Vader v. Fleetwood Enterprises, Inc.

January 13 2009

DA 07-0616

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 6

DAVID VADER and DONNA VADER,

Plaintiffs, Appellees and Cross-Appellants,

v.

FLEETWOOD ENTERPRISES, INC., FLEETWOOD
MOTOR HOMES OF CALIFORNIA, INC.,

Defendants, Appellants and Cross-Appellees.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDV-2004-501
Honorable Jeffrey M. Sherlock, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

William O. Bronson, Bronson, Luinstra, Rothwell & Young, PLLC,
Great Falls, Montana

For Appellees:

Jonathan C. McDonald, Hunt Law Firm, Helena, Montana

Michael L. Fanning, Attorney at Law, Helena, Montana

For Amicus Curiae:

Hon. Steve Bullock, Montana Attorney General, Jesse A. Laslovich,
Assistant Attorney General, Helena, Montana

Submitted on Briefs: October 22, 2008

Decided: January 13, 2009

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Fleetwood Enterprises, Inc., and Fleetwood Motor Homes of California, Inc.

(collectively Fleetwood) appeal from a jury verdict in the First Judicial District Court,

Lewis and Clark County. David and Donna Vader (Vaders) cross-appeal from some of

the District Court’s rulings. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On November 16, 2000, the Vaders purchased a 2000 model Pace Arrow Vision

motor home for approximately $119,000 from a Fleetwood dealer in Grand Island,

Nebraska. The motor home itself was sold and warranted by Fleetwood, while the

chassis of the motor home was separately manufactured and warranted by the Ford Motor

Company. At the time of purchase, the Vaders were residents of Arizona. The motor

home was titled in Montana. As the Vaders were retired, they intended to use the motor

home as their place of residence and travel throughout the United States and Mexico.

The Vaders would frequently spend time in Montana to visit family.

¶3 Soon after purchasing the motor home, the Vaders encountered a number of

problems with it. These included problems with the leveling jacks, hot water heater, ice

maker, and other components. Most importantly, they claimed that the motor home

swayed significantly and dangerously while they drove it. The Vaders claim that this

swaying/handling problem was so severe that they had to drive through congested areas

like bigger cities in the middle of the night, out of a concern that they would not be able

to properly handle the motor home in heavy traffic. On several occasions they claimed

that the swaying was so bad that they feared for their safety.

2
¶4 The Vaders claim that they noticed these problems, particularly the

swaying/handling problem, within the first two months after purchasing the motor home.

David Vader testified that he specifically complained in writing about the swaying

problem, as well as other problems, to the Fleetwood dealership in Grand Island,

Nebraska, in January of 2001. Neither Fleetwood nor the Vaders have a copy of this

letter. The Vaders maintain that they sent the letter to the Fleetwood dealership outlining

the many problems they were experiencing with their motor home, but that Fleetwood did

not remedy the swaying problem.

¶5 The Vaders claim they made numerous attempts over the next two years to have

the swaying problem fixed. They visited a Fleetwood dealer in Mesa, Arizona, in 2001,

Ford dealers in Yuma, Lake Havasu City, and Bullhead City, Arizona, in 2001 and 2002,

and the Fleetwood factory in Riverside, California, in the spring of 2002. They also paid

visits to Bitterroot Motors of Missoula, Montana, Travel Time RV of Great Falls,

Montana, and J & D Truck Repair, Inc. of Helena, Montana, in 2003. They also claim

that they contacted Fleetwood repeatedly about the swaying problem. During this same

time period, other problems unrelated to the swaying/handling problem were also brought

to Fleetwood’s attention and were for the most part remedied. The bottom line for the

Vaders, however, is that while Fleetwood did repair some of the problems associated

with the motor home, the swaying/handling problem was never addressed. Instead, the

Vaders claim that Fleetwood generally referred their swaying/handling complaints to the

Ford Motor Company.

3
¶6 On July 2, 2004, the Vaders filed a six-count complaint against Fleetwood and the

Ford Motor Company in the First Judicial District Court. Prior to trial, Ford settled with

the Vaders and was dismissed from the suit. Counts I (negligence) and IV (strict

liability) were dismissed prior to trial. Count II, breach of implied warranty, alleged that

Fleetwood breached the implied warranties of merchantability, safe design, and fitness

for the motor home’s particular use as a motor home because of its defective condition,

particularly with regard to compromised drivability and passenger safety due to the

swaying problem. Count III, breach of express warranty, alleged that Fleetwood

expressly warranted that its motor home was merchantable, safely designed, and fit for

the use and purpose of a motor home, and that the Vaders relied on these express

warranties when they purchased the motor home. The Vaders alleged that this express

warranty was breached due to the swaying problem. The Vaders further alleged that they

provided Fleetwood with written notice of these breaches on October 22, 2003.

¶7 Count V alleged that Fleetwood had engaged in unfair or deceptive trade practices

which damaged the Vaders. These claims were brought pursuant to Montana’s

Consumer Protection Act (CPA), Title 30, chapter 14, part 1, MCA. The Vaders claimed

that in the course of attempting to address the swaying problem, they had the motor home

weighed and discovered that its actual weight was greater than the weight noted on the

vehicle’s title. Thus, the Vaders alleged that Fleetwood designed, manufactured, and

distributed the motor home, the actual weight of which exceeded the weight listed on its

title, and that these acts constituted an unfair or deceptive trade practice which caused

them damage.

4
¶8 Count VI was a “Lemon Law” claim, brought pursuant to the new motor vehicle

warranties provisions found in Title 61, chapter 4, part 5, MCA. Here, the Vaders alleged

that shortly after experiencing problems with their motor home, they reported the

problems to Fleetwood in writing and by telephone, expressing to Fleetwood that the

motor home did not conform to its express warranties and identifying the necessary

repairs. They claimed that Fleetwood first acknowledged this correspondence by a letter

dated August 21, 2001. The Vaders alleged that they also drove the motor home to

Fleetwood’s assembly plant in Riverside, California, as well as several authorized service

centers in Montana and Arizona, to allow Fleetwood to complete the repairs necessary to

conform the motor home to its express warranty. While some of the repairs were

completed, they alleged that the motor home remained nonconforming and was still

overweight, and that its condition substantially impaired the use, market value, and safety

of the motor home. The Vaders also claimed that in October 2003, they offered to return

the motor home in exchange for $100,000, or alternatively, a replacement with an

equivalent model, but that Fleetwood rejected this offer. Accordingly, because

Fleetwood failed to remedy the motor home’s defects after a reasonable number of

attempts, the Vaders claimed they were entitled to statutory remedies under Montana law.

Those remedies include a replacement vehicle or a monetary refund of the purchase price

and incidental damages. See § 61-4-503, MCA.

¶9 A jury trial was held on these claims on February 5-8, 2007. The Vaders

presented evidence and testified concerning the problems they had with the motor

home—particularly the swaying/handling problem which was the focus of their

5
complaint—and the steps they took in attempting to have these problems remedied. The

Vaders presented expert testimony to support their claims. Fleetwood presented its own

representatives, as well as expert testimony, in support of its defense. Where necessary,

this testimony and evidence will be discussed in greater detail below.

¶10 After both sides rested, Fleetwood and the Vaders both lodged challenges to some

of the proposed jury instructions. The Vaders’ objections are not relevant to the present

appeal. Fleetwood objected to several instructions pertaining to the Lemon Law and

CPA claims, arguing that the Vaders had failed to present sufficient evidence as a matter

of law to submit those claims to the jury. The District Court overruled the objections.

Fleetwood also moved to dismiss the Lemon Law and CPA claims as a matter of law for

failure to present sufficient evidence pursuant to M. R. Civ. P. 50. The District Court

denied this motion as well, but allowed Fleetwood to file post-trial briefs on the issues.

¶11 The jury returned a verdict in favor of the Vaders. It concluded that Fleetwood

violated the Lemon Law, breached an implied or express warranty, and was also liable to

the Vaders for damages due to unfair or deceptive acts or practices under the CPA. The

jury awarded the Vaders $84,000 in damages.

¶12 Both parties filed post-trial motions. The motions filed by the Vaders concerned

an award of attorney’s fees, an award of pre-judgment interest, and the type of

replacement vehicle that the Vaders were entitled to by virtue of their successful Lemon

Law claim. The Vaders also argued for an increase in the jury’s award of damages

pursuant to § 30-14-133(1), MCA, of the CPA. Fleetwood filed post-trial motions under

M. R. Civ. P. 50 and 59 seeking judgment as a matter of law on the Vaders’ Lemon Law,

6
CPA and breach of warranty claims. Fleetwood again argued there was insufficient

evidence to submit these claims to the jury.

¶13 Following a hearing on the motions, the District Court determined that there had

been sufficient evidence presented to support the Vaders’ Lemon Law, CPA, and breach

of warranty claims, and, further, that the Vaders met the legal requirements for

submitting these claims to the jury. The District Court also rejected a challenge by

Fleetwood to jury instructions on the breach of warranty claims, noting that Fleetwood

failed to object to these instructions at the time they were given. Additionally, the

District Court determined that the Vaders were entitled to a replacement motor home as a

remedy under the Lemon Law. The District Court also granted the Vaders attorney’s fees

and doubled the damages pursuant to § 30-14-133(1), MCA, of the CPA. In granting this

increase, the District Court explained its reasoning as follows:

Plaintiffs are seeking attorneys fees and triple damages pursuant to the
Consumer Protection Act. Section 30-14-133(3), MCA, allows the Court
to award reasonable attorney fees. Section 30-14-133(1), MCA, allows
the Court, in its discretion, to award up to three times the actual damages
sustained.
The purpose of the Consumer Protection Act is to “level the
playing field.” The above-noted sections seek to shift the burden from the
consumer, who can ill afford a lawsuit, to the person or entity ultimately
responsible for the problem. In this case, that would be Defendants.
Further, these provisions encourage consumers to pursue their remedies.
These remedies should deter inappropriate action by manufactures in the
future.
Here, the Court notes that Plaintiffs made any number of attempts
to have their problems solved, all to no avail. They even took their motor
home to Defendants’ manufacturing plant. Although it was serviced once,
on a second attempt, Plaintiffs were turned away from the plant when they
tried to get their motor home fixed. An unanimous jury has found that all
of the problems complained of by Plaintiffs were the fault of Defendants.
Therefore, Defendants are the authors of their own misfortune. The Court

7
 finds that Defendants should be required to pay Plaintiffs’ reasonable
attorney fees pursuant to Section 30-14-133(3), MCA. The Court will not
triple Plaintiffs’ damages, as that could be an excessive award. Section
30-14-133(1), MCA. However, the Court will double the amount of
damages awarded by the jury.

¶14 Fleetwood now appeals from the jury award and related post-trial rulings.

Fleetwood asserts that the jury’s verdict with respect to the Lemon Law, CPA, and breach

of warranty claims should be set aside because the evidence presented by the Vaders was

insufficient as a matter of law to sustain a finding of liability. Accordingly, Fleetwood

asserts the damage award and the award of a replacement home for the Lemon Law

violation should be vacated. Additionally, Fleetwood asserts that the District Court erred

in doubling the award of damages by the jury under the CPA.

¶15 The Vaders argue that there was sufficient evidence to submit the Lemon Law,

CPA, and breach of warranty claims to the jury, and that the verdict and award should be

affirmed. The Vaders also cross-appeal, arguing that the District Court abused its

discretion when it failed to award them treble damages, as opposed to its award of double

damages. Finally, the Vaders request that this Court award attorney’s fees incurred on

appeal pursuant to the CPA, if the jury award and the post-trial orders by the District

Court are affirmed.

¶16 Because Fleetwood concedes that it did not object to jury instructions regarding

the Vaders’ breach of warranty claims at the time they were given, we conclude that

Fleetwood has waived this issue for purpose of appeal. See Turk v. Turk, 2008 MT 45,

¶ 16, 341 Mont. 386, ¶ 16, 177 P.3d 1013, ¶ 16 (“The failure to object to a verdict form

8
and/or jury instructions at trial results in a waiver of the right to challenge them on

appeal.”). Thus, we state the remaining issues on appeal and cross-appeal as follows:

¶17 Issue One: Did the District Court err in denying Fleetwood’s motion for

judgment as a matter of law with respect to the Lemon Law, CPA, and breach of

warranty claims?

¶18 Issue Two: Did the District Court abuse its discretion in doubling the jury’s

award under the CPA?

¶19 Issue Three: Are the Vaders entitled to an award of attorney’s fees under the

CPA for fees incurred on appeal?

STANDARD OF REVIEW

¶20 We review a district court’s decision to deny a motion for judgment as a matter of

law de novo. West v. Club At Spanish Peaks, L.L.C., 2008 MT 183, ¶ 45, 343 Mont. 434,

¶ 45, 186 P.3d 1228, ¶ 45. Judgment as a matter of law is proper only when there is a

complete absence of any evidence which would justify submitting an issue to a jury.

West, ¶ 45. Moreover, when considering such a motion, all evidence and any legitimate

inference which might be drawn from that evidence are to considered in a light most

favorable to the party opposing the motion. West, ¶ 45.

¶21 A district court’s decision to increase an award of damages pursuant to

§ 30-14-133(1), MCA, of the CPA, is a discretionary ruling which we review for an

abuse of discretion. Plath v. Schonrock, 2003 MT 21, ¶¶ 12-13, 314 Mont. 101,

¶¶ 12-13, 64 P.3d 984, ¶¶ 12-13. The test for an abuse of discretion is whether the trial

9
court acted arbitrarily without the employment of conscientious judgment or exceeded

the bounds of reason resulting in substantial injustice. Plath, ¶ 13.

DISCUSSION

¶22 Issue One: Did the District Court err in denying Fleetwood’s motion for
judgment as a matter of law with respect to the Lemon Law, CPA, and breach of
warranty claims?

A. Lemon Law Claims

¶23 In its post-trial motion, Fleetwood argued it was entitled to judgment as a matter

of law on the Lemon Law claim because the Vaders failed to meet certain threshold

requirements for presenting such a claim. The first alleged threshold was a “notice”

requirement pursuant to § 61-4-502, MCA. This statute reads in pertinent part as follows:

Notice – warranty enforceable after warranty period – when. (1) If a
consumer notifies in writing the manufacturer or its agent during the
warranty period that a new motor vehicle does not conform to all applicable
express warranties, the repairs necessary to conform the new motor vehicle
to the express warranties shall be made by or at the expense of the
warrantor, regardless of the expiration of the warranty period after
notification of nonconformity is given by the consumer.

Section 61-4-502(1), MCA.

¶24 Fleetwood asserted that this statute requires a consumer to notify the manufacturer

in writing during the warranty period that a motor vehicle is nonconforming as a

prerequisite to invoking the remedies of the Lemon Law. Fleetwood asserted that the

“warranty period” referred to in this statute is found at § 61-4-501(7), MCA, which

expressly defines a “warranty period” as “the period ending 2 years after the date of the

original delivery to the consumer of a new motor vehicle or during the first 18,000 miles

of operation, whichever is earlier.” According to Fleetwood, failure to comply with this

10
“notice” requirement within the statutorily-defined warranty period bars a consumer from

later availing herself of a remedy under the Lemon Law.

¶25 In addition, Fleetwood argued that consumers were required to take certain actions

within the warranty period prior to bringing a Lemon Law claim pursuant to § 61-4-503,

MCA. This statute reads as follows:

(1) If after a reasonable number of attempts the manufacturer or its agent or
authorized dealer is unable, during the warranty period, to conform the new
motor vehicle to any applicable express warranty by repairing or correcting
any defect or condition that substantially impairs the use and market value
or safety of the motor vehicle to the consumer, the manufacturer shall
replace it with a new motor vehicle of the same model and style and of
equal value, unless for reasons of lack of availability replacement is
impossible, in which case the manufacturer shall replace it with a motor
vehicle of comparable market value.
(2) As an alternative to replacement, the manufacturer may accept
return of the new motor vehicle from the consumer upon refund to the
consumer of the full purchase price, plus reasonable collateral charges and
incidental damages, less a reasonable allowance for the consumer’s use of
the motor vehicle. The refund must be paid to the consumer and to a
lienholder, if any, in proportion to their interests.

Section 61-4-503, MCA.

¶26 Fleetwood claimed that the Vaders failed to meet these threshold requirements

because they did not present evidence that they gave Fleetwood written notice of the

swaying/handling problem by the end of calendar year 2002, which it argued was the end

of the warranty period. Additionally, Fleetwood claimed that the Vaders failed to make a

reasonable number of attempts to have the swaying/handling problem fixed prior to the

expiration of the warranty period. Fleetwood argued that the first attempt to have the

swaying problem addressed occurred in July 2003 when the Vaders took the motor home

11
to J & D Repair in Helena—more than six months past the last date for obtaining relief as

contemplated by § 61-4-503, MCA.

¶27 The District Court rejected the argument that § 61-4-502, MCA, imposes a notice

requirement on Lemon Law claims. The District Court concluded that the statute related

to “those situations where a written notice is given prior to the expiration of the warranty

and the warranty is not fulfilled during the warranty period. This is not the issue in this

case, and there is no specific requirement of any particular type of notice.” With regard

to the second statutory requirement, the District Court found that the Vaders presented

evidence at trial to the effect that they took the motor home to multiple dealers a total of

approximately eight times in an attempt to have the problems resolved within the first

two years of the warranty period. The District Court noted that an exhibit placed into

evidence by the Vaders showed that they made a complaint about the motor home’s

suspension on January 7, 2002, which was within the warranty period. Thus, the District

Court concluded the Vaders had satisfied the statutory and evidentiary requirements for

submitting the Lemon Law claim to the jury.

¶28 Fleetwood argues that the uncontroverted evidence establishes that the warranty

period expired by November 2002 and that the Vaders failed to take the steps required

under the Lemon Law in order to avail themselves of its remedial purposes. It asserts

that the Vaders failed to provide written notice of the swaying problem and failed to

make a reasonable number of attempts to have the swaying problem fixed prior to

November 2002. Fleetwood concedes that the Vaders did complain in writing about

problems with some of the internal components of the motor home (i.e., fixtures,

12
appliances, furnishings and other accessories), but failed to do the same with respect to

the “non-residential” components (i.e., the swaying problem). Fleetwood notes that

“residential” components are not covered by the Lemon Law. See § 61-4-501(5)(b)(ii),

MCA. Thus, any complaints about these residential components do not satisfy the notice

requirement under the Lemon Law, because only written notice of an issue with a “non-

residential” component (in this case, the swaying/handling problem) would be sufficient.

Additionally, Fleetwood reiterates the view taken in its post-trial motion that a minimum

number of reasonable attempts to have the swaying/handling problem addressed simply

did not occur until after the warranty period expired, and that the earliest attempt to

address this problem did not actually occur until July 2003—six months after the

warranty period ended.

¶29 The Vaders urge us to affirm. They maintain that the District Court correctly

concluded that § 61-4-502, MCA, does not impose a notice requirement. However, even

if written notice is required, they argue that evidence in the record shows it was satisfied.

Furthermore, they argue that they did present evidence showing a reasonable number of

attempts to have the motor home repaired within the warranty period. In general, they

argue that the reasonableness of such attempts is a question of fact for the jury, and that

the jury resolved this question in their favor. More specifically, they point to testimony

from David Vader that he repeatedly delivered his motor home to dealerships for repair

and complained of the swaying problem, but that the dealers would refuse to attempt to

repair or even document the problem in a work order because they viewed it as a chassis

problem for which the Ford Motor Company, not Fleetwood, was responsible.

13
¶30 Based on the plain language of § 61-4-502, MCA, we agree with the District

Court’s ruling with regard to the “notice requirement” under the Lemon Law. “We

interpret a statute by looking first to the statute’s plain language, and if the language is

clear and unambiguous no further interpretation is required.” State v. Johnston, 2008 MT

318, ¶ 26, 346 Mont. 93, ¶ 26, 193 P.3d 925, ¶ 26. Moreover, when interpreting statutes

we view them as part of a whole statutory scheme, and construe them so as to forward the

purpose of that scheme. State v. Burch, 2008 MT 118, ¶ 27, 342 Mont. 499, ¶ 27, 182

P.3d 66, ¶ 27. The plain language of § 61-4-502, MCA, demonstrates clearly that it was

not designed to impose a notice requirement on Lemon Law claims. The statute is

entitled “Notice – warranty enforceable after warranty period – when.” The intent of this

statute is to extend the enforceability of a warranty period in those situations where a

consumer provides written notice of a non-conformity to a manufacturer or its agent prior

to the expiration of the warranty period in order to ensure that the necessary repairs are

completed under the terms of the warranty. We agree with the District Court that this

statute is simply inapplicable to the case at bar.

¶31 By contrast, § 61-4-503, MCA, does require a consumer to make a reasonable

number of attempts to have a motor vehicle conform to any express warranties within the

warranty period. At trial, David Vader testified that he made such attempts within the

warranty period, but did not have documentation of these attempts because when he tried

to have the swaying problem addressed, the Fleetwood dealerships would tell him to

contact Ford Motor Company about the problem and would refuse to write up a work

order. The jury clearly found this testimony credible. We conclude there was sufficient

14
evidence for a jury to find that the Vaders had made a reasonable number of attempts to

have the swaying/handling problem remedied.

¶32 A motion for judgment as a matter of law is not a device by which parties can

invoke a reviewing court’s power to reexamine and reweigh the evidence before the jury.

The party making this motion must demonstrate a complete absence of any evidence

which would justify submitting an issue to a jury. West, ¶ 45. Fleetwood has failed to

meet this burden. While the jury was certainly not required to believe David Vader’s

testimony, they apparently did. Thus, the District Court did not err in denying

Fleetwood’s motion regarding this claim.

B. CPA Claim

¶33 In its post-trial motion, Fleetwood argued that the venue provisions of the CPA

barred the Vaders’ claims. In particular, Fleetwood pointed to § 30-14-133(1), MCA,

which states that an aggrieved customer “may bring an individual but not a class action

[suit] under the rules of civil procedure in the district court of the county in which the

seller, lessor, or service provider resides or has its principal place of business or is doing

business to recover actual damages or $500, whichever is greater.” The Vaders originally

purchased their motor home in Nebraska. Fleetwood argued it was an out-of-state

corporation with no presence in the state of Montana, and that the Vaders themselves no

longer resided in Montana at the time of suit. Given the specific language in

§ 30-14-133(1), MCA, Fleetwood argued that the CPA only contemplates claims against

sellers actually present in Montana.

15
¶34 Additionally, Fleetwood argued that the Vaders’ claims were subject to a two-year

statute of limitations under the CPA, and that the Vaders had failed to timely present their

claims. It maintained that any CPA claims which were based on allegedly deceptive

statements made in Fleetwood’s sales literature would have accrued as early as December

2000, and would be prohibited after December 2002. Assuming, therefore, that only

claims accruing within two years of the filing of the complaint were viable, Fleetwood

argued that no evidence of such practices was offered, and that there generally was no

evidentiary basis set forth which would support a CPA claim.

¶35 The District Court denied the motion regarding the CPA claims as well. With

respect to the “venue” provisions of the CPA, the District Court deemed this argument

waived because it had not been raised prior to trial. The District Court did not directly

address the statute of limitations argument in its written order, but apparently concluded

that the Vaders had presented sufficient evidence to rebut this claim since it did not grant

Fleetwood’s motion.

¶36 On appeal, Fleetwood seeks to reframe its venue argument, maintaining that the

Vaders’ claims are actually barred because they fail to meet the subject-matter

jurisdiction provisions of the CPA. In its briefs, Fleetwood acknowledges that its use of

the term “venue” in the District Court instead of subject-matter jurisdiction may have

caused some confusion in these proceedings, but nonetheless argues that its “clear intent”

was to argue the jurisdictional implications of the statute.

¶37 We generally do not address issues raised for the first time on appeal, or a party’s

change in legal theory on appeal. Whitehorn v. Whitehorn Farms, Inc., 2008 MT 361,

16
¶ 21, 346 Mont. 394, ¶ 21, 195 P.3d 836, ¶ 21. Having reviewed the post-trial briefs filed

by Fleetwood, the transcript, and Fleetwood’s briefing on appeal, we conclude that its

subject-matter jurisdiction argument is a change in legal theory which was never properly

raised before the District Court. Thus, we decline to address it.

¶38 Turning to Fleetwood’s statute of limitations argument, the Vaders argue that

Fleetwood waived this defense. While the Vaders acknowledge that Fleetwood did plead

this defense affirmatively in its answer, they assert that Fleetwood’s failure to even

address this defense until after trial precludes it from asserting it now. Second, the

Vaders maintain that even if this defense is available to Fleetwood, they did present

evidence of unfair/deceptive trade practices occurring within two years of the filing of

their complaint. First, they note that under § 61-4-533, MCA, a violation of the Lemon

Law is a per se violation of the CPA. See § 61-4-533, MCA (“A violation of any

provision of this part is an unfair or deceptive trade practice under Title 30, chapter 14,

part 2, and the penalties provided in 30-14-224(1) apply.”). The Vaders argue that

Fleetwood’s failure to repair the swaying problem with the motor home before the

expiration of the warranty period and refusal to replace the nonconforming vehicle as

required under the Lemon Law constituted a violation of the CPA. Additionally, the

Vaders argue that they presented other evidence of CPA violations by Fleetwood. They

note that Fleetwood promised a “quiet” and “nearly flawless ride” in its sales materials,

and argue that Fleetwood failed to help them when their motor home developed a

dangerous sway, simply referring them to Ford. They maintain that this evidence

17
presents a separate basis for an unfair/deceptive act or practice and also supports their

CPA claim.

¶39 The jury specifically found that Fleetwood violated both the Lemon Law and the

CPA. Because Fleetwood failed to affirmatively address its statute of limitations defense

prior to trial, and did not attempt to limit the jury’s consideration of evidence to certain

dates or timeframes, there is no way to know whether or to what extent the jury arguably

considered evidence of actions undertaken outside of the statute of limitations period. At

a minimum, however, the Lemon Law violation is sufficient evidence that a CPA

violation occurred as well. The Lemon Law violation occurred with the statute of

limitations period, and was by itself sufficient to support the Vaders’ CPA claim.

¶40 Again, because Fleetwood is challenging the denial of its post-trial motion for

judgment as a matter of law, it has the burden of demonstrating a complete absence of

any evidence which would allow the Vaders to submit their CPA claim to the jury.

Clearly, the Vaders presented sufficient evidence to sustain this claim, and Fleetwood has

failed to meet its burden in this regard. Thus, we affirm the District Court with regard to

the CPA claim as well.

C. Breach of Warranty Claims

¶41 Fleetwood also argued in its post-trial motion that the Vaders’ claims for breach of

implied and express warranties were not supported by sufficient evidence and should not

have been submitted to the jury. Fleetwood argued that the evidence showed that David

Vader reviewed the express warranties associated with the motor home, and knew that

Fleetwood’s limited warranty did not cover the chassis and its component parts, as these

18
were covered separately by the Ford Motor Company’s warranty. The District Court

rejected this argument by noting that in one of Fleetwood’s “sales brochures, [it]

promised a ‘flawless ride.’ They jury could have easily found, and probably did, that this

sort of statement, although made in a sales brochure, arose to the level of an express

warranty.”

¶42 We agree with the District Court, and conclude that Fleetwood’s appeal of the

denial of its post-trial motion with regard to this claim is without merit. Once again, a

post-trial motion for judgment as a matter of law is not an invitation to reweigh the

evidence, but only to determine whether there was any evidence which would support

submitting a particular claim to the jury. The District Court correctly reasoned that the

jury could have concluded that one of Fleetwood’s sales brochures, which was admitted

into evidence and promised a “flawless ride,” created an express warranty which was

subsequently breached. Thus, we affirm the District Court with respect to the breach of

warranty claims as well.

¶43 Issue Two: Did the District Court abuse its discretion in doubling the jury’s
award under the CPA?

¶44 As noted above, (see ¶ 13), the District Court doubled the award of damages for

violations of the CPA. Fleetwood asserts the District Court abused its discretion in so

doing. Although § 30-14-133, MCA, of the CPA does allow the District Court to treble

damages, Fleetwood maintains that under Plath the increase of damages is not intended

to punish but instead to be “compensatory and remedial” rather than punitive. See Plath,

¶ 27. Fleetwood maintains the District Court’s rationale was based, in part, on a

19
deterrence rationale which Fleetwood claims makes the doubling of the award for all

practical purposes “a judicially-imposed punitive damage award.” Fleetwood asserts that

this doubling of punitive damages is both contrary to the CPA and raises serious

constitutional concerns in light of such cases as BMW of North America, Inc. v. Gore,

517 U.S. 559, 116 S. Ct. 1589 (1996) and State Farm Mut. Automobile Ins. Co. v.

Campbell, 538 U.S. 408, 123 S. Ct. 1513 (2003), which address the impropriety of

excessive punitive damage awards. Accordingly, Fleetwood argues the doubling of

damages by the District Court should be reversed.

¶45 The Vaders and the State, appearing as Amicus, both argue that the doubling of

the damage award under the CPA was within the discretion of the District Court.

Ironically, the Vaders also claim on cross-appeal that the District Court abused its

discretion when it failed to treble the damages because treble damages are allowed under

the CPA and do not lead to an excessive award.

¶46 In Plath, we discussed the practical application of the treble damages provision of

the CPA. In that case, a district court refused to increase an award of damages under the

CPA because the plaintiffs failed to show that a defendant had engaged in any “culpable

behavior.” Plath, ¶ 16. We explicitly rejected the notion that such a showing was

required and remanded the matter to the district court. As we stated in our holding,

The District Court erred when it ruled treble damages would not be
awarded because the evidence did not support a finding generally
associated with punitive damages. The purpose of the trebling provision of
the Montana Consumer Protection Act is to promote or encourage private
individuals to pursue violations of Montana’s Consumer Protection Act by
making it more economically feasible to pursue those claims where actual
damages are minimal. Montana’s treble damages provision is purely a

20
 discretionary function of the district court and such awards should be
determined on a case-by-case basis. A district court decision whether or
not to award treble damages under the Act should be guided by the overall
purpose of the Act itself, which is to protect the public from unfair or
deceptive practices engaged in by trade or commerce. The specific purpose
of the treble damage provision is to encourage consumers to bring these
civil actions by making it more economically feasible.

Plath, ¶ 28.

¶47 Based on a portion of the above-quoted language, Fleetwood suggests that an

increase of damages cannot be made unless the actual damages are “minimal.” But as the

State correctly notes, nothing in the statute itself suggests any such requirement. Instead,

Montana’s CPA gives district courts discretion, without imposing any particular criteria,

to grant an award of treble damages if it finds that such an increase will further the

purpose of the CPA. See Plath, ¶ 22 (noting that, among jurisdictions which have

consumer protection acts, Montana’s CPA falls in the class of the “distinct minorit[y] of

consumer protection acts [which] allow for a purely discretionary award of treble

damages.”). In Plath, we noted that the CPA’s treble damage provision does not require

any “specific conduct that would trigger imposition of the treble damage award” and

further observed that this treble damage award “is not punitive in nature and . . . does not

require specific intentional conduct on the part of the defendant.” Plath, ¶ 27. In other

words, the treble damages provision does not “require a plaintiff to prove malice,

oppression, or fraud, which under Montana law is prerequisite conduct necessary to

allowing punitive damages.” Plath, ¶ 26 (citing T & W Chevrolet v. Darvial, 196 Mont.

287, 293, 641 P.2d 1368, 1371 (1982)). Although, in practical terms, “the trebling

21
function has a deterrent effect, it is used primarily as a compensatory measure, and thus is

not intended to be punitive.” Plath, ¶ 25.

¶48 Fleetwood has not argued that Plath was wrongly decided or should be overruled.

Instead, Fleetwood maintains that the District Court’s reasoning shows that it was basing

its decision on a deterrence rationale which went beyond the compensatory rationale

adopted in Plath. However, in Plath we highlighted the fact that punitive damages are

awarded in response to a plaintiff’s showing of “malice, oppression, or fraud” by the

defendant. If the District Court stated that it was trebling damages in order to punish

such conduct, then Fleetwood’s case would arguably have some merit. Here, the District

Court’s rationale shows that the doubling of the damage award was designed to “level the

playing field” and deter inappropriate action by manufactures in the future. This satisfies

the remedial purpose inherent in the trebling damages provision, and was within the

District Court’s discretion.

¶49 Moreover, it was equally within the District Court’s discretion to award only a

doubling of damages, instead of a trebling of damages as requested by the Vaders. The

language of the treble damages provision is discretionary, and the District Court certainly

did not commit an abuse of discretion by awarding a doubling of damages, as opposed to

a tripling of damages, or no increase at all. Thus, we affirm the District Court’s award.

¶50 Issue Three: Are the Vaders entitled to an award of attorney’s fees under the
CPA for fees incurred on appeal?

¶51 The Vaders assert that attorney’s fees are available for consumers who

successfully secure a CPA award, and that fees incurred on appeal should be awarded as

22
well. The Vaders argue that this Court seemingly recognized the validity of such an

award of attorney’s fees in Baird v. Northwest Bank, 255 Mont. 317, 843 P.2d 327

(1992). They also argue that other jurisdictions allow an award of attorney’s fees

incurred on appeal in successfully defending an award under consumer protection laws.

See e.g., Cange v. Stotler & Co., 913 F.2d 1204, 1211 (7th Cir. 1990); Jordan v.

Transnational Motors, Inc., 537 N.W.2d 471, 474 (Mich. App. 1995); Wash. State Phys.

Ins. Exch. & Assn. v. Fisons Corp., 858 P.2d 1054, 1074 (Wash. 1993). The Vaders

request that we remand this matter to the District Court to determine the amount of

attorney’s fees which should be awarded for defending their verdict on appeal.

¶52 Given that Fleetwood has not objected to an award of attorney’s fees for work

performed on appeal, we grant the Vaders’ request to remand this matter to the District

Court. Although no Montana cases explicitly hold that attorney’s fees may be awarded

for work performed in defending a CPA award on appeal, we did appear to implicitly

recognize their availability in Baird. See Baird, 255 Mont. at 329, 843 P.2d at 334-35.

Section 30-14-133(3), MCA, of the CPA states that “[i]n any action brought under this

section, the court may award the prevailing party reasonable attorney fees incurred in

prosecuting or defending the action.” Clearly, the Vaders’ appeal was necessary to

defend their award under the CPA. Moreover, as the Vaders note, other jurisdictions

with consumer protection acts do allow attorney’s fees incurred on appeal. Thus, we

remand this matter to the District Court for a determination and assessment of reasonable

attorney’s fees incurred on appeal.

CONCLUSION

23
¶53 We affirm the District Court’s denial of Fleetwood’s post-trial motions for

judgment as a matter of law with respect to the Lemon Law, CPA, and breach of

warranty claims. We further hold that the District Court did not abuse its discretion when

it doubled the award of damages pursuant to § 30-14-133(1), MCA, of the CPA. Finally,

we remand this matter to the District Court in order to determine a reasonable award of

attorney’s fees incurred by the Vaders on appeal in defending their award for violations

of the CPA.

/S/ PATRICIA COTTER

We concur:

/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS

24