978-1285770178 Case Printout Case CPC-19-04 Part 2

subject Type Homework Help
subject Pages 9
subject Words 2406
subject Authors Roger LeRoy Miller

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the seller of a single ton of Sudan hay, a relatively small amount, where the hay
caused the death of plaintiff's dairy cows from botulism poisoning. And, in Libke
Washington reaffirmed its earlier ruling in Larson that the concept of implied
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commercially reasonable charges, expenses or commissions in connection with
effecting cover and any other reasonable expense incident to the delay or other
breach.
Section 30-2-715, MCA (emphasis added). The Official Comment to § 30-2-715,
MCA, provides:
5. Subsection (2)(b) states the usual rule as to breach of warranty, allowing
recovery for injuries “proximately” resulting from the breach. Where the injury
involved follows the use of goods without discovery of the defect causing the
of the UCC.
[6] Link to KeyCite Notes ¶ 37 Furthermore, Article 2-715(2)(b), does not contain
a foreseeability requirement, thus a seller “is liable for injury to person or property
even if the seller did not know of or have reason to know of the buyer's intended
use.” James J. White & Robert S. Summers, Uniform Commercial Code vol. 1, §
(1996) (where this Court held that in cases which do not involve issues of
intervening cause, proof of causation is satisfied by proof that a party's conduct
was cause-in-fact of damage alleged, and no consideration of foreseeability is
required in connection with causation).
[7] Link to KeyCite Notes ¶ 38 Thus, contrary to the District Court's conclusion
¶ 40 Whether the District Court erred in imposing discovery sanctions against the
Rothings.
[8] Link to KeyCite Notes ¶ 41 Kallestad contended that because none of the
other individuals that he sold hay to during the time period that he sold hay to the
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Rothings had any problems with their livestock, he was entitled to basic
that he would promptly provide the requested discovery information. Based on
these assurances, the District Court denied Kallestad's motion.
¶ 42 Kallestad filed a renewed Motion to Compel on June 7, 2002, alleging that,
despite their assurances, the Rothings still had not responded to his discovery
requests approximately six months later. Attached to Kallestad's brief in support
¶ 43 On January 21, 2003, Kallestad filed another Motion to Compel claiming
that the Rothings still had not complied with Kallestad's discovery requests and
the District Court's July 3, 2002 order. Kallestad subsequently filed a motion to
postpone ruling on this motion when it appeared that the Rothings were about to
comply with the discovery requests. However, Kallestad filed another Motion to
to provide the requested information and on June 29, 2004, the District Court
issued an Order to Exclude Evidence and Award Expenses. This order barred
the Rothings from presenting any evidence discussing the report of their expert
witness, Dr. Whitlock, or their alleged “snowballing credit” damages. In addition,
the court ordered the Rothings to pay reasonable attorney's fees and costs for
Kallestad's second Motion for Summary Judgment. During this hearing, the
Rothings' counsel informed the court that without Dr. Whitlock's evidence, his
clients would have no chance of prevailing at trial.
¶ 46 The District Court filed its Opinion and Order Granting Kallestad's Motion for
Summary Judgment and Order Vacating Trial on August 18, 2004. The only
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evidence relating to Dr. Whitlock that, although the court had originally excluded
such evidence, it reversed that order and vacated such exclusion. Consequently,
because the court made no further orders expressly barring any discussion of Dr.
Whitlock's report, we conclude that the court's July 22, 2004 order permanently
withdrew the proscription against Dr. Whitlock's report.
compel, to award attorney's fees, and to impose sanctions against those who
abuse the discovery process. He maintains that two different judges witnessed
the Rothings' “constant delay and non-responsiveness” over the course of three
years and that, based on these discovery abuses, the District Court properly
granted Kallestad's Motions to Compel, awarded attorney's fees and excluded
(1994); Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 26, 303 Mont. 274, ¶ 26,
16 P.3d 1002, ¶ 26). “In doing so, we generally defer to the district court because
it is in the best position to determine both whether the party in question has
disregarded the opponent's rights, and which sanctions are most appropriate.”
Richardson, ¶ 21 (citing Delaware v. K-Decorators, Inc., 1999 MT 13, ¶ 86, 293
together with pre-trial procedures, make a trial less a game of blindman's buff
and more a fair contest with the basic issues and facts disclosed to the fullest
practicable extent.
Richardson, ¶ 22 (internal citations and quotation marks omitted).
¶ 50 Based on our review of the record, including the numerous letters from
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¶ 51 Whether the District Court erred in awarding attorney's fees to Kallestad and
denying the Rothings a hearing in respect to the calculation of attorney's fees.
[12] Link to KeyCite Notes ¶ 52 In its June 30, 2004 Order to Exclude Evidence
and Award Expenses, the District Court ordered that the Rothings “shall pay the
reasonable fees and costs incurred in the preparation of the prior motion and
hearing on the reasonableness of the attorney's fees occurred. On February 7,
2005, the court entered its Judgment wherein it ordered that the Rothings pay
$4,569.00 in attorney's fees.
[13] Link to KeyCite Notes[14] Link to KeyCite Notes[15] Link to KeyCite Notes ¶
53 A district court's award of reasonable attorney's fees is a discretionary act and
Pawiroredjo, 2004 MT 39, ¶ 29, 320 Mont. 63, ¶ 29, 85 P.3d 776, ¶ 29 (citing
Stark v. Borner, 234 Mont. 254, 258, 762 P.2d 857, 860 (1988)). “An award of
fees, like any other award, must be based on competent evidence....
Furthermore, the proper determination of a legal fee is central to the efficient
administration of justice and the maintenance of public confidence in the bench
¶ 55 Accordingly, the judgment of the District Court on the issue of attorney's
fees is vacated and the cause remanded for an evidentiary hearing to determine
the proper amount of attorney's fees to be awarded.
¶ 56 Affirmed in part, reversed in part and remanded for further proceedings
consistent with this Opinion.
commercially reasonable charges, expenses or commissions in connection with
effecting cover and any other reasonable expense incident to the delay or other
breach.
Section 30-2-715, MCA (emphasis added). The Official Comment to § 30-2-715,
MCA, provides:
5. Subsection (2)(b) states the usual rule as to breach of warranty, allowing
recovery for injuries “proximately” resulting from the breach. Where the injury
involved follows the use of goods without discovery of the defect causing the
of the UCC.
[6] Link to KeyCite Notes ¶ 37 Furthermore, Article 2-715(2)(b), does not contain
a foreseeability requirement, thus a seller “is liable for injury to person or property
even if the seller did not know of or have reason to know of the buyer's intended
use.” James J. White & Robert S. Summers, Uniform Commercial Code vol. 1, §
(1996) (where this Court held that in cases which do not involve issues of
intervening cause, proof of causation is satisfied by proof that a party's conduct
was cause-in-fact of damage alleged, and no consideration of foreseeability is
required in connection with causation).
[7] Link to KeyCite Notes ¶ 38 Thus, contrary to the District Court's conclusion
¶ 40 Whether the District Court erred in imposing discovery sanctions against the
Rothings.
[8] Link to KeyCite Notes ¶ 41 Kallestad contended that because none of the
other individuals that he sold hay to during the time period that he sold hay to the
Rothings had any problems with their livestock, he was entitled to basic
that he would promptly provide the requested discovery information. Based on
these assurances, the District Court denied Kallestad's motion.
¶ 42 Kallestad filed a renewed Motion to Compel on June 7, 2002, alleging that,
despite their assurances, the Rothings still had not responded to his discovery
requests approximately six months later. Attached to Kallestad's brief in support
¶ 43 On January 21, 2003, Kallestad filed another Motion to Compel claiming
that the Rothings still had not complied with Kallestad's discovery requests and
the District Court's July 3, 2002 order. Kallestad subsequently filed a motion to
postpone ruling on this motion when it appeared that the Rothings were about to
comply with the discovery requests. However, Kallestad filed another Motion to
to provide the requested information and on June 29, 2004, the District Court
issued an Order to Exclude Evidence and Award Expenses. This order barred
the Rothings from presenting any evidence discussing the report of their expert
witness, Dr. Whitlock, or their alleged “snowballing credit” damages. In addition,
the court ordered the Rothings to pay reasonable attorney's fees and costs for
Kallestad's second Motion for Summary Judgment. During this hearing, the
Rothings' counsel informed the court that without Dr. Whitlock's evidence, his
clients would have no chance of prevailing at trial.
¶ 46 The District Court filed its Opinion and Order Granting Kallestad's Motion for
Summary Judgment and Order Vacating Trial on August 18, 2004. The only
evidence relating to Dr. Whitlock that, although the court had originally excluded
such evidence, it reversed that order and vacated such exclusion. Consequently,
because the court made no further orders expressly barring any discussion of Dr.
Whitlock's report, we conclude that the court's July 22, 2004 order permanently
withdrew the proscription against Dr. Whitlock's report.
compel, to award attorney's fees, and to impose sanctions against those who
abuse the discovery process. He maintains that two different judges witnessed
the Rothings' “constant delay and non-responsiveness” over the course of three
years and that, based on these discovery abuses, the District Court properly
granted Kallestad's Motions to Compel, awarded attorney's fees and excluded
(1994); Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 26, 303 Mont. 274, ¶ 26,
16 P.3d 1002, ¶ 26). “In doing so, we generally defer to the district court because
it is in the best position to determine both whether the party in question has
disregarded the opponent's rights, and which sanctions are most appropriate.”
Richardson, ¶ 21 (citing Delaware v. K-Decorators, Inc., 1999 MT 13, ¶ 86, 293
together with pre-trial procedures, make a trial less a game of blindman's buff
and more a fair contest with the basic issues and facts disclosed to the fullest
practicable extent.
Richardson, ¶ 22 (internal citations and quotation marks omitted).
¶ 50 Based on our review of the record, including the numerous letters from
¶ 51 Whether the District Court erred in awarding attorney's fees to Kallestad and
denying the Rothings a hearing in respect to the calculation of attorney's fees.
[12] Link to KeyCite Notes ¶ 52 In its June 30, 2004 Order to Exclude Evidence
and Award Expenses, the District Court ordered that the Rothings “shall pay the
reasonable fees and costs incurred in the preparation of the prior motion and
hearing on the reasonableness of the attorney's fees occurred. On February 7,
2005, the court entered its Judgment wherein it ordered that the Rothings pay
$4,569.00 in attorney's fees.
[13] Link to KeyCite Notes[14] Link to KeyCite Notes[15] Link to KeyCite Notes ¶
53 A district court's award of reasonable attorney's fees is a discretionary act and
Pawiroredjo, 2004 MT 39, ¶ 29, 320 Mont. 63, ¶ 29, 85 P.3d 776, ¶ 29 (citing
Stark v. Borner, 234 Mont. 254, 258, 762 P.2d 857, 860 (1988)). “An award of
fees, like any other award, must be based on competent evidence....
Furthermore, the proper determination of a legal fee is central to the efficient
administration of justice and the maintenance of public confidence in the bench
¶ 55 Accordingly, the judgment of the District Court on the issue of attorney's
fees is vacated and the cause remanded for an evidentiary hearing to determine
the proper amount of attorney's fees to be awarded.
¶ 56 Affirmed in part, reversed in part and remanded for further proceedings
consistent with this Opinion.

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