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Weaver v. State

Supreme Court of Montana

September 3, 2013

L. FRED WEAVER, JOAN WEAVER, and VICKI WEAVER, Plaintiffs, Appellees, and Cross-Appellants,

Submitted on Briefs: June 12, 2013

APPEAL FROM: District Court of the Third Judicial District, In and For the County of Granite, Cause No. DV 02-25 Honorable Ray J. Dayton, Presiding Judge

For Appellants: Robert E. Sheridan, Jeffrey M. Roth; Garlington, Lohn & Robinson, PLLP; Missoula, Montana.

For Appellees: Quentin M. Rhoades, Liesel Shoquist, Robert Erickson; Sullivan, Tabaracci & Rhoades, P.C.; Missoula, Montana.


Beth Baker Justice.

¶1 The State of Montana appeals a Granite County jury's verdict awarding damages to L. Fred Weaver, Joan Weaver and Vicki Weaver (the Weavers) from the State's negligent fire containment procedures on their real property. The Weavers cross-appeal the Third Judicial District Court's denial of their post-trial motion for sanctions. The State raises the following issues on appeal:

¶2 1. Whether the District Court erred when it denied the State's motion to dismiss the Weavers' negligence claim.

¶3 2. Whether the District Court erred when it granted the Weavers' motion to strike and prohibited the State from asserting a public duty doctrine defense.

¶4 3. Whether the District Court incorrectly allowed the jury to find the State negligent in the absence of expert testimony establishing the standard of care.

¶5 4. Whether the District Court abused its discretion by denying the State's motion to change venue.

¶6 The Weavers raise one issue in their cross-appeal:

¶7 Whether the District Court abused its discretion by denying the Weavers' motion for discovery sanctions against the State.

¶8 We affirm.


¶9 On August 7, 2000, a wildland fire started in the Ryan Creek drainage north of Interstate 90 in Granite County, near the Weavers' real property. Among other procedures employed to contain what became known as the Ryan Gulch Fire, the State initiated a "back burn" fire, a technique used to decrease the amount of flammable material in the fire's path. On August 13, 2000, fire spread onto the Weavers' property, causing substantial damage.

¶10 On December 17, 2002, the Weavers filed a complaint alleging that the State failed to "exercise ordinary care in the control, suppression and containment of the Ryan Gulch Fire." The Weavers alleged that their property was not damaged by the original Ryan Gulch Fire, but instead by the back burn fire, which the State had failed to control. The Weavers alleged that the State negligently started the back burn fire, in "high wind conditions without adequate means of control and/or suppression." Additionally, the Weavers alleged that the back burn fire was unnecessary because the original wildland fire already had been contained through the efforts of local ranchers and farmers. The Weavers sustained damage to "timber, grazing land, natural resources and other property." On February 13, 2003, the State filed an answer denying liability for negligence and inverse condemnation and pleading several defenses. The parties engaged in discovery for some period of time and the case then lay dormant for approximately six years before the Weavers obtained new counsel in 2010. In November 2010, the District Court issued a scheduling order directing the parties to submit all motions by December 16, 2011, and to present the pretrial order and file all trial briefs by March 16, 2012. The court set the trial date for April 9, 2012.

¶11 The Weavers amended their complaint on April 21, 2011, to add a claim of inverse condemnation, alleging that the State damaged their property for public use. The State answered the amended complaint, again asserting several defenses. Neither answer raised the public duty doctrine as a defense.

¶12 In accordance with the scheduling order, the parties submitted their proposed pretrial order and respective trial briefs on March 16, 2012. The Weavers' trial brief was directed exclusively to their inverse condemnation claim. The pretrial order included the State's contention that it was not liable to the Weavers under the public duty doctrine because, when a "governmental entity owes a duty to the general public, that duty is not owed to any specific individual." The State presented legal argument on this contention in its trial brief.

¶13 Both parties filed motions in response to the other's trial brief. The Weavers moved to strike the public duty doctrine defense because the State raised it for the first time in the proposed pre-trial order; they argued that the public duty doctrine is an affirmative defense under M. R. Civ. P. 8(c) that is waived if not pleaded. The District Court agreed that the State was required to plead the public duty doctrine as an affirmative defense and granted the motion to strike. The court held that, even if it was not an affirmative defense, the State's "failure to plead or otherwise raise the defense has prejudiced Plaintiffs."

¶14 In response to the Weavers' trial brief, the State moved to dismiss based on an alleged judicial admission in the brief that the State's fire management procedures were "reasonable and necessary, " rather than negligent. The next day, the Weavers filed a Notice of Errata to correct the language the State had cited in support of its motion. Following argument from both parties, the District Court denied the State's motion in open court at the conclusion of a pretrial hearing.

¶15 The State moved for a change of venue on March 29, 2012, due to publication of three articles in the March 8, 2012 edition of the local newspaper, which the State argued contained biased and inflammatory comments that contaminated the potential jury pool. The District Court denied that motion in open court as well. The court considered whether the State had shown either presumed or actual prejudice, pursuant to State v. Kingman, 2011 MT 269, 362 Mont. 330, 264 P.3d 1104. The court determined that the State failed to show presumed prejudice and that the existence of actual prejudice could not be evaluated until the parties had conducted voir dire.

¶16 After eight days of trial, the jury reached a verdict against the Weavers on their claim of inverse condemnation, but decided that the State negligently caused damage to the Weavers' property. By a vote of nine to three, the jury awarded damages to the Weavers in the amount of $730, 000. Following the trial, the Weavers filed a "Motion for Entry of Judgment on Jury Verdict, " requesting sanctions on the ground that the State had committed "prejudicial discovery abuse" by providing inaccurate dates in the captions of photographs of the wildfire, some of which were produced during discovery. A witness for the State had corrected the photograph dates at trial. The District Court denied the motion, "given the verdict in favor of the Plaintiffs" and "lack of prejudice and bad faith." The State appeals the jury's verdict and the Weavers cross-appeal the District Court's denial of sanctions. Additional facts from the record and applicable standards of review will be discussed with respect to each issue.


¶17 1. Whether the District Court erred when it denied the State's motion to dismiss the Weavers' negligence claim.

¶18 As noted, the State sought dismissal of the negligence claim based on the statement in the Weavers' trial brief that the State's firefighting measures were "reasonable and necessary"—a statement the State argues constituted a judicial admission.

Standard of Review

¶19 Where error has been predicated on the determination of a judicial admission, our cases have applied the typical standard of review for findings of fact and conclusions of law. That is, we review a district court's factual findings to determine whether they are clearly erroneous and its conclusions of law for correctness. See e.g. Hart v. Hart, 2011 MT 102, ¶ 10, 360 Mont. 308, 258 P.3d 389; Conagra, Inc. v. Nierenberg, 2000 MT 213, ¶¶ 22-23, 301 Mont. 55, 7 P.3d 369. Whether a statement is one of fact or law, for the purpose of determining if the statement should be considered a judicial admission, is a question of law. See Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 75, 358 Mont. 474, 247 P.3d 244 ("The District Court correctly ruled that Stevens' statements made in prior pleadings were not judicial admissions because they were not statements of fact."). Ultimately, a district court's determination whether a statement constitutes a judicial admission "depends upon the circumstances of each case." Kohne v. Yost, 250 Mont. 109, 113, 818 P.2d 360, 362 (1991). As such, we will review that determination for an abuse of discretion. American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 227 (9th Cir. 1988) ("[S]tatements of fact contained in a brief may be considered admissions of the ...

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