No. 91-224 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

THOMAS and DENISE BAIRD, 

Plaintiffs and Respondents, 

-.TIE- - 

NORWEST BANK, 

Defendant and Appellant. 

LL . i SYlifL 

CLERK OF SUPREME COURl 

STATE OF MONTANA 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey M. Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry B. Cosgrove and Tom K. Hopgood argued, Dale E. 

Reagor, Luxan & Murfitt, Helena, Montana 

Pierre L. Bacheller, Pierre L. Bacheller, Inc., 

Billings, Montana 

For Respondent: 

Jonathan Motl argued, David K. W. Wilson, Jr., 

Reynolds, Motl, Sherwood & Wright, Helena, Montana 

For Amicus Curiae: 

George T. Bennett, Attorney at Law, Helena, Montana 

Submitted: June 6, 1992 

Decided: December 4. 1992 

Filed: 
Justice R. C. McDonough delivered the Opinion of the Court. 

Plaintiffs, Thomas and Denise Baird, brought this action to 

recover damages from Norwest Bank for accelerating payment and 

repossessing their truck and van upon a default under an 

installment note. The complaint sought damages based on breach of 

contract; breach of the covenant of good faith and fair dealing: 

breach of the Montana Unfair Trade Practices and Consumer 

Protection Act; fraud: and intentional infliction of emotional 

distress. The jury returned a verdict for the Bairds and awarded 

them $5,200 for violation of the Montana Consumer Protection Act: 

$6,600 for breach of contract obligations; $27,000 for fraud: and 

$81,000 in punitive damages. Norwest appeals. We affirm in part 

and reverse in part. 

The issues for our review are: 

1. Was there sufficient evidence to support the jury's 

verdict that Norwest Bank breached the contract? 

2. Was there sufficient evidence to support the jury's 

verdict that Norwest Bank committed fraud? 

3. Was there sufficient evidence to support the jury's award 

of emotional distress damages? 

4. Did the District Court err in allowing the Bairds' former 

attorney to testify as an expert witness? 

5. Does the Montana Unfair Trade Practices and Consumer 

Protection Act apply to consumer loans by banks? 

6. Did Norwest Bank waive the default provisions of the 

2 
installment note by accepting late payments? 

7. Should the Bairds be awarded attorney's fees on appeal? 

8. Did the District Court properly review the punitive 

damages award? 

Plaintiffs, Thomas and Denise Baird, were the owners of a 1975 

Dodge van and a 1979 4-wheel drive pickup truck. In early 1989, 

the front end of the truck failed and the Bairds borrowed $1,190.77 

from Norwest Bank (Norwest) and used the money to fix the front end 

of the truck. The truck was put up as a security for the loan. 

The first payment on this loan was paid on time. 

In April 1989, the engine on the truck failed and the Bairds 

borrowed additional money from Norwest to replace the truck engine. 

The second loan was for the amount of $2,904.81 and the money was 

used to repay the first Norwest loan and to purchase the new truck 

engine. Both the truck and the van were secured by a note and 

security agreement with monthly payments set at $140.68 beginning 

May 24, 1989. 

The first payment on the second loan was eleven days late. 

The second payment was twenty-two days late. The delinquent 

account was assigned to a Norwest employee collector named Sarah 

Mosure (Ms. Mosure) . When the third payment, due July 24th, became 

fifteen days overdue, Ms. Mosure initiated collection procedures on 

the Bairds' account. Shortly thereafter, Ms. Mosure telephoned Mr. 

Baird. 

The substance of that phone call was central to the issues 

decided by the jury. MS. Mosure maintained that Mr. Baird and she 

3 
agreed that the account would be brought up to date by September 

1st. The Bairds maintained that Ms. Mosure agreed to give them 

until September 15th to make the payment. MS. Mosure entered the 

September 1st date as the agreed date on the bank computer. 

On September 12, 1989, when no payment had been made, Norwest 

accelerated the note and repossessed the Bairds' van. Norwest 

maintained that the Bairds were advised that they could obtain 

possession of their van by paying the accelerated loan balance. On 

September 13, the Bairds attempted to make the July and August 

payments by depositing a check in the Norwest night deposit. 

Norwest returned those payments to the Bairds . The Bairds 

attempted to make timely September, October and November payments 

but those payments were also rejected by Norwest and were returned 

to them. On December 12, 1989, the pickup truck was also 

repossessed without notice to the Bairds. 

The Bairds brought this action against Norwest and the case 

was tried before a jury. The jury returned a verdict for the 

Bairds, specifically finding that Norwest had breached a contract 

with the Bairds, committed fraud, and violated the Montana Unfair 

Trade Practice and Consumer Protection Act of 1973 (CPA) . The jury 

awarded punitive damages. Norwest appeals the denial of its motion 

for directed verdict, the judgment entered on the jury verdict, and 

the denial of its motions for judgment NOV and new trial. 

I 

Was there sufficient evidence to support the jury's verdict 

that Norwest breached the contract? 

4 
The jury was instructed with regard to the breach of contract 

claim as follows: 

INSTRUCTION NO. 11 

The issues to be determined by you in this case are these: 

... 

[ D] id the Defendant breach its contractual obligations to 

Plaintiffs. If you find Defendant did not breach the 

contract, you will not consider the issue further. If, 

however, you find such a breach occurred you will have a 

second question to consider, namely: 

Was the breach the cause of any damage to 

Plaintiffs? 

will not consider the issue further. If your answer is "yes", you will have a third question to consider, 

namely: 

If your answer to this question was "no" YOU 

What actual damages arose from breach of the 

contract: (You may not award damages for emotional 

distress damages or punitive damages under this theory of 

recovery. You may not award damages already awarded 

under the Consumer Protection Act.) 

The jury concluded that Norwest breached the contract and awarded 

damages of $6,600 to the Bairds. 

Norwest contends there was a complete failure on the part of 

the Bairds to prove that Norwest agreed to give the Bairds until 

September 15th to bring their loan current. Bairds contend that 

Ms. Mosure had agreed to a payment date of September 15th. 

The testimony of both Mr. and Mrs. Baird established that they 

told Ms. Mosure, the collector for Norwest, that they could make 

the payment "after the 10th. Repossession took place on September 

12. The testimony of Mr. Poston, at one time the attorney for 

Bairds, supports the Bairds' contention that a September 15th date 

was agreed to and that Norwest breached the contract. 

5 
In addition, the testimony of Jean Fangsrud, also of Norwest, 

established that the Bairds had told her they had promised to pay 

by September 15: 

Q. Can you describe for the jury what contact, if 

any, you had with either Tom or Denise Baird? 

A. The only contact that I had with them was the 

day after the repossession. I first talked to 

Denise and then later that day I did talk to 

Tom in reference to the repossession. 

Q. 

A. 

Q. 

A. 

Q. 

A. 

Q. 

A. 

Would you describe for the jury the substance 

of the conversation that you had with Mrs. 

Baird? 

Okay. When Denise did call me, she wanted to 

know why that Norwest Bank had repossessed the 

van. I explained to her because there was a 

broken promise to pay for two payments and 

then she had also indicated to me that Tom was 

going to make the two payments. I also told 

her at that time that Norwest Bank will not 

accept the two delinquent payments. The loan 

needed to be paid off in full, plus the 

expenses that Norwest Bank had incurred. 

You informed Denise at that time that the two 

payments, even if the Bairds were to attempt 

to make them that day, would not be accepted? 

Correct. 

Did you have any further conversation with 

Mrs. Baird? 

I don't believe so. 

Would you describe for the jury the 

conversation you had with Mr. Baird later that 

day? 

Mr. Baird had contacted me and also wanted to 

know why the repossession had taken place. I 

explained to him what had happened, the broken 

promise to pay the two payments. He had told 

me that he did not promise to pay on September 

1 of '89. Because we had not received that it 

6 
was assigned out to take possession. 

Q. However, in reviewing the comments entered by 

Sarah Mosure, do you find information contrary 

to Mr. Baird's assertion-- 

A. Yes. 

Q. --that he did not promise to pay on September 

l? 

A. He had told Sarah that he would make payments 

on September 1. He said that the doctors paid 

by September 1. 

... 

Q. You also recognize, do you not, that in the 

course of your conversation Mr. Baird was in 

disagreement with Sarah's position that he had 

promised by September lst? 

A. Yes, he informed me that he did not make a 

promise to pay for two payments on September 

1st. 

Q. He informed you he had promised to pay by 

September 15th? 

A. That's what he informed me. 

Q. And the only information you had that would 

dispute him was what Sarah had typed in? 

A. Yes. 

The jury concluded that Norwest breached the contract and assessed 

damages for such breach in the amount of $6,600. 

The standard of review to be applied here was set forth in 

Barrett v. ASARCO (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080; 

and Miller v. Frasure (1991), 248 Mont. 132, 137, 809 P.2d 1257, 

1261: 

Substantial evidence is that evidence that a 

reasonable mind might accept as adequate to support a 

conclusion; it consists of more than a mere scintilla of 

evidence but may be somewhat less than a DreDonderance. 

7 
Black's Law Dictionary 1281 (5th Ed. 1979); Stanhope v. 

Lawrence (Mont. 1990), [241 Mont. 4681, 787 P.2d 1226, 

1228-1229, 47 St.Rep. 438, 440. Although it may be based 

on weak and conflicting evidence, in order to rise to the 

level of substantial evidence it must be greater than 

trifling or frivolous. Christensen v. Britton (Mont. 

1990), [ (1989), 140 Mont. 393,] 784 P.2d 908, 913, 46 

St.Rep. 2223, 2230. [Emphasis added.] 

Barrett, 245 Mont. 196, 799 P.2d 1078. 

In Hash v. State (1991), 247 Mont. 497, 500, 807 P.2d 1363, 

1365, this Court held "[tlhis Court cannot reweigh the evidence or 

disturb the findings of a jury unless that evidence is so 

inherently impossible or improbable as not to be entitled to 

belief." All of the parties agree that the payment date by 

agreement was extended. The contested fact is to what date. 

Although the Bairds failed to positively testify to an agreement 

with Norwest for a September 15th payment date, after considering 

all of the evidence, we conclude there was evidence which a 

reasonable mind might accept as adequate to support a conclusion of 

a September 15th payment date. We hold that there was sufficient 

evidence to support the jury's verdict that Norwest breached the 

contract. 

I1 

Was there sufficient evidence to support the jury's verdict 

that Norwest committed fraud? 

The jury was instructed on fraud as follows: 

If you find that the parties agreed that the late 

payments were to be made by September 15, 1989, then you 

may consider whether the Defendant committed fraud. If 

you find that the parties agreed that the late payments 

were to be made by September 1, 1989, then you may not 

consider whether the Defendant committed fraud. 

8 
The jury was further instructed on the nine elements necessary to 

establish actual fraud. This Court recently described the same 

elements in Batten v. Watts Cycle and Marine (1989), 240 Mont. 113, 

117, 783 P.2d 378, 380-381. The elements and applicability to this 

case are: 

1. Was there a representation? 

The alleged representation in this case was that Norwest 

represented that it would allow the Bairds until September 15th to 

make their payment. Because in Issue I the jury found that the 

parties agreed to the payment date of the 15th, this element is 

satisfied. 

2. Was the representation false? 

Again, this element is disposed of under Issue I. 

3. Was the false representation material? 

From the facts it is clear that the payment date of September 

15th was material. 

4. Did the speaker have knowledge as to the falsity of the 

representation? 

In other words, did Ms. Mosure, the speaker, know that she was 

falsely representing the agreed upon payment date when she entered 

September 1st into the computer? A review of the record 

demonstrates the total absence of evidence that Ms. Mosure knew of 

the falsity of the September 1 date. We therefore must conclude 

that the Bairds failed to satisfy this element of fraud. 

5. Did the speaker intend that the false representation 

should be acted upon by the person and in the manner reasonably 

9 
contemplated? 

To restate, did Ms. Mosure, agent of Norwest, intend that the 

Bairds should act upon the false representation which Ms. Mosure 

had made as to the September 15th date? There is nothing in the 

record to demonstrate that Ms. Mosure intended that the Bairds act 

upon the September 15th date. Even the Bairds' testimony fails to 

prove this point. Mr. Baird testified he told Ms. Mosure that he 

needed until after September 10th to make his payment. He did not 

testify that Ms. Mosure told him he could have until September 15th 

to make the payment. Ms. Mosure testified that Mr. Baird asked her 

if he could have until the loth, but that she agreed to a payment 

date of the 1st. Even though we have affirmed the jury's verdict 

under Issue I, that the parties agreed to a payment date of 

September 15th, there is absolutely no indication in the record 

that Ms. Mosure intentionally entered the wrong date into the 

computer. 

In proving this element of fraud it is the speaker's intent we 

are concerned with. That would be Ms. Mosure. It is true that the 

jury found there was an agreed upon date of September 15th, but the 

jury was able to consider of the testimony and evidence and the 

surrounding circumstances in arriving at that conclusion. In 

satisfying this particular element of fraud only Ms. Mosurels 

intent as the speaker may be considered. The record fails to 

reveal any such intent on MS. Mosure's part. Furthermore, no one 

testified that Bairds were intentionally given the wrong date or 

that Ms. Mosure intentionally entered the wrong date. Not even the 

10 
Bairds so testified. In fact, the Bairds only maintain that Ms. 

Mosure mistakenly entered the wrong date. We conclude that the 

Bairds have failed to prove this essential element of fraud. 

The Bairds failed to prove two of the essential elements 

required under the instruction in order to establish actual fraud. 

Therefore, we hold that there was not sufficient evidence to 

support the jury's verdict that Norwest committed fraud and reverse 

on this issue. 

We note that the jury awarded damages for fraud in the amount 

of $27,000. Because we reverse on this issue, the District Court 

shall vacate the damages awarded for fraud in the amount of 

$27,000. 

I11 

Was there sufficient evidence to support the jury's award of 

emotional distress damages? 

The only damage award on the verdict form which might be 

construed to include emotional distress parasitic damages was for 

fraud. Such award is vacated by Issue I1 of this opinion. 

Therefore the issue is moot. 

IV 

Did the District Court err in allowing the Bairds' former 

attorney to testify as an expert witness? 

Mr. Poston, the Bairds' first attorney, testified at trial 

about his involvement with the Bairds and about his contacts with 

Norwest and its attorney. Norwest maintains that he testified as 

an expert. It maintains that he testified to his legal opinion on 

11 
the law of waiver, self-help repossession without notice, and 

acceleration of a note. Thus, Norwest maintains that all of these 

questions eliciting this testimony were improper. 

Norwest states that as a general rule, an attorney cannot 

advise the jury as to the law of the case. Safeco Ins. Co. v. 

Ellinghouse (1986), 223 Mont, 239, 251, 725 P.2d 217, 224. Norwest 

maintains that Mr. Poston's testimony pertained to ultimate legal 

issues in this case--whether Norwest acted fairly in the conduct of 

commerce under the CPA; whether Norwest had the right to repossess 

the vehicle absent notice; and whether Norwest had waived its right 

to accelerate the debt absent notice. 

The Bairds urge that the only objection of Norwest's counsel 

to the testimony of Mr. Poston was: 

I object, your honor. I believe that the offer of an 

opinion may improperly invade the province of the jury in 

determininq facts in this case. [Emphasis added.] 

That objection was overruled and no objection was made that Mr. 

Poston was testifying to any legal opinions. 

In view of the limited objection made by counsel for Norwest, 

we hold that there was no error in allowing Mr. Poston to testify. 

V 

Does the Montana Unfair Trade Practices and Consumer 

Protection Act apply to consumer loans by banks? 

The CPA prohibits unfair trade practices by entities engaged 

in **trade or commerce." "Trade or commerce" is defined as follows: 

(6) '*Trade'* and "commerce1* mean the advertising, 

offering for sale, sale, or distribution of any services 

and any property, tangible or intangible, real, personal, 

or mixed, and any other article, commodity, or thing of 

12 
value, wherever situate, and shall include any trade or 

commerce directly or indirectly affecting the people of 

this state. 

Section 30-14-102, MCA. 

The first question is whether or not the loaning of money, 

taking security therefor, and the collection of money, are 

transactions within the above definition of trade or commerce. 

This Court has not previously decided this issue. Statutes 

prohibiting unfair trade practices have been interpreted to be 

broad in scope and flexible in application so as to respond to 

human inventiveness. See In re Smith (3rd. Cir. 1989), 866 F.2d 

576. The business of mortgage lenders is the sale of a service 

within the scope of unfair practices acts: see In Re Smith, supra. 

In the case of Garland v. Mobile Oil Corporation (1972), 340 F.Supp 

1095, in which Mobile argued the uniform act does not apply to 

debtor-creditor relations involving credit card transactions and 

collections, the court stated as follows: 

Only an artificially narrow construction would hold that 

the statute applies broadly to practices utilized to 

effect a sale, but cannot reach the practice utilized in 

its financing. 

Garland at 1099. Here the money loaned was used by the consumer 

at least in part for repairs and a new engine for a private motor 

vehicle. 

Our statute does not in anyway define or limit the words "any 

services" as used in 5 30-14-102 (6), MCA, supra, or as used in 5 

30-14-133, MCA, which establishes the cause of action asserted 

here. Section 30-14-133, MCA, so far as pertinent is as follows: 

(1) Any person who purchases or leases goods or services 
primarily for personal, family, or household purposes and 

thereby suffers any ascertainable loss of money or 

property, real or personal, as a result of the use or 

employment by another person of a method, act, or 

practice declared unlawful by 30-14-103 may bring an 

individual but not a class action under the rules of 

civil procedure in the district court of the county in 

which the seller or lessor resides or has his principal 

place of business or is doing business to recover actual 

damages or $200, whichever is greater. The court may, in 

its discretion, award up to three times the actual 

damages sustained and may provide such equitable relief 

as it considers necessary or proper. 

There is no reason why the word "services" as used in 5 30-14- 

102(6), MCA, be interpreted differently than as used in 5 30-14- 

133, MCA. 

The approach to defining what is meant by the word "services" 

in the statute should be broad in scope. See In re Smith, supra. 

This statute being in derogation of the common law, should be 

liberally construed with a view to effect its object and to promote 

justice. See 5 1-2-103, MCA, 1991. 

Norwest has cited the case of Riverside National Bank v. Lewis 

(Tex. 1980), 603 S.W.2d 169, which held that money (borrowing of 

money) is neither a rlgood'l or a "service" and stated: 

Money, as money, is quite obviously neither work nor 

labor. Seeking to acquire the use of money likewise is 

not a seeking of work or labor. Rather, it is an attempt 

to acquire an item of value. We hold that an attempt to 

borrow money is not an attempt to acquire either work or 

labor as contemplated in the DTPA. 

Riverside at 174. 

However, the Texas statute defined more restrictively what 

services are under the statute. We note that the Riverside case 

states that seeking to acquire the use of money is an attempt to 

acquire an item of value. The Riverside case was later limited to 

14 
its facts which were the extension of credit unrelated to a 

specific acquisition. Our § 30-14-102, MCA, defines "trade" or 

"commercet1 as the "[slale, or distribution of . . . [a] thing of 

value. 'I 

Later Texas cases expanded the Texas Act to include services 

of a bank in connection with the extension of credit. See Security 

Bank v. Dalton (Tex.Ct.App. 1991), 803 S.W.2d 443, 452. This 

conclusion was arrived at even though the Texas Act defined 

"services" as follows: 

(1) "Goods" means tangible chattels or real property 

purchased or leased for use. 

(2 ) "Services" means work, labor, or service 

purchased or leased for use, including services furnished 

in connection with the sale or repair of goods. . . . 

... 

(4) (Consumer) means an individual, partnership, 

corporation, this state, or a subdivision or agency of 

this state who seeks or acquires by purchase or lease, 

any goods or services, except that the term does not 

include a business customer that has assets of $25 

million or more. . . . 

In the case of Pa. Bankers ASS'n v. Com., Bureau of Consumer 

Protection (1981), 427 A.2d 730, the Commonwealth Court of 

Pennsylvania held that under the Unfair Trade Practices Act the 

activity of lending and collecting money is trade or commerce. The 

court had previously held in Pennsylvania Retailers, etc. v. Lazin 

(1981), 426 A.2d 712, 718, that lending and collecting money was 

within the definition of service. 

We conclude therefore that the Unfair Trade Practices and 

Consumer Protection Act applies to consumer loans by banks in the 

15 
lending and collecting of such loans. 

VI 

Did Norwest waive the default provisions of the installment 

note by accepting late payments? 

In light of our holding under Issue I, it is not necessary to 

address this issue. 

VI1 

Should the Bairds be awarded attorney's fees on appeal? 

Norwest maintains that upon reversal, the Court should direct 

the District Court to award Norwest its attorney's fees for both 

the lower court proceedings and the appeal herein. 

The Bairds maintain that the parties stipulated and agreed to 

the amount of attorney's fees which should be awarded the 

plaintiffs as prevailing party in the District Court litigation. 

The Bairds ask this Court to grant them their attorney's fees 

necessary to defend this appeal with the proper amount to be 

determined by stipulation of the parties, or if necessary, by the 

District Court. 

The contract involved here provides for attorney's fees to the 

prevailing party. Section 28-3-704, MCA, provides that a 

contractual right to attorney's fees is reciprocal. In addition, 

the CPA, 5 30-14-133, MCA, allows the "prevailing party'' to recover 

attorney's fees. 

The parties entered a stipulation as to attorney's fees which 

provides: 

COMES NOW the parties above named through their 

counsel of record and stipulate and agree that 

16 
Plaintiffs, as prevailing parties in this matter under 

the contract and Montana Consumer Protection Act claims, 

are entitled to the sum of Nineteen Thousand Dollars 

($19,000) as their reasonable attorney fees and further 

agree that the judgment entered herein may be amended 

nunc pro tunc to allow for the addition of that amount of 

attorney fees. 

This agreement is based on Plaintiffs' status as 

prevailing party and the amount specified in this 

aqreement has no force and effect should an armeal result 

in a reversal of Plaintiffs verdict under one or both of 

the claims qivinq rise to Plaintiffs riqhts to attorneys' 

fees. The amount specified in this agreement applies 

only to attorney fees incurred through February 15, 1991, 

the last day of the jury trial in this matter, and does 

not apply to any attorney fees which may be incurred in 

post-trial matters, including appeal. The parties agree 

to deal with all such post-trial attorney fees issues at 

the appropriate time and before the appropriate court. 

[Emphasis added.] 

Inasmuch as there has been no reversal of the claims under which 

the prevailing party is entitled to reasonable attorney's fees, the 

plaintiffs are entitled to their fees to defend this appeal. 

VI11 

Did the District Court properly review the punitive damages 

award? 

This Court having reversed the verdict on the tort of fraud, 

the award of punitive damages is to be vacated and the issue is 

moot. Due to the fact that the award for punitive damages is 

vacated and was included in the total award by the jury and the 

District Court having stated in its order on post-trial motions 

that it was taking the award into consideration in not awarding 

treble damages for violation of CPA, we hereby remand to the 

District Court for consideration in its discretion to award treble 

damages under 5 30-14-133(1), MCA, and for such further action as 

17 
may be necessary in conformance with this opinion. 

Justice 1 

&E 2% 

We Concur: 

Justices 

18 
Just 

part 

ce William E. Hunt, Sr., concurring in part and dissenting in 

I concur with the majority's decision regarding Issues I, IV, 

V, and VI. 

However, I dissent with the majority's decision regarding 

Issues 11, 111, and VI11 because I believe it disturbs the jury's 

fact-finding process. This Court has continuously upheld the 

fundamental proposition that the jury is entrusted with the 

responsibility of seeking the truth. Because of our high regard 

for the jury deliberation process, we have established an exacting 

standard of review when examining a jury's verdict. 

Motions to set aside jury verdicts as not supported 

by the evidence are proper only when there is a complete 

absence of any credible evidence in support of the 

verdict. All evidence and all inferences drawn therefrom 

must be considered in a light most favorable to the 

adverse party. The courts will exercise the greatest 

self-restraint in interfering with the constitutionally 

mandated processes of jury decision. 

Lackey v. Wilson (1983), 205 Mont. 476, 479, 668 P.2d 1051, 1053 

(quoting Barmeyer v. Montana Power CO. (1983), 202 Mont. 185, 191, 

657 P.2d 594, 597). 

Evidence of fraud, by its very nature, will often be 

circumstantial. On numerous occasions, trivial, remote, and 

disconnected facts will be tied together by a jury to support a 

finding of fraud. Walker v. Mink (1945), 117 Mont. 351, 158 P.2d 

630. When analyzing Instruction No. 19, the court indicated that 

the jury could only consider whether the bank committed fraud if 

they first found that the parties agreed that the late payments 

19 
were due by September 15. After hearing much conflicting evidence, 

the jury concluded that the parties agreed the payments were due on 

September 15. With this finding, there was an implicit agreement 

by the bank not to repossess the vehicle prior to the agreed date 

of payment. However, the bank proceeded to repossess the vehicle 

within only a few days of making that agreement. In addition, it 

would not be difficult to infer from the facts that the time and 

working pressures of Ms. Mosure's job forced her to type 

September 1 into the bank's computer in order to clear her 

responsibility for collection of the Baird's delinquent account. 

It is from the facts above that I believe there was substantial 

evidence to support the jury's verdict. 

Therefore, I would affirm the decision of the District Court 

and uphold the entire jury verdict. 

Justice Terry N. Trieweiler concurs in the foregoing 

concurrence and dissent. 

20 
Justice Fred J. Weber concurs and dissents as follows: 

I dissent from the holding of the majority opinion on Issue V 

- Does the Montana Unfair Trade Practices and Consumer Protection 

Act (MCPA) apply to consumer loans by banks? I concur in the 

balance of the holdings of the majority opinion. 

The majority concludes that the MCPA applies to consumer loans 

by banks in the lending and collecting of such loans. I will first 

summarize my reasons for disagreeing with that conclusion. The 

primary question is whether a bank consumer loan falls within the 

provisions of § 30-14-133, MCA, which applies to any person who 

purchases or leases goods or services primarily for personal, 

family, or household purposes. The majority has failed to 

demonstrate how the borrowing of money by a consumer is the 

purchasing or leasing of goods or services. 

Before discussing the specific statutory sections with which 

we are directly involved, I think it appropriate to make a few 

comments about the MCPA. That Act was adopted in 1973 with the aim 

of prohibiting unfair trade practices with provisions for 

investigation of such practices and penalties for violations. 

Title 30, Chapter 14, Parts 1-2. The Act has forty-two different 

sections which describe the means of protecting the consumer by 

action on the part of the Department of Commerce, the Attorney 

General, and the county attorneys of the fifty-six counties. These 

sections provide for injunctions, restraining orders, civil 

penalties up to $10,000, possible criminal convictions and criminal 

fines with imprisonment. The basic thrust of the Act is protection 

21 
of the consumer by enforcement through various governmental 

agencies. 

Before discussing the one specific code section in that Act 

which applies to the consumer, I emphasize the apparent result of 

the majority opinion. In view of the broad definition of 

"services" in the majority opinion, I assume that the majority 

would apply the Act to the following: 1) all activities of any 

kind of banks and loaning institutions, including all aspects of 

loan and mortgage and other security financing; 2) all types of 

services by hospitals, nursing homes, and retirement homes; 3) all 

types of services rendered by such people as medical doctors, 

dentists, accountants, architects, attorneys, and engineers. The 

list is almost unlimited in those "services" which might be 

included. Why is it important to consider such "services?" The 

answer is the treble damages and attorney fees provisions of 5 30- 

14-133, MCA, which are as follows: 

(1) . . . The court may, in its discretion, award up 

to three times the actual damages sustained and may 

provide such equitable relief as it considers necessary 

or proper. ... 

(3) In any action brought under this section, the 

court may award the prevailing party reasonable attorney 

fees incurred in prosecuting or defending the action. 

In the past, very few actions have been brought by consumers under 

the Act. Because of the great benefit of both treble damages and 

attorney fees, I suggest that those having claims against any of 

the above listed parties will conclude that the best procedure is 

to seek to come under the Act. I conclude that such a striking 

22 
change in the practice in Montana should be left to the 

legislature. 

I will not discuss the particular sections of the Act which 

are directly pertinent. The Key consumer section is § 30-14-133, 

MCA, which provides in pertinent part: 

Damages--notice to public agencies--attorney fees--prior 

judgment as evidence. (1) Any person who purchases or 

leases goods or services primarily for personal, family, 

or household purposes and thereby suffers any 

ascertainable loss of money . . . as a result of the use . . . by another person of a method, act, or practice 

declared unlawful by 30-14-103 may bring an individual . . . action . . . in the district court of the county in 

which the seller or lessor resides . . . 

This section applies to any person who purchases or leases goods or 

services primarily for personal, family, or household purposes. 

Clearly the making of a consumer loan from a bank does not 

constitute a purchase or lease of goods nor a lease of services. 

The remaining question is whether a consumer making a bank loan has 

made a purchase of services. As pointed out in the majority 

opinion, this issue has not been considered in Montana and very few 

other jurisdictions have considered the issue. 

The majority relies upon Smith v. Commercial Banking corp. 

(3rd.Cir. 1989), 866 F.2d 576, which involves the Pennsylvania 

consumer protection statutes. Smith points out that section 2 of 

the Pennsylvania act enumerates seventeen specific acts which 

constitute unfair or deceptive acts or practices and then points 

out that Smith contends that Fidelity's conduct falls within the 

catch-all provisions which make unlawful engaging in any other 

fraudulent conduct which creates a likelihood of confusion or 

23 
misunderstanding. See 73 Pa.Stat.Ann. 5 201-3 (Purdon Supp. 1992) 

We have no specific act provisions of that nature in our MCPA. The 

only definitional statute regarding unfair acts is 5 30-14-103, 

MCA, which provides: 

Unlawful practices. Unfair methods of competition and 

unfair or deceptive acts or practices in the conduct of 

any trade or commerce are unlawful. 

I do not find it appropriate to so generalize in accepting 

Pennsylvania cases, federal and state, as authority where the 

central provisions of the act are so strikingly different. 

The majority points out that in Riverside Nat'l Bank v. Lewis 

(Tex. 1980), 603 S.W.2d 169, the Texas court concluded that the 

borrowing of money was neither a "good" or a "service" (both of 

which are used in 5 30-14-133, MCA), and stated: 

Money, as money, is quite obviously neither work nor 

labor. Seeking to acquire the use of money likewise is 

not a seeking of work or labor. Rather, it is an attempt 

to acquire an item of value. We hold that an attempt to 

borrow money is not an attempt to acquire either work or 

labor as contemplated in the DTPA. 

Riverside, 603 S.W.2d at 174. The majority concludes that the 

Texas statutes define more restrictively than ours. It also points 

out that Riverside was limited to its facts. I would point out 

that the above quote has nothing to do with the statute but does 

constitute an intelligent analysis of the nature of goods and 

services as compared to money and seeking to acquire the use of 

money. This analysis does contradict the holding of the majority. 

Ultimately the majority refers to 1981 Pennsylvania cases 

which held that lending and collecting money was within the 

definition of service and then proceeds to conclude that our 

24 
Montana Act and its definition of services applies to consumer 

loans by banks, I strongly disagree with that conclusion. 

In analyzing whether there has been a purchase of services 

where the bank makes a consumer loan, I point out § 30-14-133, MCA, 

provides that the action is to be brought in the district court of 

the county in which the "seller or lessor" resides. Under common 

usage, I do not believe that the term seller or lessor would be 

considered as including a bank which makes consumer loans. 

Before attempting to reach a conclusion regarding the extent 

of the purchase or leasing of goods and services as defined in 5 

30-14-133, MCA, we should also consider that under such section, a 

consumer is entitled to recover against another person who uses a 

method, act, or practice which is declared unlawful under § 30-14- 

103, MCA, quoted above. In order to determine what trade and 

commerce are meant to be under 5 30-14-133, MCA, we must consider 

§ 30-14-102, MCA, which contains the following definition: 

(6) "Trade" and "commerce" mean the advertising, 

offering for sale, sale, or distribution of any services 

and any property, tangible or intangible, real, persona, 

or mixed, and any other article, commodity, or thing of 

value, wherever situate, and shall include any trade or 

commerce directly or indirectly affecting the people of 

this state. 

From the statutory wording it is clear that unfair methods of 

competition and unfair or deceptive acts are limited to those 

involved in the conduct of "trade" and "commerce" as defined in 5 

30-14-102, MCA. This requires our consideration of that section in 

greater detail. 

25 
Section 30-14-102(6), MCA, defines trade and commerce as 

advertising, offering for sale, sale and distribution of services 

and property. On its face, the making of a consumer loan by a bank 

does not fit within the classification of advertising, offering for 

sale, sale, or distribution of services or other property. Because 

there is no clear stated intent to include bank loans or consumer 

loans or bank or consumer activities, I think it essential to 

consider the history of the MCPA during the approximate 20 years 

since it was enacted. 

Since 1973 there has been no legislative revision indicating 

a specific intent that a bank loan should constitute a purchase of 

services within the definition of the MCPA. That conclusion is 

fortified by a consideration ofthe regulations adopted duringthis 

20-year period by the Department of Commerce of Montana. These 

regulations are set forth in 8.78.101-406, ARM. A number of these 

regulations specifically refer to various aspects of the sale of 

merchandise, including its advertising and representations with 

regard to the same. Next, there are a number of regulations which 

apply to motor vehicles and cover the sales, repairs, maintenance 

and service of motor vehicles. These regulations are limited to 

the services in connection with the sales, repairs and maintenance 

of such vehicles. There are also regulations covering reporting 

agencies and fees which are not directly applicable. A review of 

these Rules establishes that the enforcement on the part of the 

Department of Commerce has been quite limited. Clearly the 

Department has not concluded that the making of a consumer bank 

26 
loan constitutes services under the MCPA, nor have they established 

any other regulations demonstrating that similar services are 

considered as coming under the MCPA. 

As I again examine the definition of trade and commerce in 5 

30-14-102(6), MCA, I would follow the lead of the Department of 

Commerce and limit the interpretation of the sale of services to 

services relating to property, tangible or intangible, real, 

personal or mixed, and other articles and commodities in commerce. 

If that approach is applied to § 30-14-102(6), MCA, then the same 

approach properly would be applicable to 5 30-14-133, MCA. We 

properly could conclude that under 5 30-14-133, MCA, the borrowing 

of money from a bank on a consumer loan is not a purchase of goods 

or services. That conclusion is consistent with the reference to 

"seller" or "lessor" in the code section. In view of the history 

of the past twenty years, and the potential impact of the majority 

conclusion, I would leave to the legislature the determination of 

whether or not it is appropriate to extend the MCPA to consumer 

loans made by banks and to other types of services rendered within 

the state. 

I would conclude that the MCPA does not apply to consumer 

loans bv banks. 

27 
December 4. 1992 

CERTIFICATE OF SERVICE 

I hereby certlfy that the following order was sent by United States mail, prepaid, to the 

following named: 

Tom K. Hopgood 

Luxan & Murfitt 

P.O. Box 1144 

Helena, MT 59624 

Terry B. Cosgrove 

Attorney at Law 

208 N. Montana, Ste. 204 

Helena, MT 59601 

Pierre L. Bacheller 

Attorney at Law 

P.O. Box 2078 

Billings, MT 59103 

Jonathan Motl 

Reynolds, Motl, Shenvood & Wright 

405 No. Last Chance Gulch 

Helena, MT 59601 

George T. Bennett 

Attorney at Law 

P.O. Box 1705 

Helena, MT 59624 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA