TRIBBY v NORTHWESTERN BANK OF GREA

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No. 84-99 I N THE SUPREME COURT O THE STATE O M N A J F F O T TA 1985 MORRELL TRIBBY, Plaintiff and R e s p o n d e n t , F NORTHWESTERN BANK O GREAT FALLS, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f C a s c a d e , The H o n o r a b l e J o h n M. McCarvel, J u d g e p r e s i d i n g . COUNSEL O RECORD: F For Appellant: Church, H a r r i s , J o h n s o n & W i l l i a m s ; C h a r l e s C. a r g u e d , G r e a t F a l l s , Montana Love11 F o r Respondent: Anderson & S t r a u s e ; Howard S t r a u s e a r g u e d , G r e a t F a l l s , Montana S a n d r a R. W a t t s , c o - c o u n s e l , G r e a t F a l l s , Montana Submitted: Decided : Filed: Clerk F e b r u a r y 2 1 , 1985 August 5 , 1985 M r . J u s t i c e L. Court. Gulbrandson d e l i v e r e d C. t h e Opinion o f the Morrell Tribby f i l e d s u i t a g a i n s t Northwestern National Bank of 1980, Great F a l l s alleging partnership ( h e r e i n a f t e r Norwest) it that wrongfully account without on December honored required Tribby's checks approval 23, on a and t h a t Norwest r e t a l i a t e d f o r t h e i n i t i a l s u i t by r e f u s i n g t o make a u t o m a t i c l o a n a d v a n c e s on a p e r s o n a l a c c o u n t . verdict, following a trial in the fall of T r i b b y $119,890 c o m p e n s a t o r y and $1,000,000 The j u r y 1983, awarded p u n i t i v e damages o n t h e f i r s t c l a i m and found f o r Norwest on t h e second c l a i m . Norwest a p p e a l s t h e t r i a l c o u r t ' s r u l i n g on i t s o b j e c t i o n s t o the j u r y p a n e l and j u r y s e l e c t i o n p r o c e s s and t h e judgment and v e r d i c t on t h e f i r s t c l a i m . We affirm in part, reverse i n p a r t and remand f o r a new t r i a l . December 8, opened checking account On Anderson a 1972, Tribby and his nephew Edward t o d e p o s i t monies from t h e i r p a r t n e r s h i p and o t h e r j o i n t b u s i n e s s , i n t h e name o f Land Account" w i t h Norwest. The s i g n a t u r e "Tribby-Anderson card required check before both Tribby's it statements were would be t o be and A n d e r s o n ' s honored sent by s i g n a t u r e s on a Morwest. t o an address The i n Great bank Falls. U n t i l 1 9 7 9 , Norwest o c c a s i o n a l l y honored c h e c k s t h a t d i d n o t contain Tribby's signature. Tribby complained and as a r e s u l t t h e s i g n a t u r e c a r d was a n n o t a t e d w i t h "Two S i g n a t u r e s Required" i n red. T r i b b y was t h e o n l y w i t h Anderson, limited partner t h e general partner. i n a partnership The b u s i n e s s engaged i n s p e c u l a t i o n , s u b d i v i s i o n and s a l e o f l a n d i n Montana. and Anderson effective managerial executed January control, a formal partnership 1973. This agreement provided that either 1, agreement gave party Tribby Anderson could sign checks equa 1 ly on the partnership account and divided profits . Norwest issued a request in January 1979. new signature card at Anderson's The new card authorized the bank to honor checks signed by either Anderson or his new wife, Candy, and to send the statements to an address in Spokane, Washington. Tribby's signature was not required according to the new card. Norwest did not notify Tribby or obtain his authorization to change the signature requirement or the address. Although the partnership agreement permitted one-party signatures on checks, the bank employ~eswho issued the new card were not aware of the agreement or its contents. In July 1979, when Tribby went to Norwest on another matter, a vice-president informed him his signature was not required to authorize withdrawals on the account but did not tell him about the new card. Tribby disagreed and told the vice-president that no check should be honored without his signature. Later in the fall of 1979, Tribby spoke with another vice-president about checks being honored without his signature and was informed that Norwest would not change its policy of honoring November 1979, checks signed Tribby's attorney only by wrote Anderson. to Norwest In and instructed them not to honor checks unless signed by Tribby. Norwest responded by stating the signature card required only one signature and that it would not be changed unless a change was requested in writing by both parties. Tribby and his wife went to the bank in January 1980 and requested a copy of the signature card. lost. They were told the card was When they returned later that same day a different vice-president produced both signature cards. This was Tribby's first notice that a new card had been issued. At this time Norwest stopped honoring checks containing only one signature. Tribby sued Anderson in March 1980 alleging wrongful withdrawal of monies from partnership accounts, conversion of partnership property and fraud in withdrawing the funds and inducing Norwest to issue a new signature card. Tribby sued Norwest in December 1980 alleging Norwest failed to exercise ordinary care in issuing a new signature card, wrongfully honored checks without Tribby's signature and wrongfully failed to cease honoring checks after being notified to do so. Following Tribby's suit, Norwest affected Tribby's credit status by placing an outstanding loan to him on a "watch list." The bank refused to renew a loan that had been renewed annually for several years. It also cancelled his ready reserve account which had permitted Tribby and his wife to write checks exceeding the balance in their account. checks would then be covered by the bank as a loan. letter informing Tribby that the account was The In a cancelled, Norwest stated the account was overextended although, at the time, the balance on the account had been paid off. addition, Norwest refused to pay before Tribby was notified that In severa 1 items presented the account had been restricted or cancelled. Norwest answered the complaint and filed a third party complaint against Anderson and his wife on June 16, 1981. This complaint alleged that Anderson had directed Norwest to accept a new signature card in accordance with his authority contained in the partnership agreement and that the Andersons were primarily liable for any loss sustained by Tribby. Norwest also made a motion to dismiss Tribby's complaint and to consolidate Tribby's suit against Anderson with the suit against Norwest. party claim. hearing, the Tribby filed a motion to dismiss the third Following the submission of briefs and a District Court granted Tribby's motion to dismiss the third party claim and denied Norwest's motions to dismiss and consolidate the claims on October 7, 1982. The case first came to trial on September 26, 1983. The District Court agreed to Tribby's request to disqualify for cause any prospective juror who had an account with Norwest pursuant to section 25-7-224 (3), MCA (1981). the judge asked how many of the potential When jurors were customers of the bank, most panel members raised their hands. He then concluded that a new panel would be required in order to get a jury and commented that "as the clerks calls the jurors, I will have to ask them that question, because it looks like three-quarters of the jurors in this case are customers of that bank." Later that day the attorneys for Norwest discovered that statute had amended been effective so October that the 1, 1983, the debtor-creditor relationship could no longer be invoked as a challenge for cause solely because a prospective juror is a depositor of funds with a bank. notified but the The court and opposing counsel were both court and the parties had no further discussions on questioning the jurors. After the trial had been reset for November 1-4, 1983, Tribby's attorney advised a deputy clerk that she was to ask prospective jurors whether they had any business with Norwest other than a savings or checking account. The clerk checked with the judge, who told her to follow the procedure set out in the statute concerning excusing jurors for cause. When the they deputy clerks telephoned prospective jurors identified Norwest as a party; asked each prospective juror whether they had transactions or business other than savings or checking accounts with Norwest; excused those who said they had transactions or business with Norwest other than deposits; excused prospective jurors who claimed to be ill, infirm or going on vacation; and excused one person who did n o t h a v e an a c c o u n t a t Norwest b u t s a i d s h e w.~asa f r i e n d o f t h e bank p r e s i d e n t ' s wife. o r p a r t i c i p a t i o n by c o u n s e l Norwest's objections to T h i s was done w i t h o u t n o t i c e t o f o r Norwest. the jury panel The j u d g e and jury denied selection p r o c e s s and t h e c a s e p r o c e e d e d t o t r i a l on November 1 4 , 1 9 8 3 . The s e v e n i s s u e s p r e s e n t e d by Norwest on a p p e a l a r e : (1) Was t h e j u r y p a n e l s e l e c t e d c o n t r a r y t o law and i n violation of Norwest's right t o t r i a l by a r e p r e s e n t a t i v e , f a i r and i m p a r t i a l j u r y ? ( 2 ) Did t h e D i s t r i c t C o u r t e r r i n d e n y i n g Norwest t h e o p p o r t u n i t y t o p r e s e n t e v i d e n c e on t h e c a u s e and e x t e n t o f T r i b b y ' s c l a i m e d damages? (3) Did District the err Court in failing to give e f f e c t t o t h e Tribby-Anderson p a r t n e r s h i p r e l a t i o n s h i p which would r e q u i r e d i s m i s s a l o f t h i s a c t i o n ? ( 4 ) Did t h e t r i a l c o u r t e r r i n p e r m i t t i n g t h e j u r y t o c o n s i d e r r e c o v e r y u n d e r "bad f a i t h " t o r t p r i n c i p l e s ? ( 5 ) Did t h e D i s t r i c t C o u r t i m p r o p e r l y a l l o w T r i b b y t o amend h i s t h e o r y o f t h e c a s e and damages on t h e e v e o f t r i a l t o t h e p r e j u d i c e o f Norwest? (6) Were the damages erroneous, excessive and the r e s u l t o f p a s s i o n and p r e j u d i c e ? ( 7 ) Was t h e p r e p a r a t i o n of a " C e r t i f i e d Supplemental Record" by t h e D i s t r i c t C o u r t a n a b u s e o f d i s c r e t i o n ? The jury inquiries. panel selection i s s u b j e c t t o two s e p a r a t e The f i r s t , a p r o c e d u r a l i n q u i r y , i s w h e t h e r t h e r e was a m a t e r i a l d e v i a t i o n o r d e p a r t u r e jury selection. The second, a from t h e s t a t u t e s on substantive inquiry, is w h e t h e r t h e p a r t i e s had a t r i a l b e f o r e a f a i r and i m p a r t i a l jury. R e v e r s i b l e e r r o r c a n o c c u r on e i t h e r q u e s t i o n . Norwest c o n t e n d s t h a t t h e j u r y p a n e l s e l e c t i o n p r o c e s s u s e d i n t h i s c a s e m a t e r i a l l y d e v i a t e d from t h r e e s t a t u t e s o r rules. Rule 47(a) M.R.Civ.P. requires the court to try c h a l l e n g e s f o r c a u s e and t o p e r m i t e x a m i n a t i o n o f p r o s p e c t i v e jurors. (b) o f Subdivision that rule requires an initial p a n e l b e drawn b e f o r e any v o i r d i r e e x a m i n a t i o n o f t h e j u r y . the Here, questions notice clerks given examined prospective them counsel to to for jurors questions, thus from by prospective Tribby's Norwest. jury excusing opposing counsel o r a the The for using without clerks court. any released on a n s w e r s cause without r u l i n g by t h e questioning took p l a c e before counsel d u t y based them jurors t o the notice Finally, to this an i n i t i a l p a n e l was c a l l e d . These a c t i o n s m a t e r i a l l y d e v i a t e from R u l e 47 M.R.Civ.P. on t h e examination o f j u r o r s i n t h a t t h e c l e r k s r a t h e r than t h e court took these actions and they occurred prior to the c a l l i n g of an i n i t i a l panel. Section commissioner to 3-15-313, hardship. possible excused clerk allows the court, for jurors undue excused if record The exception, does which, if hardship. jurors jury any s e r v i c e would not indicate, prospective The r e c o r d because of Norwest w i t h o u t t h e a p p r o v a l o f S e c t i o n 25-7-223, their arises of institution. with jurors one were with This a c t i o n i s MCA. MCA s t a t e s t h a t c h a l l e n g e s f o r c a u s e solely funds entail relationship the court. may be t a k e n f o r a d e b t o r - c r e d i t o r depositor jury does i n d i c a t e t h e o u t s i d e t h a t p e r m i t t e d by s e c t i o n 3-15-313, relation or (here t h e c l e r k ) with t h e approval of t h e c o u r t , excuse prospective undue MCA, because with a r e l a t i o n b u t n o t when t h a t a bank prospective or is juror similar a financial The s t a t u t e i s d i s c r e t i o n a r y on i t s f a c e ; it i s e x e r c i s a b l e o n l y by t h e judge n o t t h e c l e r k . r a i s e a challenge f o r cause, The p a r t i e s may s e c t i o n 25-7-221, MCA, o r may w a i v e i t , 47 Am.Jur.2dI J u r y , S328. of t h e debtor-creditor r e l a t i o n does not d i s q u a l i f y a j u r o r under this statute unless a party Thus, even t h e e x i s t e n c e raises a challenge for cause to the court. The court, not a clerk, must then determine whether the relation is that of a mere depositor of funds with a bank and not sufficient for a challenge for cause or whether it is a satisfies the requirement. about the dismissed on In this case the clerks inquired juror's prospective them "non-depositor" relation which the basis relation of to their Norwest answers, and thus effectively acting without a challenge by a party, outside the presence of opposing counsel and dismissing jurors for cause. This alone is a violation of statute. questions asked of prospective Further, the jurors, whether they had business or transactions with Norwest, did not address the proper basis non-creditor for such a relations challenge. fit within Numerous types of the term "transacting business," such as escrow, trustee account, safety deposit box holder, or conducting business for an employer. Jurors were dismissed for these non-creditor relations as well. This action is beyond the authority of a clerk acting as a jury commissioner. Prior Montana case law indicates statutory violations of selection. procedures require reversal of tb.e verdict. Dvorak v. In Huntley Project Irrigation District (3.981) 196 , Mont. 167, 639 P.2d 62, this Court reversed a verdict where the departures from procedures were removal of paper slips rather than capsules from the box, failure of the clerk to shake the box before names were drawn, placement of names in a list not drawn by lot, and drawing names outside the presence of the district judge. See also Solberg v. County of Yellowstone (Mont. 1983), 659 P.2d 290, 40 St.Rep. 308. In Dvorak, 639 P.2d at 64, we cited State v. Fitzpatrick (1977), 174 Mont. 174, 180, 569 P.2d 383, 389, where the clerk performed duties delegated to the jury commissioner and judge without supervision, and stated ll[t]he rule in Montana is that juries must be c o m p l i a n c e w i t h t h e law. in substantial (Citations omitted. ) Even where selected " t h e o n l y d e v i a t i o n was t h a t and some o f drawn t h e numbered s l i p s of p a p e r w e r e n o t e n c l o s e d i n c a p s u l e s a s r e q u i r e d by s t a t u t e , t h i s C o u r t h e l d t h a t s u b s t a n t i a l c o m p l i a n c e w i t h s t a t u t e s was r e q u i r e d and "[alny material deviation o r departure is a d e n i a l o f fundamenta 1 c o n s t i t u t i o n a 1 rights. S t a t e v. Groom, 49 Mont. 354, 359, 4 1 4 Pac. 858; S t a t e v. T i g h e , 27 Mont. 327, 71 Pac. 3. "It is not t h e r i g h t of t h e individual necessarily involved, but rather the e n t i r e jury s y s t e m and t h e s e l e c t i o n p r o c e d u r e s which must b e p r o t e c t e d , and when a showing i s t i m e l y b r o u g h t b e f o r e t h i s c o u r t w e would b e remiss i n o u r d u t i e s i f we permitted material d e v i a t i o n o r d e p a r t u r e from t h e p r o c e d u r e s s p e l l e d o u t by t h e legislature." S t a t e v. D i s t r i c t C o u r t o f S i l v e r b o w County ( c i t e d i n Mont.Rpt. a s S t a t e e x r e l . Henningsen v . D i s t r i c t C o u r t ) ( 1 9 5 9 ) , 136 Mont. 354, 360, 348 P.2d 1 4 3 , 146. The verdict c a s e s c i t e d by T r i b b y d o n o t to stand when there is a support allowing a material deviation or d e p a r t u r e from t h e j u r y s e l e c t i o n p r o c e d u r e s s e t by s t a t u t e . I n S t a t e v. Coleman ( 1 9 7 8 ) , 177 Mont. 732, the d e f e n d a n t c o n t e n d e d t h a t t h e c l e r k e x c u s e d some j u r o r s for s l i g h t o r t r i v i a l . causes. 1, 579 P.2d This Court s t a t e d t h a t t h e record d i d n o t i n d i c a t e t h e c l e r k had e x c u s e d a n y j u r o r s , that the jury had been selected in substantial w i t h t h e s t a t u t e s , Coleman 579 P.2d a t 747. d i s c u s s e d below, and h e l d compliance The o t h e r c a s e s , d e a l o n l y w i t h t h e s e c o n d i n q u i r y on t h i s i s s u e , w h e t h e r a f a i r and i m p a r t i a l j u r y p a n e l was s e l e c t e d , and d o n o t d i s c u s s v i o l a t i o n s o r m a t e r i a l d e v i a t i o n s from t h e statutes. The purpose of the p r o v i d e random s e l e c t i o n o f array, Dvorak, 639 P.2d at jury selection jurors 64, statutes is to from t h e e n t i r e p a n e l o r thus securing a fair and impartial jury. fundamentally comply with The unfair the jury for composition reasons selection other statutes, may a than such be found failure as to purposeful d i s c r i m i n a t i o n i n s e l e c t i o n because o f r a c e o r p e r m i t t i n g a Norwest j u r o r who h a s a b i a s o r p r e j u d i c e t o h e a r a c a s e . c o n t e n d s t h a t t h e j u r y i n t h i s c a s e was n o t i m p a r t i a l b e c a u s e a s i g n i f i c a n t group, t h o s e having business w i t h Norwest, was e x c l u d e d . t h i s proposition, P.2d 100, o r transactions However, t h e a u t h o r i t y c i t e d f o r S t a t e v . T a y l o r ( 1 9 7 5 ) , 168 Mont. discusses the s t a t u t e s on 1 4 2 , 542 selection of the jury a r r a y a s u n c o n . s t i t u t i o n a 1 because o f d i s c r i m i n a t i o n based on Norwest's c h a l l e n g e i s d i r e c t e d s o c i a l o r i g i n o r condition. a t t h e s e l e c t i o n o f t h e j u r y p a n e l r a t h e r t h a n t h e a r r a y and does not Further, address the constitutionality of any statute. t h e c l a s s o f people excluded does n o t c o n s t i t u t e a cognizable analysis group of i n Taylor The nature constitutional dimensions. Thus, is not applicable t o t h e present of the relationship between the case. prospective j u r o r s and Norwest g o e s d i r e c t l y t o w h e t h e r t h e j u r o r may b e challenged f o r cause. violations, prejudiced Assuming t h e r e had b e e n no s t a t u t o r y t h e q u e s t i o n would b e w h e t h e r Norwest had b e e n by the dismissal Norwest. of In jurors Ehni because v. association with Railway Co. ( 1 9 6 9 ) , 152 Mont. 373, 450 P.2d t h e r e was no p r e j u d i c i a l e r r o r where a of Northern their Pacific 882, w e h e l d t h a t judge had d i s m i s s e d f o u r j u r y members b e c a u s e o f d i r e c t o r i n d i r e c t a s s o c i a t i o n s with a party. Justice Haswell, writing for the stated: " L i t i g a n t s a r e n o t e n t i t l e d t o have t h e i r c a s e s t r i e d b e f o r e any p a r t i c u l a r j u r o r s s e l e c t e d from t h e p a n e l ; t h e i r r i g h t i s t o r e j e c t , n o t s e l e c t ; and l i t i g a n t s ' r i g h t s a r e s u f f i c i e n t l y protected i f they s e c u r e a f a i r and i m p a r t i a l j u r y drawn i n t h e manner p r o v i d e d by law." (Citations omitted.) 450 P.2d a t 885. Court In this case, Norwest could not argue that the jury selected was not fair and impartial since they passed the jury for cause: should They could only argue that certain panel. members have been consistently held on the jury. Montana that a party has case law has no right to have a particular member of a panel sit on a case. State v. Moran (1963), 142 Mont. 423, 384 P.2d 777 and State v. Huffman (1931), 89 Mont. 789. 194, 296 P. Thus, without the statutory violations, there would have been no reversible error in the jury selection process. The second issue concerns rulings made by the District Court on the failure to consolidate Tribby's claims against Anderson and Norwest and the dismissal of Norwest's third party complaint against Anderson. Norwest contends that these actions by the District Court, in addition to the exclusion of Tribby ' s tax returns and financial statements, of his refusal to accept an offer of compromise and of his contributory negligence, prevented the jury from knowing the true cause and extent of Tribby's damages. We claims first address Norwest's contention that Tribby's against Anderson and Norwest should consolidated pursuant to Rule 42 (a), M.R.Civ.P. have been That Rule provides that claims involving a common question of law or fact may be consolidated or any of the issues may be tried jointly. Consolidation, particularly when denied, rests in the discretion of the court and will not be overturned absent a clear abuse of discretion. 84 Mont. 158, 274 P. 489. issues in both cases St. George v. Boucher (1929), Although there were some similar and consolidation may have been appropriate, we hold the District Court did not abuse its discretion by denying the motion to consolidate. Norwest added the partnership and Anderson as third party defendants in order to try together those issues where Tribby claimed the same damages against a l l e g e d c o n t r a c t u a l indemnity based card dismissed t h e t h i r d p a r t y complaint without for the the basis dismissal. for Norwest on t h e l a n g u a g e o f signature reasons as them. relief. While The trial the court indicating the permitting the third p a r t i e s t o r e m a i n i n t h i s c a s e would n o t h a v e been e r r o r , t h e trial court did not i t s d i s c r e t i o n by t h i s a c t i o n . abuse The D i s t r i c t C o u r t r u l e d t h a t t h e c o n t e n t s o f T r i b b y ' s tax returns for t h e years 1973-78 and f i n a n c i a l s t a t e m e n t s f o r t h e y e a r s 1973-79 w e r e n o t r e l e v a n t t o e s t a b l i s h i n g t h e damages t o T r i b b y . "collateral plaintiff to the source wrongdoer from (1972) , 159 Mont. that not referred "benefits diminish wrongdoer." applied 85, the 495 plaintiff's s p e c u l a t i v e and prejudiced will the This Court contended is that rule," rule, t o as the received by a from a s o u r c e w h o l l y i n d e p e n d e n t of and c o l l a t e r a l recoverable $206. The m a j o r i t y the 22 rule P. 2d conjectural. otherwise Am.Jur.2d1 Damages, i n Goggans 594, testimony damages where the v. Winkley defendant r e g a r d i n g damages was D e f e n d a n t a r g u e d t h a t h e was when t h e c o u r t d i d n o t a d m i t e v i d e n c e r e g a r d i n g f u t u r e d e v e l o p m e n t n e a r t h e p r o p e r t y i n d i s p u t e which would i n c r e a s e i t s v a l u e f o r r e s a l e and t h u s m i t i g a t e damages. h e l d t h a t t r a n s a c t i o n s between t h e p l a i n t i f f collateral, and o t h e r s was inadmissible evidence under t h i s r u l e . t a x r e t u r n s and p e r s o n a l transactions. Tribby's financial financial We Tribby's statements r e f l e c t other gain from t h e s a l e of a r a n c h and i t s l a t e r r e p o s s e s s i o n shown i n t h o s e documents was income o r p r o f i t t h a t had no r e l a t i o n t o t h i s c a u s e o f a c t i o n and t h e c l a i m e d damages. The r e c o r d d o e s n o t show t h a t h i s i n c r e a s e i n n e t w o r t h was r e l a t e d t o o r d e p e n d e n t on a c t i o n attributable to Norwest. Profit from a collateral t r a n s a c t i o n o r an o v e r a l l i n c r e a s e i n T r i b b y ' s n e t w o r t h d o e s n o t mean h e s u f f e r e d no damage a t t h e h a n d s o f Norwest. We therefore hold that the District Court properly excluded the tax returns and financial. statements insofar as they reflected collateral benefits. Norwest attempted to introduce evidence showing they had offered Tribby the amount of the checks drawn by Anderson plus an additional sum of $4,000 in return for dismissing his lawsuit. According to Rule 408 M.R.Evid., offers of compromise are "not admissible to prove liability for or invalidity of the claim or its amount," but exclusion is not required if the evidence is offered for another purpose. An offer to compromise is not admissible when made in an attempt to effect a settlement. Continental Oil Co. v. Bell (1933), 94 Mont. 65. 123, 21 P.2d Norwest argues the offer is admissible to show that Tribby failed to mitigate damages and that Norwest did not retaliatory fashion. seek to act in an oppressive or We are not persuaded by the contention that refusing an offer to settle is a failure to mitigate damages and we find no direct authority for that proposition. Nor are we persuaded that an offer to compromise shows a prior intent or fashion. policy lack of intent to act in a particular Admitting this evidence would go against the basic of Rule 408 M.R.Evid, which compromises and settlement of disputes. is to encourage Neither party should have to fear that what takes place during negotiations will be used against them at trial. The District Court properly excluded the offers made to Tribby by Norwest. The District Court refused to give Norwest's offered jury instruction on statements and the duty of a depositor to examine report errors within a reasonable time. Norwest argues that Tribbyls negligence in not reviewing the statements was a defense that should have been submitted to the jury. Section 30-4-406, MCA requires the customer to use reasonable care to examine statements sent to him and notify the bank promptly In alterations. sent to of his unauthorized the case a t bar, Tribby and there was the no signature or statements w e r e not question to his S e c t i o n 30-4-406, unauthorized signature o r a l t e r a t i o n s . as MCA i s n o t a u t h o r i t y f o r t h e o f f e r e d i n s t r u c t i o n and t h e J u d g e properly refused t o g i v e it. question raised W e t h e r e f o r e do n o t r e a c h t h e Norwest by of the extent to which the negligence o f Tribby, i f any, can be a defense t o h i s claim on t h e t o r t o f b r e a c h o f a d u t y o f good f a i t h . In action the third should Norwest issue, have been contends dismissed because that Tribby's the partnership agreement a u t h o r i z e d Norwest's a c t i o n s , he lacked s t a n d i n g t o sue s i n c e t h e cause of a c t i o n was a p a r t n e r s h i p a s s e t , and T r i b b y r e l e a s e d h i s c l a i m a g a i n s t Norwest when h e r e a c h e d a s e t t l e m e n t w i t h Anderson. On t h e f i r s t c o n t e n t i o n , Norwest a r g u e s t h e t r i a l c o u r t erroneously Anderson it precluded represented point testimony, and that a presenting Norwest to change t h e s i g n a t u r e c a r d . Anderson's from that he evidence had that authority to The t r i a l c o u r t r e f u s e d t o a d m i t l e t t e r from him t o Norwest o n t h i s portion of the partnership a u t h o r i z i n g Anderson t o w r i t e c h e c k s . agreement This i s similar t o t h e second i s s u e i n t h a t Norwest was p r e v e n t e d from p r e s e n t i n g t o the its jury reasonableness disagreeing disputed theory of its parties. issue of fact on its authority action This at when act confronted evidence trial, to the was and the with two relevant extent of to a Norwest's a u t h o r i t y , and s h o u l d n o t have been e x c l u d e d . Norwest have been also asserts dismissed authorized its action. that because Tribby's the complaint partnership should agreement Dismissal i s proper i f t h e p l a i n t i f f c a n p r o v e no s e t o f f a c t s t h a t would e n t i t l e him t o r e l i e f . Rule 4 1 ( b ) , M.R.Civ.P. A j u r y may c h o o s e t o f i n d Norwest d i d not have authority correctly refused to to act it as dismiss did. Tribby's The trial complaint court on this basis. Tribby's cause of a c t i o n arose, i n p a r t , from N o r w e s t ' s breach of t h e t e r m s of account. T h i s a c c o u n t was opened p r i o r t o t h e t i m e T r i b b y and Anderson dismissal set up the their signature card partnership. t h e checking noted As i s a p p r o p r i a t e o n l y when no s e t o f p r o v e d t h a t would e n t i t l e a p l a i n t i f f facts of Tribby partnership could asset, show his therefore the f a c t s can be to relief, cause of action District above, O these n was Court not a properly r e f u s e d t o d i s m i s s T r i b b y ' s c o m p l a i n t on t h i s b a s i s a s w e l l . The final contention Norwest raises in this issue c o n c e r n s w h e t h e r T r i b b y r e l e a s e d h i s c l a i m a g a i n s t Norwest by reaching claims a settlement agreement a g a i n s t Norwest with Anderson. Tribby's a r e n o t based e n t i r e l y on t h e same c o n d u c t a s h i s c l a i m s a g a i n s t Anderson e v e n t h o u g h some of t h e r e s u l t i n g damages may a r i s e from t r a n s a c t i o n s i n v o l v i n g both of them. In addition, even assuming Norwest and Anderson w e r e j o i n t t o r t f e a s o r s , a n y r e l e a s e o f Anderson may specifically exclude Norwest Burlington Northern, Inc. Nothing in the record by its terms. ( 1 9 8 0 ) , 186 Mont. indicates either Kussler v. 8 2 , 606 P.2d 5 2 0 . a release or a n o n - r e l e a s e o f Norwest. A t t h e t i m e Norwest f i r s t a r g u e d a g a i n s t e x t e n d i n g bad f a i t h t o r t p r i n c i p l e s t o t h i s commercial a r e a , t h i s C o u r t had not decided F i r s t National 1 9 8 4 ) , 689 P.2d 1226, Bank i n L i b b y v . 4 1 St.Rep. 1948. Twombly (Mont. In t h a t case, the bank c u s t o m e r a l l e g e d t h a t t h e bank a c t e d i n bad f a i t h when it a c c e l e r a t e d an i n d e b t e d n e s s and o f f s e t t h e amount a g a i n s t t h e i r checking account. The j u r y found b o t h a b r e a c h o f t h e b a n k ' s good f a i t h o b l i g a t i o n and f a l s e r e p r e s e n t a t i o n s by t h e bank t o t h e c u s t o m e r . This Court held t h a t t h e s e f i n d i n g s , along with the bank's possible reckless disregard of the customer's rights, would justify submitting the question of punitive damages to the jury. This Court also noted that the bank's relationship to its debtors, in light of its conduct, could justify an imposition of punitive damages. Twombly presented a Although "unique fact situation," 689 P.2d at 1230, many of the same factors may be present in the case at bar that would permit the jury to consider punitive damages. Here, the jury heard evidence on the bank's conduct that might support a finding of reckless disregard for Tribby's rights; the bank stands in the position of superior bargaining power to its customer that was noted in Twombly; and the evidence might support a breached an obligation to Tribby. every contract or finding that the bank We are not holding that statutorily imposed obligation, alone, carries with it an implied covenant of good faith and fair dealing, the breach of which permits recovery in tort. ll ie hold only that the District Court, under these circumstances, did not err when it instructed the jury to consider recovery under tort principles and, accordingly, punitive damages. The fifth issue concerns the proposed supplemental jury instructions Tribby submitted on November 10, 1983, the last court day before trial began. a continuance contending Norwest objected and moved for that these were, in effect, amendments to the pleadings containing new legal theories and prejudicial to its case. The court ruled there was no amendment to the pleadings and following the presentations of both sides, gave the offered instructions on breach of an implied duty of good faith and emotional damages. The g r a n t i n g o f a new t r i a l f o r t h e r e a s o n s s t a t e d i n i s s u e ( I ) , negates any prejudice to Norwest from unexpected jury i n s t r u c t i o n s on new t h e o r i e s . Norwest r e q u e s t e d a new t r i a l on t h e g r o u n d s t h a t t h e jury v e r d i c t was prejudice. that the See excessive and the s e c t i o n 25-11-lO2(5), "Certified Supplemental 15, r e s u l t of MCA. passion It a l s o asked Record1' p r e p a r e d 1984 b e and removed by the District C o u r t J u d g e on May from t h e record. W e d e c l i n e t o r u l e on t h e l a s t two i s s u e s f o r t h e r e a s o n t h a t t h e new t r i a l g r a n t e d on t h e f i r s t i s s u e r e n d e r s t h e s e q u e s t i o n s moot. The d e c i s i o n s o f t h e D i s t r i c t C o u r t a r e h e r e b y a f f i r m e d i n p a r t , r e v e r s e d i n p a r t and t h e c a s e i s remanded f o r a new -- Justices Mr. J u s t i c e Frank B. M o r r i s o n , J r . , d i s s e n t i n g : I respectfully dissent t o the majority's treatment of I would a f f i r m . the jury selection issue. The f a c t s s t a t e d i n t h e m a j o r i t y o p i n i o n need a m p l i f i cation. A certified supplemental a f f i d a v i t from t h e t r i a l j u d g e , record, consisting of an sets f o r t h t h e c o r r e c t f a c t s with respect t o t h e jury selection process. Because I deem them e s s e n t i a l , I q u o t e t h a t a f f i d a v i t v e r b a t i m : " I , J O H N M. McCARVEL, J u d g e o f t h e D i s t r i c t C o u r t of t h e Eighth J u d i c i a l District of t h e S t a t e of Montana, h e r e b y c e r t i f y t h a t a f t e r t h e j u r y p a n e l i n t h e a b o v e - e n t i t l e d m a t t e r was e x c u s e d f o r c a u s e on September 26, 1 9 8 3 , I made c e r t a i n s t a t e m e n t s c o n c e r n i n g t h e p r o c e d u r e t o be f o l l o w e d by t h e C l e r k o f C o u r t when a t t e m p t i n g t o a s s e m b l e t h e n e x t jury panel f o r t h i s cause. I stated t h a t I did not want t o have t h e same problem a r i s e a g a i n and t h e n i n s t r u c t e d t h e C l e r k t h a t when s h e a t t e m p t e d t o telephone t h e prospective j u r o r s a t t h e t i m e of t h e n e x t t r i a l , s h e was t o i n q u i r e o f t h e p r o s p e c t i v e j u r o r s a s t o t h e i r r e l a t i o n s h i p , i f any, with t h e D e f e n d a n t Bank. A t the t i m e I so instructed the C l e r k , I d i d s o from t h e b e n c h w h i l e a t t o r n e y s f o r b o t h p a r t i e s , t h e C l e r k o f C o u r t , and t h e C o u r t When I g a v e t h a t R e p o r t e r were s t i l l p r e s e n t . i n s t r u c t i o n t o t h e C l e r k , I d i d s o i n a v o i c e loud enough t o b e h e a r d by a l l t h o s e p r e s e n t i n t h e Courtroom. A t t h e t i m e I gave t h a t i n s t r u c t i o n t o t h e C l e r k , none o f t h e a t t o r n e y s p r e s e n t o b j e c t e d t o the instruction t o quiz t h e prospective jurors a s t o t h e i r r e l a t i o n s h i p w i t h t h e D e f e n d a n t Rank n o r d i d any a t t o r n e y e v e r o b j e c t t o t h a t i n s t r u c A t no t i m e on September 26, 1983 o r a t any tion. t i m e t h e r e a f t e r d i d I e v e r t e l l any o f t h e a t t o r neys f o r e i t h e r o f t h e p a r t i e s t h a t I intended t o r e s c i n d my i n s t r u c t i o n t o t h e C l e r k o f C o u r t . "DATED t h i s 15 d a y o f May, 1984. J O H N M. McCARVEL D i s t r i c t Court Judge" It is true that 5 2 5 - 7 - 2 2 3 ( 3 ) ( b ) , MCA, tionship with Bank did the statutory change in made it c l e a r t h a t a d e p o s i t o r r e l a not mandatorily from s i t t i n g i n a c a s e i n v o l v i n g Bank. disqualify a juror However, t h e d i s t r i c t judge was s t i l l f r e e t o d e t e r m i n e t h a t t h o s e i n s u c h a c l o s e r e l a t i o n s h i p w i t h Bank would panel. not be allowed to s i t on t h e The D i s t r i c t C o u r t h e r e was a c t i n g p r o p e r l y i n i n - s t r u c t i n g t h e c l e r k t o d i s q u a l i f y s u c h p e o p l e from t h e p a n e l and, absent a showing o f prejudice by Bank, the remaining p a n e l would n o t b e o b j e c t i o n a b l e on t h e b a s i s t h a t d e p o s i t o r s w e r e excluded. Even if we assume arguendo t h a t t h e r e was some e r r o r t h a t o c c u r r e d when t h e c l e r k e x c u s e d c e r t a i n j u r o r s , i b l e e r r o r does n o t r e s u l t , revers- o r a t l e a s t d i d not under p r i o r r u l i n g s o f t h i s Court. I n S t a t e v. Moran t h i s Court held ( 1 9 6 3 ) , 142 Mont. 423, 384 P.2d 777, t h a t t h e a b s e n c e o f c e r t a i n members o f t h e j u r y panel- a t t h e t i m e v o i r d i r e was c o n d u c t e d and t h e j u r y selected, did noted t h a t i f with the not constitute reversible t h e r e was e r r o r , original acquisition ( 1 9 3 1 ) , 89 Mont. The Court t h e e r r o r had n o t h i n g t o do of the panel and therefore The Moran d e c i s i o n c i t e d S t a t e v. p r e j u d i c e had t o b e shown. Huffman error. 1 9 4 , 1 9 8 , 296 P. 789, 790, for t h e proposition that: "The r i g h t t o c h a l l e n g e i s t h e r i g h t t o r e j e c t , n o t t o s e l e c t , a j u r o r ; no p e r s o n c a n a c q u i r e a v e s t e d r i g h t t o h a v e a n y p a r t i c u l a r member o f a p a n e l s i t uwon h i s c a s e u n l e s s and u n t i l s u c h member h a s b e e n a c c e p t e d and sworn. P r e j u d i c e - -t presumed from is no error. " (Emphasis s u p p l i e d . ) 1 4 2 Mont. a t 447, 384 P.2d a t 790. ... Likewise, in (1969) , 1 5 2 Mont. Ehni 373, v. Northern 450 P.2d 882, w e h e l d j u d g e d i s m i s s e d f o u r j u r y members, of their a s s o c i a t i o n w i t h one o f prejudicial error absent a Pacific Railway t h a t where a after voir dire, the parties, Co. because t h e r e was no showing t h a t t h e r e s u l t a n t jury was a n y t h i n g b u t f a i r and i m p a r t i a l . I n t h e c a s e a t b a r t h e m a j o r i t y concedes t h a t a p p e l l a n t has failed Therefore, to show t h a t the impaneled j u r y was i n l i n e with p r i o r precedent, defective. no r e v e r s i b l e e r r o r s h o u l d be found. Common p r a c t i c e i n Montana h a s been for the f i l e i n , t a l k w i t h t h e t r i a l j u d g e and b e e x c u s e d . t o t i m e o b j e c t i o n s t o t h i s p r o c e d u r e h a v e been jurors to From t i m e lodged. The most recent case concerning this practice is State v. Stroud (Mont. 1984), 683 P.2d 459, 41 St.Rep. 919. In that case the trial court, in the absence of counsel and prior to voir dire examination, excused two claimed error on appeal. prospective jurors. Defendant Justice Gul brandson, writing for the majority said: "In reaching this conclusion, we are not suggesting that the trial judge's essentially educational examination should bb adopted by other district judges. Nor are we suggesting that the judge's method of examination was the best one. Certainly a record of any such proceedings should be maintained. Here, -we conc-lude only that there is no of credible evidence - nreiudice to the defeydaz Stroud. (Emphasis sup41ieh. ) ~ t z u d , 683 P. 2d at 464, 41 St.Rep. at 924. I' In State v. Coleman (1978), 177 Mont. 1, 579 P.2d 732, 200 jurors were drawn according to statute. However, the District Court clerk was then allowed to inquire by telephone regarding which of those jurors would be available for trial. The District Court clerk excused 139 jurors and selected 61 who apparently answered they would be available. There was no statutory authority for the District Court clerk to so act. There is no record of why the clerk selected the 61 jurors who eventually were called to the courthouse. While the majority opinion in Coleman is quite unclear in its treatment of this issue, the Court apparently found no error because Coleman was unable to show prejudice. A case quite analogous to the case at bar is Kinty v. United Mine Workers of America (4th Cir. 1976), 544 F.2d 706. In that case the trial judge, approximately two and one-half weeks prior to trial, advised all parties he was instructing the clerk to inquire of the prospective jurors whether they had any "connection with the mining industry" and to remove from the jury list any who answered in the affirmative. In commenting on that action, the Fourth Circuit stated: "Even were the objection not out of time, we are by no means convinced that the trial judge's ruling could be assigned as error. Unquestionably the issues in these cases were matters on which all persons in the mining industry have strong and fixed opinions. It is extremely doubtful that under any circumstances such persons could be considered impartial and unbiased in considering and deciding the issues in these cases. Given the discretion available to the trial judge in determining the qualification of jurors, it would be difficult to find a clear abuse of discretion in the action of the trial judge." (Footnote omitted.) Kinty, 544 F.2d at 723. In State v. Reilly (N.D. 1913), 141 N.W. 720, the North Dakota Supreme Court noted that a trial court has no right to arbitrarily discharge regular panel memb~rs without cause. Nevertheless, the North Dakota Court held such practice was not reversible error and said: "[Blut the cases which hold to this proposition fall far short of holding that error is committed where a court, for reasons of its own, has discharged a portion of a panel and either provided for the calling of talesmen or for an additional panel to fill the vacancies, especially where there is no proof or suggestion of partiality on the part of such court, or of any real prejudice to the defendant. The real thing to be guarded against is the denial of an impartial jury of one's peers. Reilly, 141 N.W. at 723. . . ." The law in Montana has been that we will only apply a per rule requiring reversal without a showing of prejudice se where there is error in selection of the array itself. Dvorak v. Huntley Project Irrigation District Mont. 167, 639 P.2d decision 62. in Dvorak and subsequently taken. 7: questioned (1981), 196 the wisdom of our corrective legislative action was Nevertheless, there arguably is some justification in applying sanctions for failure to follow statutory procedures in selection of the array itself. One can argue that the makeup of a jury panel can be skewed to eliminate certain elements from the panel and that a rule calling for per effect. se reversal has a desirable prophylactic However, if the panel selected is constitutionally sound, there seems to be no reason for reversal. decision in Dvorak was unsound. Perhaps our The majority has here chosen to take a questionable decision, corrected legislatively, and for the first time expand the decision to embrace the elimination of prospective jurors from a panel selected properly. I can only conclude that the majority wished to reverse a jury verdict with which they disagreed. This result-oriented appellate decision- making continues to contribute to a chaotic legal process in which lawyers, litigants and trial judges find themselves playing Russian roulette. I respectfully submit that the verdict for plaintiff, together affirmed. with the judgment entered thereon, should be Mr. Justice William E. Hunt, Sr. dissenting: I correct dissent. in its I believe rulings that during the this affirmed in every respect. / District trial and Court should was be Mr. Justice John C. Sheehy, dissenting: As I read the majority opinion, it reverses the District Court on two grounds, 1) of the improper deviation in the selection jury panel, and 2) the District Court excluded evidence that would prove Norwest's authority to act and the reasonableness of its actions. I disagree with the majority on both grounds. It is of course true that the clerk, instructed by the Court, deviated from the statutory procedures in getting the jury panel. What was the result? prospective jurors who had relation with Norwest. The clerk excluded those a debtor-creditor or business No reasonable lawyer, and I hope, no reasonable court, would have expected that depositors or lenders from Norwest could have been permitted to act on this case as jurors. selection, and The purpose of the objective of the statutes on jury courts construing those statutes, is to provide a fair jury panel. The deviation from the statutes by the clerk did not in this case deprive the parties of a fair jury panel. panel. Instead it insured a fair That fact is evinced in that counsel for Norwest, after interrogating the members of the panel, passed the jury for cause. Norwest recognized it had a fair jury at the outset of the trial. If error occurred here, it was harmless error. On the second point, it is irrelevant to the case the Anderson represented to Norwest that he had authority to change the signature card that Tribby had originally signed, outside of Tribby's presence or knowledge that the change had occurred. That kind of evidence is in the category used by Eve, when she said, "The serpent made me do it." Norwest had a contract with Tribby that was contained. on the signature card. It had no business or right to change contract unilaterally and without his knowledge. ribb by's Norwest's dealings with Anderson without Tribby are inexcuseable, and form no defense to Tribby's suit. I dissent.

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