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Plath v. Schonrock2/13/2003
Submitted on Briefs: July 2, 2002
District Court Judge Douglas G. Harkin, sitting for Justice Patricia O. Cotter, delivered the Opinion of the Court.
The Plaintiffs, Don Plath and Debby Plath, brought this action in the District Court for the Eighth Judicial District in Cascade County to recover damages for negligence, emotional distress, breach of warranties, breach of contract and violations of the Montana Consumer Protection Act. Following a jury trial, a verdict in favor of the Plaths was returned on their claims for negligence, breach of warranties and Consumer Protection Act violations. The Plaths appeal from the District Court's post-verdict decision to deny treble damages, grant only partial attorney fees requested under the Consumer Protection Act, and allowing trial testimony regarding an over-collection claim.
The Defendant, Mark J. Schonrock, d/b/a Precision Design Group, cross-appealed the District Court's denial of a motion for an $8,000 offset representing a settlement paid to the Plaths by Co-Defendant Ed Boland, d/b/a Boland Drilling Company. Schonrock also appeals the District Court's submission of a jury instruction that Defendant was involved in a trade or commerce.
The Appellants raise the following issues on appeal:
1. Whether the District Court abused its discretion in applying a punitive damage standard in denying the Plaths' motion for treble damages under the Consumer Protection Act.
2. Whether the District Court erred in awarding only partial attorney fees to the Plaths by considering only one factor of the seven- part test adopted by this Court for determining the reasonableness of attorney fees.
3. Whether the District Court erred when it denied the Plaths' motion for judgment as a matter of law on their $1,441 over-collection claim.
The Cross-Appellant raises the following issues on appeal:
1. Whether the District Court erred when it instructed the jury that Mark J. Schonrock, d/b/a Precision Design Group, was involved in a trade or commerce in his dealings with the Plaths.
2. Whether the District Court erred when it denied Schonrock's motion for an $8,000 offset representing the settlement proceeds paid by Co-Defendant Ed Boland, d/b/a Boland Drilling Company.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, the Plaths purchased a six-acre lot located on the outskirts of Great Falls, where they planned to build a house. The Plaths talked with several builders and ultimately decided to hire Mark J. Schonrock, d/b/a Precision Design Group, to build their house. A final contract executed on April 15, 1993, provided for several items, including the placement of a well. The Plaths claimed that during the negotiations held prior to the execution of the final contract, Schonrock made several untrue representations to them, including claims that he had built several houses and had drilled several wells, including deep wells.
After construction began, Schonrock subcontracted with Boland Drilling Company to drill the water well. The well was drilled in July 1993 and then capped for approximately four months. In late November, Don Plath attempted to obtain a water sample by filling a jug from the front water spigot. While filling this jug, he noticed a foul stench in the water. By late 1995, after completion of several tests on the water and the pipes, and after consulting with water treatment experts and state officials, Don Plath determined that the well water was contaminated with petroleum hydrocarbons.
The Plaths claim other problems surfaced with regard to Schonrock's construction of the
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