1 c. 8. YcNeil Distriot Judge 2 Lake County Courthouse 3 106 Fourth Avenue Rast Poison, X!E 69860-2171 4 Telephone: (406) 883-7250 5 6 7 8 9 KATRERINE GAIL DURBIN and * CAUSE NO. DV-93-91 PHIL F. DURBIN, * 10 * 11 Plaintiffs, * * 12 * vs. ORDER GRANTIWG 13 * MOTION POR SUMMARY BARBARA ROSS, an individual, * JUDGMEWT 14 * d/b/a ROSS REALTY; LYNNR and 15 PIAZZOLA, an individual; * SUWRARYJUDGRPBT WAYNE A. SHRRRILL and RACHRL * 16 * SHERRILL, individuals: and 17 MICHAEL J. SHRRRILL, an * individual, * 18 * 19 Defendants. * * 20 *************** * * 21 This matter came before the Court April 25, 1995 for 22 hearing on the Motion for Summary Judgment of Defendant 23 Barbara ROSS, d/b/a Ross Realty, and LWe Piazzola 24 (hereinafter the "Realtor Defendants"). Attorney Don Snavely 25 appeared on behalf of the Plaintiffs, Katherine Gail Durbin 26 and Phil F. Durbin. Attorneys Tracy Axelberg and Gary 27 Kalkstein appeared on behalf of said Realtor Defendants. 28 Defendants Wayne A. Sherrill, Rachel Sherrill and Michael J. 29 Sherrill (hereinafter the "Seller Defendants") did not appear 30 and have not appeared in this action. Said Seller Defendants# 31 default has been taken by the Plaintiffs. 32 The Court, having considered the briefs submitted by the 33 parties, the affidavits and record before the Court and 34 arguments of counsel, enters the following: B-x J--NT 1.The Realtor Defendants' Motion for Summary Judgment is hereby granted. 2. Summary judgment against Plaintiffs and in favor of said Realtor Defendants is hereby awarded upon all claims in Plaintiffs' Complaint against said individual Realtor Defendants. 8 3, Pursuant to Rule 54(b), N.R.Civ.Pro., final judgment is hereby directed to be entered against the Plaintiffs and in favor of the Realtor Defendants as to all claims asserted in Plaintiffs' Complaint against said Realtor Defendants individually, and the Court determines that there is no just reason for delay of entry of such judgment. 4. This summary judgment does not in any manner affect the default previously entered by Plaintiffs against the Seller Defendants nor does it affect Plaintiffs' right L 18 t o obtain default judgment against said Seller Defendants for all claims in Plaintiffs' Complaint for 20 damages caused by the Seller Defendants as well as those 21 caused by the Realtor Defendants as agents for said 22 Seller Defendants. 23 inion 24 The Realtor Defendants are entitled to summary judgment 25 pursuant to Rule 56, H.R.Civ.Pro. only if there are no genuine 26 issues as to any material facts and only if said defendants 27 are entitled to judgment as a matter of law. 28 Uncontested Facts 29 1 . The Agreed Facts, Paragraphs 1-4 from the Pretrial 30 Order dated April 4, 1995 and filed April 11, 1995, are 31 incorporated herein by reference. 32 2. The Realtor Defendants were the agents of the Seller 33 Defendants. 34 O&ER UUWTING MOTION FOR sumrf J~J~I~ENT - Page 2 1 3. The Default of each of the Seller Defendants was 2 entered February 2, 1994, pursuanttoRule 55(a), W.R.Civ.Pro. 3 4. The Plaintiffs are entitled to, but have not yet 4 sought, judgment by default against said Seller Defendants, 5 pursuant to Rule 55(b), M.R.Civ.Pro., for all claims asserted 6 in Plaintiffs' Complaint against said Seller Defendants. 7 5. During pretrial discovery the Plaintiffs had 8 designated an expert realtor witness, but by letter dated 9 February 17, 1995 (Exhibit "An to Realtor Defendants' summary 10 judgment motion), Plaintiffs withdrew said expert witness and 11 advised that no specific real estate expert witness would be 12 called by Plaintiffs at trial. 13 6. At oral argument opposing the Realtor Defendants' 14 summary judgment motion, Plaintiffs confirmed that they did 15 not have and did not need a realty expert witness to establish 16 any standard of care owed by the Realtor Defendants, as the 17 sellers' agent-broker, to the Plaintiffs as buyers of the real 18 property in question. 19 7. The cause was set for trial to commence May 1, 1995 20 and discovery has closed, the deadline for exchange of expert 21 witnesses and summaries of their testimony has passed and no 22 motions were made for the extension of time or the addition of 23 witnesses. 24 Conttiollincz Law 25 Plaintiffs are entitled, as a matter of law, to judgment 26 against the Seller Defendants for any and all damages arising 27 out of the real estate transaction herein involved. This 28 includes damages not only resulting from the Seller 29 Defendants' conduct but also for those damages suffered by 30 Plaintiffs resulting from any intentional or negligent 31 misrepresentations by the Realtor Defendants acting as the 32 sellers' agent as well as any constructive fraud or statutory 33 34 ORDER GRARTIWG RDTIW FDR -Y JlOGHEWT - Page 3 violations by said Realtor Defendants in their capacity as the sellers' agent. However, the Court holds that in order for the Realtor Defendants to be found personally liable as individuals for their conduct toward the plaintiffs-purchasers, the Plaintiffs must first establish a duty owed by the sellers' broker to the 7 purchasers and that the standard of care relating to such duty 8 and a breach thereof must be established by expert testimony 9 as a matter of law. 10 In support of the Realtor Defendants' summary judgment 11 motion, a series of cases are cited, incorporated herein by 12 reference, for the proposition that expert testimony is essential to establish the standard of care and a breach thereof in professional negligence actions and that is the 15 established law of Montana. Although most of the cases deal 16 with medical doctor and lawyer malpractice, the principle 17 extends to other professional fields, and the Court herein 18 holds is likewise applicable to the equivalent of realtor 19 malpractice. 20 In arguing that the Plaintiffs do not need expert 21 witness testimony to establish any duty or standard of care, Plaintiffs disavow that their claims are based upon the breach 23 of professional responsibility on the part of the Realtor 24 Defendants and instead assert that Plaintiffs' claims are 25 based simply upon allegations of fraud, negligent and 26 intentional misrepresentations and statutory violations for 27 which no expert witness testimony is needed relative to the 28 issues of duty and standard of care. The Court does not 29 accept such argument. 30 The only causal connection between the Plaintiffs as 31 buyers of the realty and the Realtor Defendants is the 32 agreement for the sale of the property by the Seller 33 Defendants to the Plaintiffs. The Realtor Defendants acted as 34 O R D E R GRAWTXWC UOTIOR FOR SMHARY JIBGUENT - Pw 4 1 the sellers' agent for the transaction and in that capacity 2 have a professional responsibility which is the sole basis of 3 any liability on their part. 4 In opposing the Realtor Defendants' summary judgment 5 motion, the Plaintiffs rely principally upon the case of Wagner 6 v.(%Z& 232 Mont. 332, 757 P,2d 779 (1988). The Court herein i does specifically follow the Mqnercase and holds that expert 8 9 testimony is not required to establish the standard of care 10 owed by the seller of realty to the purchaser and the Seller 11 Defendants are liable for all damages suffered by the 12 plaintiffs-purchasers whether caused by the conduct of the 13 sellers or their realtor agents without the necessity of 14 expert testimony. 15 However, the issue raised by the summary judgment motion. 16 herein was not an issue in the Wagnercase. The realtor was 17 not a party to that action and the issue of individual 18 liability of a sellers‘ realtor-agent to the buyer was not 19 raised in Wagner nor in any other authority cited by the 20 Plaintiffs in opposing the instant motion. 21 Most professional liability actions arise out of claims 22 by a patient against his own doctor or a client against his 23 own attorney. In this case the professional responsibility of 24 the realtor to his principal, the seller, is clear as is the 25 duty owed by the seller to the buyer. What is not so clear is 26 the individual and personal duty, if any, owed by the realtor 27 to the buyer, the standard of care and whether there has been 28 a breach of any such duty. Those issues must be established 29 by expert witness testimony. 30 The Court recognizes that in most routine real estate 31 transactions there usually is but one professional realtor- 32 broker who is most commonly the agent of the seller. It also 33 is wel.1 established law that a seller is held responsible for 34 GROER G R A N T I N G UOTION FOR SWARY JWGMENT - Pale 5 1 representations of the sellers' agent-broker made.to the 2 purchasers. Sec. 28-10-602, MCA. ~ag?z~so held as does this 3 Court herein. 4 In this case the plaintiffs-purchasers also seek damages 5 for alleged breaches of the Realtor Defendants professional 6 responsibility beyond that of the Seller Defendants as the 7 responsible principal and extend liability directly to the 8 Realtor Defendants individually and personally. This Court 9 also holds that in order for the plaintiffs-purchasers to 10 establish individual, personal liability on the part of the 11 sellers' agent-broker, the Plaintiffs must first establish a 12 duty owed by the sellers' agent to the buyer, the standard of 13 care owed by the sellers * agent to the buyer and a breach of 14 that standard and that such duty, standard of care and breach 15 thereof must be established by expert witness testimony as in 16 any professional liability action, 17 The Court finds that there are no genuine issues as to 18 any material facts. The Seller Defendants are liable to the 19 plaintiffs-purchasers whether caused directly by said Seller 20 Defendants or by their agents, the Realtor Defendants. 21 The Plaintiffs failed to produce a realtor expert to 22 establish a duty, standard of care and a breach of duty on the 23 part of the individual Realtor Defendants personally, and 24 summary judgment is therefore granted as a matter of law. 25 DATED this 3rd day of May, 1995. 26 27 C.B. McN8k 28 29 C. B. McNeil District Judge 30 31 S/3/% Copies to: 32 Don Snaveiy Tracy Axclbetfj 33 Gwy Kalkstcin vs 34 ORDER GRARTING CK)TICRl FOR SUMARY JIJDWENT - Pa@e 6 HONORABLE C.B. McNEIL 1 District Court Judge Lake County Courthouse 2 Polson, Montana 59860 3 Phone (406) 883-6211 Ext. 308

4 5 6 7 MONTANA TWENTIETH JUDICIAL DISTRICT COURT, SANDERS COUNTY 8

9 _-_-----____________--------------------------------------------------------------------------------------------- 10 11 KATHERINE GAIL DURBIN and PHIL F. ) Cause No. DV 93-91 DURBIN, individuals, 1 12 > Plaintiffs, 1 13 ) 14 -vs- 1 ) PRETRIAL ORDER 15 BARBARA ROSS, an individual, d/b/a ROSS REALW, LYNNE PIAZZOLA, an ; I6 individual; WAYNE, A. SHERRILL and 17 RACHEL SHERRILL, individuals; and ; MICHAEL J. SHERRILL, au ) 18 individual, )

19 Defendants. ; ) 20 -----_-------_---__*----------------------------------------------------------------------------------------------- 21 Pursuant to Rule 16 of the Montana Rules of Civil Procedure, a pre-trial 22 conference was held in the above-entitled cause. Donald V. Snavely represented 23 24 Plaintiffs Phil and Katherine Durbin (the “Durbins”). Tracy Axelberg and Gary

25 Kalkstein represented Defendants Barbara Ross and Lyme Piazzola (the “Realtor

26 Defendants”). The defaults of Defendants Wayne and Rachel Sherrill and Michael 27 Sherrill (the “Sherrills”) have been entered for their failure to appear as required by 28

PRETRIAL ORDER Page 1 law. The Sherrills did not participate in the preparation of this Pretrial Order. 1 The Court hereby enters the following Pretrial Order in this action pursuant to 2 3 agreement of the parties.

4 5 AGREED FACTS

The following facts are admitted, agreed to be true, and require no proof:

1. Plaintiffs Phil and Katherine “Gail” Durbin are husband and wife. On 8 9 April 26, 1993 the Durbins purchased for the sum of $35,000.00 a piece ‘of property

10 consisting of 20 acres and a single-family residence located at 209 Upper River Road,

11 Heron, Montana (the “Property”) from Defendants Wayne, Rachel and Michael Sherrill, 12 the sellers of the Property. 13 2. Defendants Wayne and Rachel Sherrill and their children resided on the 14 Property from May of 1987 until they sold the Property to the Durbins. Defendant 15 Michael Sherrill resided on the Property for part of that time. 16 1 7 3. Defendants Lynne Piazzola and Barbara Ross are real estate agents

licensed by the State of Montana. Lynne Piazzola is a licensed sales agent and was the

l9 listing and sales agent for the sale of the Property to the Durbins. Barbara Ross was 20 the supervising broker for Defendant Piazzola for this sale. Defendants Piazzola and 21 Ross both worked for Ross Realty, a real estate office located in Noxon, Montana. 22 23 Defendant Ross was the owner of Ross Realty at the time of-this sale.

24 4. This case involves claims by Plaintiffs Durbin that the condition of the

25 Property was misrepresented to them. The Durbins contend, among other things, that 26 the septic system, household water system, and other aspects of the Property were not 27 accurately represented by the Defendants. Defendants Ross and Piazzola deny these 28

I PRETRIAL ORDER Page 2 contentions. Defendants Ross and Piazzola contend, among other things, that they did 1 2 not make any misrepresentations to the Durbins. The various contentions of the parties

3 are explained in more detail below. The purpose of this trial will be to resolve the

411 various factual disputes between the parties regarding the sale of the Property.

Plaintiffs Durbin contend as follows: 8 1. Plaintiffs’ General Factual Contentions: The Durbins contend that during the 9 10 sale negotiations the Realtor Defendants told them things about the Property which

11 were not true. The Durbins further contend that during the sale negotiations the 12 Realtor Defendants failed to tell them other important facts about the Property which 13 were important to normal home buyers. In general, the Realtor Defendants told the 14 Durbins that the Property was in good condition and was only in need of cosmetic 15 16 repairs. In fact, there were several major problems with the Property.

17 The.Durbins were told that the Property had a legal septic system with a 750

18 gallon septic tank. ‘In fact, there was no septic tank, and the sewage drained into an 19 approximate 200 gallon dry well with no drain field. The sewage disposal system was 20 not operable and needed to be completely replaced. In addition, raw sewage from the 21 system ran out on to the surface of the ground, which was a serious health hazard for 22 23 residents of the Property.

24 The Durbins were told that the household water was provided by a seep well

25 located on the Property and that the water was safe for all household purposes except

26 drinking. In fact, the water from this well was contaminated with coliform bacteria and 27 was not safe for any household purposes. 28

PRETRIAL ORDER Page 3 The Realtor Defendants told the Durbins that the westerly boundary of the 1 Property ran along an existing fence line. In fact, this fence line was as much as 45 feet 2 3 on to the neighbor’s property. An access road which ran along the fence line to the

4 back of the Property was located on the neighbor’s property as well. 5 The Realtor Defendants failed to disclose to the Durbins that there were several 6 plumbing problems in the house. There were no hot water pipes and no running hot 7 water. The drain pipes for the washer were not connected to the sewer lines and 8 drained on to the surface of the ground underneath the house. 9 10 Plaintiffs Durbin contend that the Realtor Defendants knew or should have

11 know about the problems with the Property. The Durbins contend that even, if the

12 Realtor Defendants did not know about these problems, they spoke as if they knew 13 what they were talking about, yet they failed to check out any of the important 14 information before they passed it on to the Durbins. 15 Plaintiffs Durbin contend that they have suffered damages as a result of the 16 ’ 17 Defendants’ conduct. They have repaired defects in the Property, including installation

18 of a new septic system, installation of a new water well, repair of the plumbing

19 problems, and repair of other defects in the home. They will also incur expenses to 20 install a roadway to the back of the Property. The Durbins have suffered serious stress, 21 strain, anxiety and other emotional distress as a result of the Defendants’ 22 misrepresentations. The amount of these damages will be proven during the trial of 23 24 this case. The Durbins also seek treble damages and attorney’s fees under the Montana

25 Consumer Protection Act because of the unfair and deceptive acts of the Realtor

26 Defendants. The Durbins may also seek punitive damages for any fraudulent or 27 malicious conduct of the Defendants proven during the trial. 28

I PRETRIAL ORDER Page 4 2. Plaintiffs’ General Legal Contentions: 1 2 A. The Defendants are liable for intentionally misrepresenting important

3 facts about the Property to Plaintiffs. The Defendants are also liable for intentionally

4 concealing facts about the Property from Plaintiffs, knowing that these facts were 5 important to Plaintiffs and would be for any normal purchaser. 6 B. Alternatively, the Defendants are liable for negligently misrepresenting 7 important facts about the Property ‘to Plaintiffs, even if they believed their statements to 8 9 be true, because they failed to exercise reasonable care in investigating the truth of the

10 facts which they represented to Plaintiffs and failed to exercise reasonable care in

11 communicating information to Plaintiffs. 12 C. The Defendants are liable for constructive fraud by failing to disclose to 13 Plaintiffs important information about the Property which they had reason to know 14 would affect the value or desirability of the Property to Plaintiffs and any normal 15 16 purchaser. II 17 D. The Realtor Defendants are liable for violating the Montana real estate

18 licensing laws, including M.C.A. $0 37-51-321 and A.R.M. 60 8.58.419(3), by among

I9 other things misrepresenting facts and concealing information about the Property, by 20 failing to adequately investigate the truth of the information which they conveyed to 21 Plaintiffs, by failing to refer Plaintiffs to an independent attorney or advisor, and by 22 23 generally failing to act competently in the transaction. -

24 E. The real estate agents and their employers are liable for violating the

25 Montana Consumer Protection Act [M.C.A. $0 30-14-101 et seq] by (a) committing

26 unfair and deceptive acts [false statements and non-disclosures of important facts about 27 the Property], (b) in the conduct of their businesses, (c) by which Plaintiffs suffered an 28 I/ I PRETRIAL ORDER Page 5 I

ascertainable loss of money, (d) in a transaction in which Plaintiffs engaged primarily 1 2 for personal, family or household purposes. Plaintiffs are thus entitled to an award of

3 three times their damages plus reasonable attorneys’ fees.

4 F. Plaintiffs are entitled to an award of punitive damages should the conduct of

5 the Defendants, or any of them, be found by the jury to be fraudulent or malicious as 6 provided in M.C.A. 0 27-1-223.. 7

DEFENDANT?? CUmmONS

Defendants Ross and Piazzola contend as follows:

1. Defendants Ross and Piazzola dispute all of Plaintiffs’ contentions.

2. The Plaintiffs have failed to mitigate their damages. 13 3. Plaintiffs’ damages, if any, were caused by Plaintiffs’ own actions and inactions 14 constituting negligence. 15 4. Defendants Ross and Piazzola dispute the nature and amount of damages 16 17 claimed by Plaintiffs.

18 5. Defendants Ross and Piazzola deny liability on each and every theory of

lg liability’alleged by Plaintiffs. 20 6. Plaintiffs independently inspected the Property and met with the Sherrills to 21 discuss and examine the property on several occasions without Lynne Piazzola and 22 made an informed purchase of the Property based on those inspections and discussions 23 24 with Defendants Sherrill.

25 7. Defendant Piazzola performed a diligent inspection of the Property and

26 disclosed to the Plaintiffs all information gleaned as a result of that inspection as well 27 as information gleaned from her conversations with Wayne and Rachel Sherrill. 28

I PRETRIAL ORDER Page 6 8. Plaintiffs knew or should have known of the condition of the Property based

on their own inspections and independent visits with the sellers. 2 3 9. Plaintiffs were fully informed of the Property’s shortcomings and those

4 shortcomings were disclosed by the sellers and were reflected in the purchase price of 5 the Property. 6 10. The alleged violations of the Montana Licensing la&s are not actionable 7 because this Court lacks jurisdiction over the subject matter of such a determination 8 and a violation of those laws does not give rise to a claim for citi! damages, 9 /I 10 11. The Montana Consumer Protection Act does not apply to any of the claims

11 of the Plaintiffs levied against the Realtor Defendants. 12 12. Most if not all of the repairs undertaken by the Plaintiffs were I 13 improvements required for refinancing and/or to enhance the value of the Property by 14 15 I/I an amount equal to or exceeding their cost.

13. The property and residence purchased by Plaintiffs from Defendants Sherrill 16 I 17 had an actual Fair Market Value at or above the purchase price of $35,000.00.

18 19 20 21 Attached to this Pre-trial Order are exhibit lists for each party, identifying by 22 number and brief description each exhrbit which that party intends to offer on its case- 23 24 in-chief and stating any objections by the other parties to the exhibits. Any exhibit

25 offered at the trial to which no objection was made in the Pre-trial Order will be 26 admitted into evidence.’ The parties reserve the right to supplement their exhrbit lists at 27 or prior to trial, subject to any objections of the other parties. 28

I PRETRIAL ORDER Page 7 WPTNESSES 3

s The following witnesses may be called to testify on the parties’ cases-in-chief: d c A. Plaintiffs 4 1. Calkins, Kathy -- Wisdom, Montana *-t 2. Durbin, Gail -- Heron, Montana f , 3. Durbin, Josette -- Heron, Montana 4 4. Durbin, Phil -- Heron, Montana t

5 5. Fallon, MarshaIl -- Noxon, Montana

l( 6. Hilt, Jim -- Noxon, Montana

11 7. Hudson, Jim -- Heron, Montana - (+-y Q+*J$ i J 12 8. Hudson, Trish ---Heron, Montana 1: 9. Kiefer, Bobbie -- Heron, Montana 14 10. Kiefer, John -- Heron, Montana 1: If 11. Lamruth, Robert -- Clark Fork, Idaho

17 12. Larson, Kathy -- Noxon, Montana

18 13. Piazzola, Lynne -- Noxon, Montana 19 1 4 . Ross, Barbara -- Noxon, Montana 20 15. Shannon, Jon -- Missoula, Montana (Expert) 21 16. Simonson, Darryl -- Noxon, Montana 22 23 17. Sorlie, Dell -- Trout Creek, Montana -

24 18. Tionovich, Phil -- Bonners Ferry, Idaho

25 19. Foundational witness from Mt. Environmental Laboratory (if needed) 26 19. Any witnesses listed by the Defendants 27 20. Any rebuttal witnesses 28

'RETRIAL ORDER Page a 21. Any witnesses identified through remaining discovery to be undertaken 1 2 3 B. Defendants

4 1. Boots, Debbie 5 2. Burlingame, Claude 6 3. Compton, Kent 7 4. Crisp, Ken (expert) 8 5. Dominick, Bruce 9 10 6. Durbin, Gail

11 I. Durbin, Josette

12 8. Durbin, Phil 13 9. Fitch, Dan 14 10. Foss, Merilynn (expert) 15 11. HiIt, Jim 16 17 12. Ivers, Jan

18 13. Moats, Ralph

19 14. Moats, Sandy 20 15. Nichol, Peggy 21 16. Norton, Larry 22 17. Piazzola, Lynne 23 24 18. Ross, Barbara

25 19. Russell, Ron

26 20. Sherrill, Michael 27 21. Sherrill, Rachel (or by deposition) 28

PRETRIAL OROER Page 9 22. Sherrill, Wayne (or by deposition) 1 23. Simonson, Darryl 2 3 24. Slomski, Robert

4 25. Sorlie, Dell 5 26. Mrs. Swant 6 27. Whittenberg, Dan 7 28. Willis, Russ 8 29. Woods, Bill 9 10 30. Any witnesses listed by the Plaintiffs; and

11 31. Such witnesses as are needed for rebuttal. 12 32. Any witnesses identified through the remaining discovery to be 13 undertaken. 14 15 16 17 ISSUES OF FACT

18 All issues of fact encompassed by the parties’ contentions (except those stated in 19 the Agreed Facts) remain to be litigated at trial. 20 21 ISSUES OF LAW 22 23 All issues of law encompassed by the parties’ contentions remain to be litigated

24 at trial and will be resolved by the Court’s settlement of jury instructions or in ruling

25 upon the pretrial motions referenced below. 26 27 28

PRETRIAL ORDER Page 10 DrscomRY 1 2 The final Pre-trial Order shall refer to all those portions of depositions upon oral

3 examination and interrogatories, requests for admissions, and answers and responses

4 that the parties intend to introduce into evidence. Any objections to the use of the 5 above documents shall be stated, and if not stated, shall be deemed waived. (Because 6 this Rule relates to filing and is designed to consolidate in one place all of the fruits of 7 discovery, and because there can be no surprise element involved, the Court shall be 8 9 Irberal in permitting the amendment of the Pre-trial Order to include any material not

lOI1 11 originally listed.)

At this time, the parties only intend to use at trial fruits of discovery for the

l2 purpose of impeachment. The parties reserve the right to use any discovery as 13 substantive evidence as permitted by law. The Realtor Defendants intend to use the 14 depositions of Wayne and Rachel Sherrill as substantive evidence. Plaintiffs object to 15 16 the use of these depositions for any purpose at trial on the following grounds: (1) no

17 foundation has been established for their use under Rule 32, M.R.Civ.P.; (2) use of

18 these depositions, from critical witnesses, would deprive Plaintiffs’ of their constitutional 19 rights of confrontation and cross-examination of adverse witnesses; (3) the depositions 20 should be excluded under Rule 611(e), M.R.Evid., and Bonamarte v. Bonamarte, 263 ’ 21 Mont. 170,866 P.2d 1132,1136 (Mt. 1994) as denying Plaintiffs effective confrontation 22 and cross-examination of adverse witnesses; (4) all of the deposition testimony is 23 * 24 hearsay evidence without circumstantial guarantees of trustworthiness; (5) the Realtor

25 Defendants have failed to specifically identify which specific portions of the depositions 26 will be utilized, as required by the applicable procedural rules, and thereby prevented 27 Plaintiffs from raising objections to inadmissible testimony; (6) all questions asked by 28

I PRETRIAL ORDER Page 11 counsel for the Realtor Defendants were leading and improper as these witnesses are 1 not adverse to the Realtor Defendants; (7) Plaintiffs restate their objections to 2 3 testimony as set forth in the deposition transcripts; and (8) the depositions should be

4 excluded under Rule 403, M.R.Evid. as their probative value is exceeded by the

5 potential for jury misuse in that the jury does not have the opportunity to assess the 6 credibility of these witnesses through live testimony. 7 8 ADDITIONAL, PRE-TRXAL DISCOVERY 9 10 The parties have agreed to complete discovery by April 14, 1995. At the present

11 time Plaintiffs do not anticipate any further depositions. The Defendants anticipate

12 deposing a few additional percipient witnesses and Plaintiffs’ expert and will be allowed 13 to perform an inspection of Plaintiffs’ Property with their expert realtor prior to trial at 14 a time convenient to Plaintiffs and their attorney. Other than supplementation of their 15 responses to prior discovery requests, the parties do not contemplate any additional 16 I7 discovery at this time. *

Sl7PULATIoNS 20 The parties anticipate stipulating to the authenticity of exhibits, subject to any 21 substantive objections (relevancy, hearsay, Rule 403, etc.). No further stipulations are 22 23 anticipated. II 24 II 25 DETERMINAnON OF LEGAL OUESTIONS INADVANCE OF TRIAL 26 27 On March 17, 1995 the Realtor Defendants served a Motion for Summary

28 Judgment. By this motion the Realtor Defendants seek to remove Plaintiffs’

I PRETRIAL ORDER Page 12 I professional negligence claim and emotional distress damage claim from this case. 1 2 Plaintiffs will be opposing this motion on all grounds and contend that the motion

3 should be denied in its entirety. It is Defendants’ position that the motion for summary

4 judgment is dispositive and if successfui will dispose of this matter in its entirety. 5 All motions in limine are due to be filed by the parties on April 14, 1995. Both 6 Plaintiffs and Defendants anticipate serving motions in limine. 7 No further motions are anticipated at this time. 8

ADDITIONfi ISSUES

11 There are no additional issues to be determined prior to trial excepting those 12 framed by the Defendants’ summary judgment motion and the parties’ motions &J 13 limine. 14 15 JURY SELEC?7h & PROCESS 16 17 The trial jury shall consist of twelve (12) jurors and shall be selected in the

18 manner provided by law. Each party shall serve and file proposed jury instructions no 19 later than April 24, 1995, with any written objections to said jury instructions being 20 served and filed by April 28, 1995. 21 22 23 24 It is estimated that the case will require 4--5 days for trial. The case will be tried 25 to the Court sitting with a jury, commencing on May 1, 1995 at the Sanders County

Courthouse.

PRETRIAL ORDER I Page 13 IT IS HEREBY ORDERED that this Pre-trial Order shall supersede the 1 pleadings and govern the course of the trial of this cause, unless modified to prevent 2 3 manifest injustice.

4 IT IS HEREBY ORDERED that all pleadings herein shah be amended to 5 conform to this Pre-trial Order. 6 7 DATED this jr ‘day of April, 1995. 8 9 10 C.B. McNElL 11 HONORABLE C.B. MCNEIL 12 District Court Judge 13 14 15 APPROYED AS TO FOR&lAND CONTENT: 16 17 SNAVELY LAW OEFICES Attorneys for Plaintiffs 18 19 20 By: 21 22 23 CUCELBERG & KALKSTEIN, Attorneys for Defendants 24’ Ross & Piazzola 25’ 26 27 28

F‘RETRIAL ORDER Page 14 , RECORD OF EXHIBITS FOR KATHERINE GAIL DURBIN and PHIL F. PLAINTIFFS DURBIN DURBIN, individuals,

PIaintiffs,

-vs- CAUSE NO. DV 93-91 DATE: May 1,199s BARBARA ROSS, an individual, dba ROSS REALTY, LYNNE PIAZZOLA, an individual, WAYNE A. SHERRILL and RACHEL SHERRILL, individuals; and MICHAEL J. SHERRILL, an individual,

Defendants.

Plaintiffs Katherine Gail Durbin and Phil F. Durbin may offer the following documents and/or things as exhibits on their case-in-chief at the trial of this matter: OBJECT NO. DESCRIPTION (Y/N) GROUNDS ADMIT REFUSE RESERVE

1. "Country Living" Sheet NO

2. Seller's Property NO Disclosure Statement

3. Photographs (Deposition NO Exhibits BA--8FF)

4. Bill for Septic Installation NO

5. Bill for Well Installation NO

6. Summary of Expenses to Repair YES ALL AVAILABLE the Defects and Related Expenses (per Rule 1006, M.R.Evid.)

7. Montana Environmental Lab YES FOUN, OPIN, HSAY Water Test Report (5/21/93)

a. Lamruth Survey (11/93) YES FOUN, HSAY

9. Shannon Water Test Report (3/95) YES ALL AVAILABLE

CODES FOR OBJECTION 1. REL = RELEVANCY 5. BE = EESC EVIDENCE 2 403 = M.R.E 4 0 3 6 OPIN = OPINION 3. FOUN = FOUNDATION 7. HSAY = HfZARSAY 4. AUTX = AUTHENTICITY 8. REFERENCES TO NUMBERS ARE TO THE M.R.E

PLAINTIFFS'EXHIBITLIST Page 1 OBJECT NO. DESCRIPTION U/N) GROUNDS ADMIT REFUSE RESERVE

Shannon Report YES ALL AVAILABLE

11. Residence Property Data Sheet NO (Ross Realty)

12. Ross Realty Listing NO Agreement (g/13/91)

13. Ross Realty Listing NO Agreement (2/28/92)

r 14. Ross Realty Listing NO Agreement @O/29/92)

15. Ross to Sherrill NO Letter (2128192)

16. Simonson Fact YES REL, BE Statement (a/17/93)

17. Impeachment Exhibits YES ALL AVAILABLE

18. Exhibits Subsequently Discovered YES ALL AVAILABLE

CODES FOR OEJECnON 1. REL = RELEYANCY 5. BE = BEST EVIDENCE 2.403 = M.R.E. 403 6 OPIN = OPINION 3. FOUN = FOUNDATION 7. HsAY=HEARsAY 4. AUW = AUTHENTIClTY 8. REFERENCES TO NUMBERS ARE TO THE M.R.E

PIANTFFS’ EXHIBIT LIST Page 2 .

RECORD OF EXHIBITS FOR KATHERINE GAIL DURBIN and PHIL F. DEFENDANTS ROSS AND PIAZZOLA DURBIN, individuals,

PkilltiffS,

CAUSE NO. DV 93-91 DATE: May 1, 1995 BARBARA ROSS, an individual, dba ROSS REALTY; LYNNE PLAZZOLA, an individual, WAYNE A. SHERRILL and RACHEL SHERRILL, individuals; and MICHAEL J. SHERRILL, an individual,

Defendants.

Defendants Barbara Ross and Lynne Piazzola may offer the following documents and/or things as exhibits on their case-inchief at the trial of this matter: OBJECT NO. DESCRIPTIOR U/N) GROUNOS ADMIT REFUSE RESERVE

A, FSrst State Bank Photographs YES FOUN, REL

B. First State Bank File re: Durbin YES FOUN, REL, 403, HSAY Purchase

, C. Certified Weather Records--Heron YES FOUN, HSAY

D. Sorlie Estimate, 5/12/93 NO

E. First American Title Insurance Co. YES REL, FOUN, HSAY, 403 Comitment for Title Insurance

F. Closing Statement, 4/26/93 NO

G, Buy-Sell Agreement, Z/24/93 NO

H. Hilt Statement, 6/22/93 NO

I. Sot-1 i e Invoice, 6/27/93 NO

J. Septic Permit Application NO

CODES FOR OBJECTION 1.w =RELEvANcY 5 . B E =BEsTEVIDENQE 2.403 =M.R.E403 6 OPIN = OPINION 3. FOUN = FOUNDATION 7. HSAY =HEhR!&%Y 4. AUI-H = AUTHENTICITY 8. REFERENCES TO NUMBERS ARFi TO THE MAE

DEFENDANTS EXHIBIT LIST Page 1 .

OBJECT NO. DESCRIPTION (Y/N) GROUNDS ADMIT REFUSE RESERVE

K. Fax from Manley Realty YES REL, HSAY

L. Sellers' Property Disclosure Statement NO

M. Residence Property, Informative Data NO Sheet and Attachment

N. Tract Drawing of Plaintiffs' Property YES FOUN, AUTH, HSAY

0. Broker Employment Contract (Ross and NO Sherrill--10/29/92)

P. Broker Employment Contract (Ross and NO Sherrill--g/13/91

0. Durbin Policy of Title Insurance YES REL, FOUN, HSAY, 403

R. Gail Durbin Notes of Telephone NO Conversation on Phonebook Page

s. Noxon Septic Services Invoice, 4/29/93 NO

T. Residential Lease--Linzmaier YES REL, FOUN, HSAY, 403 and Durbin

U. Ross Realty Photographs of Property NO

V. Broker Employment Contract--Fitch YES REL, FOUN, HSAY, 403 and Ross Realty

W. Phil Durbin's Criminal File, State YES REL, HSAY, 403, 609 of Montana v. Phil Durbin

X. 1993 Calendar (Blank) NO

Y. Exhibits for Impeachment YES ALL AVAILABLE- _

Z. Any documents uncovered in future YES ALL AVAILABLE discovery

CODES FOR OBJECMON 1. REL = RELEVANCY 5. BE = BEsr EVIDENCE 2.403 = M.R.E. 403 6 OPM = OPINION 3. FOUN = FOUNDATION 7. HSAY = HEARSAY 4. AUTH = AUTHENTIC!lTY 8. REFERENCES TO NUMBERS ARE TO THE M.R.E

DEFENDANTS’ EXHAIBIT LIST P a g e 2 RECORD OF EXHIBITS FOR KATHERINE GAIL DURBIN and PHIL F. DEFENDANTS ROSS AND PIAZZOLA DURBIN, individuals,

Plaintiffs,

-vs-

BARBARA ROSS, an individual, dba ROSS REALW, LYNNE PIAZZOLA, an individual, WAYNE A SHERRILL and RACHEL SHERRI& individuals; and MICHAEL J. MERRILL, an individual,

Defendants. 66@ Defendants Barbara Ross and Lynne Piazzola may offer the f$%ving documents and/or things as exhl%its on their case-in-chief at the trial of this matter: .K / OBJECT &’ NO. DESCRIPTION (Y/lo AOMIT R E F U S E NW’NOS RESERVE

A. First State Bank Photographs FOUN, REL

6. First State Bank File re: Ourbin Purchase

c. Certiffed Weather Records--Heron FOUN, HSAY

D. Sorlie Estimate, S/12/93

E. First American Title Insurance Co YES REL, FOUN, HSAY, 403 Comitment for Title Insurance

F. Closing Statement, 4/26/93 NO

6. Buy-Sell Agreement, NO

H. NO

1. NO

J. NO

CODES FOR OBJEKXION 5. BE = BESI- EVIDENCE 2ur3 = M.R.E.403 6 OPtN * OPINION 3. FOUN = FOUNDATION 7 . HsAY+HEARsAY 4. AUTH = AIJTHFZWCXI’Y a REFERENCE!5 TO NUMBERS ABE TO THB M.R.E

DEFENDANTS'EXHIBITLIST Page 1 INSTRUCTION NO.

A seller's broker in a residential real estate transaction is under a duty to disclose facts materially affecting

the value or desirability of the property which through reasonable

diligence should be known to him.

Given: District Judge

Defendants Barbara Ross, d/b/a Ross Realty and Lynne Piazzola's Proposed Jury Instruction No.

R Source: Easton V. Strassburoer, p (Ca. 1984), t 1199 Cal . r. 383, 390 INSTRUCTION NO.

The duty of a real estate agent, representing the seller,

to disclose facts includes the affirmative duty to conduct a

reasonably competent and diligent inspection of the residential

property listed for sale and to disclose to prospective purchasers

all facts materially affecting the value or desirability of the

property that such an investigation would reveal.

Given: District Judge

Defendants Barbara Ross, d/b/a Ross Realty and Lynne Piazzola's Proposed Jury Instruction No.

Source: Easton vs. Strassburger, (Ca. 119841, 1199 Cal. Rptr. 383, 390