No. 05-237 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 140

MURPHY HOMES, INC., a Montana Corporation, Plaintiff, Counter-Defendant and Respondent,

v. MARILYN MULLER and PATRICK ABERLE, Defendants, Counter-Claimants and Appellants.

APPEAL FROM: The District Court of the Fifth Judici al District, In and For the County of Jefferson, Cause No. DV 2002-10043, Honorable Loren Tucker, Presiding Judge

COUNSEL OF RECORD: For Appellant: Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana For Respondent: Gary L. Davis, Candace Payne, Luxan & Murfitt, PLLP, Helena, Montana

Submitted on Briefs: January 31, 2006 Decided: June 12, 2007 Filed:

__________________________________________ ClerkJustice James C. Nelson delivered the Opinion of the Court. ¶1 Patrick Aberle and Marilyn Muller, w ho are husband and wife (collectively “Aberle/Muller”), appeal a jury ve rdict in the District Court for the Fifth Judicial District, Jefferson County, awarding Murphy Homes, Inc. (Murphy Homes), damages, punitive damages, attorney’s fees and costs. The case involves a cost-plus contract wherein Murphy Homes agreed to do certain building and re modeling to Aberle/Muller’s

residence. We affirm. ¶2 Aberle/Muller present eleven issues for review, however, their brief is broken down into six main issues or contentions (a s Aberle/Muller refer to them) and more than 23 sub-issues. Such a “shotgun” approach serves no useful purpose and tends to obfuscate legitimate issues by pe ppering them with irrelevant asides. With difficulty we have disentangled Aberle/Muller’s morass of i ssues and have consolid ated them into the following seven issues: ¶3 1. Whether the District Court erred in denying Aberle/Muller’s First and Third Motions for Summary Judgment. ¶4 2. Whether the District Court erred in denying Aberle/M uller’s Motion for Judgment as a Matter of Law. ¶5 3. Whether the District Court erred in barring Aberle/Mulle r’s “foreseeability”

defense. ¶6 4. Whether the District Court erred in denying Aberle/M uller’s Motion to Continue and, instead, ordering a bifurcated trial.

2¶7 5. Whether the District Court erred in permitting the jury to view Aberle/Muller’s residence and in admitting othe r evidence of Aberle/Muller’s financial condition on the issue of liability. ¶8 6. Whether the District Court erred in refusing Aberle/Muller’s proposed jury

instructions. ¶9 7. Whether the District Court erred in denying Aberle/Muller’s post-trial motions. ¶10 In addition, Murphy Homes has asked for an award of attorney’s fees on appeal if we affirm the District Court’s Judgment. Factual and Procedural Background ¶11 Aberle/Muller hired Murphy Homes to remodel their existing home, construct a new building next to it, and c onnect the two, forming a U-shaped building to be used as Aberle/Muller’s personal residence. Murphy Homes originally es timated the work at $438,000.00, but as Murphy Homes’ President, John Murphy, and Aberle/Muller’s architect, Robert Karhu, both testified, ther e was no actual bidding and no fixed price was

established. ¶12 Aberle/Muller and Murphy Homes entere d into a cost-plus contract for the proposed construction. Under the contract, Aberle/Muller were to reimburse Murphy Homes for actual costs plus a contractor’s fee of 15% of the costs of material and labor as its compensation for managing the proj ect and overseeing the subcontractors. ¶13 Once the project commenced, Aberle/Muller ordered numerous changes to the architect’s original plans. Murphy Homes alleges that while the origin al plans called for minor remodeling of the existing structure, in the end, that structure was completely

3gutted and new electrical and plumbing systems were added, along with a new roof, new windows and new exterior siding. ¶14 Murphy Homes also alleges th at when costs on the project reached $638,000.00, it became concerned about the costs it was carryi ng and about the 15% co ntractor’s fee. Hence, Murphy Homes sent a bill to Aberle/Muller for $1 1,000.00 representing the 15% fee on the most recent construction draw. Mur phy Homes further alle ges that, besides the 15% contractor’s fee, Aberle/Muller s till owed Murp hy Homes $160,000.00 for construction costs already incurred and paid by Murphy Homes. ¶15 Aberle/Muller allege that there were no wr itten change orders or change directives adjusting the contract sum or the contra ct price which would have entitled Murphy Homes to more fees for change s in the work. They also allege that they paid Murphy Homes its entire fee and that when Murphy Homes realized that it had miscalculated its fee on the project, Murphy Homes made a claim for additional fees to be applied to the remainder of the project. ¶16 At a meeting on Septem ber 4, 2002, Aberle stated that he would not pay Murphy Homes any more money, consequently the re lationship ended. Aberle/Muller contend that when they refuse d to pay the additional fee, Murp hy Homes walked off the job and abandoned the project, leaving th em to find other contractors to finish the work. Murphy Homes contends, on the other hand, that it was, in effect, fired from the project when Aberle/Muller refused to pay the additional fee. ¶17 After the relationship ended, Aberle/Mu ller paid Murphy Homes the $160,000.00 for construction costs already incurred, but refused to pay the $ 11,000.00 contractor’s

4fee. On November 19, 2002 , Murphy Homes filed a Compla int seeking to foreclose on a construction lien it had filed ag ainst the property. Aberle/M uller counterclaimed alleging defective work, fraud, slander of title and other claims. ¶18 During a protracted and cont entious pretrial process, both parties filed numerous Motions to Compel and Motions for Sanctions which we need no t go into here. The trial commenced on January 26, 2004, with a six-pe rson jury and two alternates. The trial was originally scheduled for five days, however, as the trial got underway, it became apparent that five days was not sufficient, thus the District Court rearrange d its court calendar to provide two more days. Nevertheless, after seven days, Aberle/Muller had only begun to present their defense, hence, the District C ourt ordered that the tr ial resume at some unspecified time in the future when the court could find additional time in its busy

schedule. ¶19 After some difficulty in setting a date to re sume trial (the details of which will be addressed more specifically u nder Issue 4), trial resumed Au gust 9, 2004, and continued through August 12, 2004. The jury affirmatively responded to the question of whether Aberle/Muller had acted with fraud, deceit and malice towards Murphy Homes and they returned a unanimous verdict awarding Murp hy Homes $366,100.00 in damages. Shortly thereafter, a punitive damages hearing took pl ace wherein the jury unanimously awarded another $366,000. 00 in punitive damages to Murphy Homes. Th e total judgment against Aberle/Muller was $896, 494.62, which in cluded accrued interest, attorney’s fees and

costs.

5¶20 After trial, Aberle/Muller filed numerous post-trial motions in cluding a Motion to Amend Judgment, a Motion to Limit Punitive Damages, and Defendants’ Motion for Attorney’s Fees and Costs, all of which were denied by the District Court. ¶21 Aberle/Muller appeal the District Court’s Judgment. Additional facts are set forth where necessary to our re solution of the issues. Discussion ¶22 Before examining the issues, we note that rather than setting forth the procedural background of this case in their brief as required by M. R. App. P. 23(a)(3), Aberle/Muller included that information in an appendix to their brief. In response, Murphy Homes asks this Court to disregar d those eleven pages in Aberle/Muller’s appendix and strike th em from the record on appeal because they violate this Court’s limitations on the length of briefs to be filed in this Court. ¶23 Murphy Homes’ argument is well taken. By including in their appendix

information that should have been included in their brie f itself, Aberle/Muller not only violated M. R. App. P. 27(d), regarding the length of briefs allowed on appeal, but they violated M. R. App. P. 25(b), which sets forth what documents ma y be contained in an appendix to a brief. [A]n appendix shall contain: (1) the relevant docket entries in the proceeding below; (2) any relevant pl eading and relevant given or refused jury instruction, finding and opinion; (3) the judgment, order, findings of fact, conclusions of law, or decisi on in question, together with the memorandum opinion, if any, in support thereof; and (4) such other parts of the record as any party de ems it essential for the judges of the court to read in order to decide the issues presented.

6M. R. App. P. 25(b). A summa ry of a party’s view of the proceedings below is wholly inappropriate for including in an appendix to a brief on appeal. Consequently, we conclude that Aberle/Muller’s Appendix 7 consis ting of eleven page s and entitled “Detail of the District Court Proceedings” is appr opriately stricken from the record on appeal, and we have disregarded it. ¶24 We also note that Aberle/Muller have aske d this Court to adop t and incorporate by reference into their brief facts; citations to deposition and trial test imony; authorities; and argument contained in their numer ous filings before the District Court. This is also an attempt to circumvent this C ourt’s page limitations on briefi ng. To do as Aberle/Muller ask would in effect add another 200 pages to Aberle/Muller’s brief. M. R. App. P. 23(a)(4) “requires that an appellant pres ent a concise, cohesive argument which ‘contain[s] the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authori ties, statutes and pages of the record relied

on.”’ In re Marriage of McMahon , 2002 MT 198, ¶ 6, 311 Mont . 175, ¶ 6, 53 P.3d 1266, ¶ 6. ¶25 Aberle/Muller’s brief is neither concise nor cohesive, and it ha s been with great difficulty that this Court has slogged throu gh the quagmire of issues and contentions presented by Aberle/Muller on appeal. Neve rtheless, we have ma naged to drain the swamp sufficiently to reveal at the bottom, seven issues for review by this Court. Issue 1. ¶26 Whether the District Court erred in denying Aberle/Muller’s First and Third Motions for Summary Judgment.

7¶27 In its First Motion for Summa ry Judgment, Aberle/Muller argued that the facts are “uncontroverted” that the contract price had been paid in full because there were no written change orders or direc tives as required by the cont ract which would have entitled Murphy Homes to additional profit or overhear d. Similarly, in their Third Motion for Summary Judgment, Aberle/Mul ler argued that the facts ar e “uncontroverted” that the contract price has been paid in full becaus e Montana lien law proh ibits Murphy Homes’ claim as it constitutes a claim for profits and general overhead and no t for performance of services or the furnishing of materials. ¶28 In its response to Aberle/Muller’s Mo tions for Summary Judgment, Murphy Homes argued that the facts are not “uncontr overted.” Murphy Ho mes maintained that change orders come from the owner and the ar chitect, not the contract or, and the fact that there were no written change orders is irrelevant as change orders have little or no role in a cost-plus contract. Murphy Homes also argued that Ab erle/Muller’s so-called “profits and general overhead” were actually negotiated rates between the parties as confirmed by

the contract. ¶29 The District Court denied all four of Aberle/Muller’s Motions for Summary Judgment during a hearing held to discuss t hose motions on January 14, 2004. As to Aberle/Muller’s First and Th ird Motions for Summary Judgm ent, the court determined that there were material factual issues in dispute, thus summary judgment was not appropriate. ¶30 Summary judgment is proper only when no genuine issue of material fact exists and the moving part y is entitled to judgment as a matter of law. Watkins Trust v.

8Lacosta , 2004 MT 144, ¶ 16, 321 Mont . 432, ¶ 16, 92 P.3d 620, ¶ 16 (citing M. R. Civ. P. 56(c)). Our standard in reviewing a district court's summary judgm ent ruling is de novo. Watkins Trust, ¶ 16 (citing Johnson v. Barrett, 1999 MT 176, ¶ 9, 295 Mont. 254, ¶ 9, 983 P.2d 925, ¶ 9; Stutzman v. Safeco Ins. Co. of America , 284 Mont. 372, 376, 945 P.2d 32, 34 (1997)). We use the same M. R. Civ. P. 56 criteri a applied by the district court. Watkins Trust, ¶ 16 (citing Johnson, ¶ 9). Moreover, all re asonable inferences which may be drawn from the offered proof must be drawn in favor of the party opposing summary judgment. Watkins Trust , ¶ 16 (citing Johnson, ¶ 8; Schmidt v. Washington Contractors Group, 1998 MT 194, ¶ 7, 290 Mont. 276, ¶ 7, 964 P.2d 34, ¶ 7). If there is any doubt regarding the propriety of the su mmary judgment motion, it should be denied. 360 Ranch Corp. v. R & D Holding , 278 Mont. 487, 491, 9 26 P.2d 260, 262 (1996) (citing Whitehawk v. Clark , 238 Mont. 14, 18, 776 P.2d 484, 486-87 (1989)). ¶31 On appeal, Aberle/Muller argue that when the District Court ruled from the bench and denied their Motions for Summary Judg ment, the court erred because it did not discuss the law, a specific contract provision , or the testimony, and the court failed to specify what facts appeared w ithout substantial controversy. ¶32 In the Pretrial Order, Aberle/Muller listed 59 issues of disputed facts including: whether Murphy Homes was paid in full un der the contract; whether the additional compensation Murphy Homes s eeks amounts to nothing more than profit and general overhead and is beyond the expressed permis sible scope of Montana lien law; whether the figures Murphy Homes repo rted and applied fo r actual labor rates were accurate and/or permissible; whether Murphy Homes is entitled to claim a fee on any project

9changes not formalized throug h change orders or change directives as required by the contract; whether Murphy Homes was paid in full as described by the parties’ written contract; and whether Murphy Homes was overp aid under the parties’ written contract. Consequently, by their own representation, the facts relevant to Aber le/Muller’s First and Third Motions for Summary Judgment were not “uncontroverted,” and there were

material factual issues in di spute precluding summary judgment. ¶33 Accordingly, we hold that the Dist rict Court did not err in denying Aberle/Muller’s First and Third Mo tions for Summary Judgment. Issue 2. ¶34 Whether the District Court erred in deny ing Aberle/Muller’s Motion for Judgment as a Matter of Law. ¶35 On August 3, 2004, six days before trial was scheduled to resume in this matter, Aberle/Muller filed their 70-page-long Motion fo r Judgment as a Matter of Law. In their motion, they claimed that the evidence in Plaintiff’s case established eight critical facts which entitle Patrick Aberle and Marilyn Muller to judgment as a matter of law: a. Patrick Aberle is neither the record owner nor the contacting [sic] owner of the property. b. Murphy’s claim for equitabl e adjustment is for additional contractor’s fee, which consists solely of profit and general overhead. c. Murphy’s claim for equitable adjustment is not for the payment of unpaid costs of materials or services. d. Murphy’s claim is proactive in nature, and not retroactive

. Murphy requested additional contractor’s fee for the remainder of the project. e. Murphy has already been paid the entire contract price, including all costs of construction as well as its entire contractor’s fee. f. When Patrick Aberle and Marilyn Muller rejected Murphy’s request for additional contractor’s fee, Murphy walked off the job

10and abandoned the project without further discussion of costs or renegotiation of the contract. g. When Murphy aban doned the project, Murphy had been paid all amounts requested in each and every one of its draw requests, including all costs of construction and the entire contractor’s fee. h. After Murphy aban doned the project, Murphy did not do any further work. [Emphasis in original.] These eight “critical facts” were then broken down into 23 Motions for Judgment as a Matter of Law and numerous sub-issues. ¶36 On appeal, Aberle/Muller argue that the District Court erred in denying their Motion for Judgment as a Matter of Law as untimely because under M. R. Civ. P. 50(a)(2), such motions may be made at any time before submission of the case to the jury. While Aberle/Muller are co rrect in that regard, we note that a District Court has the power to provide for the orderly conduct of proceedings before it and to compel obedience to its judgments, orders, and process. Sections 3-1-111(3) and (4), MCA. ¶37 Because of the flurry of motions from both sides during th is litigation, the District Court issued an Order on July 28, 2004, that no further mo tions would be considered except upon leave of court after demonstration of good cause. After Aberle/Muller filed their Motion for Judgment as a Matter of Law, the District Court concluded that the motion was untimely both by reference to th e court’s scheduling order which required that all pretrial motions were due on or before November 7, 2003, and by th e court’s July 28, 2004 Order prohibiting the filing of motions unless good cause had been

demonstrated. ¶38 Furthermore, the District Court did not de ny Aberle/Muller’s mo tion simply on the basis of timeliness. In denyi ng Aberle/Muller’s motion, the District Court stated that a

11variety of the legal issues presented in the motion had been considered before and denied,

and other claims for relief de manded by Aberle/Muller invo lved hotly disputed fact issues which the ju ry must resolve. ¶39 We review a district court’s order grantin g or denying a motion for judgment as a matter of law as a legal question for which the de novo or plenary standard of review is appropriate. Johnson v. Costco Wholesale , 2007 MT 43, ¶ 18, 336 Mont. 105, ¶ 18, 152 P.3d 727, ¶ 18. Judgment as a matter of law is properly granted on ly when there is a complete absence of any evidence which woul d justify submitting an issue to a jury and all such evidence and any leg itimate inferences that might be drawn therefrom must be considered in the light most favorabl e to the party oppo sing the motion. Johnson , ¶ 13 (citations omitted). Judgment as a matter of la w is not proper if reasonable persons could differ regarding conclusions that c ould be drawn from the evidence. Johnson , ¶ 13 (citing Kearney v. KXLF Communications, Inc. , 263 Mont. 407, 417, 869 P.2d 772, 777- 78 (1994)). Moreover, as we explained in Johnson , courts should exercise the greatest self-restraint in interfering with the constitutionally mand ated processes of a jury

decision. Johnson , ¶ 13 (citing Ryan v. City of Bozeman , 279 Mont. 507, 510, 928 P.2d 228, 230 (1996)). ¶40 In reviewing the evidence in a light most favorable to Murphy as we are constrained to do, Johnson , ¶ 13, we conclude that reasona ble persons could differ as to the conclusions that could be drawn from the evidence. Accordingly, we hold that the District Court did not err in denying Aberle /Muller’s Motion for Judgment as a Matter of

Law.

12Issue 3. ¶41 Whether the District Court erred in barring Aberle/Muller’s “foreseeability” defense. ¶42 After Aberle/Muller consumed several hour s of trial time with questions about foreseeability, the District Court determined that that doctrine had no place in the lawsuit and ordered Aberle/Muller’s counsel to discont inue asserting it. The court ruled on the basis that foreseeability had no t been pled as “foreseeability for purposes of trying to determine the size of a particular construction contract is not the same as foreseeability from the standpoint of causal relationship in a negligence claim.” ¶43 On appeal, Aberle/Muller contend that they did plead foreseeability. They

maintain that in one of thei r affirmative defenses they argued that if Murphy Homes suffered damages, such damages were the re sult of its own negligence. However, the words “foreseeable” and “for eseeability” do not appear in any of Aberle/Muller’s pleadings or anywhere in the Pretrial Orde r. Murphy Homes mainta ins, and we agree, that the fundamental flaw in Aberle/Muller’s argument is the attempt to apply foreseeability as an el ement of tort law to a constructi on project governed by contract. Aberle/Muller are mixing inconsistent legal doctrines in their argument. ¶44 This Court has repeatedly he ld that contentions not incl uded in the pretrial order may not be presented at trial. Zimmerman v. Robertson , 259 Mont. 105, 111-12, 854 P.2d 338, 342 (1993). M. R. Civ. P. 16(e) provides that a pretrial order controls the subsequent course of the action unless modified by a subsequent order. The purpose of pretrial orders is to prevent surprise, simp lify the issues and permit counsel to prepare

13their case for trial on the basis of the pretrial order. Zimmerman , 259 Mont. at 111, 854 P.2d at 342 (citing Workman v. McIntyre Const. Co. , 190 Mont. 5, 617 P.2d 1281 (1980)). Permitting the introduc tion of issues first raised during trial would undermine the purposes pretrial orders are intended to serve. ¶45 We conclude in this case that Aber le/Muller did not sufficiently raise the foreseeability issue—even assuming it has any place in this case—prior to trial in either their pleadings or the Pretrial Order. Accordingly, we hold th at the District Court did not err in barring Aberle/Muller’s “foreseeability” defense. Issue 4. ¶46 Whether the District Court erred in deny ing Aberle/Muller’s Motion to Continue and, instead, ordering a bifurcated trial. ¶47 The parties had originally estim ated that they would need fi ve days for trial in this matter. However, as discovery progressed and more issues and witnesses were added, the parties requested additional time to try the case. The District Court determined that it did not have available on its calendar the two-week period the parties re quested for trial until February 2005, more than a ye ar away. Consequently, the court decided to bifurcate the trial on the basis that it would be unfair to require Murphy Homes to wait an additional year to try their case. ¶48 Aberle/Muller objected, but their Motion to Continue was denied by the District Court. On January 21, 2004, Aberle/Muller filed an Appli cation for Writ of Supervisory Control or Other Appropriate Relief with th is Court (Supreme Court Cause No. 04-053) wherein they sought an order requiring the Dist rict Court to reset the trial to a time when

14the case could be tried to final verdict at one time, without bifurca tion or interruption. We denied Aberle/Muller’s application and the case proceeded to trial on January 26,

2004. ¶49 After five days, Murphy Homes had not co mpleted its case in chief, consequently, the District Court rearranged its court calenda r to provide two more days for trial. Nevertheless, when, after seven days, Aber le/Muller had only begun to present their defense, the District Court ordered that the trial resume at an unspecified time in the future. The court warned that it could be as much as six months before the court found an opening in its busy trial schedule and it ordered the partie s to provide the court with a list of dates that they were not available. ¶50 One month after the first portion of the tria l in this case concluded, the District Court found it had time in its calendar to resu me the trial as another case had settled. Thus, on March 2, 2004, the District Court ordered that trial resume on March 9, 2004. Aberle/Muller objected and on March 5, 2004 , they filed an Emergency Petition for Writ of Supervisory Control or Other Appropriat e Relief with this Co urt (Supreme Court Cause No. 04-148) wherein they requested that this Court order the District Court to vacate the trial dates set for March 9, 10, and 12, 2004, and to continue the trial to a date that provides at least thirty days notice to counsel and the parties. ¶51 We granted Aberle/Muller’s petition and or dered the District Court to provide counsel with a minimum of thir ty days notice of new continua tion dates. In response to this Court’s Order, the District Court filed a Memorandum with this Court explaining the problems it had encountered with scheduling a tr ial date in this case. The District Court

15also noted that it is not always possible to know thirty days in advance if another case will settle and thereby free up some days on the court’s calendar allowing the court to

resume trial in this case. ¶52 On March 26, 2004, the District Court reset trial to April 27, 20 04, but once again, Aberle/Muller objected contending that that date conflicted with a trial in federal court in which counsel was involved. The District Court again vacated trial and imposed sanctions against Aberle/Muller’s counsel for failing to keep the court informed of his availability. The court reset trial for August 9, 10 and 11, 2004, noting that if other earlier dates became available with at least thir ty days notice, the c ourt would order trial

to commence then. ¶53 On July 15, 2004, the Dist rict Court applied to this Court for relief from our March 5, 2004 Order requiring th e District Court to give thir ty days notice to the parties

before trial recommenced in this case. The court noted that “[e]fficient administration of the District Court calendar and a ny hope of concluding the trial of this case requires that discretion be vested in the District Court to schedule all cases fo r trial, including this one.” Hence, the court requested that we amend our Order to require that it provide “reasonable notice” to the parties. ¶54 Recognizing that the District Court had made every attempt to comply with our March 5, 2004 Order and to accommodate Aberle/Muller, but without success, we amended our Order on July 27, 2004, to requir e that the District Court provide reasonable notice to the parties for all purposes after August 9, 2004.

16¶55 Aberle/Muller now argue on a ppeal that the delay in the resumption of the trial in this case worked to their disadvantage because Murphy Homes’ case remained unrebutted for months and cemented Murphy Homes’ case in the juror’s minds. However, contrary to Aberle/Muller’s opinion, it is just as likely that the jurors forgot key aspects of Murphy Homes’ case in the interim thereby putting Murphy Homes at a disadvantage. Moreover, part of the fault fo r the delay in resuming this case lies with Aberle/Muller and their counsel as the facts set forth above demonstrate. ¶56 Nevertheless, this Court already deci ded the issue of the correctness of a bifurcated trial when we de nied Aberle/Muller’s Applica tion for Writ of Supervisory Control or Other Appropriate Relief (Supreme Court Cause No. 04-053) in January 2004. Under the law of the case doctrine, a prior decision of this Court resolving an issue between the same parties is bi nding and may not be relitigated. Muri v. Frank , 2003 MT 316, ¶ 11, 318 Mont. 269, ¶ 11, 80 P.3d 77, ¶ 11. This doctri ne “expresses the practice of courts generally to refuse to re open what has been decided.” Scott v. Scott , 283 Mont. 169, 175, 939 P.2d 9 98, 1001 (1997) (quoting Fiscus v. Beartooth Elec. Cooperative,

Inc. , 180 Mont. 434, 436, 59 1 P.2d 196, 197 (1979); s ee also State v. Van Dyken , 242 Mont. 415, 791 P. 2d 1350 (1990), cert. denied , 498 U.S. 920, 111 S. Ct. 297 (1990) (this Court’s earlier decision rendered in response to defendant’s application for writ of supervisory control addressing the issue of fa ilure to poll the jury before declaring a mistrial, remained binding a nd could not be relitigated under the law of the case doctrine)).

17¶57 Accordingly, we hold th at the issue of whether the District Court erred in bifurcating the trial in this matter has already been decided by this Court and may not be relitigated. Issue 5. ¶58 Whether the District Court erred in perm itting the jury to view Aberle/Muller’s residence and in admitting other evidence of Aberle/Muller’s finan cial condition on the issue of liability. ¶59 Several months prior to tria l, Murphy Homes moved the co urt to allow the jury to view the residence in question. Murphy Homes explained that because Aberle/Muller were alleging numerous construc tion defects, such a tour would enhance the ability of the jurors to understand the areas of the house in volved and to see the specific features in dispute. At first, Aberle/Muller did not obje ct to the motion for th e tour, but they later argued and now argue on appeal, that the so le purpose of the tour was to see their affluence and to prejudi ce the jury against them. ¶60 The decision to permit or deny a jury view of the property in question is left to the

sound discretion of the trial court. McJunkin v. Kaufman & Broad Home Systems, 229 Mont. 432, 446, 748 P. 2d 910, 919 (1987); see also McGinley v. Ole’s Country Stores,

Inc. , 241 Mont. 248, 250, 786 P.2d 1156, 1157 (1 990) (“It is in the discretion of district courts to permit jurors to view the physical locatio n under consideration.”). A district court abuses its discretion when it acts ar bitrarily, without employment of conscientious judgment, or in excess of th e bounds of reason resulting in substantial injustice. Whipps v. Kaufman , 2007 MT 66, ¶ 6, 336 Mont. 386, ¶ 6, 156 P.3d 11, ¶ 6 (citing Pumphrey v. Empire Lath and Plaster, 2006 MT 255, ¶ 9, 334 Mont. 102, ¶ 9, 144 P.3d 813, ¶ 9).

18¶61 Aberle/Muller offers only speculation that the tour of their home prejudiced the jury against them. Accordingl y, we hold that the District Court was acting within its discretion in allowing the ju ry to view the residence. ¶62 In addition, because both parties sought punitive damages, the District Court ordered that the parties file sworn financial statements disclosing their net worth. In response, Aberle/Muller filed a sworn statemen t showing a joint net worth of more than $665,000.00. Earlier, as part of discovery prior to trial, Murphy Homes had requested that Aberle/Muller produce any financial stat ements filed at a financial institution since January 1, 2000. Aberle/Muller responded th at they had not filed any such financial statements. However, during the six month recess in the trial, Murphy Homes obtained

authorization from the court to subpoena a loan file at Wells Fargo Bank of Helena in which the joint financial st atement of Aberle/Muller s howed their net worth at $4.6 million, almost $4 million more than indi cated on the sworn financial statement they had submitted to the court. Up on receipt of this informa tion, Murphy Homes moved for sanctions for discovery fraud in the form of vacating the trial; entering summary judgment for Murphy Homes; awarding Murphy Homes monetary damages of $134,000.00 plus interest; and dismissi ng all of Aberle/Muller’s counterclaims. ¶63 When trial resumed in this matter, the District Court allowed Murphy Homes to introduce Aberle/Muller’s inc onsistent financial statements and prevented Aberle/Muller from refuting that evidence. Ab erle/Muller asserts on appeal th at the District Court erred by admitting evidence of their fi nancial condition on the issue of liability. Aberle/Muller rely on § 27-1-221(7)(a), MCA, which provides in pertinent part: “Evidence regarding a

19defendant’s financial affairs, financial conditi on, and net worth is no t admissible in a trial to determine whether a defendant is liable for punitive damages.” ¶64 The court initially allowed evidence of Aberle/Muller’s financial condition to impeach statements made by Aberle/Mul ler during their direct testimony. “[ I]t is axiomatic that a witness may be cross-examined on any subjec t raised or fact stated on

direct examination.” Hando v. PPG Industries, Inc., 272 Mont. 146, 1 50, 900 P.2d 281, 283 (1995) (citing M. R. Evid. 611(b)(1); Tigh v. College Park Realty Co. , 149 Mont. 358, 364, 427 P.2d 57, 61 (1967)). ¶65 In this case, Aberle/Muller’s counsel had opened the door with questions about the financial impact of the lawsuit on Aberle/Mulle r. Aberle testified to the fact that Muller had to reduce her work schedule thereby losi ng a year’s salary. On cross examination, Murphy Homes’ counsel asked Aberle to qua ntify Muller’s loss of income and Aberle testified that the loss was $300,000.00, a “s ubstantial amount of money.” Counsel then referred to the Wells Fargo financial statem ents indicating that during the time in question, Muller’s income had actually increased. ¶66 The District Court allowed additiona l testimony regarding Aberle/Muller’s financial condition as a sanction for Aberle/Mu ller’s failure to comp ly with the court’s

order to file accurate financ ial statements and their failu re to provide Murphy Homes with the information it had requested during discovery. Our sta ndard of review of sanctions imposed under M. R. Civ. P. 37, is whether the district court abused its

discretion. Maloney v. Home and Investment Center, Inc. , 2000 MT 34, ¶ 27, 298 Mont.

20213, ¶ 27, 994 P.2d 1124, ¶ 27 (citing Carl Weissman & Sons v. D & L Thomas Corp., 1998 MT 213A, ¶ 53, 290 Mont. 43 3, ¶ 53, 963 P.2d 1263, ¶ 53). ¶67 “‘The purpose of discovery is to prom ote the ascertainment of truth and the ultimate disposition of the lawsuit in accor dance therewith. Disc overy fulfills this purpose by assuring the mutual knowledge of a ll relevant facts gathered by both parties which are essential to proper litigation.’” Richardson v. State , 2006 MT 43, ¶ 22, 331 Mont. 231, ¶ 22, 130 P.3d 634, ¶ 22 (quoting Massaro v. Dunham , 184 Mont. 400, 405, 603 P.2d 249, 252 (1979) (citing Hickman v. Taylor , 329 U.S. 495, 507, 67 S. Ct. 385, 392 (1947))). ¶68 “This Court has long taken a dim view of discovery abuses.” Dambrowski v. Champion Intern. Corp. , 2000 MT 149, ¶ 34, 300 Mont. 76, ¶ 34, 3 P.3d 617, ¶ 34. Our position is that dilatory abuse of discovery must no longer be dealt with leniently and that the transgressors of discovery abuses shoul d be punished rather than repeatedly encouraged to cooperate. Maloney , ¶ 34. Consequently, we regard with favor the imposition of sanctions for failure to comply w ith discovery. Richardson , ¶ 56 (citing Schuff v. A.T. Klemens & Son , 2000 MT 357, ¶ 71 , 303 Mont. 274, ¶ 71 , 16 P.3d 1002, ¶ 71; McKenzie v. Scheeler , 285 Mont. 500, 506, 949 P.2d 1168, 1172 (1997)). “When litigants use willful delay, evasive response, a nd disregard of court di scretion as part and parcel of their trial strategy, they must suffer the consequences.” Maloney , ¶ 34 (citing Owen v. F.A. Buttrey Co. , 192 Mont. 274, 280, 627 P.2d 1233, 1236 (19 81)). “‘It is, after all, a maxim of our rules of discovery th at the price for dishonesty must be made

21unbearable to thwart the inevitable temp tation that zealous ad vocacy inspires.’” Richardson , ¶ 56 (quoting Schuff , ¶ 71). ¶69 With that in mind, we gene rally defer to the decision of the trial court regarding sanctions for discovery abuses because the tr ial judge is in the best position to know “which parties callously disreg ard the rights of their oppone nts and other litigants seeking their day in court[] [and] is also in the best position to de termine which sanction is the most appropriate.” Dambrowski , ¶ 35 (quoting Smith v. Butte-Silver Bow County , 276 Mont. 329, 332, 916 P.2d 91, 93 (1996)). ¶70 Nevertheless, we find it incredible that Aberle/Muller now complain that the District Court permitted Murphy Homes to introduce Aberle/Mu ller’s inconsistent financial statements when it wa s Aberle/Muller who suggested that particular sanction for their discovery abuses. In “Defendant’s Br ief Re Discovery Sanctions” filed August 10, 2004, Aberle/Muller stated: Aberle/Muller are prepared to accept an appropriate, measured sanction, but suggest that sanction be limited to allowing Murphy Homes to raise Mr. Aberle’s inconsistent statements regarding the financial statements— testimony that would otherwise be permissible only in a punitive damages hearing following a verdict—togeth er with a monetary sanction. Aberle/Muller further stated: The facts do not support granting Murphy Homes total victory for a discovery violation. A more caref ul response would be to punish Aberle/Muller by allowing Murphy Homes to use Aberle/Muller’s discovery error against th em. Murphy Homes could be allowed in their principal case to introduce otherwise impermissible evidence of financial statements to draw the jury’s attention to Aberle/Muller’s inconsistent statement. Obviously, Mu rphy Homes would then be allowed to argue that inconsistency to its advantage.

22¶71 Accordingly, we hold that the District Court did not err as Aberle/Muller’s

inconsistent financial statem ents came into evid ence as proper impeachment on crossexamination and as a sanction for Aberle/Muller’s discovery abuses. Issue 6. ¶72 Whether the District Court erred in re fusing Aberle/Muller’s proposed jury instructions. ¶73 Aberle/Muller argue that the District Court erred in refusing to give their proposed jury instructions that relied on cases from th e United States Court of Federal Claims. They maintain that these cas es were completely authorita tive and reliable as well as on point. Murphy Homes argues, on the other hand, that the Court of Federal Claims cases upon which Aberle/Muller relied for its proposed jury instru ctions principally involved fixed price, bid contracts, and have no relevance to the cost-plus contract in dispute here. ¶74 A district court has discretion regarding the instructions it gives or refuses to give to a jury and we will not reverse a district cour t on the basis of its in structions absent an

abuse of discretion. Williams v. Union Fide lity Life Ins. Co. , 2005 MT 273, ¶ 46, 329 Mont. 158, ¶ 46, 123 P.3d 213, ¶ 46 (citing Christofferson v. City of Great Falls, 2003 MT 189, ¶ 9, 316 Mont. 469, ¶ 9, 74 P.3d 1021, ¶ 9; Kiely Const., L.L.C. v. City of Red Lodge, 2002 MT 241, ¶ 62, 312 Mont. 52, ¶ 62, 57 P.3d 836, ¶ 62). In reviewing whether a particular jury instruction was properly given or refused, we consider the instruction in its entirety, as well as in connection with the other instructions given and with the evidence introduced at trial. Williams , ¶ 46. The party assigning error to a district court's

23instruction must show prejudice in order to prevail, and prej udice will not be found if the jury instructions in thei r entirety state the applicable law of the case. Williams , ¶ 46. ¶75 Aberle/Muller offered more than sixty propos ed jury instructions for the District Court’s consideration. The District Court adopted some of Aberle/Muller’s proposed instructions and refused some, and Aberle/M uller withdrew several of their proposed instructions because they were duplicative of instructions propos ed by Murphy Homes or instructions already adopted by the District Court. ¶76 In refusing Aberle/Muller’s proposed in structions based on authority from the Court of Federal Claims, the District Court de termined, first, that there was no assurance that Court of Federal Claims law was the law in Montana and, second , that most of these proposed instructions “verge on a jury argument that the jury ultimately will have to decide, having first determined what is the agreement between the parties.” ¶77 On appeal, Aberle/Muller failed to show how its proposed instructions were relevant to the fact issues before the jury, how the exclusion of those proposed instructions was prejudicial, or how Court of Federal Claims’ decisions are binding on this Court. Furthermore, after a review of all of th e jury instructions given by the District Court in this case, we conclude that the jury instructions did state the applicable law of

the case. Williams , ¶ 46. ¶78 Accordingly, we hold that the Dist rict Court did not err in refusing Aberle/Muller’s proposed jury instructions that relied on decisions from the Court of Federal Claims.

Issue 7.

24¶79 Whether the District Court erred in de nying Aberle/Muller’ s post-trial motions. ¶80 Aberle/Muller filed numerous post-trial mo tions, however, they appeal the District Court’s denial of only three of those motions: (1) Motion to Amend Judgment; (2) Motion to Limit Punitive Damages Award; and (3) Defendants’ Motion for Attorney’s Fees and Costs. Motion to Amend Judgment ¶81 Aberle/Muller contend on appeal that the District Court erred as a matter of law when it denied their Motion to Amend Judgment and thus did not rule that the “Prompt Payment Act” 1 does not apply to this case. In th eir brief on appeal, Aberle/Muller fail to demonstrate why the “Prompt Payment Act” doe s not apply here, nor do they cite to any authority in support of this contention. ¶82 M. R. App. P. 23(a)(4) provides that “[t] he argument shall contain the contentions of the appellant with respect to the issues presented, and the re asons therefor, with citations to the authorities, statutes and pa ges of the record relied on.” We have repeatedly held that “‘we will not consider unsupported issues or arguments’ since ‘this Court is under no obligation to locate authorities or formulate arguments for a party in support of positions ta ken on appeal.’” Leichtfuss v. Dabney , 2005 MT 271, ¶ 37 n.8, 329 Mont. 129, ¶ 37 n.8, 122 P.3d 1220, ¶ 37 n.8 (quoting In re Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 17 5, ¶ 6, 53 P.3d 1266, ¶ 6).

1 The “Prompt Payment Act,” as referred to by the parties, is found at Title 28, Chapter 2, Part 21, MCA, and is actually entitled “Payment of Co nstruction Contractors and Subcontractors.” Among other things, this act provides for interest of 11⁄2% a month on any unpaid balance unde r a construction contract. Section 28-2-2104, MCA.

25¶83 Counsel’s assertion that error was committe d is insufficient, consequently, we will not consider Aberle/Muller’s argument on this issue. Motion to Limit Punitive Damages Award ¶84 Aberle/Muller contend on appeal that the Di strict Court erred when it did not limit the punitive damages to the statutory lim it provided in § 27-1-220(3), MCA, which provides that “[a]n award for punitive dama ges may not exceed $10 million or 3% of a defendant’s net worth, whichever is less.” ¶85 The Montana Legislature amended § 27-1-2 20, MCA, in 2003 to include the 3% limitation on punitive damages. The Compiler’s Comments to this statute indicate that this amendment was effective October 1, 2003. All of the relevant events in this case, including the actions of the parties leading up to the meeting of September 4, 2002; the filing of the construction lien; and the subsequent filing of this lawsuit, took place before October 1, 2003. “No law cont ained in any of the statutes of Montana is retroactive unless expressly so declared.” Section 1-2- 109, MCA. Consequently, we hold that the statutory limitation in § 27-1-220(3), MC A, does not apply to this case. See Seltzer v.

Morton , 2007 MT 62, ¶¶ 121-26, 336 Mont. 22 5, ¶¶ 121-26, 154 P.3d 561, ¶¶ 121-26 (3% cap on punitive damages in § 27-1-220(3), MCA, held not applicable because cause of action accrued before effective date of statute). Defendants’ Motion for A ttorney’s Fees and Costs ¶86 Aberle/Muller contend on appeal that th e District Court e rred when it did not award costs and attorney’s fees to Aberle for Mu rphy Homes’ failure to prevail on its construction lien. Aberle/Muller rely on § 71-3-124, MCA, for their contention.

26¶87 Beyond their citation to § 71-3-124, MCA, Aberle/Mu ller fail to provide any argument in their brief explaining how they be lieve Aberle prevailed on the issue of the construction lien thereby entitling him to attorn ey’s fees and costs. Once again we note that “this Court is under no obligation to loca te authorities or formulate arguments for a party in support of positi ons taken on appeal.” Leichtfuss, ¶ 37 n.8. Aberle/Muller’s argument on this issue is not only unpersuasive, it is nonexistent. ¶88 Accordingly, we hold that the Dist rict Court did not err in denying Aberle/Muller’s post trial motions. Murphy Homes’ Request for Attorney’s Fees on Appeal. ¶89 Murphy Homes requests that it be awarded a ttorney’s fees on appeal if we affirm the District Court. This Court may impose sanctions against a party for filing a frivolous appeal pursuant to M. R. App. P. 32, which provides as follows: Damages for appeal without merit. If the supreme court is satisfied from the record and the presen tation of the appeal in a civil case that the same was taken without subs tantial or reasonable grounds, such damages may be assessed on determination thereof as under the circumstances are deemed proper. ¶90 As a general rule, we will not impose sanc tions pursuant to M. R. App. P. 32, unless the appeal is entirely unfounded and in tended to cause delay or unless counsel’s actions otherwise constitute an a buse of the judicial system. Lee v. Lee , 2000 MT 67, ¶ 66, 299 Mont. 78, ¶ 66, 996 P.2d 389, ¶ 66 (citing In re Marriage of Moss , 1999 MT 62, ¶ 41, 293 Mont. 500, ¶ 41, 977 P.2d 322, ¶ 41). ¶91 As we noted throughout this Opinion, Ab erle/Muller made numerous errors in filing their brief on appeal. In an attempt to circumvent this Court’s page limitations,

27Aberle/Muller included informati on in an appendix to their br ief that should have been

included in the brief itself and they improperly asked this Court to adopt and incorporate by reference into their brief mo re than 200 pages of facts; c itations to deposition and trial testimony; authorities; and argument containe d in their numerous filings before the District Court. In addition, their brief wa s convoluted and confusing as their list of eleven issues did not correspon d in any meaningful way to th e more than 29 contentions they set forth in the argument portion of their brief. Furthe r, their brief is dominated by bald declarations of error by the District Court with little or no substantiation. ¶92 As noted previously in this Opinion, M. R. App. P. 23(a)(4) “requires that an appellant present a concise, cohesive argumen t which ‘contain[s] the contentions of the appellant with respect to the issues presented, and the reasons therefore, with citations to the authorities, statut es and pages of the record relied on.’” McMahon , ¶ 6. Many of the errors Aberle/Muller made on appeal could have been avoided had they attempted to weed out and substantiate legitimate issues rather than using a “s hotgun” approach to attempt to hit every conceivable issue, viab le or not, and then failing to support those issues with proper analysis and legal authority. ¶93 We are satisfied from the reco rd and the presentation of the appeal in this matter that Aberle/Muller proceeded here without respect for the integrity of the judicial process, and did so without sufficient reason able grounds. We therefore conclude that pursuant to M. R. App. P. 32, Murphy Homes’ request for attorney’s fees and costs in defending this appeal is appropriate.

28¶94 The judgment of the District Court is a ffirmed and this matter is remanded to the District Court for the sole purpose of determin ing the attorney’s fees and costs associated with this appeal and the entr y of an award of those fees and costs in Murphy Homes’ favor.

/S/ JAMES C. NELSON

We Concur:

/S/ W. WILLIAM LEAPHART /S/ JOHN WARNER /S/ JIM RICE /S/ BRIAN MORRIS

29