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Plath v. Schonrock2/13/2003
; Son v. Reber Plumbing and Heating Co. (1961), 139 Mont. 115, 360 P.2d 1005).
Schonrock's contention number 7 is an admission that he owed the Plaths $1,441 for changes made during the course of the construction. It does not say that the matter is closed to the extent that the sum cannot be used as an offset. In Nentwig v. United Industry, Inc. (1992), 256 Mont. 134, 139, 845 P.2d 99, 102-03, we cited with approval the holding of Manbeck v. Ostrowski (D.C. Cir. 1967), 384 F.2d 970, 975, cert. denied 390 U.S. 966, 88 S.Ct. 1077, 19 L.Ed.2d 1170 (1968):
" hile the pre-trial order may be the beginning, it is never the end of a matter of this sort. It normally `controls the subsequent course of the action,' but not if it is `modified at the trial to prevent manifest injustice.' The judicial function does not terminate upon discovery that an issue is unspecified, but extends to a determination as to whether the ends of justice implore that the issue nonetheless be introduced into the litigation. This frequently involves a delicate balance of competing considerations, variable from case to case, in order that the decision may be soundly made. And absent perceptible irregularity in a process so largely discretionary, we are loath to disturb the result."
In the instant case, the District Court did not allow Schonrock to withdraw the admission that $1,441 was owed for construction changes. Rather, it concluded there was conflicting evidence on the issue and allowed the matter to go to the jury. We do not find an abuse of discretion. This Court concludes that the District Court did not err when it overruled the Plaths' objection to the introduction of evidence with regard to the over-collection claim and when it subsequently denied the Plaths' motion for judgment as a matter of law in the amount of $1,441.
Issue No. 4. Did the District Court err 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 by failing to submit this issue for a factual determination by the jury?
Schonrock argues that he objected to the Plaths' proposed jury instruction number 5 because the determination of whether he was engaged in a trade or commerce was a fact question for the jury.
The District Court overruled Schonrock's objection and gave the following instruction, Number 5:
You are instructed that the Defendant, Mark Schonrock, was involved in a trade and commerce in all of his dealings with the Plaths.
As stated supra, a legal theory or factual issue must be at least implicitly included in the pretrial order. Nentwig, 256 Mont. at 139, 845 P.2d at 102 (citing United States v. First Nat'l Bank of Circle (9th Cir. 1981), 652 F.2d 882, 886; ACORN v. City of Phoenix (9th Cir. 1986), 798 F.2d 1260, 1272). The failure to raise a factual issue or legal theory in the pretrial order may result in a waiver. See Nentwig, 256 Mont. at 138, 845 P.2d at 102 (citing Har-Win, Inc. v. Consolidated Grain & Barge Co. (5th Cir. 1986), 794 F.2d 985; Miles v. Tennessee River Pulp & Paper Co. (11th Cir. 1989), 862 F.2d 1525).
The final pretrial order in this case does not contain any factual issue, legal theory or defense that Schonrock was contesting the application of the Consumer Protection Act based upon an allegation that his construction business was not engaged in a trade or commerce. 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 trial.
Section 30-14-102(6), MCA, specifically defines trade or com
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