No. 97-341 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1998 MT 22 

RICK and ELLEN HARNE, 

Plaintiffs and Appellants, 

v. 

WENDELL DEADMOND d/b/a 

DEADMOND CONSTRUCTION, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

Filed: 

For Appellants: 

Jonathan Motl and Deborah Smith; Reynolds, MotI & Sherwood, 

Helena, Montana 

For Respondent: 

Kenneth H. Gray; Jackson & Rice, Helena, Montana 

Submitted on Briefs: January 22, 1998 

Decided: February 10, 1998 

C~rk 
Justice W. William Leaphart delivered the Opinion of the Court. 

,-rl Rick and Ellen Harne (Hames) appeal from the decision of the Fifth Judicial District 

Court, Jefferson County, resulting in a $7,000 jury verdict in favor of the Hames as a result 

of Deadmond Construction's (Deadmond's) negligent construction of their home and 

judgment awarding attorney fees in the amount of $11,255 to Deadmond pursuant to the 

Montana Consumer Protection Act (MCPA). We reverse and remand. 

Factual and Procedural Background 

,-r2 In 1992, the Hames entered into a written contract with Deadmond for the 

construction of a new home in Jefferson County. The contract provided that Deadmond 

would deliver possession of the home to the Hames by August 24, 1992 and was contingent 

upon the Hames' obtaining financing. The Hames obtained approval of the financing on July 

8, 1992 and moved into their substantially complete home on Labor Day weekend. During 

construction and after taking possession of the home, the Hames reported several defects in 

the construction of the home. For example, a glulam beam in the basement was misplaced, 

a change in the stairway design resulted in less headroom than required by the building code, 

a living room wall appeared bowed, and the basement flooded as a result of the foundation 

and drainage design. The Hames informed Deadmond of the problems and requested that 

he repair the defects. Deadmond asserted at trial that he responded by ordering the repair of 

several ofthe problems. However, the Hames were unsatisfied with the results and filed suit 

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against Deadmond asserting negligent construction, unfair trade practice in violation of the 

MCP A, breach of contract, fraud, deceit and punitive damages. 

,-r3 The matter proceeded to trial and after presenting four days of testimony, counsel 

began closing arguments. Defense counsel opened his argument by discussing the MCPA. 

He characterized the statutory scheme as having been passed by the Montana legislature to 

"get the scammers and the swindlers who are preying upon Montana consumers." Plaintiffs' 

counsel objected to this argument asserting that it was not an appropriate characterization of 

the law. The court overruled the objection. Defense counsel concluded his argument by 

asserting that he was representing Deadmond because Deadmond had built a house for his 

family fifteen years prior and did a good job. Plaintiffs' counsel objected to defense counsel 

"testifying" and vouching for the veracity of his client. The District Court overruled the 

objection, and defense counsel continued to relate his personal experience with Deadmond. 

After a few minutes, plaintiffs' counsel interrupted the argument again. This time the court 

instructed defense counsel that he had gone too far, that his time had expired, and that he 

must conclude his argument. 

,-r4 The jury returned a verdict in the amount of $7,000 in favor of the Hames as a result 

of negligent construction by Deadmond. The jury, however, did not award damages under 

any of the remaining causes of action, including the MCPA. During post-trial motions, 

Deadmond requested an award of attorney fees as a result of his successful defense of the 

MCP A cause of action. The District Court entered an amended judgment awarding 

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Deadmond attorney fees in the amount of$II,255. The Hames appeal from the amended 

judgment and the jury verdict. The Hames present two issues on appeal: 

1) Did the improper and prejudicial closing argument by Deadmond's counsel 

constitute reversible error? 

2) Did the District Court err in awarding attorney fees to Deadmond pursuant 

to the Montana Consumer Protection Act? 

We conclude that the first issue is dispositive and thus do not reach the second issue. 

Discussion 

~5 Improper argument reqUIres reversal only when prejudice has resulted which 

prevented a fair trial. Moralli v. Lake County (1992),255 Mont. 23, 32, 839 P.2d 1287, 1292 

(citing Gunnels v. Hoyt (1981), 194 Mont. 265, 276, 633 P.2d 1187, 1194). The Hames 

assert that the comments made by defense counsel during closing argument were so improper 

and prejudicial as to deprive them of a fair trial. The Hames base their claim of prejudice 

on two arguments made by defense counsel. 

~6 First, during jury voir dire, defense counsel, in determining if any of the potential 

jurors knew him, stated that he served three terms in the Montana House of Representatives, 

the third year in a leadership position. Defense counsel then was able to tie this legislative 

experience into his closing argument. He began his argument with a discussion of the 

Montana Consumer Protection Act. The following discussion took place: 

DEFENSE COUNSEL: Let me start by talking about the Consumer 

Protection Act. ... This is a law passed by the Montana legislature to get the 

scammers and the swindlers who are preying upon Montana consumers. 

Okay? It's passed to get the bait and switchers. It's passed to get those people 

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who are out preying on, on people and trying to get their business 

inappropriately. 

PLAINTIFFS' COUNSEL: Your Honor, that's not what the law says. So I 

would object on the basis that it's not an appropriate representation of the law. 

DEFENSE COUNSEL: I can argue the law, Your Honor. 

COURT: Yes, go ahead. 

Defense counsel then proceeded to tell the jury about an example he had heard of where: 

people were coming through and they were telling elderly people that they 

were spraying some water coating on their roofs so their roofs wouldn't leak. 

And they got up there, and they charged these people; and they sprayed just 

untreated water on the roof. Okay? That's an example of scamming the 

consumer. . .. And I would just hate to see, if nothing else happens in the jury 

room, I would hate to see Mr. Deadmond have to have that on his record, that 

he was convicted of scamming consumers. 

The Hames assert that this portion of the closing argument by defense counsel was improper 

and prejudicial not only as a mischaracterization of the law, but also because it was clothed 

in defense counsel's prior representation that he served in the legislature thus lending more 

credence to his statement as to what the legislature intended. 

~7 As further evidence of the prejudicial effect of these statements by defense counsel, 

the jury, after it had begun deliberations, sent a note to the court stating "[a]s to Instructions 

8,9, 13, and 14 [the MCPA instructions],we are uncertain what unfair trade practices entail. 

We need a layman's term answer." The only jury instruction which purported to define 

unfair trade practice was Instruction No.8. Instruction No.8 read as follows: 

You are instructed that, under the Montana Consumer Protection and Unfair 

Trade Practices Act, an unfair or deceptive trade practice occurs when the 

injury satisfies three tests: It must be substantial; it must not be outweighed by 

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any counterveiling [sic] benefits to consumers or competition that the practice 

produces; and it must be an injury that consumers themselves could not 

reasonably have avoided. 

Although Instruction No.8 addressed the type and scope of injury that must result from an 

unfair trade practice, it did not directly state what type of practice constitutes an unfair trade 

practice. Understandably, the jury was confused as to what exactly, in lay terms, constituted 

an unfair trade practice. Counsel could not agree on a clarification, so the District Court 

instructed the jurors that they were required to rely on the instructions given and the court 

would not instruct them further. The jury was thus left with defense counsel's "scammer and 

swindler" argument as the only thing approximating a layman's explanation. 

~8 The Hames also argue that defense counsel obstructed their ability to obtain a fair trial 

by improperly characterizing the MCP A as a criminal offense by stating that he would hate 

to see Deadmond have it "on his record, that he was convicted of scamming consumers." The 

Hames sought a civil remedy under the MCPA. While Deadmond, if determined to be a 

violator of the act may have suffered civil penalties pursuant to § 30-14-142, MCA, or 

potential damage to his business, Deadmond would not "be convicted" or have "a record" as 

defense counsel implied. 

~9 The second alleged prejudicial statement occurred toward the end of defense counsel's 

closing argument when the following statements were offered: 

DEFENSE COUNSEL: About 15 years ago I was a young attorney out of law 

school. I'd hung out my shingle, and I went to work. And I didn't make very 

much money. And my family was growing bigger than my practice was. 

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PLAINTIFFS' COUNSEL: Objection, Your Honor. This is personal 

testimony not allowed in closing. He's about to verify the veracity of Mr. 

Deadmond. 

COURT: Oh, go ahead. 

DEFENSE COUNSEL: Thank you, Your Honor. And I needed a house. So 

I went down to a local builder to see if he could build me just a basic square 

house. And he gave me a price, and it was too much, more than I could afford. 

Someone told me about Wendell Deadmond. And I looked up Wendell 

Deadmond and said, "Can you get me a house?" And he drew me a plan and 

a house that was affordable that I could get into. I'm still living in that house 

today. I've added onto it. And I've finished the basement, and my family's still 

growing. But I'm living in that house today 12 years later. I'm his attorney 

today because I was first his customer those many years ago. Did I have 

defects in the house? Yeah, I did. I called him up. He sent someone out on 

several times to address this problem and that problem and this problem --

PLAINTIFFS' COUNSEL: Your Honor --

DEFENSE COUNSEL: --and that problem. 

COURT: Yeah, I think you're going a little farther--

PLAINTIFFS' COUNSEL: -- it is testimony. 

COURT: And your time's up anyway. 

The Hames argue, as they did below, that defense counsel was improperly vouching for the 

credibility of his client by, in effect, "testifying" to the jury about his own favorable 

experience with Deadmond. This Court has not had occasion to examine the effect of 

counsel testifying regarding his own experience with his client; however, the Montana Rules 

of Professional Conduct clearly forbid this type of action by an officer of the court unless the 

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attorney is acting as a witness. Rule 3.4, adopted to ensure fairness to the opposing party and 

counsel, states: "A lawyer shall not ... in trial, ... assert personal knowledge offacts in issue 

except when testifying as a witness, or state a personal opinion as to the justness of a cause, 

the credibility of a witness, the culpability of a civil litigant . . . ." Rule 3.4, 

M.R.Prof.Conduct. 

,-r 10 This Court has recognized the importance of Rule 3.4 in the context of a criminal 

proceeding. In State v. Stringer (1995),271 Mont. 367, 897 P.2d 1063, we held that it is 

highly improper for the prosecutor to characterize either the defendant or witnesses as liars 

or offer personal opinions as to credibility. We recognized that when prosecutors make 

improper comments in the presence of the jury, "the prosecutor's personal views inject into 

the case irrelevant and inadmissible matters or a fact not legally proved by the evidence, and 

add to the probative force of the testimony adduced at the trial the weight of the prosecutors' 

personal, professional, or official influence." Stringer, 897 P .2d at 1071-72. As a result, we 

warned, n[t]his Court has been unequivocal in its admonitions to prosecutors to stop improper 

comment and we have made it clear that we will reverse a case where counsel invades the 

province of the jury .... " Stringer, 897 P .2d at 1072. The same principles apply in the civil 

context when counsel, using the weight of his personal, professional, or official influence, 

improperly offers his opinion as to the justness of a cause or the credibility of a witness, 

particularly when the witness is his own client. Defense counsel's arguments to the jury in 

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the present case violated the clear prohibition of Rule 3.4 and resulted in unfairness to the 

Hames. 

~11 Civil cases reviewing misconduct by counsel, including improper statements during 

closing argument, have focused on whether the misconduct was cured by an instruction from 

the court. In Gunnels v. Hoyt, defense counsel, during closing arguments, improperly 

alluded to evidence not in the record. We determined that the subsequent instructions given 

by the district court prevented any prejudice that may have resulted to the plaintiff. Gunnels, 

633 P.2d at 1194. We further concluded that the misconduct of defense counsel did not rise 

to the level of reversible error. Gunnels, 633 P.2d at 1195. Similarly, in Moralli, we held 

that misconduct by plaintiffs counsel was "sufficiently cured by the District Court's 

instruction regarding the comment." Moralli, 839 P.2d at 1293. In this case, however, the 

District Court did not admonish or otherwise instruct the jury not to consider the improper 

arguments made by defense counsel. As a result, the jury was left to consider the improper 

arguments. We conclude that the arguments made by defense counsel were improper, 

prejudicial, and constitute reversible error. Reversed and remanded for a new trial. 

We concur: 

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