SEBENA v AMERICAN AUTOMOBILE ASSOC
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No. 96-049 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 WILLIAM J. SEBENA, d/b/a LEWIS AND CLARK MOTEL OF BOZEMAN, MONTANA, Plaintiff APPEAL FROM: and Appellant, District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding. COUNSEL OF RECORD: For Appellant: Kevin For E. Vainio, Butte, Montana Respondent: Barry G. O'Connell, Submitted Bozeman, on Briefs: Decided: Filed: Montana September 12, 1996 December 19, 1996 Chief Justice J. William Montana, Lewis the A. J. Sebena, appeals d/b/a County. the Lewis of the That Automobile interfered with business advantage by Court. Bozeman, District Court, claim and AAA Montana and Clark the of Sebena's (AAA) delisting the Judicial rejected Lewis of Motel Clark First court the Opinion and Association tionally directory. delivered a judgment and Clark American Turnage Motel's motel that inten- prospective from the AAA this travel appeal: We affirm. The following 1. Whether 2. issues the Whether are dispositive District Court of erred in denying Sebena a jury trial. prove the a nonprofit principal place approximately TourBooks in business 36,000,OOO ruling that provide Sebena its To be listed annual failed to ascending listed order in of various publishes of minimum TourBooks with United Helena, an establishment certain regional States. and a member in one must standards. to are on attractions, the business its There members regions of a TourBook, its its corporation place and meet AAA for maintains Florida. members. Montana principal in inspection motels in which Heathrow, information a nonprofit maintains corporation in AAA and restaurants AAA Montana, AAA, Connecticut of which lodging, five club of Montana. undergo an AAA ranks diamonds, in quality. Beginning AAA's erred damages. AAA is the court in 1978, annual TourBook for the Lewis Montana, and Idaho, 2 Clark Motel and Wyoming. was listed Until in 1994, it was listed beginning as a three- in 1987, AAA requirements was directed AAA's in to or four-diamond annual the inspectors Lewis and Clark these correct establishment. noted deficiencies However, deficiencies Motel. Each from year, to maintain the Sebena motel's rating. In recent its March 1993, AAA advised it inspection, 1994 TourBook. alleging fered that with members would the of not Sebena the defendants motel's Sebena list the Lewis and Clark and this intentionally relationships motel's upon brought wrongfully the based subsequently business AAA and with that, of most Motel in action, inter- with expectancy its traveling future economic benefit. After a two-day conclusions, nonjury and judgment the trial, for the the document on not include He complaint. Court did Sebena District served June motion to demand 38(b), the demand denying demand demand for The court M.R.Civ.P., for appeals. 1 in a 1994. Sebena findings, jury Sebena for jury trial a jury jury trial in as a separate trial granted on the the trial? basis that states: Any party may demand a trial by jury . . by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last plead[Emphasis added. 1 insL.1 3 his defendants' was untimely. Rule strike 16, his err issued defendants. ISSUE Did court the Sebena's summons 1994. and AAA and AAA Montana on May 26. summons trial of was, Rule to the 18, complaint was served maintains that with pursuant to Rule with the to 6(a), did June 52 F.3d service of the a reply and the by "[jlurisdiction appearance service in answer over of be acquired process an action by as herein by any person 4 the service mail pursuant for jury (5th Cir. "usual" of this 7(a), complaint jurisdiction may in in See Rule American joint He by Corp. be the to Sebena's 2. 1994. The pleadings answer. AAA service a demand that would upon filing concedes Defendants, with vested 21, pleading on June Petroleum When this AAA Montana." through "the for last weekends General pleading The May 26 answer was filed time defenserved served for Texas to a counterclaim. complaint 1330, the filed Sebena 1995), last that days the jury pleading and excluding expire of last service M.R.Civ.P., until that complaint additional his Matter the of M.R.Civ.P., not Citing three argues of return 16 demand for determination Sebena copy with 6(e), its June on May 26 was the the 31, Rule upon 38(b). instead, on May was AAA on April answer Sebena's that served Montana the a joint AAA Montana based answer purposes trial upon ruled Court untimely joint served served served and complaint. was dants' were on May 31, Thereafter, The District for complaint the action answer consist clearly stated the both that defendants, either of Association was filed, courts provided; or M.R.Civ.P. Automobile our case, District over or by the personally, it and Court because any person voluntary or through an attorney[.l" Rule 4B(2), upon AAA Montana after AAA Montana the complaint was thus We conclude 1994, the last by June 261 Mont. 238, Sebena's counsel admits May 26 answer was a joint however, that even District Court abused allowed under order Rule a jury demand for if his its jury demand for M.R.Civ.P. there is 38(b), mailing should v. and have been Montana the jury trial Under the fact defendants. in denying notwithstanding of Rule for trial on May 26, Rail 1106. by both discretion 39(b), purposes days to purposes. was served he overlooked answer answer that the He argues, was late, him a jury the a court may failure parties' as Rule, that trial to timely one. decided under which of a reason the Rule attorney clearly that complaint its Associates 862 P.2d trial Because after served See Detienne (1993), the filed answer demand for 1994. of jurisdictional additional a timely 10, joint three weekends, for had been Allowing excluding Link when the Service had already superfluous pleading M.R.Civ.P. filed that M.R.Civ.P. corresponding 39(b), oversight for on point, federal rule to jury trial the we look of was patterned. failing a in case M.R.Civ.P., fin ordering established no Montana federal timely under civil to procedure, The inadequacy demand a jury trial as Rule 39(b) has been courts. It is clear in the Ninth Circuit that a district court does not abuse its discretion in denying a request for a jury trial under Rule 39(b) when the only excuse for the failure to timely file a demand is oversight, or counsel's unfamiliarity with inadvertence, neglect, Ninth federal practice and procedure. . . . Indeed, Circuit authority suggests that the district judge may 5 cases actually abuse circumstances. Robertson v. 661 F.Supp. time for began Sebena's jury its that run Life 424-25, the demanding to discretion Equitable 416, We hold his discretion Court trial of and expired hold relief U.S. 1498 did the not in these (D.C. err in Sebena 38(b), a jury that the M.R.Civ.P., joint answer to his demand for filed District to order 1987), ruling defendants' the Cal. (1989). to Rule before that by declining of pursuant service We further trial. Sot. 869 F.2d District the complaint Assur. aff'd, a jury upon by granting Court trial did under not Rule abuse 39(b), M.R.Civ.P. ISSUE 2 Did the court err in a case ruling of that Sebena failed to prove damages? To establish tive business intentional part damage of State the Med. 750 Lens actor; v. (4) Amer. is Co. not v. done right Med. the Cameron with of (1988), must product (1984), purpose justifiable Oxygen cause damages 230 Mont. be proven mere (1) were damage to the unlawful actual prospec- which to cause in resulted with show acts or Damages 1088-89. which were without and 1085, Const. by guess 506, failure to on the or loss. 456, 462, substantial or 207 Mont. of speculation. 511, 674 P.2d 1103. 1101, Sebena in (3) loss, Oxygen P.2d evidence or must (2) were calculated business; causing interference a plaintiff advantage, and willful; plaintiff's intentional the argued TourBook that cost the him defendants' guests 6 and, therefore, list his motel money. His evidence of a loss was of damages 1,065 listed loss the to arrive from manager, showing the daughter both number also have had made to on the AAA, had motel it was not room rental rate of his 1994 revenue of no significant Sebena offered no business which did he offer expert of business, if any, the the of the concrete claimed Lewis Bozeman and Clark he did motel's further attested improvements 1989 and was attributable revenue had 1993. information on to specifying not business was attributable lost records Sebena's in that between testimony which portion the capital Motel AAA. built The accountant and Clark motel of percentage the motel's no through testified Lewis his daughter, maintained business AAA listing. of or the year motels similarly the Nor loss motel year first generated on the that short, percentage of the last for they additional accountant the that that on cross-examination listing. the Sebena and his an impact to In the $51,503.40 of room rentals records any attributable been that by a nightly of admitted admitted Sebena's have a figure 1993, 1994, number cross-examination, general Motel. statement delisting. During might and that at his between TourBook, He multiplied $48.36 of room rentals in listed. consisted the the the AAA portion to delisting representing by lost profits. This recovery Court of lost has set forth the following rules pertaining profits: Damages for loss of profits may be awarded speculative. The rule that prohibits speculative does not apply to uncertainty as to the amount profits but to uncertainty or speculation as to 7 if not profits of such whether to the the loss of profits is the result of the wrong and whether such profit would have been derived at all. Once liability is shown, that is the certainty that the damages are caused by the breach, then loss of profits on a reasonable basis for computation and the best evidence available under the circumstances will support a reasonably close estimate of the loss by a District Court. But no damages are recoverable which are not clearly ascertainable both in nature and origin, and only profits which are reasonably certain may be awarded. Stensvad 206, v. Miners 640 P.2d & Merchants 1303, 1310 The District Court he suffered portion of of analysis by based motel's the has Sebena raised concerned comment delisting also the his the motel the claim he asserted. the which claim of See Bolz court intentional have Myers (1982), v. 14. Given our that we need two holdings not lost further address regarding admit absence to District on appeal. into One of evidence he offered guests' as evidence Sebena addressed a breach of for of claim breach with 286, issues these proof 300-01, discussed other above, issues. Affirmed. , Chief raised contract Justice like business of 651 P.2d two that contract, prospective nonspeculative the Court. issue 200 Mont. on the records the issues interference required 193, show that relating The other have Any to to AAA and the of to which of profits other refusal should would advantage, related conclusion motel, 196 Mont. failed absence was unjustified. was whether Sebena on the of the court's about cards that accountant with (1982), omitted). business We agree delisting. them the Etc. (citations concluded any damages, the Bank, damages. 606, 613- we conclude We concur: Justices 9 Justice Terry N. in part. dissenting I concur for a jury and that with to specific District order conclusions pursuant Court did a jury trial the Rule abuse pursuant in that to not majority's from majority seems record his M.R.Civ.P., when 39(b), that and demand discretion Rule conclusion part Sebena's 38(b), its to by which has not, its to conclude that of how many room rentals listing factors at majority's concurring it M.R.Civ.P. Sebena failed to damages. The to specially was untimely I dissent prove the trial the declined Trieweiler also AAA, and because contributed as a matter of conclusion, proven there might in damages. majority Sebena were directly to a decrease law, the because has has attributable have his been rental However, misapplied no rate, in our other he arriving decision in Stensvad v. Miners C?Merchants Bank of Roundup ( 19 8 2 ) , 19 6 Mont 19 3 , 6 4 0 P .2d 1303. damages Pursuant to Stensvad, it must be proven with certainty. been sustained which must In this case, being delisted form of listed that to by the who District by A?& who state 50 % of our It to business amount of fact that the with that ignore reasonable there all of were AAA's suggesting are listed. Court that the is be proven materials those not conclude by AFA is promotional advantage admitted to is For includes "[a] came 10 admissions is the the economic Exhibit from period AAA Tourbook" from in an example, tracking have damages testimonials go-day from damages certainty. no there which 77 others revealed and that "[wle feel that total our AAA Tourbook business." Gene DeFrance Association the reliant were of in eight the Sebena trial had is In it was testified daughter the manager that listed that percent of AAA's tour while working directly with at based would because of occasion were told able to their that definitely about advantageous to that was AAA, close from its has been people of the fact she also called and no that off longer they affiliation. 11 the a loss they testified asked of from affiliated business sixty in came the business the the and that that for Lisa to who came to street, that lost both observations removed motel the inclusion her personal the of delisted. from many of for of business, by the time aspects it resulted having the Motel Clark all volume delisting in state and at and in after walked were Sebena, there motel, guests they He information that However, potential for Lewis the motel's the be no record AAA. the business on a AAA listing there Automobile AAA had and was economically AAA and to the She testified our a AAA listing. she worked She testified attributable book. of with motel's book. about of William capacity, prior the Montana book it 50 % of how many members tour that about book. and was familiar while the the been years. business on for of the Sebena Sebena He testified be listed employee by telling they Lisa former approached listing accommodations. to the who first promoted how is ad accounts motel for the to tour them motel because on by and AAA, with AAA rate she was the loss of William following Sebena was asked the following questions and gave answers: Have you made an observation or a study Q. business before when you were AAA affiliated, three and four-diamond listings in the tour compared to what you're left with now? A. As compared Q. Right. A. Yes. Qthat? And what . to after we were of your and your book, as have been your deleted? observations with respect to . Tell me about Q. observed, what have about your lessening We went A. figures. to your observations. What have you you done to make these observations of business? our accounting records and compared . And what did you discover Q. of before you were terminated in making your comparison from AAA and afterwards? A. I discovered that we were, even though we, in 1994, we are still listed in the current January and February, book, that we had a considerable loss in room rentals by the number of 1,065 Q. . 1994? Can you compute A. We averaged Q. What A. We averaged Q. YOU, in was that fact, the cost a yearly of the loss for the year in 1993 rooms. average? $48 and some cents figured $48.36; 12 throughout is that the correct? year. the A. Yes. and arrived . And then we multiplied at a quite accurate those figures, you lost during A. Right. A. $51,503.40. Steve Hamilton, practiced in Court to the being about businesses Sebena for that from had run to there AAA charge, there as a result AAA's probability prior area. expect business to an additional there of was not the Tourbook. fact the to Pursuant of damage has been of annual of trends what he for other as of that it trial. his light being 1993, would not the listed, advantage have business and Clark previous shown, the loss then of others to being from damages to our 13 time and thousands that Lewis District he had been operating disadvantage speculative the years. advantage the and continue was an economic that in and that Sebena and has to calculate testified twenty had to be an economic it at history He also him by that by AAA was reasonable and why would If 1n sum, from for years used by Sebena was no economic be listed? then to accountant testified or eight a profitable fashion If method Bozeman been unreasonable that witness, business's the public and was allowed 1978, seven delisted the in since a certified as an expert accountant He testified knew who is Montana testify Sebena's could can you tell us the amount the 1994 calendar year? $48.36? Q. in rooms . In using Q. of money that loss it by those 1,065 figure at a loss. being had been Motel decisions, of profits how pay listed, delisted. sustained was excluded once the need only be computed provided on the the obligation best to basis of evidence arrive at the best evidence available available. and the some calculation District of Sebena Court had an damages based on that Court erred in evidence. Because I conclude finding that no District Court specific claim the of of his damages were erred when it that the his alleged financial efforts "In all with an advisory jury, state separately its not The District delisted Court acted the proven motel, no conclusions the Instead Sebena's that did shall with regarding find of law no the in extent in part a jury or specially and of a contract did which resolved finding its contract with him. that fraudulently that when plaintiff of it had not advantage, or breach or to prove failed business existence with the without that or concluded a prospective to facts plaintiff capriciously, further plaintiff's provides the the thereon." AAA had breached that that contract premises facts its AAA Tourbook, M.R.Civ.P., made conclude and the made no finding therefore arbitrarily, interference between court the upon the conclusions the allegation court the an express from improve tried the and exist, Sebena's AAA had case, breached 52(a), conclude to address business Rule actions I failed to ability. as follows: did his District sustained, defendant by excluding In this the also plaintiff spite that but made a contract parties. of contract entering claim, findings the District 14 or Court conclusions simply related concluded to that: "Assuming that AAA did he suffered For reasons, that Court's of plaintiff these did and the reasons, no damages were District Court Sebena's and contract a contract by AAA, then a calculation contractual based Plaintiff has failed I conclude to of damages of damages. whether damages show there that the findings and had the District sustained parties Court 15 a of the regarding and concluded and had been by Sebena breach. judgment found should been conclusion conclusions Court I had been proven. reverse District above, The District majority's the from forth the between the of set I would for If facts determine I dissent remand existed proof amount proven. claim. on the offer was to contract For that and responsibility breach wrong, any damages." the conclude that do something have as a result breached arrived of at &AA's
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