IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 79,531
MARVIN BERGSTROM; MARILYN BERGSTROM;
BEN DREESEN; KAREN DREESEN; and
FARMERS LIVESTOCK COMMISSION CO., INC., a Kansas Corporation,
Plaintiffs,
v.
DON W. NOAH and NOAH & HARRISON, P.A.,
Defendants/Appellees,
LYLE J. KOENIG,
Defendant,
ROGER McCARTNEY, d/b/a STOCKMAN'S LIVESTOCK EXCHANGE, Defendant/Appellant,
and
CHARLENE McCARTNEY,
Defendant.
SYLLABUS BY THE COURT
1. Summary judgment is appropriate when the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.
2. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.
3. An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. If disputed facts, however resolved, could not affect the judgment, they do not present a genuine issue of material fact.
4. Where an appellant fails to brief an issue, that issue is deemed waived or abandoned.
5. In order to prevail on a claim of legal malpractice, a plaintiff is required to show (1) the duty of the attorney to exercise ordinary skill and knowledge, (2) a breach of that duty, (3) a causal connection between the breach of duty and the resulting injury, and (4) actual loss or damage.
6. Claims of legal malpractice like other actions for professional negligence are normally to be determined by the trier of fact rather than by summary judgment. However, there is a recognized exception to this rule. When, under the totality of the circumstances as demonstrated by the uncontroverted facts, a conclusion may be reached as a matter of law that negligence has not been established, judgment may be entered as a matter of law.
7. A trial court's decision which reaches the right result will be upheld even though the trial court may have relied upon the wrong ground or assigned erroneous reasons for its decision.
8. A client represented by an attorney is entitled to the benefit of an informed judgment by that attorney. Where the issue is one that is settled and can be identified through ordinary research and investigation techniques, an attorney should not be able to avoid liability in a claim of professional negligence by claiming the error was one of judgment.
9. Where evidence establishes that an attorney acts in good faith and in an honest belief that his or her acts and advice are well founded and in the best interest of the client, that attorney is not liable for an informed judgment even if subsequently proved erroneous on points of new occurrences or doubtful construction, or for a mistaken opinion on a point of law that has not been settled by a court of last resort and on which reasonable doubt may well be entertained by informed lawyers.
Appeal from Republic district court, DAN D. BOYER, judge. Opinion filed March 5, 1999. Affirmed.
Bert S. Braud, of The Popham Law Firm, P.C., of Kansas City, Missouri, argued the cause and was on the briefs for appellant.
Justice B. King, of Fisher, Patterson, Sayler, & Smith, L.L.P., of Topeka, argued the cause and was on the brief for appellees.
The opinion of the court was delivered by
DAVIS, J.: Roger McCartney, d/b/a Stockman's Livestock Exchange and Charlene McCartney, (the McCartneys) through their attorneys, Don W. Noah, and Noah and Harrison, P.A., (Noah), filed a Kansas antitrust action against Marvin and Marilyn Bergstrom, Ben and Karen Dreesen, and Farmers Livestock Commission Co., Inc., (the FLCC parties) in the District Court of Republic County, Kansas. This underlying antitrust action was resolved by summary judgment against the McCartneys. The FLCC parties then filed a malicious prosecution action against the McCartneys and Noah, which was resolved by summary judgment against the FLCC parties and affirmed by this court in Bergstrom v. Noah, No. 79,453 filed March 5, 1999. The subject of this appeal involves a cross-claim in the malicious prosecution action filed by the McCartneys against Noah for legal malpractice in bringing the underlying antitrust action. The district court granted summary judgment to Noah. We affirm.
In its summary judgment in this case, the trial court identified by reference the uncontroverted facts upon which it based its conclusions of law. Those facts relate to both the malicious prosecution action and this malpractice action. However, because all of the facts are identified by the trial court in its grant of summary judgment in this action, they are set forth in full:
"1. Plaintiffs in the present case assert that Don W. Noah and Noah & Harrison, P.A., maliciously prosecuted claims against them on behalf of Roger McCartney in the case styled Roger McCartney d/b/a/ Stockman's Livestock Exchange and Charlene McCartney v. Farmers Livestock Commission Co., Inc., Marvin Bergstrom, Marilyn Bergstrom, Ben Dreesen, and Karen Dreesen, Case No. 92-C-04, filed in Republic County, Kansas (hereinafter referred to as the 'underlying litigation'), a true and correct copy of the Petition filed in the underlying litigation against plaintiffs (hereinafter collectively referred to as the FLCC parties) . . . .
"2. The following pleadings were filed, and rulings were made, with regard to dispositive motions in the underlying litigation:
(a) The FLCC parties served a Motion to Dismiss on or about May 7, 1992, and Dr. McCartney responded to that motion on or about June 29, 1992 . . . .
(b) The District Court denied the FLCC parties' Motion to Dismiss on July 6, 1992 . . . .
(c) The FLCC parties filed a Motion for Interlocutory Appeal on or about July 21, 1992. That Motion for Interlocutory Appeal stated in pertinent part that:
'2. . . . Specifically, Defendants contended that Plaintiff had failed to allege an antitrust conspiracy or combination under applicable law. On July 13, 1992, the Court filed an order denying Defendants' Motion.
'3. . . . (1) The order involved a controlling question of law as to which there is substantial ground for difference of opinion; . . .
. . . Has Plaintiff alleged or is he able to show an antitrust conspiracy or combination? Furthermore, there is substantial ground for difference of opinion because this question has not been directly addressed by the Kansas appellate courts. This question requires a determination of how a conspiracy must be [pled], as well as what conduct constitutes an antitrust conspiracy. . . .'
. . . .
(d) The Motion for Interlocutory Appeal was denied by the District Court on September 3, 1992 . . . .
(e) The FLCC parties filed a Memorandum Brief In Support of Defendants' Motion for Summary Judgment on or about July 26, 1993 . . . .
(f) A response to the FLCC parties Motion for Summary Judgment was filed on August 19, 1993 . . . .
(g) The FLCC parties filed a reply to Dr. McCartney's response to Motion for Summary Judgment on or about August 25, 1993 . . . .
(h) The District Court initially denied FLCC parties' Motion for Summary Judgment on August 23, 1993 . . . .
(i) On or about August 25, 1993, the FLCC parties filed a Motion for Reconsideration of the District Court's denial of Summary Judgment . . . .
(j) Summary Judgment was granted by the District Court to the FLCC parties on August 31, 1993 in response to the Motion for Reconsideration filed by the FLCC parties . . . .
(k) A Motion to Alter and Amend was thereafter filed on behalf of Dr. McCartney on September 30, 1993. . . .
(l) Dr. McCartney's Motion to Alter and Amend was denied on November 9, 1993. . . .
(m) The District Court's Order of Summary Judgment was thereafter appealed on behalf of Dr. McCartney, and the decision of the District Court was upheld on appeal . . . .
"3. At the time the underlying litigation was filed, Dr. McCartney was the owner of Stockman's Livestock Exchange sale barn in Belleville, Kansas, and he remains the owner of the sale barn. . . .
"4. The FLCC parties are all involved in the ownership, and operation, of the Farmers Livestock sale barn in Washington, Kansas, and have been involved in such ownership, and operation of the sale barn since 1984. . . .
"5. The livestock auction barn located at Washington, Kansas, was closed from 1982 until it was opened by FLCC on November 18, 1984. . . .
"6. Prior to the FLCC parties becoming involved with the FLCC sale barn in 1984, the sale barn had been through hard financial times, and, in fact, was acquired by the Bergstroms and Dreesens from a trustee in bankruptcy. . . .
"7. Mr. and Mrs. Bergstrom and Mr. and Mrs. Dreesen first became involved in the sale barn business together when they entered into an agreement to purchase the FLCC sale barn at a bankruptcy sale. . . .
"8. When the Bergstroms and Dreesens entered into the agreement to purchase the FLCC sale barn each couple agreed to pay half of the price, and did pay half the price each. The total purchase price was approximately $12,000. . . .
"9. Dr. McCartney purchased Stockman's Livestock Exchange in 1985 for the sum of Three Hundred Thousand Dollars ($300,000.00). . . .
"10. Over the next few years the number of livestock being sold through Dr. McCartney's sale barn decreased. . . .
. . . .
"14. The value of a sale barn is determined by the number of livestock going through it. . . .
"15. In 1986 Dr. McCartney obtained information leading him to believe that trucking was being provided to farmers by FLCC through C & C Truckline operated by Adolph Charbonneau, and was being paid for by one or more of the FLCC parties, not by the farmers. . . .
"16. Specifically, in 1986, Dr. McCartney became concerned about an incident where he had made arrangements with a consignor Eric Anderson, to sell cattle at Stockman's Livestock. A call was then made to C & C Truckline to haul the cattle, and thereafter Dr. McCartney was told by the farmer that he had been contacted by Mr. Bergstrom, and had determined, without further explanation, to take the cattle to Farmers Livestock, instead of Stockman's Livestock, for sale. Thereafter, Dr. McCartney confronted Ben Dreesen concerning this incident, and Mr. Dreesen denied that any rules or laws had been violated. . . .
"17. When payments of trucking are made by a sale barn on a discriminatory basis, in other words, paid to some customers, and not others, it is considered by the Packers and Stockyards Administration to be a violation of the Packers & Stockyards Act. . . .
"18. Payment of free or reduced price trucking is an effective way to attract customers to a sale barn who would not otherwise go to that particular sale barn. . . .
"19. If free or reduced cost trucking is offered for large groups of cattle, it brings more cattle to a sale barn, and as a consequence brings even more customers to the sale barn in anticipation of better bidding at the sale barn. . . .
"20. Prior to filing suit in this matter, Dr. McCartney was concerned that he was losing significant sale barn business to the FLCC sale barn as a result of the FLCC parties providing free and below-cost trucking. Dr. McCartney discussed these concerns with other sale barn operators in the area, and they concurred in his belief that FLCC was offering free or below-cost trucking to attract business to the FLCC sale barn. . . .
. . . .
"23. The FLCC parties were first warned by the Packers and Stockyards Administration in 1985, just shortly after they began operating the FLCC barn, that they were violating the law by offering free or below-cost trucking to farmers. This warning specifically advised the FLCC parties of the illegality of the practice, and further advised the FLCC parties that each violation would result in a Cease and Desist Order and fine up to $10,000. Specifically, the Packers and Stockyards Administration's letter of March 25, 1985, directed to Marvin Bergstrom as President of FLCC stated that:
'This is to confirm that our conversation regarding the practice of providing free or below-cost trucking of consignors' livestock to your market. As you were advised, this is considered an unfair practice in violation of Section 312(a) of the Packers and Stockyards Act, found on page 15 of the enclosed. Please see that such violation may result in Cease and Desist Order and fine up to $10,000 for each such violation.
'In our conversation, you admit providing some free trucking, but you did not realize it is against P&S regulations. You agreed to immediately discontinue this practice and ask that we contact some of your competitor auctions to stop them from similar violations.'
. . . .
"24. In 1988 a further investigation was done by the Packers and Stockyards Administration of FLCC at Dr. McCartney's request, but no evidence of further violations was discovered at that time. . . .
"25. Packers and Stockyards Administration representatives themselves, however, later acknowledged that their 1988 investigation was inadequate, and in 1991, at the request of Dr. McCartney, Packers and Stockyards Administration re-instituted an investigation of FLCC. . . .
"26. In connection with the 1991 investigation, Dr. McCartney supplied lists of farmers to Packers and Stockyards Administration investigators indicating that those people had possibly had their trucking paid or received part of their commission back or both from FLCC. . . .
"27. From this list of 40 farmers, three commercial truckers and four farmer truckers provided to them by Dr. McCartney, the Packers and Stockyards Administration's 1991 report reflects that Packers and Stockyards Administration investigators did random interviews of six farmers in 1991, and of the six, Packers and Stockyards Administration investigators definitively confirmed the payment of trucking to one, namely, Mr. Dean Anderson who admitted such payment. . . .
"28. The 1991 investigation by Packers and Stockyards Administration documented an incident reflecting payment of trucking for Dean Anderson by the FLCC parties. In pertinent part, Dean Anderson informed Packers and Stockyards Administration investigators that:
'During the interview, ANDERSON stated that in recent years he has been selling his calves at FARMERS. BERGSTROM always comes and looks at the cattle before ANDERSON consigns them. ANDERSON said that BERGSTROM usually sets up the trucking for the cattle through C&C TRUCK LINE, INC., Concordia, KS. ANDERSON said that part of the time C&C bills him directly, and other times BERGSTROM pays for the trucking. HEBENSTRIET asked if BERGSTROM pays for the trucking to get ANDERSON to use his market. ANDERSON replied "Yes."'
. . . .
"29. At least two consignments of livestock were made to Stockman's Livestock, but when these consignors called C & C to haul their stock the consignments did not come to Stockman's but went to FLCC. These consignors were Dorman Brothers and Eric Anderson. . . .
"30. About 40% of C & C's business was Bergstrom Livestock and probably less than 1% is FLCC. . . .
"31. According to his deposition in the underlying litigation, if C & C Truckline has trucks available, Marvin Bergstrom uses that truckline. . . .
"32. The 1991 investigation also reflected that although another farmer, Francis Baxa, indicated that FLCC normally deducted his trucking costs from his sale proceeds, in the particular incident investigated, no trucking charge had been deducted. When asked whether he had received free trucking Mr. Baxa did not deny it, but rather asked 'Is free trucking illegal?' . . .
"33. As a result of its 1991 investigation, the Packers and Stockyards Administration once again warned the FLCC parties that they were violating the Packers & Stockyards Act, and specifically advised Mr. Bergstrom in a letter dated June 25, 1991, that:
'During an investigation of Farmers' business operations, the following violation of the Packers and Stockyards Act was discovered.
'The investigation disclosed that Farmers, for the purpose of inducing certain owners to consign their livestock to the market, provided free transportation of livestock. The Packers and Stockyards Administration considers this an unfair and unjustly discriminatory practice under sections 307 and 312(a) of the Act.
'Enclosed is a copy of the Packers and Stockyards Act. The relevant sections can be found on pages 14 and 18. We trust you will take immediate steps to bring your operation into compliance. If you have any questions, please contact this office.'
. . . .
"34. In an interview of Mr. and Mrs. Bergstrom by Packers and Stockyards Administration investigator Rob Merritt, in connection with the 1991 investigation, the following discussion occurred on February 15, 1991:
'Merritt advised the Bergstroms that part of the reason we conducted an investigation of Farmers Livestock was because we received a complaint that they were offering free trucking to some of their consignors. Bergstrom responded with "I'm not saying I am and I'm not saying I'm not, but, free trucking is a part of doing business in this country." Bergstrom further stated that he knew of a lot of people that were offering free trucking in the area as competition is very high and this is one way to attract business.'
. . . .
"35. This statement by Mr. Bergstrom was specifically considered by Mr. Noah prior to filing suit, and was even paperclipped in his notebook as reflective of Mr. Bergstrom's attitude in violating the law. . . .
"36. The Packers and Stockyards Administration's 1991 report also reflected that trucking was not deducted from the proceeds paid to Eickman, Inc., by FLCC. Mr. Eickman indicated that he hired a trucking firm and paid the trucking directly, but the Packers and Stockyards Administration's report does not reflect that Packers and Stockyards Administration investigators ever sought, or obtained, proof of any such payment. . . .
"37. Packers and Stockyards Administration investigators also did a review of C & C Trucklines' books and records examining transactions where C & C Trucklines hauled cattle to Farmers Livestock for the period from October 17, 1991 through February 27, 1992. No explanation is provided in the Packers and Stockyards Administration's report as to why a longer time period was not examined. Within the time period examined, however, the Dean Anderson transaction was documented as reflecting the illegal payment of free trucking. . . .
"38. Although Packers and Stockyards Administration also examined records pertinent to Gene Heyka in their 1991 investigation, the Packers and Stockyards Administration's investigators' report does not reflect that Mr. Heyka was ever contacted by Packers and Stockyards Administration investigators, and neither was any payment of free trucking to Mr. Heyka documented in this investigation. . . .
"39. In August of 1991, Dr. McCartney contacted numerous elected officials requesting their assistance in obtaining further investigation by the Packers and Stockyards Administration, or potentially the Kansas Livestock Commission, of FLCC's activities. . . .
"40. Mr. Noah's initial involvement with Dr. McCartney's claims in the underlying litigation came in October of 1991 when he was approached by Dr. McCartney with a request that he assist him in obtaining access to the books and records of the FLCC parties to definitively establish what he believed to be a pattern of illegal activity, and bring the activity to an end, through a lawsuit for damages and injunction, if necessary. . . .
"41. The first information relayed to Mr. Noah from Dr. McCartney was that he [McCartney] had noticed FLCC's sale barn was drawing consignors from various locations that were much closer to other sale barns. . . .
"42. Prior to the filing of suit, Dr. McCartney told Mr. Noah many people were telling him it was no secret that FLCC was in fact giving illegal inducements to consignors. . . .
"43. Mr. Noah thereafter obtained from Dr. McCartney a list of consignors Dr. McCartney thought could have had some illegal inducements. . . .
"44. Dr. McCartney also informed Mr. Noah he had heard Mr. Dreesen had stated that free trucking and illegal inducements were buried so deep in the books of FLCC that it could never be found by the Packers and Stockyards Administration. . . .
"45. Mr. Noah was informed, shortly after Dr. McCartney retained his services, of the prior Packers and Stockyards Administration investigations . . . . Thereafter, as an initial phase of his investigation, Mr. Noah requested and obtained, under the Freedom of Information Act, a copy of the Packers and Stockyards Administration's investigation. This information was provided to Mr. Noah by letter dated November 12, 1991, and contained the information confirming that the FLCC parties had in fact provided free trucking, and other information concerning the Packers and Stockyards Administration's investigation of the FLCC parties as has been outlined above. Mr. Noah reviewed this report at some length, and was aware of its contents prior to filing suit. . . .
"46. Prior to filing the lawsuit in the underlying litigation, Mr. Noah was aware Packers and Stockyards Administration had sent two cease and desist letters to FLCC informing it that it was unlawful to offer free trucking or other inducements. . . . Prior to filing suit, Mr. Noah was aware that back in 1985 FLCC admitted offering free trucking in violation of Packers and Stockyards Administration's rules. . . .
"47. Prior to filing suit, Mr. Noah was also informed by Dr. McCartney of the failed 1988 investigation by Packers and Stockyards Administration, and Packers and Stockyards Administration's subsequent acknowledgment that this investigation was inadequate. . . .
"48. Prior to filing suit, Mr. Noah was aware a load of cattle owned by a consignor named Eric Anderson was diverted from McCartney's sale barn to FLCC's sale barn after Mr. Anderson received free trucking and a guaranteed price. . . .
"49. In instances where Mr. Noah felt the Packers and Stockyards Administration investigation had been incomplete he followed up with personal contacts of farmers believed to have received free trucking from the FLCC parties, and through his additional investigation developed evidence that Gene Heyka and another consignor, Mr. Johnson, had been offered free trucking by Mr. Dreesen in return for bringing their cattle to the FLCC parties' sale barn. Mr. Heyka informed Mr. Noah that Mr. Heyka and Mr. Johnson received a check for the free trucking from the Bergstrom farm account. . . .
"50. Jim Levendofsky was present during Mr. Noah's conversations with Mr. Heyka which took place in January, 1992. . . .
"51. Mr. Levendofsky informed Mr. Noah at the time of the meeting 'that it was common knowledge that they [FLCC] were paying the trucking or whatever else it took to get loads of cattle when they had to.' Mr. Levendofsky further told Mr. Noah that 'there wasn't any secret about it.' . . .
"52. In further investigation of Dr. McCartney's claims prior to suit, Mr. Noah had discussions with Lyle Koenig and/or Steve Werner concerning FLCC's payment of trucking for farmers north of the Kansas line between Fairbury and Hebron, Nebraska, and thereby inducing farmers to bring their cattle to the FLCC sale barn rather than Mr. Werner's sale barn in Fairbury, Nebraska. . . .
"53. Prior to filing the underlying litigation, Steve Werner, the owner of the sale barn at Fairbury, Nebraska, and/or Mr. Koenig, his attorney, told Mr. Noah that Mr. Dreesen was offering potential consignors of livestock in the Fairbury, Nebraska area a deal whereby C & C Truckline would haul livestock to FLCC at free or reduced rate trucking. . . . From Mr. Werner, Mr. Noah further obtained information shortly after filing of suit in the underlying litigation that Robert Kuhn, Wilburn, Nebraska, John Levendofsky, Hebron, Nebraska, Dale Shinn and Jim Williams, and his sons, Russell and Mike Williams, from the Fairbury area had, in fact, been provided free trucking by the FLCC parties. . . . Jim Williams and his sons were prepared to testify on behalf of Dr. McCartney in the underlying litigation. . . . The information from Mr. Williams and his sons was verified at some point by Lyle Koenig who personally interviewed them. . . .
"54. Further, prior to filing suit, Mr. Noah had information that Brian Larson and his father had received free trucking, possibly a guaranteed price and a one dollar per head back. . . .
"55. Mr. Noah interviewed Brian Larson prior to filing suit. . . .
"56. Brian Larson did not deny he and his father had been paid free trucking, but rather '[h]e talked all the way around the subject and pawed the dirt and wouldn't look [Noah] in the eye.' . . .
"57. When Mr. Noah took the deposition of Brian Larson, in the underlying litigation, Brian '. . . did sheepishly admit that he had gotten a check for around [$]400' from the FLCC parties for trucking. . . .
"58. Mr. Noah provided Packers and Stockyards Administration investigators with specific information concerning the Gene Heyka transaction in January of 1992, but they were unable to document the transaction. . . . This created significant concern on the part of Mr. Noah as to the thoroughness of the Packers and Stockyards Administration's investigation. . . .
"59. In February of 1992, Mr. Noah and Dr. McCartney were informed by Packers and Stockyards Administration that Packers and Stockyards Administration did not intend to continue their investigation at that time, and based upon their investigation at that point did not believe FLCC was continuing to pay trucking for customers. When confronted with the Heyka transaction, however, they were unable to explain why it had not been located. . . .
"60. Packers and Stockyards Administration's report of the January, 1992 investigation reflects that there was further investigation to be done with regard to contracting truckers, and consignors, but Packers and Stockyards Administration chose not to do this further investigation. . . .
"61. Further, prior to suit, Ben Grosse, a farmer at Jamestown, Kansas, with a large cattle interest, informed Mr. Noah prior to the time suit was filed that he had also heard that free trucking was going on at FLCC. . . .
"62. Marvin Bergstrom has never considered the payment of free or below cost trucking to consignors of a public auction a legal way to attract business. . . .
"63. In the instances in which Marvin Bergstrom gave free or reduced price trucking he probably gave this inducement with regard to large numbers of cattle as an incentive for the farmer to sell those cattle through FLCC. As he testified in his deposition in the present case:
'Q. As best you recall on those occasions, how would it come about that you did give free or reduced-rate trucking?
'A. Probably in large numbers of livestock, you know, that were incentive to get the cattle.
'Q. Large numbers to the effect of doing two things; one, obviously, you charged a tariff per head?
'A. Right.
'Q. And the bigger the numbers, the more profit in doing it?
'A. That would be correct.
'Q. The second, it tends to bring in buyers?
'A. That is second, correct.
'Q. Buyers are terribly important to you?
'A. That is exactly right.
'Q. Hopefully the more buyers you have, it sort of snowballs and the more cattle you're going to get in?
'A. That is correct.'
. . . .
"64. As the underlying litigation progressed, Mr. Werner provided additional names of consignors who had been provided free trucking in his area. Mr. Noah had also obtained information that C & C Truckline was hauling hogs to the Farmland plant at Crete, Nebraska and on the way back, they would pick up cattle and haul them free of charge to the Washington Sale Barn. . . . Mr. Koenig was told at some point by John Levendofsky that he had, in fact, received free trucking from the FLCC parties, but he later changed his statement. Mr. Koenig related Mr. Levendofsky's statements concerning the payment of free trucking to Mr. Noah. . . .
"65. When Mr. Bergstrom was deposed in the underlying litigation it was his testimony that FLCC had only paid trucking '[o]ne or two or three times, that's right, to the best of [his] knowledge.' . . .
"66. When deposed in the present case, it was Mr. Bergstrom's testimony that FLCC had given a very limited number of free or, reduced rate trucking over the years, probably between 5 and 15 times. . . .
"67. Although both Mr. Bergstrom and Mr. Dreesen offered and provided free trucking to consignors of livestock to FLCC, no records were maintained by them, or FLCC, to indicate whether or not free trucking had been paid to any specific individual. . . .
"68. Prior to the filing of suit, Rex Woods, the Certified Public Accountant employed to examine FLCC's books, had examined the Packers and Stockyards Administration report, and told Mr. Noah that, if the books of FLCC were right, he would find every free trucking and inducement FLCC had given. . . .
"69. Prior to the filing of suit in the underlying litigation, it was Dr. McCartney's belief, based upon a review of his sales records, which he relayed to Mr. Noah, that the illegal activities of the FLCC parties were causing significant losses to him in his sale barn business, and could over time destroy his business. . . .
"70. Sales of livestock in the market area covered by FLCC and Stockman's Livestock for the years beginning July 1, 1984,