Gibson v. Swanson , 239 Mont. 380 ( 1989 )

NO. 89-132
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
GARY ALLEN GIBSON, Z
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P. 2CHUCK SWANSON and JULIE SWANSON, w 5 l
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APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary Allen Gibson, pro se, Atlanta, ~eorgia
For Respondent:
~ i c h a r dW. Heard, Columbus, Montana
Douglas C. Allen, Great Falls, Montana
Submitted on ~ r i e f s : Sept. 15, 1989
Decided: October 17, 1989
Filed:
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ff Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Gary Allen Gibson brought this suit against the Swansons for
breach of contract on a thoroughbred mare they sold him. Gibson
failed to appear for trial. The District Court of the Eighteenth
Judicial District, Gallatin County, entered judgment for the
Swansons. Gibson appeals. We affirm.
Gibson states the issue as whether the District Court abused
its discretion in granting judgment for the Swansons.
In November 1985, Gibson agreed to purchase a nine-year-old
thoroughbred mare, What-a-Hurry, from the Swansons. The purchase
price, arrived at after several monthst negotiations, was
$12,000. In February 1986, the mare was transported by commer-
cial carrier from Whitehall, Montana, near the Swansonst farm in
Gallatin Gateway, Montana, to Bohon Farm in Harrodsburg, Ken-
tucky.
Gibson's complaint alleged that What-a-Hurry was not sound
for breeding when the Swansons sold her, although that was a
condition of the sale. Gibson asked for damages including the
contract price; boarding, transportation, and breeding fees for
What-a-Hurry; punitive damages; and his costs and attorney fees
in bringing this action.
Gibson retained counsel in Bozeman, Montana, for approxi-
mately six months after he filed his complaint. That attorney
withdrew in September 1988, four months prior to trial. Gibson
did not appear in person or by counsel at the January 1989
pretrial hearing, which had been scheduled three months in
advance. At the pretrial hearing, the court entertained a
written motion by Gibson to continue the trial date. The court
reviewed the history of the case and ruled that ttPlaintiff has
had one yeartsnotice of the trial setting in this matter and his
request to continue the same served three (3) days before the
final Pretrial Conference is not timely nor justified.It
Gibson did not appear by counsel or in person at trial.
Defendant Chuck Swanson testified that What-a-Hurry was in good
condition and sound for breeding when transported from his farm.
A. 0. Chub Askins testified that he is a horse breeder who served
as Gibson's agent in fall 1985. He testified that he examined
What-a-Hurry for Gibson at that time and found no problems,
particularly relating to breeding. Dr. Sid Gustafson, a Bozeman
veterinarian, also testified. He stated that he had treated
What-a-Hurry in 1984 and 1985 and that he had discussed the
mare's medical history with Gibson in November 1985, giving his
opinion that the mare was sound for breeding.
The court entered its findings of fact and conclusions of
law, ruling that the Swansons had complied with all their legal
obligations under the terms of the sale to Gibson. It awarded
the Swansons $80 as their costs of suit.
Gibson objects on appeal to the admission of A. 0. Askins'
testimony into evidence. However, evidence is admissible unless
a timely objection to its admission is raised. Rule 103,
M.R.Evid. Because Gibson failed to appear for trial, he has
waived any right to object to admission of evidence.
Gibson next argues that the court should have found that the
Swansons defrauded him. He correctly sets out the nine elements
of fraud. See McGregor v. Mommer (1986), 220 Mont. 98, 105, 714
P.2d 536, 540. However, this argument fails because Gibson
presented no evidence at trial to support his claim.
Finally, Gibson argues that there was insufficient evidence
to support that What-a-Hurry was sound for breeding at the time
of the sale. The testimony of all three witnesses at trial
supports the finding that What-a-Hurry was sound for breeding at
the time of the sale. We note that Gibson did not produce any
evidence that What-a-Hurry was not sound for breeding at the time
of the sale. We hold that the District Court did not abuse its
discretion in finding that What-a-Hurry was sound for breeding at
the time of sale.
Affirmed.
We concur: