No. 80-280 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

OSCAR A. 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. Euqene At.herton argued 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 

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

Defendant Buffalo Building Company (Buffalo) appeals 

from the jury verdict and judgment of the District Court, 

Flathead County, The issues center on the Uniform Building 

Fire and Safety codes of Kalispell. 

Buffalo presents the following issues for review: 

1. Defendant Buffalo's main issue is whether the trial 

court properly denied its motion to retract certain admissions 

regarding the effect and validity of uniform building, fire, 

and safety codes purportedly adopted by the City of Kalispell, 

the motion to retract having been made two work days before 

trial. 

2. To show that such denial constitutes reversible 

error Buffalo presents the issue whether cities had the 

power to adopt technical codes by reference prior to 1967, 

when the Montana legislature passed a bill specifically 

giving to cities such power. Included as subissues are: 

a. Did the trial court properly deny Buffalo's motion 

in limine to exclude mention 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 in any 

event under their own terms. 

4. Buffalo asserts that certain of its proposed instructions 

concerning landlord/tenant relationships should have been 

given and certain of the court's instructions should not 

have been given. 
5. ~uffalo cites as error 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 as error 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 in Kalispell in 

1956, renovated it, and rented it out as commercial and 

office space. The plaintiffs were all separate tenants in 

the building. In 1976, the building caught fire and was 

totally destroyed, the fire apparently caused by the acts 

and nature of work of another tenant, the Flathead Dental 

Laboratory. Two separate actions were brought, 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 fire protection materials into the 

building, and negligence -- per se in failing to fully comply with 

city building, fire and safety code specifications. Buffalo 

denied all allegations. 

The codes involved here are the 1946 and 1973 Uniform 

Building Codes, the 1973 Life Safety Code, 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 to Rule 36, M.R.Civ.P. Section 104(b) of the uniform 

Building Code, 1946 Edition, provides that if the cost of 
alterations to an older building in any one year exceeds 

50 percent of the value of the building itself, the building 

shall be made to conform to the requirements for new buildings. 

The tenants requested Buffalo to admit that the cost of 

repairs and remodeling in the year of purchase had exceeded 

50 percent of the building's value. 

The request for admission was dated May 9, 1979. 

Buffalo admitted the allegation by default as provided by 

Rule 36(a), M.R.Civ.P. : " . . . . The matter is admitted 

unless, within 30 days after service of the request . . . 

the party to whom 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, "I have not felt 

that it was necessary to prepare a formal reply to your 

Request for Admissions dated May 9, 1979, for the reason 

that under Provisions of Rule 36, those matters were deemed 

automatically admitted in the absence of a denial or other 

response." 

The District Court scheduled trial for October 9, 1979, 

and a pretrial conference for August 29. The tenants prepared 

a pretrial order, which was signed by the district judge and 

by all parties on August 15. Buffalo asserts that the pretrial 

order was never adopted by the District Court. The order 

was signed by the judge and it was entered in the docket, 

although it apparently was never filed, as the original is 
not contained in the district court file (the tenants 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 is clear, therefore, that Buffalo 

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 #515 was duly 

adopted by the City Council of Kalispell on September 3, 1946 and was in full force and effect at 

the time of the purchase of said building by the 

Defendant Buffalo Building Company, and at all 

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 Officials Conference, on January 1, 1946 is that identified marked Exhibit A and at the time of the 

pre-trial conference, placed in the custody of the 

Court. That such code is that referred to in Ordinance #515 as aforementioned." 

On the same day that the pretrial order was signed, 

August 15, Buffalo moved the court for an order permitting 

it to withdraw its previous admission regarding the value of 

the building and of improvements made therein (the admissions 

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" in the first request. 

Leave to revoke 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. Trial was reset for 

April 14, 1980. 

Buffalo filed its responses to the requests for admissions 

contained in the pretrial order on August 27, 1979. Requests 
9 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 all of Buffalo's admissions. 

Buffalo opposed the motion, arguing in its brief, for the 

first time, that it had never admitted the city technical 

codes were pertinent or applicable or had been validly 

adopted by the city council. The court then ordered counsel 

to prepare an amended pretrial order, specifically directing 

Buffalo to include in the 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 it was plaintiffs' responsibility to prepare all pretrial 

orders. 

Two work days prior to trial, Buffalo moved to revoke 

its admissions contained in the pretrial order for the 

reason that the city technical 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 cities had 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 at trial. 

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 situation but [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 

that Buffalo had already delayed trial once by retracting an 
admission and that its new 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 in limine to exclude all mention of the 

technical codes at trial. The motion was denied. The 

tenants moved in limine to prevent Buffalo from arguing the 

invalidity of the codes at trial. That motion was granted. 

Jury trial was held. The court received exhibits concerning the technical codes, and instructed the jury on the 

codes' applicability and effects. The jury returned a 

verdict in favor 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 to one tenant only. Buffalo appeals the denial 

of its motion to revoke its admission, the conduct of the 

trial, and the awarding of prejudgment interest and of 

certain costs. 

A party has no absolute right to file late answers to 

requests for admissions. The matter rests within the discretion of the trial court and will not be disturbed in the absence of a manifest abuse of discretion. State of 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 District Court 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; that previously 

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 to 
timely assert their arguments concerning the validity of the 

technical codes' adoption even though the court had requested 

that such contentions be set forth; that another lengthy 

delay would result if the new motion was to be granted; and, 

that the defendants failed to provide the court with 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 District Court concluded that the issues involved 

in the case were complex andinvolved the 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 facts by 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 District Court did not manifestly abuse its discretion in denying 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 is increasingly recognized by courts as a 

problem. As this Court noted in the recent case of Owen v. 

F. A. Buttrey Co. (19811, - Mont. - , 627 P.2d 1233, 1235, 

38 St.Rep. 714, 717: 

"Crowded dockets have led more 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 in favor of restraint, may be increasingly inappropriate given the 
compelling 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 in order to acquire new proof. To the same effect 

is Calaway v. Jones (1981), - Mont. , 624 P.2d 991, 38 

St.Rep. 340, where delay caused by a party's failure to appear 

at pretrial conference, together with his general unresponsiveness during discovery was found sufficient to justify 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 into evidence, 

or the issue whether the codes were properly and validly 

adopted by the Kalispell City Council. The effect of the 

admissions was to conclusively establish the matters admitted. 

Rule 36 (b) , M.R.Civ.P. 

Buffalo argues that the technical codes should have 

been excluded as irrelevant under their own terms. 

The jury was instructed that the Uniform Building Code, 

1946 Edition, was in force and effect when the building was purchased and renovated, and the code included the following provision: 

"Any building or structure which is enlarged, 

altered, raised, repaired or built upon to an 

extent exceeding expenditure within any five 

year period of 20 percent of the value of the 

building or structure, shall be made to comply 

with all the requirements for fire resistance of 
a new building or structure erected in Fire Zone 

- 1. " Section 1602 (d) . (Emphasis added. ) 

There was testimony that repairs to the building had 

been made in 1956 at a cost of $205,000. The building 

itself was valued at $450,000 to $500,000. Therefore, the 

code did apply. 

Buffalo further argues that there was no evidence in 

the record to establish that the building was located in any 

"Fire Zone 1." However, that was one of the facts Buffalo 

admitted in the pretrial order (Request for Admission #12 

and answer thereto dated August 27, 1979.) That was one of 

the admissions which Buffalo moved 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 expert witness at trial to establish 

the relevancy of the technical codes. That witness had 

extensive experience with the content and applicability of 

the codes. His testimony was uncontradicted by any other 

evidence or testimony. There was sufficient evidence in the 

record for the issue of the codes' applicability to go to 

the jury. The codes were properly 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 in the 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 fire of September 22, 1976, together with 

all pictures and exhibits attached to the report." 

Because, in th$ pretrial order dated August 15, 1980, Buffalo 

agreed to the admission of those records as requiring no foundation or proof, Buffalo's objection to the report as hearsay was 

properly denied. 

IV. 

Buffalo alleges that the court erred in giving one of 

the plaintiffs' proposed instructions, dealing with concurrent 

negligence, and also erred in refusing to give ten of Buffalo's 

proposed instructions. We find no error. 

Plaintiffs' instruction no. 7 was as follows: 

"There may be more than one proximate cause of an 

injury. When negligent conduct of two or more 

persons contributes concurrently as proximate 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 is concurrent if it was operative at the 

moment of injury and acted with another cause to 

produce the injury. It is no 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 at trial to the effect 

that the fire started in the rooms leased to the Flathead 

Dental Laboratory and that it was negligent. The instruction 

is fairly designed to meet an issue raised by the reports of 

the fire department. 

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 13 are not presented with any citation 

of authority showing them to be correct statements of the 

law; Buffalo also neglects to point to evidence in the 

record sufficient to justify giving the instructions. The 

instructions cited all deal 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 error by this Court. Bohrer v. Clark (1978), - 

Mont. , 590 P.2d 117, 124, 35 St.Rep. 1878, 1887. Also, 

repetitious instructions setting forth abstract principles 

of law should be avoided. O'Brien v. Great Northern Railway 

Company (1965), 145 Mont. 13, 22, 400 P.2d 634, 639, cert.den. 

(1967), 387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 974. The 

trial court properly refused the instructions. 

Buffalo objects to the award of certain costs and of 

prejudgment interest to one of the plaintiffs. 

The cost statute is section 25-10-201, MCA: 

"Costs generally allowable. A party to whom 

costs are awarded in an action is entitled to 

include in his bill of 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 for publication when publication is directed; 

"(4) the legal fees paid for filing and recording 

papers and certified copies thereof necessarily 

used in the action or on the trial; 

" (5) the legal fees paid stenographers for per 

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 for making a map or 

maps if required and necessary to be 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), expert witness fees ($1500), 

witness fees in excess of ten dollars per day plus mileage 

($1500), title company charges ($86.63) and miscellaneous 

charges ($6.25) . 

The plaintiffs submitted their memorandum 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 for witness fees were pared to $1500 from 

$2,502.11 for expert fees and to $1500 from $2,648.33 for 

other witness fees. The District Court held a hearing on 

the motion to tax costs, after which it specifically found 

the remaining items to be reasonable and necessary costs 

under section 25-10-201 (9), MCA. 

A verified memorandum of costs and disbursements is 

prima facie evidence that the items were necessarily expended 

and are properly taxable, unless, as a 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), 100 Mont. 599, 607, 52 P.2d 150, 154. Buffalo 

has failed to carry its burden of showing that the items are 

not reasonable and necessary as found by the District Court. 

Buffalo particularly objects to the $1,500 award for 

"witness fees", arguing that it clearly exceeds the ten 

dollars per day in attendance plus mileage allowed by section 

26-2-501, MCA. However, the ruling of the trial judge on 

this item does not indicate on what ground it is based, the 

number of days that the witnesses were in attendance, or the 

amount of in-state miles they traveled. Under this condition, 

Buffalo's raising of questions is not sufficient to carry 
its burden; "we cannot say whether the item of witness fees 

was properly allowed and we must therefore sustain the 

ruling of the trial judge . . ." Broberg v. Northern Pac. 

Ry. Co. (1947), 120 Mont. 280, 303, 182 P.2d 851, 863. We affirm 

the award of costs. 

One of the plaintiffs was awarded interest for her 

losses as of the date of the fire. Section 27-1-211, MCA, 

provides as follows: 

"Right to interest. Every person who is entitled 

to recover damages certain or capable of being made 

certain by calculation and the right to recover 

which is vested in him upon a particular day is entitled also to recover interest thereon from that 

day except during such time as the debtor is prevented by law or by the act of the creditor from 

paying the debt. " 

The District Court awarded prejudgment interest upon 

motion of the plaintiff, after a hearing. The award was 

based on the plaintiff's testimony regarding the property 

that she lost in the fire and the value of such property. 

As set forth 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 flat sum of $25,000. We 

do not find that this plaintiff has shown damages capable of 

being made certain by calculation as required under the 

statute. We, therefore, conclude that the order of prejudgment 

interest to plaintiff Conklin was in error. 

We af firm the judgment with the exception that we reverse the award of prejudgment interest to plaintiff Conklin. 
/ Chief Justice \