NO. 94-287

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

DAVE GEORGE, RICHARD GEORGE,

CHARLES W. HOPKINS, GREGG

WILLIAMS and BRIAN McCULLY,

Plaintiffs and Respondents,

v.

ALAN HAY and WI-HAUL WHOLESALE

DISTRIBUTORS, INC.,

Defendants and Appellants.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Michael H. Keedy, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

James C. Bartlett, Hash, O'Brien & Bartlett,

Kalispell, Montana

For Respondents:

E. Eugene Atherton, Attorney at Law,

Kalispell, Montana

Filed:

Submitted on Briefs: January 26, 1995

Decided: May 4, 1995
Justice Terry N. Trieweiler delivered the opinion of the Court.

The plaintiffs, Dave George, Richard George, Charles W.

Hopkins, Gregg Williams, and Brian McCully filed a complaint

against the defendants, Alan Hay and W&Haul Wholesale

Distributors, Inc., in the District Court for the Eleventh Judicial

District in Flathead County. 1n their complaint, plaintiffs

alleged a breach of contract for services and that they were

entitled to damages. The defendants answered and stated a

counterclaim for wrongful attachment.

On December 2, 1993, after a trial, a jury found that Alan Hay

individually hired plaintiffs and owed them compensation. The jury

further found that plaintiffs did not wrongfully attach property of

either defendant, and that plaintiffs did not abuse the writ of

attachment process. Defendants appeal from the judgment entered

pursuant to that verdict. We affirm the judgment of the District

Court.

The following issues are raised on appeal:

1 . Was there substantial evidence to support the jury's

finding that plaintiffs did not wrongfully attach the defendants'

property?

2 . Was there substantial evidence to support the jury's

damage award?

3 . Did the District Court err by its admission or exclusion

of evidence?

4 . Did the District Court err when it entered judgment

against both defendants?
FACTUAL BACKGROUND

On December 31, 1991, plaintiffs filed a complaint against

Alan Hay. They alleged that Alan had breached his contract with

them and that they were entitled to damages. On the same date,

plaintiffs also filed an exparfe request for a prejudgment writ of

attachment and a supporting affidavit in which they requested

attachment of Alan's lumber which they had skidded, loaded, and

hauled. The writ was granted by the District Court on that date.

On January 6, 1992, Alan filed a motion to quash and discharge

the writ of attachment for the reason that it was improperly or

irregularly issued. He alleged that plaintiffs had no contract

with him; that he did not own any of the property described in the

writ; that the writ was issued exparte; and that he was not given

proper notice. On January 17, 1992, the District Court granted

Alan's motion and discharged the writ of attachment.

Plaintiffs amended their complaint on February 6, 1992, to add

Wi-Haul Wholesale Distributors, Inc., as a defendant, based on the

allegation that their contracts may have been with this entity.

On that date, they also filed a second motion for a

prejudgment writ of attachment and a supporting affidavit. The

District Court issued this writ.

On February 11, 1992, defendants filed answers to plaintiffs'

amended complaint, and for a counterclaim, alleged that their

property had been wrongfully attached.

On February 24, 1992, plaintiffs filed a motion for summary

judgment against both defendants on the issues raised by their

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complaint. On June 9, 1992, the District Court granted plaintiffs'

motion in part and held that there was no dispute that the

defendant corporation owed all plaintiffs, other than Richard

George, the amounts claimed in their complaint ($11,043.64). The

court held that there were genuine issues of fact regarding Alan's

liability, regarding the amount owed to Richard George, and

regarding defendants' counterclaim, and therefore, denied summary

judgment regarding those issues.

A jury trial began on November 30, 1993. On December 2, 1993,

the jury found that Alan, individually, had hired each of the

plaintiffs. The jury found that Alan owed David George $7234.04;

Richard George $3510.49; Charles Hopkins $1420.62; Gregg Williams

$577.41; and Brian McCully $1714.84. The jury found that

plaintiffs did not wrongfully attach the property of either

defendant, and that plaintiffs did not abuse the writ of attachment

process. On March 7, 1994, the District Court entered its judgment

against both defendants. Defendants appeal.

ISSUE 1

Was there substantial evidence to support the jury's finding

that plaintiffs did not wrongfully attach the defendants' property?

We will not overturn a jury verdict which is supported by

substantial evidence. Kitchen Krajiers, Inc. v. Eustside Bank ( 3.9 9 0 ) , 242

Mont. 155, 164, 789 P.2d 567, 572 (citing Batchoffv. Craney (19461, 119

Mont. 157, 172 P.2d 308).

Defendants argue that the first writ of attachment was

wrongful, based on procedural flaws related to post-seizure

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hearings, the necessary affidavit and evidence, and the inadequacy

of the undertaking.

Plaintiffs concede that the first writ of attachment was

procedurally flawed, but argue that it was later discharged by the

District Court, and that it was not wrongful, as that term is

defined by our prior cases.

In Montgomeryv. Hunt (1987), 227 Mont. 279, 283, 738 P.2d 887,

889, we held that "[pIroof of malice . . and want of probable

cause are two essential elements of an action for wrongful

attachment in tort." Malice has been defined as "improper motive,

. . [or] a wilful disregard of the rights of others . . . .'

Thomas J. Goger, Annotation, What Constitutes Malice Sufjcient to Just$$ an Award

of Punitive Damages in Action for Wrongfit Attachment or Garnishment, 6 1 A. L . R . 3 d

984, 990 (1975).

The jury was properly instructed regarding the procedural

requirements for a writ of attachment and the requirement of malice

for a finding of wrongful attachment. A review of the record

reveals no evidence that plaintiffs acted with an improper motive

or with a wilful disregard of defendants' rights.

For these reasons, we conclude that there was substantial

evidence to support the jury's finding that the issuance of the

writ of attachment in this case was not wrongful.

ISSUE 2

Was there substantial evidence to support the jury's damage

award?
m

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overturned." Passama, 863 P.2d at 380 (citing Crist, 833 P.2d at

1054).

Defendants contend that the District Court admitted evidence

of an offer to compromise, contrary to Rule 408, M.R.Evid. Rule

408 provides that:

Evidence of (1) furnishing or offering or promising

to furnish, or (2) accepting or offering or promising to

accept, a valuable consideration in compromising or

attempting to compromise a claim which was disputed as to

either validity or amount is not admissible to prove

liability for or invalidity of the claim or its amount.

During the cross-examination of Alan, he was asked about a

meeting attended by him, his brother, and the plaintiffs after

their complaint was filed. Referring to Alan's brother, counsel

for plaintiffs asked the following question, and was given the

following answer:

Q. [BY MR. ATHERTONI What did he offer my people?

A. Let's get this resolved and let's get the people

that really should be in this case involved, not all of

US. We're just trying to make a living, just like you.

Q. Did your brother offer my people money on this

meeting that occurred after I started representing them?

. . . .

THE WITNESS: No

We conclude that the cited colloquy did not include evidence

of a promise to provide consideration to compromise the plaintiffs'

claim, and therefore, was not inadmissible pursuant to Rule 408.

The defendants also contend that the District Court erred by

excluding testimony from Charles Tustin which related to

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