Tripp v. Jeld-Wen, Inc.

• Decision Date: 11 May 2005
• Docket Number: No. 04-309.,04-309.
• Citation: 2005 MT 121,327 Mont. 146,112 P.3d 1018
• Parties: Leroy and Janie TRIPP, Plaintiffs and Appellants, v. JELD-WEN, INC., d/b/a Oregon Strand Board, Defendant and Respondent.
• Court: Montana Supreme Court

112 P.3d 1018

2005 MT 121

327 Mont. 146

Leroy and Janie TRIPP, Plaintiffs and Appellants, v. JELD-WEN, INC., d/b/a Oregon Strand Board, Defendant and Respondent.

No. 04-309.

Supreme Court of Montana.

Submitted on Briefs January 12, 2005.

Decided May 11, 2005.

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For Appellants: Lon J. Dale and Christian T. Nygren, Milodragovich, Dale, Steinbrenner & Binney, P.C., Missoula, Montana.

For Respondent: Richard N. Sieving, Sieving & Momjian, LLP, Sacramento, California, Ronald A. Bender, Worden Thane P.C., Missoula, Montana.

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 Leroy and Janie Tripp appeal from the judgement of the District Court. We affirm in part, reverse on the question of attorney fees, and remand for further proceedings consistent with this Opinion.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether the District Court erred in refusing to allow the Tripps' expert to testify concerning other incidents of failure involving COMPLY.

¶ 4 2. Whether the District Court erred in allowing evidence concerning a settlement entered into by the third-party contractor.

¶ 5 3. Whether the District Court erred in allowing the expert testimony of Stephen Zylkowski concerning industry standards.

¶ 6 4. Whether the District Court erred in giving Jeld-Wen's proposed jury instruction regarding negligent misrepresentation.

¶ 7 5. Whether the District Court erred in awarding attorney fees under the Montana Consumer Protection Act.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 In 1995 the Tripps contracted with Howard Construction (Howard) to build their home. The Tripps sought a floor that did not "squeak." They ordered plywood as the sub-flooring, but instead received a product known as COMPLY Sturd-I-Floor. COMPLY is manufactured by Oregon Strand Board, which is owned by Respondent Jeld-Wen, Inc. In installing the product, Howard utilized staples, something the manufacturers' specifications specifically said to avoid. Also, during construction, the product was left out in the open and exposed to rain. According to the Tripps, they were reassured by Jeld-Wen's advertisements for COMPLY that the use of staples and exposure to rain were acceptable because the ads indicated that COMPLY was an acceptable substitute for plywood.

¶ 9 When the home was finished, the Tripps moved in and found that their floor "squeaked" after all. After complaining to Jeld-Wen and unsuccessfully waiting to see if the noise abated, the Tripps filed suit against Jeld-Wen, claiming negligence, breach of warranty, and unfair or deceptive trade practices under the Montana Consumer Protection Act (MCPA). Jeld-Wen then sued Howard as a third-party plaintiff.

¶ 10 Before trial, the Tripps settled with Howard. Because of this the court dismissed Jeld-Wen's suit against Howard. Evidence of the settlement was later used by Jeld-Wen to impeach the testimony of Howard's owner, who testified for the Tripps. Also before trial, Jeld-Wen disclosed an expert witness, but then shortly before trial substituted another expert witness, Stephen Zylkowski, who until then had only been listed as a fact witness. During trial, Jeld-Wen objected to the Tripps' expert witness, Dr. Burke, testifying to other incidents of homeowner dissatisfaction with COMPLY. The District Court sustained this objection. In addition, Jeld-Wen submitted a proposed jury instruction regarding the standard for negligent misrepresentation, a theory the Tripps had not pled in their complaint. The instruction was given over the Tripps' objection.

¶ 11 The jury returned a verdict in favor of Jeld-Wen and the court entered judgment accordingly. Following that, the District Court awarded attorney fees to Jeld-Wen, in accordance with its interpretation of the MCPA. From the judgment and the award of attorney fees, the Tripps bring this appeal.

STANDARD OF REVIEW

¶ 12 We review a district court's evidentiary rulings for abuse of discretion. Kiely Const., L.L.C. v. City of Red Lodge, 2002 MT 241, ¶ 92, 312 Mont. 52, ¶ 92, 57 P.3d 836, ¶ 92 (citing Finstad v. W.R. Grace & Co., 2000 MT 228, ¶ 43, 301 Mont. 240, ¶ 43, 8 P.3d 778, ¶ 43). "`The test for abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.'" Kiely, ¶ 92, 57 P.3d 836 (quoting Jarvenpaa v. Glacier Elec. Coop., Inc., 1998 MT 306, ¶ 13, 292 Mont. 118, ¶ 13, 970 P.2d 84, ¶ 13). The same standard applies when we review a discovery matter, Hawkins v. Harney, 2003 MT 58, ¶ 17, 314 Mont. 384, ¶ 17, 66 P.3d 305, ¶ 17; jury instructions, Montana Dep't of Transp. v. Simonson, 2004 MT 60, ¶ 14, 320 Mont. 249, ¶ 14, 87 P.3d 416, ¶ 14 (citing Harwood v. Glacier Elec. Coop., Inc. (1997), 285 Mont. 481, 487, 949 P.2d 651, 655); or an award of attorney fees, Lewistown Propane Co. v. Moncur, 2002 MT 349, ¶ 19, 313 Mont. 368, ¶ 19, 61 P.3d 780, ¶ 19.

DISCUSSION

ISSUE ONE

¶ 13 Whether the District Court erred in refusing to allow the Tripps' expert to testify concerning other incidents of failure involving COMPLY.

¶ 14 At trial, the Tripps wanted their expert witness, Dr. Edwin Burke, to testify to other incidents of COMPLY failing to function properly. The District Court allowed Dr. Burke to testify to experiments he had conducted on pieces of COMPLY as well as to the experience of another witness, Dean Gingerich, who had previously testified that he also had a "squeaky" COMPLY floor. However, the court did not allow Dr. Burke to speak to the experiences of other third-parties with COMPLY floors. The court agreed with Jeld-Wen that the basis for Dr. Burke's opinion had already been given through other testimony. The court ruled that it would not allow Dr. Burke to testify to these third-parties' experiences because under Rule 403, M.R.Evid., the "prejudicial effect outweigh[ed] the probative value." The Tripps argue that the court abused its discretion, and that Dr. Burke should have been allowed to testify concerning other incidents of COMPLY failure because (1) they formed the basis for Dr. Burke's opinion, and (2) they were admissible to demonstrate notice.

¶ 15 The Tripps are correct in stating that an expert witness may testify to evidence that might be otherwise inadmissible. See Rule 703, M.R.Evid. ("If of a type reasonably relied upon by experts in the particular field in forming opinions ... the facts or data need not be admissible in evidence."). See also Azure v. City of Billings (1979), 182 Mont. 234, 255, 596 P.2d 460, 472 ("`The rationale in favor of the admissibility of expert testimony based on hearsay is that the expert is fully capable of judging for himself what is or is not a reliable basis for his opinion.'" (quoting United States v. Sims (9th Cir.1975), 514 F.2d 147, 149)). However, Rule 703, as with all rules of evidence, may collide with Rule 403, M.R.Evid. State v. Van Dyken (1990), 242 Mont. 415, 428, 791 P.2d 1350, 1358.

¶ 16 Rule 403 states, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." The Tripps wanted Dr. Burke to comment on non-witness third-parties' experiences with COMPLY. Since such testimony might improperly induce the jury into thinking COMPLY is rampantly defective, there was a danger that it would unfairly prejudice the jury.

¶ 17 Under Rule 403 this danger must be weighed against the testimony's probative value. Jeld-Wen argues that the probative value of the testimony was minimal because Dr. Burke had already given a reliable basis for his opinion. He had, in fact, already produced detailed testimony on his testing of COMPLY and was allowed to testify to the experience of homeowner Dean Gingerich. Gingerich appeared as a witness and was subjected to cross-examination by Jeld-Wen. If Dr. Burke had been allowed to testify to the experiences of other third-parties whom Jeld-Wen had not had the opportunity to cross-examine, there would have been a heightened danger that Dr. Burke's testimony about their experiences would be treated as unrebutted substantive evidence. Furthermore, although the court specifically allowed the Tripps the opportunity to question Dr. Burke about the experiences of Dean Gingerich, the Tripps declined to do so. Having chosen not to question Dr. Burke about the experiences of witness Gingerich, the Tripps' contention that Dr. Burke should have been allowed to testify about the experiences of third-party non-witnesses rings hollow. Therefore, with foundational testimony already in evidence, Jeld-Wen is correct in arguing that the probative value of Dr. Burke's testimony on the experiences of non-witness third-parties would likely have been minimal. We conclude the court did not abuse its discretion.

¶ 18 The Tripps also argue that Dr. Burke's testimony regarding third-party experiences with COMPLY was admissible to demonstrate that Jeld-Wen had notice of COMPLY's alleged defectiveness. This argument similarly fails. As the Tripps note in their briefs, we follow a "relaxed" standard when evidence is offered to demonstrate notice rather than liability. Kissock v. Butte Convalescent Ctr., 1999 MT 322, ¶ 17, 297 Mont. 307, ¶ 17, 992 P.2d 1271, ¶ 17. However, the standard only applies "so long as `the differences [between different accidents] can easily be brought out on cross-examination and understood by the jury.'" Kissock, ¶ 18 (citing Mueller & Kirkpatrick, Modern Evidence § 4.8, at 283). Had the District Court allowed Dr. Burke to testify to the non-witness third-parties' experiences, Jeld-Wen would have been denied the opportunity to cross-examine the third-parties as to whether their experiences with COMPLY were similar enough to constitute...