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

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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

inspected the hay prior to purchase. Libke, 216 P.2d at 195.

FN2. The Official Comment to § 30-2-101, MCA, provides: “The coverage of the

Section 30-2-314(2), MCA (emphasis added). “Surely goods are not

from the seller’s breach include expenses reasonably incurred in inspection,

of the hay that had sickened horses at some of the riding academies. The grower

of the hay brought an action for the deficiency and the middleman cross-claimed

Article 2-101 of the UCC. Similarly, the Official Comment to § 30-2-314, MCA,

(a) are adequately contained, packaged, and labeled as the agreement may

require; and

(f) conform to the promises or affirmations of fact made on the container or label

And, under § 30-2-715, MCA, if the trial court determines that Kallestad breached

the Implied Warranty of Merchantability, the Rothings may be entitled to both

their incidental and consequential damages.

Buyer’s incidental and consequential damages. (1) Incidental damages resulting

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.