned a verdict infavor of the tenants and judgment 

### was entered. The court then received motions and heard argument on the awarding of costs and prejudgment interest. Such interest

was awarded toone tenant only. Buffalo appeals the denial of 

### itsmotion to revoke 

### its admission, the conduct of the trial, and the awarding of prejudgment interestand of certain costs.

A party has no absolute right to filelateanswers to requests for admissions. The matter restswithin the discretion of the trial court and 

### willnot be disturbed inthe absence of a manifest abuse of discretion. Stateof N.D. 

### v. Newberger (1980), 

# - Mont.

# - , 613 P.2d 1002, 1006, 37 St.Rep. 1119, 1124; Morast v. Auble (1974), 164 Mont. 100, 105, 519 P.2d 157, 159. The DistrictCourt held a hearing on the defendant's motion on April 15, 1980. The court then found specifically that trial had been 

### set to commence on April 16; thatpreviously the defendant had been granted a similar motion to amend responses to requests for admissions, such order causing a lengthy delay in trial; that the defendants had failed totimely assert their arguments concerning the validity of the technical codes' adoption even though the court had requested that such contentions be setforth; that another lengthy delaywould result if the new motion was tobe granted; and, that the defendants failed toprovide the courtwith any justification for overturning an admission which had been deliberately drafted by experienced counsel for the express purpose of limiting and defining the issues. The DistrictCourt concluded that the issues involved inthe case were complex andinvolvedthe presentation of expert witnesses from out of the regional area; that the subjects of the motion went to the very foundation of the plaintiffs' case and had been relied on by the plaintiffs; that the motion was due to insufficient and untimely investigation of the issues and factsby the defendants; and, that the rules of procedure and orderly disposition of cases would be subverted by allowing the retractions and amendments. The defendants' motion was denied. The DistrictCourt did not manifestly abuse 

### itsdiscretion indenying the motion. The findings are supported by the record, and do provide a base for the conclusions. In addition, the conclusions properly apply the law. Delay itself 

### isincreasinglyrecognized by courts asa problem. As this Court noted in the recent case of Owen v. Mont. F. A. Buttrey Co. (19811, 

# - - 

## , 627 P.2d 1233, 1235, 38 St.Rep. 714, 717: "Crowded dockets have ledmore and more courts to overcome 

# .

# . . [their]reluctance and reemphasize the judicial responsibility to the public. Note, Rule 1, M.R.Civ.P., providing that the Rules of Civil Procedure be interpreted to 'secure the just, speedy and inexpensive determination of every action.' This Court recognizes that 

### a predisposition toward discovery sanctions, wherein we would resolve doubts about constitutional limitations and the purpose of our procedural rules infavor of restraint, may be increasingly inappropriate given thecompelling need to maintain efficient and fair judicial administration.

### " Owen involved imposition of sanctions for delay during discovery, but the same concerns apply in this case, particularly because Buffalo had previously retracted an admission of fact, and had forced the tenants to request a postponement of trial inorder to acquire new proof. To the same effect 

### isCalaway v. Jones (1981), 

### -Mont. 

## , 624 P.2d 991, 38 St.Rep. 340, where delay caused by a party's failure to appear atpretrial conference, together with his general unresponsiveness during discovery was found sufficient tojustify entry of default judgment. We affirm the trial court's action. The denial was within the bounds of the court's discretion. Because of our holding on this issue, 

### we do not need to address defendants' issues regarding error in the motions 

### in limine, the majority of the court's instructions to the jury, the introduction of the technical codes intoevidence,

or the issue whether the codes

### wereproperly and validly adopted by the Kalispell City Council. The effectof the admissions was to conclusively establish thematters admitted. Rule 36(b)

## ,M.R.Civ.P.

Buffalo argues that the technical codes should have been excluded as irrelevantunder their own 

### terms. The jury was instructed that the Uniform Building Code, 1946 Edition, was inforce and effectwhen the building was purchased and renovated, and the code included the following provision: "Any building or structurewhich 

### isenlarged, altered, raised, repaired orbuilt upon to an extent exceeding expenditure within any five year period of 20 percent of the value of the building or structure, shallbe made to comply with allthe requirements for fireresistance ofa new building or structure erected inFire Zone 1.

### " Section 1602(d)

# . (Emphasis added.) 

## - There was testimony thatrepairs to the building had been made in 1956 ata cost of $205,000. The building itself was valued at$450,000 to $500,000. Therefore, the code did apply. Buffalo further argues that therewas no evidence in the record to establish that the building was located inany "Fire Zone 1." However, thatwas one of the facts Buffalo admitted inthe pretrial order (RequestforAdmission #12 and answer thereto dated August 27, 1979.) That was one of the admissions which Buffalomoved to amend on the eve of trial, which motion was denied by the court. As discussed previously, the admission conclusively established that fact for the purpose of trial. The code was properly admitted. Buffalo also argues that the other technical codes were irrelevant and their introduction caused prejudicial error. The plaintiffs provided an expertwitness attrial to establish the relevancy of the technical codes. That

### witness had extensive experience with the content and applicabilityof the codes. Histestimony was uncontradicted by any other evidence or testimony. There was sufficientevidence inthe record for the issue of the codes' applicability togo to the jury. The codes 

### wereproperly received into evidence. 111. Buffalo argues that the records of the Kalispell Fire Department (Plaintiffs' Exhibit #27),materials from the investigation of the fire, constituted hearsay and should have been excluded as a whole. Again, however, Buffalo had stipulated inthe pretrial order, under Section "E: ~dmission of Facts and Documents Requiring No Foundation or proof" as follows:"1. Report of the Kalispell Fire Department of the fireof September 22, 1976, together with allpictures and exhibits attached to the report." Because, inth$ pretrial order dated August 15, 1980, Buffalo agreed to the admission of those records asrequiring no foundation or proof, Buffalo's objection to the report ashearsay was properly denied. 

### IV. Buffalo alleges that the court erred ingiving one of the plaintiffs' proposed instructions, dealing with concurrent negligence, and also erred inrefusing to give ten of Buffalo's proposed instructions. We find no error. Plaintiffs' instruction no. 7was as follows: "There may be more than one proximate cause of an injury. When negligent conduct of two ormore persons contributes concurrently asproximate causes of an injury, the conduct of each of said persons 

### is

### a proximate cause of the injury regardless of the extent to which each contributes to the injury. A cause 

### isconcurrent if 

### itwas operative atthe moment of injury and acted with another cause to produce the injury. It

### isno defense that the negligent conduct of a person not joined as 

### a party was also a proximate cause of the injury." There was evidence brought out attrial to the effect that the fire started inthe rooms leased to the Flathead Dental Laboratory and that 

### itwas negligent. The instruction 

### is fairly designed to

### meetan issue raised by the reports of the firedepartment. Buffalo cites error in the court's failing to give 

### its offered instruction nos. 

### I, 2, 3, 4, 5, 6, 8, 9, 11 and 13. Nos. 1, 2, 

### 4, 6, 11 and 13arenot presented with any citation of authority showing them to be correct statements of the law; Buffalo also neglects topoint to evidence in the record sufficient tojustify giving the instructions. The instructions cited alldeal primarily with landlord/ tenant law and the duties owed thereunder. The jury was adequately instructed on both common law negligence and negligence per

### se theories. The offered instructions

### were repetitions and conflicting, because they did not distinguish between the two theories in their application. The giving of conflicting instructions on a material issue has been held to be 

### reversible errorby thisCourt. Bohrer v. Clark (1978), 

## - Mont. 

## , 590 P.2d 117, 124, 35 St.Rep. 1878, 1887. Also, repetitious instructions setting forthabstractprinciples of law should be avoided. O'Brien v. Great Northern Railway Company (1965), 145Mont. 13, 22, 

### 400 P.2d 634, 639, cert.den. (1967), 387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 974. The trialcourtproperly refused the instructions.

Buffalo objects to the award of certain costs and of prejudgment interest toone of the plaintiffs. The cost statute is section 25-10-201, MCA: 

### "Costs generally allowable. A 

### party towhom costs 

### are awarded inan action isentitled to include inhisbillof costs his necessary disbursements, as follows: "(1)the legal fees of witnesses, including mileage, or referees and other officers; "(2)the expenses of taking depositions; "(3)the legal fees forpublication when publication isdirected; "(4)the legal feespaid for filing and recording papers and certified copies thereof necessarily used inthe action oron the 

### trial; 

### "(5)the legal feespaid stenographers forper diem or for copies; "(6)the reasonable expenses of printing papers for a hearing when required by 

### a rule of court; "(7)the reasonable expenses of making transcript for the supreme court; "(8)the reasonable expenses formaking a map or maps if required and necessary tobe used on trial or hearing; and 

### "(9) such other reasonable and necessary expenses 

### as are taxable according to the course and practice of the court or by express provision of law."

### Buffalo objects to the award of costs for telephone charges ($28.61), photocopy charges ($60.10)

## , exhibits, supplies and photographs ($151.87), expertwitness fees ($1500), witness fees inexcess of ten dollarsper day plus mileage ($1500), 

### title company charges ($86.63) and miscellaneous charges ($6.25)

# . The plaintiffs submitted theirmemorandum of costs on April 28, 1980. They were awarded everything except the "depositions and transcripts" item, which was put at$256.63, and their requests forwitness feeswere pared to $1500 from $2,502.11 for expert fees and to $1500 from $2,648.33 for other witness fees. The DistrictCourt held a hearing on the motion to tax costs, afterwhich it specifically found the remaining items tobe reasonable and necessary costs under section 25-10-201 (9), MCA. A 

### verified memorandum of costs and disbursements is prima facie evidence that the 

### itemswere necessarily expended and areproperly taxable, unless, asa matter of 

### law, they appear otherwise on the face. The burden of overcoming this prima facie case 

### rests upon the adverse party. Gahagan v. Gugler (1935), 100Mont. 599, 607, 52 P.2d 150, 154. Buffalo has failed to carry itsburden of showing that the 

### itemsare not reasonable and necessary asfound by the DistrictCourt. Buffalo particularly objects to the $1,500 award for "witness fees", arguing that 

### itclearly exceeds the ten dollars per day inattendance plus mileage allowed by section 26-2-501, MCA. 

### However, the ruling of the trial 

### judge on this 

### itemdoes not indicate on what ground it is

### based, the number of days that thewitnesses 

### were inattendance, or the

amount of in-state miles they traveled. Under this condition, Buffalo's raising of questions 

### isnot sufficient to carry

### itsburden; "we cannot say whether the 

### itemof witness fees

was properly allowed and we must therefore sustain the ruling of the trialjudge 

# . . 

# ."Broberg v. Northern Pac. Ry. Co. (1947), 120Mont. 280, 303, 182 P.2d 851, 863. We affirm the award of costs. One of the plaintiffs was awarded interest for her losses asof the date of the fire. Section 27-1-211, MCA, provides 

### as follows: "Right tointerest. Every person who 

### isentitled torecover damages certain or capable of being made certainby calculation and the right torecover which 

### isvested inhim upon a particular day 

### isentitled also to recover interest thereon from that day except during such 

### timeas the debtor 

### isprevented by law orby the actof the creditor from paying the debt.

### " The DistrictCourt awarded prejudgment interestupon motion of the plaintiff, after a hearing. The award was based on the plaintiff's testimony regarding the property that she lostinthe fireand the value of such property. As setforth in the pretrial order, plaintiff claimed $43,917.15 for destruction of equipment, records, furniture and other personal property, together with loss of business profits. After the testimony of witnesses 

### as to the value of these various 

### items, the jury awarded the flatsum of $25,000. We do not find that thisplaintiff has shown damages capable of being made certainby calculation as required under the statute. We, therefore, conclude that the order of prejudgment interesttoplaintiff Conklin was inerror. We affirm the judgment with the exception that

### we 

### reverse the award of prejudgment interest toplaintiff Conklin.

# / Chief 

### Justice 

# \