No. 86-284 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

LARRY E. EVANS and E. JEAN EVANS, 

husband and wife, 

Plaintiffs and Appellants, 

-vsTEAKETTLE REALTY, a Montana corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

McGarvey, Lence & Heberling; Jon L. Heberling argued, 

Kalispell, Montana 

For Respondent : 

Murray, Kaufman, Vidal & Gordon; Daniel W. Hileman 

argued, Kalispell, Montana 

Submitted: March 19, 1987 

Decided: April 10, 1987 

Filed: 

A?"K "199-7 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiffs Mr. and Mrs. Evans obtained a jury verdict in 

Flathead County District Court against defendant Teakettle 

Realty (Teakettle) for negligence and violation of the Consumer Protection Act. The Evans appeal the District Court's 

reduction of their recovery by 50% for their own negligence, 

and the court's denial of costs and attorney fees. We affirm 

in part, reverse in part, and remand to the District Court. 

The issues are: 

1. Did the District Court err in applying the comparative negligence statute, 5 27-1-702, MCA, to reduce the 

Evans' recovery under the Montana Consumer Protection Act? 

2. Did the District Court err in denying costs to the 

Evans ? 

3. Did the District Court err in denying attorney fees 

to the Evans? 

No transcript was provided on this appeal. The facts 

set forth here are from the pleadings and other documents in 

the District Court file. The Evans purchased their home in 

August 1982, through Teakettle. In this action, the Evans 

alleged that they noticed a strong odor in the house in 

January 1984 and then discovered that the septic tank was 

illegally located under a trap door in the floor of the 

utility room. They further alleged that the septic tank had 

overflowed, that the ground under the house was saturated 

with wastes, and that the resulting odor and methane gas 

rendered the house uninhabitable. They complained that 

Teakettle negligently and in violation of the Montana Consumer Protection Act ( 30-14-101 through 142, MCA) failed to 

inform them of the dangerous and illegal location of the 

septic tank. 
This matter was tried by jury. In answer to special 

interrogatories, the jury found that Teakettle and the Evans 

were each negligent in causing the Evans' damages. The jury 

also found that Teakettle violated the Consumer Protection 

Act. It set the Evans' damages at $28,000 and apportioned 

the negligence 50% to the Evans and 50% to Teakettle. 

The Evans filed post-trial motions for costs and for 

attorney fees under the Consumer Protection Act. The District Court denied the Evans' motions for costs and fees, and 

reduced their recovery by 50% for their own negligence under 

the comparative negligence law. The Evans appeal these 

post-trial determinations. 

I 

Did the District Court err in applying the comparative 

negligence statute, 5 27-1-702, MCA, to reduce the Evans' 

recovery under the Montana Consumer Protection Act? 

The jury's answers to special interrogatories do not 

establish whether the $28,000 in damages awarded to the Evans 

were for Teakettle's negligence or for its violation of the 

Consumer Protection Act. The District Court ruled: 

In the special verdict presented to the jury in 

this case, damages attributable to negligence were 

not separated from damages attributable to a violation of the Consumer Protection Act. Thus, there 

is no method by which this Court may reduce the 

negligence portion of the award, but spare the 

Consumer Protection Act portion of the award. 

It is axiomatic that negligence awards are reduced 

by any negligence of the plaintiff. It is additionally clear that in this case, Plaintiffs were 

equally responsible for the damages suffered. A 

full award, unreduced by Plaintiffs' negligence, 

would be clearly contrary to statute, and fly in 

the face of accepted negligence theories. 
The Evans do not dispute application of the comparative 

negligence statute to the jury's finding that Teakettle was 

negligent. But they argue that their own simple negligence 

cannot be weighed against violation of the Consumer Protection Act, which they assert requires a greater level of 

wrongdoing. They contend that therefore the damages should 

not be reduced. 

The instructions given to the jury do not distinguish 

acts which constitute negligence from those which violate the 

Consumer Protection Act. Instruction No. 27 labels the 

realtor's failure to ascertain facts about the property and 

to disclose such facts to the potential buyers as a violation 

of the Consumer Protection Act. Instructions No. 24 and 25 

define the same failures to ascertain and disclose as negligence. Yet the instructions set the damages for violation of 

the Consumer Protection Act differently than the damages for 

negligence. Instruction No. 15 applies the principles of 

comparative negligence. Instruction No. 27 states that if 

Teakettle has violated the Consumer Protection Act, the Evans 

are "entitled to all actual damages caused thereby." Neither 

the Evans nor Teakettle has requested a new trial to remedy 

this apparent contradiction. It is not the Evans' hope to 

get a new trial, but to increase the damage award. 

The jury found violations of the Act as well as negligence on the part of Teakettle. The law as stated in the 

instructions does not allow us to separate Teakettle's actions in violation of the Consumer Protection Act from its 

actions which were negligent. We affirm the District Court's 

reduction of damages based on Instruction No. 15. 

I1 

Did the District Court err in denying costs to the 

Evans? 
The Evans argue that they are entitled to recover their 

costs under S 25-10-101 (3), MCA: 

Costs are allowed, of course, to the plaintiff upon 

a judgment in his favor in the following cases: 

(3) in an action for the recovery of money or 

damages, exclusive of interest, when plaintiff 

recovers over $50; 

Although its judgment for the Evans was in the amount of 

$14,000, the District Court originally denied their motion 

for costs. On the Evans' motion for reconsideration, however, the court acknowledged that it should have awarded costs. 

The Evans raise this matter on appeal only because the motion 

for reconsideration was decided after the notice of appeal 

was filed. We reverse the District Court's original judgment 

as to costs, and order that allowable costs under 

§ 25-10-201, MCA, be awarded to the Evans. 

Did the District Court err in denying attorney fees to 

the Evans? 

The Consumer Protection Act allows for attorney fees at 

§ 30-14-133 (3), MCA: 

In any action brought under this section, the court 

may award the prevailing party reasonable attorney 

fees incurred in prosecuting or defending the 

action. 

Under the verdict form used here, it is not possible to 

apportion the damages between the negligence count and the 

Consumer Protection Act count. The District Court reasoned 

that "[p] laintiffs were equally negligent in the events 

leading to their action, and it would be patently unfair to 
award them attorney fees in that situation." In the absence 

of a record on appeal, we cannot evaluate the District 

Court's basis for denying attorney fees. Under these circumstances, we will not interfere with the District Court's 

discretion in denying attorney fees to the Evans. 

Affirmed in part, reversed in part, and remanded to 

District Court for a determination of the costs to which the 

Evans are entitled. 

We Concur: - 4 

Chief Justice 

Justices 

277 A . I' ///d,?" 

Distribt'Judge M.-James Sorte 
Mr. Justice John C. Sheehy, dissenting: 

I dissent. In my opinion, the instructions given to the 

jury, as interpreted by the special verdict, are so confusing 

that it cannot be determined on what theory of recovery the 

jury based its verdict of damages. In that situation, a new 

trial is required. 

It cannot be determined from the instructions on the 

special verdict whether the jury intended that its verdict of 

$28,000 be reduced under comparative negligence, or whether 

it intended that figure to be the full compensation to the 

plaintiffs for a violation by Teakettle of the Montana 

Consumer Protection Act. 

Court's instruction no. 15 to the jury provided in 

pertinent part: 

If you find from all the evidence that the 

negligence of the plaintiffs was greater than that 

of a defendant or that of the combined negligence 

of all the defendants, then you are instructed that 

the plaintiffs are not entitled to recover damages 

for the injuries, and you shall return a verdict on 

the cause of action based on negligence for the 

defendants. 

If you find that the plaintiffs as well as one or 

more defendants were negligent and that the 

negligence of the defendant(s1 was equal to or 

greater than the negligence of the plaintiff, then 

the plaintiffs will be allowed to recover. 

If the plaintiffs are allowed to recover, the 

damages will be reduced by the court by the 

percentage of plaintiffs' negligence, if any. 

The duty of the real estate agent in selling realty to a 

buyer was described by the court in court's instruction no. 

21: 
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 affected or value or desirability 

of the property that such an investigation would 

reveal. 

And in court's instruction no. 25, the court said in 

part : 

A realtor has a duty "to disclose to a buyer a 

material fact regarding the condition of a parcel 

of real estate of which a licensee (realtor) has 

knowledge" . . . 

But, in instruction no. 27, the court definitely gave 

the impression to the jury that if they found a violation 

under the Montana Consumer Protection Act then the plaintiffs 

would recover the full amount of their damages. In pertinent 

part, the instruction said: 

. . . If you find that defendant Teakettle Realty 

failed to endeavor to ascertain all pertinent facts 

concerning the property, then this is a violation 

of public policy and an unfair act and practice 

under the Montana Consumer Protection Act, and the 

Evans' are entitled to all actual damages caused 

thereby. 

If you find that defendant Teakettle Realty failed 

to disclose to the Evans any material fact 

concerning the condition of the subject property, 

of which Teakettle Realty had knowledge, then this 

is a violation of public policy and an unfair act 

or practice under the Montana Consumer Protection 

Act, and that Evans' are entitled to all actual 

damages caused thereby. 

The readers' attention is invited now to the portion of 

the special verdict applying to Teakettle which was returned 

by the jury in the light of the foregoing instructions: 

Question 5: Was defendant Teakettle negligent? 

Yes X 
If your answer is "yes" now answer question 6 . . . 

Question 6: Was defendant Teakettle's negligence a 

legal cause of the damages to the plaintiffs? Yes 

Did defendant Teakettle violate the Consumer 

Protection Act? Yes X 

Question 8: If so was the violation a legal cause 

of damages for the plaintiffs? Yes X 

Question 9: Were the plaintiffs or either of them 

negligent? Yes X 

If your answer is "yes" answer question 10 . . . 

Question 10: Was the negligence of the plaintiffs 

a legal cause of damage to them? Yes X 

Now answer question 11. 

Question 11: What was the full amount of damages 

sustained by the plaintiffs? $28,000.00 

(Twenty-Eight Thousand Dollars) 

Question 12: Considering the negligence of the 

plaintiffs, if any, and the negligence of the 

defendants as totaling loo%, what percentage 

attributable to . . . 

Defendant Teakettle 50% 

Plaintiffs 50% 

Thus, under the instructions and the special verdicts 

which were submitted to the jurors, they found that the 

defendant Teakettle was liable to the Evans upon two theories 

of recovery, one for negligence, and the second for a 

violation of the Consumer Protection Act. 

What cannot be determined from the answers in the 

special verdict is whether the jury intended that the damages 

be apportioned under negligence, or not apportioned as the 

court instructed under the Consumer Protection Act. 
We are in no better a position than the District Court 

to determine what the jury meant in this case. On the other 

hand, the District Court is in no better position than we to 

determine their meaning. For that reason, I would require a 

new trial before a properly instructed jury. 

The majority opinion does not address the principal 

issue in this case, which is when the jury finds a violation 

of the Montana Consumer Protection Act, which violation is a 

legal cause of damages to the plaintiffs, are those damages 

subject to reduction on the theory of comparative negligence? 

This important question should be met by us in this case. 

After the jury verdict in this case, plaintiffs moved 

for treble damages for a violation of Montana Consumer 

Protection Act under S 30-14-133, MCA. The nistrict Court 

denied the motion for treble damages, and decided to reduce 

the damages found by the percentage of plaintiffs' negligence 

saying: 

The jury determined that plaintiffs suffered 

damages in the amount of $28,000.00. The jury was 

also instructed that any negligence of the 

plaintiffs must be determined and will offset or 

reduce a damage award. In 1980, the Montana 

Supreme Court addressed a similar situation in 

Kopischke v. First Continental Corporation 

Mont . , 610 P.2d 668 (1980), wherein plaintiffs 

damage award for injuries was reduced by 

plaintiffs' negligence. In that action, the 

plaintiff alleged that defendant violated the 

Consumer Protection Act. The Supreme Court held 

that it was a jury question whether a violation 

occurred. The Supreme Court affirmed the trial 

court on jury verdict, and upheld the reduction of 

damage awarded by plaintiffs negligence. 

In the case at bar, the jury determined that 

plaintiffs were 50% negligent. Under Montana ' s 

comparative negligent statute, S 27-1-702, MCA, the 

award must be reduced by 50%. - See Schwartz, 
Comparative Negligence, 5 3.5 (B) (1978 Supp. ) . Kopischke is controlling. 

The District Court misconstrued our holding in Kopischke 

but in fairness to the court, its decision in this case seems 

to have been grounded on the presence of negligence on all 

sides: 

An award of treble damages is at the discretion of 

the court, and normally imposed to reward a party, 

or to serve as a punishment or warning to others. 

In this case, negligence existed in all sides; 

plaintiffs were not without fault. The case at bar 

does not appear to be appropriate for treble 

damages. Plaintiffs' motion is denied. 

It is necessary for us to say, however, that the 

question whether damages found under a violation of the 

Consumer Protection Act can be reduced by comparative 

negligence has not been decided by this Court. In Kopischke, 

a violation of the Consumer Protection Act was not alleged in 

the plaintiff's complaint. See Kopischke, 610 P.2d 687. The 

question of the reduction of plaintiff's damages in Kopischke 

was not decided by this Court because the issue had not been 

preserved for appeal. We did not decide the issue, saying: 

Plaintiff raises as an issue on cross-appeal 

whether the jury's reduction of damages from 

$650,000 to $422,500 should be sustained. It 

appears that plaintiff made no objection at trial 

on this issue. Generally, we will not consider 

issues raised for the first time on appeal (citing 

a case). 

Kopischke, 610 P.2d at 689. 

It is therefore a matter of first impression to be 

decided by us in this case what should be the effect of 

negligence on the part of the consumer on the damages the 

consumer suffers through a violation of the Consumer 

Protection Act. I have an opinion as to how that question 

should be answered, and would answer it if this case were 
going back for retrial. In view of the affirmance of the 

judgment in the District Court by the majority in this case, 

I will refrain from useless discussion. 

Justice 

We concur i.n the foregoing d nt of Mr. Justice John C. 

Sheehy .