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Vestre v. Lambert8/20/1991
Submitted on briefs June 18, 1991.
The District Court for the Eleventh Judicial District, Flathead County, consolidated two lawsuits and a jury trial was held. Plaintiffs, Melanie Vestre and David Knoll, sought damages for fraud, negligent misrepresentation, negligent construction, and breach of warranty against Century 21, Paul Lambert, Dean Conaway and Donald and Norma Barringer, d/b/a, Barringer Construction. Judgment was entered in favor of the Barringers and they are not parties to this appeal. The jury found that defendants Lambert and Conaway had negligently misrepresented material facts and awarded plaintiffs $10,000. The jury found in favor of Lambert, Conaway and Century 21 in all other respects. Plaintiff Knoll also brought an action against Stanley Pine to recover on a promissory note. Pine counterclaimed and sought damages for misrepresentation. The jury found Knoll violated a duty owed to Pine and awarded Pine $40,000. Plaintiffs appeal. We reverse and remand.
We will address the following issues:
1. Did the District Court err in allowing Pine to testify as an expert witness?
2. Did the District Court err in allowing defense counsel to testify and argue the case?
3. Did the District Court err in allowing Pine's testimony on his community activities and involvement?
Plaintiffs, Melanie Vestre (Vestre) and David Knoll (Knoll), lived in their home located on Flathead Lake near Kalispell, Montana ("the Lake home"). Plaintiffs contacted Dean Conaway (Conaway), a real estate agent employed by Century 21 Preferred Properties, Inc. (Century 21), regarding the purchase of real estate investment property. Plaintiffs informed Conaway that they were looking for undeveloped property on which to build improvements and rental units. Plaintiffs informed Century 21, Paul Lambert (Lambert), President of Century 21, and Conaway that they wanted an investment that would be profitable and beneficial for taxation purposes also.
Conaway, Lambert and Century 21 referred plaintiffs to townhouses in the Buffalo Head Addition Number 92, located in Kalispell, Montana, then being built and constructed by Donald and Norma Barringer, d/b/a Barringer Construction (Barringers). Century 21, Lambert and Conaway informed plaintiffs that Barringers were finishing one four-plex unit which would be available for sale to them and had two townhouses in a finished unit for sale immediately.
Century 21, Lambert, Conaway and Barringers all suggested that the parties involve Stanley Pine (Pine), developer of the Buffalo Head Addition No. 92, in a complex three-way property exchange. The parties exchanged various appraisals. Subsequently, on May 6, 1985, plaintiffs, Barringers and Pine entered into an exchange agreement whereby various properties, cash, notes, and equity were transferred among them.
As part of the exchange, plaintiffs transferred their Lake home property to Pine and received a total of six townhouses (the "original units") from Pine and Barringers. Barringers were the developers, builders, and contractors on these six original units. Plaintiffs also received from Barringers two vacant building lots in the development, and committed to building a four-plex unit on each lot. Plaintiffs did eventually construct one four-plex unit on one lot, known as the "Blue Units". Pine executed a promissory note in the amount of $20,521.
During the negotiation process, prior to the closing of the exchange agreement, plaintiffs became aware of the fact that six townhouse units in the same subdivision constructed by Barringers, which adjoined two of their potential townhouse uni
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