Kucera v. Brady
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01/29/2020 DA 19-0036 Case Number: DA 19-0036 IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 21N MARK KUCERA, Plaintiff and Appellant, FILE v. JAN 2 8 2020 CHRISTOPHER BRADY, Bowen Greenwood Cler : k of Supreme Court State nf Montana Defendant and Appellee. APPEAL FROM: District Court ofthe Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 18-0782 Honorable Donald L. Harris, Presiding Judge COUNSEL OF RECORD: For Appellant: Mark Kucera, Self-represented, Billings, Montana For Appellee: Christopher Brady, Self-represented, San Antonio, Texas Submitted on Briefs: September 4,2019 Decided: January 28,2020 Filed: Clerk Justice Dirk M.Sandefur deliveted the Opinion of the Court. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Mark Kucera appeals the December 2018 judgrnent of the Montana Thirteenth ( , Judicial District Court, Yellowstone County, awarding Christopher Brady $7,000 in damages, with prejudgment interest, for the breach of an oral contract to purchase certain vehicle parts for $15,000. We affirm. ¶3 This case arises from the disputed terms and performance of an oral agreement for the sale and delivery of certain Packard automobile parts in 2018. Kucera hdd recently acquired a 1932 Packard Model 903 Super 8 Dual Cowl Sport Phaeton automobile (903 Packard).and was ldoking for a transmission and'other parts to restore it. Based on his belief from a prior discussion with Keith Rasmussen that he had a compatible transmission from or for a 1932 Model 902 Packard Roadster (902 Packard), Kucera contacted Rasmussen who advised that he sold his 902 Packard and spare parts to Brady. He advised, however,that Brady would soon be traveling to Colorado from Texas for a car auction and might be willing to bring along the 902 Packard transmission for sale to Kucera. Upon inquiry, Kucera confirmed that Brady had the 902 transmission, and other 2 spare parts obtained from Rasmussen, and was willing to sell and deliver them to Kucera in Billings. ¶4 Though they later disputed whether Kucera agreed to purchase all of the Packard parts Brady acquired from RasmusSen,1 whether they agreed on a purchase price,2 and whether Brady committed to accept one ofKucera's vehicles in trade in lieu of part ofthe purchase price, the parties Wtirnately agreed that Brady would bring the 902 Packard transrnission and other spare parts acquired from Rasmussen to Billings for sale to Kucera. Brady also separately agreed to pick up some Jaguar parts for Kucera from a third-party seller in Texas and bring them to Billings. ¶5 When Brady later arrived in Billings with the parts, Kucera accepted the Jaguar parts without dispute, except for questions as to whether he received an expected box of small parts from the third-party.seller. With the 902 Packard parts still on Brady's truck, Kucera showed Brady around his shop. After Kucera showed him a number of cars as possible trade items, Brady advised that he was not interested in any, ofthem. Though the parties dispute who said what in their subsequent discussion, Kucera ultimately gave Brady an $8,000 check (from Kucera's girlfriend—Dr. Bailey) and accepted all ofthe 902 Packard ',Brady later testified that Kucera agreed in advance of Brady coming to Montana to purchase all of the Packard 902 parts acquired from Rasmussen—KUcera later asserted that he agreed only to purchase the 902 transmission and Packard 903 parts. Brady later testified that they agreed in advance of his trip to Montana to a $15,000 purchase price for all of the Packard 902 parts acquired from Rasmussen—Kucera later asserted that they had no advance agreernent on a purchase price. 3 2 `parts on Brady's truck( without inspeCtion or dispute.3 Several days later, after discpvering that onc ofthe 902 Packard parts was not compatible with his 903.Packard, Kucera texted Brady and demanded a refund.4 When Brady refused, Kucera filed a district court complaint_ asserting various contract, tort, and declaratory judgment Claims against Brady regarding -the Packard parts anci missing Jaguar parts. Brady responded with general denials and various contract and tort counterclaims. F91lowing bench trial on November 7, 2018, the District Court issued written findings of fact, conclusions of law, and,judgment in favor ofBrady. ¶6 In'essence,the court found and concluded that the parties entered into an enforceable oral agreemenf for Kucera to purchase the lot pf Brady's 902 Packard parts for $15,000 without warranty 'or representation by Brady as to their compatibility with Kficera's 903 Packard. The court further found and concluded that Kucera thus breached the contract by faing to pay the $7,000 balance due. The court ruled that.Kucera failed to meet his burden of proof on his claims against Brady and that Brady's successful recovery on the contract claim prechided a du/plicate recovery under his alternative tortious conversion claim. KuCera timely appealed, asserting, inter alia, that the District Court erroneously: (1) ignored inconsistencies in Brady's testimony and found it to be more credible than Kucera's more consistent testirnony; asserted that Brady accepted the $8;000 check as payment in full—Brady,contrarily asserted that Kucera agreed tO paY $15,000 for the lot in accordance with their, prior agreement. He testified that Kucera told hirn he did not then have all ofthe money, had borrowed the $8,000 from his girlfriend, andsaid that he would later mail Brady a check for the $7,000 balance. Kucera asserted that he did not inspect the Packard parts based on Brady's representations that they were 903 Packard parts—not 902 parts: 3 Kucera later 4 Kucera later produced a text message indicating that he demanded a $5,000 refund. -4 ¶7 (2) failed toconsider that Brady's deletions oftext messages and "alterations of evidence" undermined his credibility; (3) "misquoted and reworder Kucera's testimony in its findings of fact to unfairly favor Brady; (4) found that "Rasmussen also told [Kucera] that some [Packard] parts were compatible with either a 902 Packard or a 903 Packarr; (5) found that Kucera demanded an $8,000 refund from Brady rather than the $5,000 indicated in the contemporaneous text message demand; (6) allowed Brady to present the third-party witness testimony of. Kucera's girlfriend by affidavit not subject to cross-examination; and (7) denied him adequate time to set up a videoconference call to present the remote testimony of his girlfriend at trial. When functioning as the finder offact, district courts have broad discretion to assess and determine the relative weight and credibility of evidence, particularly in the face of conflicting evidence. In re Marriage of Horton, 2004 MT 353, ¶ 11, 324 Mont. 382, 102 P.3d 1276; Double AA Corp. v. Newland & Co., 273 Mont. 486, 494, 905 P.2d 138, 142(1995). Trial courts also have broad discretion in regulating the admission ofevidence and trial administration. Fink v. Williams, 2012 MT 304, ¶ 18, 367 Mont. 431, 291 P.3d 1140; Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, 154 P.3d 561. We review evidentiary and-trial administration rulings for an abuse of discretion. Blanton v. Dep't of Pub. Health & Human Servs., 2011 MT 110,¶ 22, 360 Mont. 396, 255 P.3d 1229; Seltzer, ¶ 65. A lower court abuses its discretion only if "it exercises its discretion based on a mistake of law, clearly erroneous finding of fact, or otherwise acts arbitrarily without 5 • employment of conscientious judgment, or in excess of the bounds of reason, resulting in substantial injustice." Larson v. State, 2019 MT 28,¶ 16, 394 Mont. 167, 434 P.3d 241. ¶8 We review,lower court findings offact only for clear error. Ray v. Nansel,2002 MT 191, ¶ 19, 311 Mont. 135, 53 P.3d 870. Findings of fact are clearly erroneous only if not supported by substantial evidence,the court misapprehended the effect ofthe evidence, or, based on our review of the record, we have a definite and firm conviction that the lower court was mistaken. Larson,¶ 16; Interstate Prod. Credit Ass'n ofGreat Falls v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991). Lower court findings of fact, conclusions oflaw, and exercises ofdiscretion are presumed correct. Hellickson v. Barrett Mobile Home Transp., Inc., 161 Mont. 455,459, 507 P.2d 523, 525 (1973). The appellant has the burden ofdemonstrating error on appeal. In re Marriage ofMcMahon, 2002 MT 198,¶ 7, 311 Mont. 175, 53 P.3d 1266; Hellickson, 161 Mont. at 459, 507 P.2d at 525. ¶9 Here, regardless of the presence of conflicting evidence, the District Court's findings of fact are supported by substantial evidence with one narrow exception. Our review of the record further indicates no basis upon which to conclude that the court otherwise misapprehended the effect of the evidence or was otherwise mistaken. As the lone exception, Kucera correctly points out that a record text message -indicates that he demanded a $5,000 refund from Brady rather than $8,000 as found by the court. However, the discrepancy is not material to the District Court's ultimate conclusions of law, and underlying findings of fact, that:(1)the parties entered into an enforceable oral agreement for Kucera to purchase the lot of Brady's 902 Packard parts for $15,000; (2) Kucera 6 breached the contract by failing to pay the $7,000 balance due; and (3) Kucera failed to present sufficient credible evidence to support his contrary claims against Brady. We hold that Kucera has failed to meet his:burden of demonstrating the District Court's findings of fact are clearly erroneous in any material regard. ¶10 The balance of Kucera's assertions of error either involve alleged abdses of discretion in the admission of evidence or trial administration including, inter alia, the admission ofthe affidavit testimony of Kucera's girlfriend (Dr. Bailey) and the failure to allow Kucera additional time to arrange for her live video testimony at trial. However, Kucera only objected to the admission of the selected portion of Bailey's three-page affidavit offered by. Brady. Pursuant to Kucera's narrow completeness objection, the District Court admitted the entire affidavit without other objection. Kucera asserts that the court nonetheless erred by refusing to allow him to specifically `read from the Bailey affidavit during his trial testimony. However, the record reflects that the court offered Kucera the opportunity to make a closing argument on the evidence but that he did not take that opportunity to point out any particular segment of Dr. Bailey's affidavit testimony. ¶1 I As to her live testimony, the record reflects that the District Court advised Kucera prior to trial that it was his responsibility to make arrangements for Dr. Bailey to testify via videoconferencing. During trial, the court recessed for ten minutes to allow him to setup a cellular phone "Facetime" call connected to the court's videoconferencing system for that purpose. When the court denied him additional time to arrange her live testimony, Kucera made.no offer ofproof as to what extent, if any, Dr. Bailey could testify to facts materially different from those set forth in her affidavit. We hold that Kucera has failed to satisfy his burden on appeal of demonstrating his various assertions of evidentiary and trial administration error. ¶12 We have deterrnined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion ofthe Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court's findings of fact are not clearly erroneous. The District Court's interpretation and application ofthe law were correct. ¶13 Affirmed. We concur: Chief Justice 8
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