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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1997 MTWCC 25
WCC No. 9412-7192
DANIELA BLOWERS, individually and on behalf of
LEE BLOWERS, II, a minor
MONTANA INSURANCE GUARANTY ASSOCIATION
POOL WELL SERVICING COMPANY
Summary: Following decision expressing Workersí Compensation Courtís concern that testimony of claimant and her father did not disclose that claimant was joint tenant on land with her parents, claimant moved to amend decision, pointing out that the title was in evidence and Proposed Findings disclosed her joint tenancy.
Held: Court reiterated itís concern and, while praising claimantís counselís competence and candor, admonished attorneys to take care not to present testimony leaving a false impression on significant matters.
On May 12, 1997, the Court received a letter from petitioner's counsel concerning Finding of Fact 12, which concerned ownership of the land for which the petitioner sought a lump sum to enable her to purchase. In that finding, I noted deposition testimony by petitioner and her father, and initial trial testimony by petitioner, to the effect that petitioner's father and mother owned the land in question. In fact, petitioner is a joint owner of the land with a right of survivorship.
The finding of fact in question states, in full:
(Finding of Facts, Conclusions of Law and Judgment at 4.)
The petitioner's counsel takes issue with the Court's last two sentences. He points out that not only was petitioner's ownership interest disclosed by the title policy but that a week prior to trial he also submitted proposed findings of fact which disclosed her ownership interest. That disclosure is contained in proposed Finding of Fact 14 of Claimant's Proposed Findings of Fact and Conclusions of Law, which reads:
The Court did not mention the proposed finding and did in fact overlook it. Petitioner's counsel also points out that at trial the Court interrogated petitioner regarding the ownership of the land before counsel had an opportunity to clear up the matter. He suggests that the Court should sua sponte amend its findings to clarify the record.
While the comments of petitioner's counsel are well taken, it was and continues to be my view that stronger action by counsel was warranted. The deposition testimony of petitioner and her father omitted essential, material information concerning a critical fact. As the Court's original finding states, "Counsel surely understood that the fact of her [petitioner's] ownership was a fact of consequence to her request." The deposition testimony of petitioner and her father stated not only that the land was owned by petitioner's parents but also that petitioner owed them rent on the land. That testimony was grossly misleading at best, a deliberate concealment of a material fact at worst.
The deposition testimony referred to the land ownership or rent at least six times. In her deposition, the petitioner gave the following testimony regarding ownership and rent:
(Blower's Dep. at 25-26.)
(Id. at 31.)
(Id. at 46.)
(Id. at 61.)
Petitioner's father testified in his deposition:
(Hansonl Dep. at 12.)
(Id. at 14.)
That testimony was plainly misleading. If counsel was aware of the petitioner's interest in the land at the time of the depositions, he should have, then and there, pointed out the omissions concerning petitioner's ownership interest in the land.
In opening statements and colloquy at the commencement of the trial, the deposition testimony remained uncorrected. No mention of petitioner's ownership interest in the land was made.
The fact of petitioner's ownership interest was also not disclosed in the Pretrial Order. In paragraph 1 of petitioner's contention she requests $26,500 to pay for the land. In paragraph 2, she contends:
(Pretrial Order Contention 2 at 3.) The contention implies that she is not presently a joint tenant in the property .
It is true, as petitioner's counsel states, that the petitioner's ownership interest is disclosed in his proposed findings and Exhibit 14. At the time I wrote the decision in this case, I did not believe, nor do I now believe, that he was deliberately concealing that fact. I could have "ferret[ed] out" petitioner's ownership interest from the documents presented to me, and in fact did so in my review of the exhibits.
On the other hand, petitioner's disclosure of her ownership interest in the land consisted of a sum total of two sentences among 18+ single-spaced pages of proposed findings and a single reference in a single sentence of an exhibit contained in a one-inch thick notebook with 21 exhibits. In light of the deposition testimony, it is my view that counsel should have caused petitioner to make a written correction to her deposition or at least alerted the Court at the onset of trial to the error in her and her father's testimony. As it unfolded, the petitioner further eroded her credibility by taking the stand and repeating her deposition testimony that the land is owned by her parents.
Finally, I will address the statement by petitioner's counsel, set forth in his letter, that my comment in Finding of Fact 12 "implies a lack of candor on my [counsel's] part with the Court . . . ." I have known and worked with Mr. Martin for many years now. I always found him to be extremely competent, skillful, candid and honest in his dealings with me when I was an attorney, and the same is true since I have been Judge. My criticism in this case does not undermine my judgment in that regard and should not be taken as an attack on his integrity. I simply believe that he should have taken more aggressive action to correct the misleading testimony given by petitioner and her father. What occurred in this case should instruct counsel in future cases of the importance of correcting false or misleading testimony immediately upon discovery of the error and doing so in a manner which emphatically brings it to the attention of the Court.
Finding of Fact 12 shall be deemed amended to reflect the discussion herein.
DATED in Helena, Montana, this 19th day of May, 1997.
c: Mr. Richard J. Martin
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