W BAR N SHEEP CATTLE CO v MEATS
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No. 95-225 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1995 W BAR N SHEEP & CATTLE CO., a Montana Corporation, Plaintiff INC., jzqf ,*. ,y: !,;-&< / and Appellant, /\\jr; 2 2 i!% v. MEATS OF MONTANA, INC., a Montana Corporation, and NORWEST BANK OF BILLINGS, Defendants APPEAL FROM: !<;j $),;f/$ ';J?;:ER% OF, sqw!giyE XpFn grr".TE Md!rwk> k;ii- and Respondents. District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Robert W. Holmstrom, Judge presiding. COUNSEL OF RECORD: For Appellant: Arnie A. Hove, Attorney at Law, Circle, Montana For Respondents: Michael B. Anderson, V. Ann Liechty; Gannett, Anderson & Liechty, Billings, Montana Submitted on Briefs: Decided: Filed: August 3, 1995 August 22, 1995 Justice W. William Appellant, suit jury Meats of alleging which delivered the Opinion W Bar N Sheep & Cattle against Billings, Leaphart Montana, actual returned Billings was not verdict. a special guilty Company (W Bar N), Bank, The matter verdict of filed (MOM), and Norwest I~C. fraud. was tried finding fraud. of the Court. that before Norwest a Bank, We affirm. W Bar N appeals from that Backqround Wilmer appellant Pawlowski corporation purchasing, and Nora Pawlowski slaughtering, The Pawlowskis originated. When MOM was first Norwest MOM but suggested that (NWBC) a sister MOM and a MOM granted receivables property, agreement with 1990, Billings and agreement other of meat of cattle. sought financing declined to offer Norwest Business credit security Credit, certain interest intangibles in to Inc. to finance conditions. to return from financing NWBC agreed upon MOM NWBC on for all a credit NWBC. October Norwest it in Minnesota. a and processed formed, MOM contact line shareholders in MOMand have been since Billings corporation provide Accordingly, "collateral of are also shareholders Billings. and the and selling Norwest In in MOMwas engaged in the business W Bar N. are as part of the MOM entered into whereby MOM agreed to deposit cash proceeds account." of the MOMinvoiced 2 financing all a collateral collections collateral its meat arrangements, security sales with account receivable in payments the to be sent directly to a "lockbox" retrieve the funds MOMpaid its the line of credit debt and deposit 0. Lee Meyers, MOM cattle checks purchase be wired if Pawlowski from Pawlowski spoke with writing Pawlowski writing Pawlowski the within not Billings sale Herb Kelsey Kelsey request and claimed two p.m. or checks MOM operation Pawlowski meats. that that would Wilmer he demanded a he would he would weeks. a writing $90,000 had to to Wilmer Pawlowski of processed said the 0. Lee Meyers and the stated assurances to and that be repaid. send something Kelsey testified and no writing in that was issued by Billings to pay for of MOM. In any event, Wilmer Pawlowski, on behalf Billings the Billings of the by Norwest of W Bar N wired reimburse by 2:00 the money to MOM's account, days him that him that account Billings, by way of a promise any obligation Norwest Norwest by $90,000 and advised that ten of were not covered. purchase granting testified did they proceeds from Kelsey in Kelsey Mr. Meyers further wired As of MOM, to inform by Norwest over. be repaid Norwest if account. increased. was overdrawn Wilmer Pawlowski be honored would be taken that account to MOM's cattle not Herb secretary would be returned then contacted would 1990, was to the monies available fashion, were correspondingly 1, Billings them in the collateral to NWBCin this On November contacted from which Norwest the $90,000 honored $90,000 against MOM and against default was taken to to MOM's cattle the W Bar Norwest against checks in purchase question. N and W Bar Billings 3 and MOM did not N then on the basis MOM and appellants account filed suit of fraud. proceeded to trial A against Norwest Issues Billings. oresented for review: Did the District Court err in excluding the testimony I Jeanne Marie Charter on the grounds that the offered testimony irrelevant? II Did the District Court err in Instruction No. 13 as an accurate statement giving of law? court's of was Jury III Did the District Court properly exclude testimony from Wilmer Pawlowski regarding lost profits on the grounds that it was improper lay testimony, improper expert testimony and speculative in nature? I Did the Jeanne Marie District Court Charter err in on the grounds excluding that the testimony testimony the offered of was irrelevant? This rulings Court's of discretion of the trial 239 Mont. testimony 296, that court and will advanced Norwest of funds Billings relevancy occurred subsequent 913, District Court upheld In other words, largely left to W Bar shareholder to the Charter Pawlowski/W 4 in noting the the account testimony Charter the similar Charters on MOM's on the transaction Bar N transaction. that the of MOM. W in a situation purchase grounds the objection except N offered in the summer of 1990, objected the Zugg v. Ramage (1989), 916. to the cattle the evidentiary not be overturned another and on the to are had been involved of W Bar N, in that, personally addressing discretion. 779 P.2d Charter in evidence of a Ms. Jeanne Charter, Bar N claimed grounds of abuse of that 292, review abuse of discretion." admissibility cases of manifest request. of is one of "manifest questions to that standard "issue The here is whether or Pawlowskil matter Bar not . the bank The issue that has isn't whether was some 45-days N contends that Montana Rules of routine practice provides made some assurance the something Evidence, testimony Norwest 406, this On appeal, was relevant W under as follows: of Rule [Wilmer happened with or two months later." Charter to because Billings. it Rule demonstrated 406, a M.R.Evid., (a) Habit and routine practice defined. A habit is a person's regular response to a repeated specific situation. A routine practice is a regular course of conduct of a group of persons or an organization. (b) Admissibility. Evidence practice, whether corroborated or is the presence of eyewitnesses, conduct on a particular occasion the habit or routine practice. of habit or of routine not, and regardless of relevant to prove that was in conformity with (c) Method of proof. Habit or routine practice be proved by testimony in the form of an opinion or specific instances of conduct sufficient in number warrant a finding that the habit existed or that practice was routine. Rule 406, M.R.Evid., W Bar N with regard Bar N was attempting the time Wilmer similar event 406(c) requires sufficient in routine. routine wired Charter of funds the Charter Billings. to MOM's account occurred routine W be characterized Accordingly, we hold 5 the only instances of that is not sufficient at by Rule date. a finding testimony, if at a later specific number to warrant instance Whatever of would not have been "routine" loan) by MOMwhich cannot by Norwest testimony. to establish evidence One other Furthermore, does not work to the benefit to the Charter Pawlowski (the clearly may by to the the conduct practice to meet this best, would test. establish as a routine that was the District a practice Court did not abuse its discretion in excluding the testimony of Jeanne Charter. II Did the District NO. 13 which allowing It Court sets forth the a bank to create is within the trial the jury, taking parties, and the reviewing except Supply, for Inc. Jury court's provisions court's of Jury Instruction § 30-4-401(I), into discretion account MCA, Court 261 Mont. Instruction will how to of the contending not overturn Hall 328, No. to decide theories abuse of discretion. (1993), Court's in giving an overdraft? instruct court err v. Big Sky Lumber and 332, 13 the 863 P.2d 389, district 392. read as follows: A bank may charge against a customer's account only items which are properly payable. An item is properly payable if it is authorized by the customer and is in accordance with an agreement between the customer and the bank. The above instruction was adapted from § 30-4-401(l), MCA, which provides: A bank may charge against the account an item that is properly payable from that thoush the char-se creates an overdraft. properly payable if it is authorized by the is in accordance with any agreement between and the bank. [Emphasis added.] W Bar N objected language from language "even though because Herb discretion the to the deletion jury on behalf the checks of the underlined W Bar the charge creates Kelsey, to honor instruction. of of a customer account even An item is customer and the customer N claims an overdraft" Norwest that the is relevant Billings, in the amount of 6 statutory $90,000, had the thereby creating Court an overdraft situation did not abuse its 13 without the overdraft In presenting would to for failure against claim in question honor Instruction Norwest of the overdraft the checks. upon which to exercise No. Billings, would have given or dishonor basis Jury the District included. by the exclusion have no legal Billings in giving language fraud the language discretion discretion its N was not prejudiced At best, for MOM. We hold that to that W Bar language. Mr. Kelsey the W Bar N, however, fault Kelsey discretion or Norwest in the manner that W Bar N preferred. Did the District Pawlowski improper Court properly regarding lay lost testimony, exclude profits on improper expert the testimony grounds testimony from Wilmer that it was and speculative in nature? Since liability the jury by Norwest arrived at Billings, it issue be harmless 312, 213 P.2d error. 237, defense verdict was not necessary of damages and the exclusion most, a finding no to consider the of damage evidence would, Meinecke v. Skaggs (1949), Accordingly, 239. at the 123 Mont. we need not 308, address this issue. Affirmed. Pursuant 1988 Internal precedent to Section Operating and shall I, Paragraph Rules, this be published decision by its 7 3 cc), filing Montana Supreme Court shall not be cited as a public as document with the Clerk of the Supreme Court to Montana Law Week, State Reporter We concur: 8 and by a report of its and West Publishing result Company.
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