Graham v. Clarks Fork Nat L Bank

No. 82-136

I N THE SUPREME COURT O T E STATE O MONTANA F H F

D A GRAHAM, E N

P l a i n t i f f and A p p e l l a n t ,

-vs-

CLARKS FORK NATIONAL EANK,

Defendant and Respondent.

A p p e a l from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , I n a n d f o r t h e County o f C a r b o n , The H o n o r a b l e C h a r l e s Luedke, J u d g e p r e s i d i n g .

Counsel of Record:

For Appellant:

Morrow, S e d i v y , O l s o n & Eck; Thomas O l s o n , Bozeman, Montana Swandal, D o u g l a s s & Swandal; K e n t R . D o u g l a s s , L i v i n g s t o n , Montana

For Respondent:

B r i d g e r Law O f f i c e ; J o s e p h Mudd, E r i d g e r , Montana Moulton, E e l l i n g h a m , Longo & M a t h e r , B i l l i n g s , Plontana

S u b m i t t e d on E r i e f s : April 15, 1983

Decided: May 1.9, 1 9 8 3

MAY 1 9 1983

Clerk

Mr. J u s t i c e J o h n Conway H a r r i s o n delivered t h e O p i n i o n of the Court.

T h i s a p p e a l comes from t h e D i s t r i c t C o u r t of the Thirteenth

J u d i c i a l District i n and f o r t h e County of Carbon Plaintiff commenced t h i s a c t i o n s e e k i n g damages f o r c o n v e r s i o n of cattle.

I n 1 9 7 8 - Dean Graham p u r c h a s e d n i n e t e e n head of registered cattle. The c a t t l e were p a s t u r e d on l a n d owned by h i s t h e n son-

in-law, Marvin Heyd. Heyd a l s o owned c a t t l e ; s e c u r e d by C l a r k s F o r k N a t i o n a l Bank, Heyd c o u l d n o t meet h i s o b l i g a t i o n s t o t h e bank, consequently, t h e bank t o o k p o s s e s s i o n of Heyd's cattle,

and by m i s t a k e , a l s o t o o k G r a h a m ' s c a t t l e . Graham a l l e g e d t h a t ,

d u r i n g t h e t i m e t h e bank had p o s s e s s i o n , h i s c a t t l e l o s t w e i g h t . Graham a l s o a l l e g e d t h a t h i s c a t t l e were i m p r o p e r l y p a s t u r e d w i t h b u l l s owned by Heyd, and a s a r e s u l t he was f o r c e d t o abandon a

program of a r t i f i c i a l i n s e m i n a t i o n . Graham b r o u g h t suit against the bank alleging conversion, s e e k i n g damages i n excess of $200,000. During the trial the

c o u r t r e f u s e d G r a h a m ' s o f f e r e d t e s t i m o n y c o n c e r n i n g t h e v a l u e of a h y p o t h e t i c a l purebred angus c a l f crop. Also, the court granted t h e bank a d i r e c t e d v e r d i c t on G r a h a m ' s c l a i m of f u t u r e damages

and e x e m p l a r y damages. The j u r y r e t u r n e d a n award of $ 5 3 , 4 7 5 .

The D i s t r i c t Court set aside the jury award as excessive and g r a n t e d a new t r i a l l i m i t e d t o t h e i s s u e of damages a r i s i n g from t h e wrongful conversion.

Graham a p p e a l e d t o t h i s C o u r t . T h i s Court h e l d t h a t (1) t h e g r a n t i n g of a new t r i a l was p r o p e r , ( 2 ) on r e t r i a l , Graham s h o u l d b e a l l o w e d t o o f f e r e v i d e n c e of f u t u r e c a l f c r o p l o s s e s , and ( 3 ) t h e c l a i m of e x e m p l a r y damage s h o u l d be s u b m i t t e d t o t h e j u r y . Graham v. C l a r k s Fork N a t i o n a l Bank ( 1 9 8 1 ) , Mont . -- , 631 P.2d 7 1 8 , 38 S t . R e p . 1140. The c a s e was r e t r i e d and t h e jury awarded Graham $ 2 , 2 0 0 a c t u a l damages p l u s c o s t s . Graham a p p e a l s

again. The a p p e l l a n t h a s r a i s e d two i s s u e s , b o t h of which stem from e v i d e n c e which was a d m i t t e d c o n c e r n i n g M a r v i n H e y d ' s character.

First, appellant argues that admission of the evidence was in c l e a r v i o l a t i o n of t h i s C o u r t ' s mandate i n o u r f i r s t o p i n i o n ; and s e c o n d , by a d m i t t i n g t h e e v i d e n c e t h e D i s t r i c t C o u r t i g n o r e d t h e l a w of conversion. The c o n t e s t e d evidence appears in several

p l a c e s t h r o u g h o u t t h e 874 p a g e t r a n s c r i p t . Appellant points to n i n e t e e n s p e c i f i c i n s t a n c e s where e v i d e n c e was a l l o w e d c o n c e r n i n g

Marvin Heyd's character; m o s t of which focused on h i s l a c k of financial responsibility. A p p e l l a n t c l a i m s t h a t s i n c e Heyd was

t o pasture his c a t t l e , and, s i n c e Heyd was h i s s o n - i n - l a w , the character of Heyd was associated with himself. As a result,

appellant claims he was denied a fair and impartial trial.

Appellant admits that there never was an o b j e c t i o n t o the a d m i s s i o n of a n y of t h e c o n t e s t e d e v i d e n c e . I n d e e d , much of t h e

evidence was illicited while appellant's trial counsel was questioning the various witnesses. Of t h e n i n e t e e n i n s t a n c e s of

alleged error, t w e l v e were b r o u g h t a b o u t by t h e a p p e l l a n t him- self. Nonetheless, a p p e l l a n t claims t h a t the i s s u e is p r o p e r l y

before this Court via the "plain error" doctrine discussed in Halldorson v. Halldorson ( 1 9 7 7 ) , 1 7 5 Mont. 170, 573 P.2d 169,

where t h i s C o u r t h e l d t h a t a b s e n t o b j e c t i o n a t t r i a l , t h i s Court may c o n s i d e r issues relating to the fundamental r i g h t s of the parties. The p l a i n e r r o r d o c t r i n e i s n o t a p p l i c a b l e t o t h i s c a s e . In

- alldorson, H we elaborated on the doctrine by stating : " a p p e l l a t e c o u r t s have a d u t y t o d e t e r m i n e w h e t h e r t h e p a r t i e s b e f o r e them h a v e b e e n d e n i e d s u b s t a n t i a l j u s t i c e by t h e t r i a l c o u r t , and when t h a t h a s o c c u r r e d we c a n , w i t h i n o u r sound d i s c r e t i o n , c o n s i d e r whether t h e t r i a l c o u r t h a s d e p r i v e d a l i t i g a n t of a f a i r and i m p a r t i a l t r i a l , e v e n t h o u g h no o b j e c t i o n was made to the conduct during the trial." H a l l d o r s o n , 1 7 5 Mont. a t 1 7 4 , 573 P.2d a t 1 7 2 . -

W have c a r e f u l l y reviewed e the record and see no r e a s o n t o upset the verdict and judgment. Appellant was not denied

substantial justice. He received a f a i r t r i a l , accordingly, we af f irm.

W concur: e

- Chief J u s t i v e

Mr. Justice John C. Sheehy, dissenting:

I dissent. This Court should reverse the judgment in the District Court, and remand the cause for a new trial limited strictly to the issue of damages. There have now been two district court trials of this cause. After the first trial, the District Court granted a new trial, limited strictly to the issue of damages. On appeal, we affirmed the grant of the new trial limited to the issue of damages, and specified that additional factors relating to damages should be consid-ered in the next trial. When the next trial occurred, the issues were not limited to damages. It is on that basis that the plaintiff now appeals, and on which the plaintiff ought to be sustained. When we affirmed the grant of a new trial limited to the issue of dama.ges, that holding became the law of the case. When the District Court disregarded the law of the case, and expanded the second trial to include evidence of the character of a nonparty, it abandoned the law of the case, and the District Court should be checked in that abandonment. In explaining the law of the case, this Court has held: "The rule is well established and long adhered to in this state that where, upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in trial court and upon subsequent appeals; and this although upon its subsequent consideration the Supreme Court may be clearly of opinion that the former decision is erroneous * * * It is a final adjudication from the consequences of which this Court may not depart, nor the parties relieve themselves (citing cases) " . Carlson v. Northern Pacific Railroad Company (1930), 86 Mont. 78, 281 P. 913, 914. See also Fiscus v. Beartooth Elec. Cooperative (1979), 180 Mont. 434, 591 P.2d 196.

This is a case where the bank seized Graham's cows for another person's debts in spite of the fact that Graham's cows carried brands which established their ownership and which brands were disregarded by the bank when the cows were seized. When Graham attempted to recover his cows, the bank refused to divulge their location and turned his cows into pasture with 6 unregistered bulls. Thus the bank destroyed the breeding program that Graham had established for his herd. By expanding the second District Court trial, as it did, the District Court allowed the bank to remove the "black hat" from its head, and put it on the head of a debtor, a factor that had no relationship to the damages sustained by Graham. Contrary to what is contained in the majority opinion, the holding of this Court in Halldorson v. Halldorson (19771, 175 Mont. 170, 573 P.2d 169, commands that we return this cause for a proper trial limited to the issue of damages sustained by Graham. The verdict which the majority is affirming here is manifestly insufficient.