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 ofthe Fifth Judicial District, In and for the County ofJefferson, 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 ofthe Court.
,-rl Rick and Ellen Harne (Hames) appeal from the decision ofthe Fifth Judicial District Court, Jefferson County, resulting in a $7,000jury verdict in favor ofthe 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 andremand. Factual and Procedural Background ,-r2 In 1992, the Hames entered into a written contract with Deadmond for the construction ofa new home in Jefferson County. The contract provided that Deadmond would deliverpossession ofthe home to the Hames byAugust 24, 1992 and was contingent uponthe Hames' obtaining financing. The Hames obtained approval ofthe financing on July 8, 1992 and moved into their substantially complete home on Labor Day weekend. During construction and aftertakingpossession ofthe home, the Hames reported several defects in the construction ofthe home. For example, a glulam beam in the basement was misplaced,
a change inthe stairway design resultedin less headroomthanrequiredbythe building code,
a living room wall appeared bowed, and the basement flooded as a result ofthe foundation and drainage design. The Hames informed Deadmond ofthe problems and requested that he repairthe defects. Deadmond asserted at trial thatherespondedby ordering the repair of several oftheproblems. However, the Hames wereunsatisfied with the results and filed suit
2against Deadmond asserting negligent construction, unfair trade practice in violation ofthe MCPA, breach ofcontract, fraud, deceit and punitive damages. ,-r3 The matter proceeded to trial and after presenting four days oftestimony, counsel began closing arguments. Defense counsel opened his argument by discussing the MCPA. He characterized the statutory scheme as having been passedbythe Montana legislature to "getthe 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 Deadmondbecause Deadmond hadbuilt a house for his family fifteen years prior and did a goodjob. Plaintiffs' counsel objectedto defense counsel "testifying" and vouching for the veracity ofhis 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 Thejuryreturned a verdict in the amount of$7,000 in favor ofthe Hames as a result ofnegligent construction by Deadmond. Thejury, however, did not award damages under any ofthe remaining causes ofaction, including the MCPA. During post-trial motions, Deadmond requested an award ofattorney fees as a result ofhis successful defense ofthe MCPA cause of action. The District Court entered an amended judgment awarding

3Deadmond attorney fees in the amount of$II,255. The Hames appeal from the amended judgment and thejuryverdict. The Hames presenttwo issues on appeal: 1) Did the improper andprejudicial closing argumentbyDeadmond's counsel constitute reversible error? 2) Did the District Court err in awarding attorney fees to Deadmondpursuant 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 fairtrial. 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 assertthatthe comments madeby defense counsel during closing argument were so improper and prejudicial as to deprive them ofa fair trial. The Hames base their claim ofprejudice
on two arguments made by defense counsel.**~6** First, duringjury voir dire, defense counsel, in determining ifany ofthe potential jurors knew him, stated that he servedthree terms in the Montana House ofRepresentatives, 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 ofthe 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 passedbythe 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
4who 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 ofthe law. DEFENSE COUNSEL: I can argue the law, Your Honor. COURT: Yes, go ahead. Defense counsel then proceeded to tell thejury about an example he had heard ofwhere: people were coming through and they were telling elderly people that they were spraying some water coating on their roofs so theirroofs wouldn't leak. And they got up there, and they charged these people; and they sprayedjust untreated water on the roof. Okay? That's an example of scamming the consumer. . .. AndI wouldjusthate to see, ifnothing else happens in thejury room, I would hate to see Mr. Deadmond have to have that on his record, that he was convicted ofscamming consumers. The Hames assert thatthis portion ofthe closing argumentby defense counsel was improper andprejudicial not only as a mischaracterization ofthe law, but also because it was clothed in defense counsel's priorrepresentation that he served in the legislature thus lending more credence to his statement as to what the legislature intended.**~7** As further evidence ofthe prejudicial effect ofthese statements by defense counsel, thejury, after ithadbegun 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 onlyjury 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 mustbe substantial; it must not be outweighedby
5any 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 ofinjury that must result from an unfairtrade practice, it did not directly state what type ofpractice constitutes an unfair trade practice. Understandably, thejurywas 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 thejurors that they were required to rely on the instructions given and the court wouldnot instructthem further. Thejurywas thus left with defense counsel's "scammer and swindler" argument as the only thing approximating a layman's explanation.**~8** TheHames also argue thatdefense counsel obstructedtheirabilityto obtain a fair trial by improperly characterizing the MCPA as a criminal offense by stating that he would hate to see Deadmondhave it "onhis record, thathe was convicted ofscamming consumers." The Hames sought a civil remedy under the MCPA. While Deadmond, ifdetermined to be a violator ofthe act may have suffered civil penalties pursuant to § 30-14-142, MCA, or potential damage to his business, Deadmond would not "be convicted" orhave "arecord" as defense counsel implied.**~9** The second allegedprejudicial statementoccurredtowardthe endofdefense counsel's closing argument when the following statements were offered: DEFENSE COUNSEL: About 15 years ago I was a young attorney out oflaw school. I'dhung outmy shingle, and I went to work. And I didn't make very muchmoney. Andmy family was growing biggerthan mypractice was.

6PLAINTIFFS' COUNSEL: Objection, Your Honor. This is personal testimony not allowed in closing. He's about to verify the veracity ofMr. Deadmond. COURT: Oh, go ahead. DEFENSE COUNSEL: Thank you, YourHonor. And I needed a house. So I went down to a local builder to see ifhe couldbuild mejust a basic square house. Andhe gaveme aprice, 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. AndI've finished the basement, andmy 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 didbelow, 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 testifyingregardinghis own experience withhis client; however, the Montana Rules ofProfessional Conduct clearly forbid this type ofaction by an officer ofthe court unless the

7attorneyis acting as a witness. Rule 3.4, adopted to ensure fairness to the opposingparty and counsel, states: "A lawyer shall not ...in trial,
... assertpersonal knowledge offacts in issue except when testifying as a witness, or state apersonal opinion as to thejustness ofa cause, the credibility of a witness, the culpability of a civil litigant
. . . ." Rule 3.4, M.R.Prof.Conduct. 

### ,-r10 This Court has recognized the importance ofRule 3.4 in the context ofa 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 ofthejury, "the prosecutor's personal views inject into the case irrelevant and inadmissible matters or a fact not legally provedby the evidence, and add to the probative force ofthe testimony adduced at the trial the weight ofthe prosecutors' personal, professional, or official influence." Stringer, 897 P.2d at 1071-72. As a result, we warned, n[t]his Courthasbeenunequivocal inits admonitions toprosecutors to stop improper comment and we have made it clear that we will reverse a case where counsel invades the province ofthejury
...." Stringer, 897 P.2d at 1072. The same principles apply in the civil context when counsel, using the weight ofhis personal, professional, or official influence, improperly offers his opinion as to thejustness ofa cause or the credibility ofa witness, particularly when the witness is his own client. Defense counsel's arguments to thejuryin

8the present case violated the clearprohibition ofRule 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 whetherthe misconduct was curedby 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 bythe district courtpreventedany prejudice that may have resulted to the plaintiff. Gunnels, 633 P.2d at 1194. We further concluded that the misconduct ofdefense counsel did not rise to the level ofreversible 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 thejury not to considerthe improper arguments made by defense counsel. As a result, thejurywas 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:

910