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Plath v. Schonrock2/13/2003
affirmed the District Court's insertion of an issue in the trial because "the issue was implicit in those raised," and was thus embraced within the language of the pre- trial order. Nentwig, 256 Mont. at 140, 845 P.2d at 103. The same cannot be said for the issue raised in the trial here.
As the Court acknowledges, Schonrock had decided not to pursue his counterclaim against Plaths when the pre-trial order was drafted and signed. He thus failed to claim setoff as an affirmative defense in the pre-trial order, as required. Because the defense was neither embraced within the language nor otherwise implicit within the pre-trial order, Schonrock waived the issue. Nentwig, 256 Mont. at 139-40, 845 P.2d at 102-03.
The Court's reasoning on Issue 4 is correctly premised upon our authority: "Schonrock waived this theory or defense by not including it in the final pretrial order as an issue of fact to be determined by the trier of fact at the time of the trial." See 56. I would likewise apply this sound reasoning to Issue 3 and reverse on this issue. I dissent from our failure to do so.
Justice Terry N. Trieweiler and Justice James C. Nelson join in the foregoing concurring and dissenting opinion of Justice Rice.
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