06/17/2025
DA 24-0144 Case Number: DA 24-0144
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 125
DANIEL KNUDSEN, ROSE E. AYERS, ERIC DENNISON, LANCE FRENCH, ERIK FARNHAM, and KAILA JACOBSON as Class Representatives,
Plaintiffs and Appellants,
v.
THE UNIVERSITY OF MONTANA, a unit of the Montana University System,
Defendant and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 16-977 Honorable Shane A. Vannatta, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Nicole L. Siefert, Siefert & Wagner, PLLC, Missoula, Montana
John L. Amsden, Justin Stalpes, Conner Bottomly, Sydney Best, Beck Amsden & Stalpes, PLLC, Bozeman, Montana
For Appellee:
Lucy T. France, Office of Legal Counsel, The University of Montana, Missoula, Montana
Maxon R. Davis, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana Submitted on Briefs: March 26, 2025
Decided: June 17, 2025
Filed:
Vor-641•—if __________________________________________ Clerk
2 Justice Beth Baker delivered the Opinion of the Court.
¶1 Former students brought class action claims against the University of Montana for
its handling of student loan reimbursement payments. Following a Missoula County jury’s
verdict in the University’s favor, Students appeal several of the trial court’s rulings. We
consider the following restated issues:
1. Were Students entitled to preclude the University from presenting evidence and argument about Students’ careless banking practices?
2. Did the University’s expert impermissibly testify to improper legal conclusions?
3. Did the University’s closing argument prejudice Students’ right to a fair trial?
4. Are Students entitled to a new trial because the District Court improperly admitted the University’s fee comparison chart into evidence?
5. Are Students entitled to a new trial because the District Court refused their requested burden-shifting instruction?
We affirm the District Court’s evidentiary rulings and find it unnecessary to address the
alleged instructional error.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 When a university receives student loan funds from the federal government on
behalf of a student, the school credits the student’s account for tuition and fees. It then
reimburses students the remaining funds for other expenses such as books, room, and
board. Prior to 2010, the University issued student loan reimbursements via paper check.
In May 2010, the University contracted with Higher One Holdings, Inc. to provide
reimbursement processing services. Higher One was not a bank but a “third-party
servicer”—a private entity providing services to university students that the University
3 otherwise would provide. Because Higher One could not hold money itself, it partnered
with a commercial bank to issue student reimbursements.
¶3 From 2010 to 2012, Higher One mailed newly registered students a “UM Refund
Choice Card,” which allowed students to select a preferred reimbursement method after
authenticating the card online. A student could choose to open an account with Higher
One’s partner bank—called a OneAccount—to receive reimbursement. Higher One then
activated the debit card for the student. OneAccounts functioned as bank accounts from
which a student could withdraw money via an ATM, use the debit card to make purchases,
or overdraw the account by incurring charges exceeding available funds. Students could
also reload the debit card connected to their OneAccount. Alternatively, students could
choose to have reimbursements sent to their own, separate bank accounts. Students
received their reimbursement by paper check if they did not select an electronic
reimbursement option.
¶4 Higher One could charge the University and OneAccount cardholders fees as
detailed in the contract between the University and Higher One. The student fees included
$0.50 for each debit card transaction and additional fees for use of non-Higher One ATMs,
for insufficient funds, and for abandoned accounts. Students could access the fee schedule
on Higher One’s website. The University and Higher One’s contract expired in 2015 and
was not renewed.
¶5 In 2016, students Daniel Knudsen, Rose Ayers, Eric Dennison, Lance French, Erik
Farnham, and Kaila Jacobsen filed a class action complaint against the University seeking
damages and injunctive and equitable relief. Students alleged that the University’s
4 agreement with Higher One subjected them to excessive bank fees and that the University
unlawfully disclosed personal information to Higher One without their consent. The
District Court certified three classes in the lawsuit, defined as:
Class 1: Past or present students of Defendant University who paid fees to Higher One Holdings, as a consequence of opening an account with Higher One to receive student loan refunds.
Class 2: Past or present students of Defendant University whose personal information was transmitted to Higher One Holdings.
Class 3: Past or present students of Defendant University whose personal information has been or may be transmitted to a third-party vendor or third- party contractor without prior written consent in circumstances other than where transmission is necessary for completion of a task having a legitimate educational interest.
¶6 The University appealed class certification. We affirmed the District Court in part,
upholding its certification of Class 1 and Class 2. Knudsen v. Univ. of Mont., 2019 MT 175,
¶ 25, 396 Mont. 443, 445 P.3d 834 (Knudsen I). Regarding Class 1, we held that the class
“will include only students who paid allegedly unauthorized fees as a consequence of
opening an account with Higher One to receive student loan refunds. Students charged
overdraft fees for their own careless banking practices are not encompassed within the class
definition.” Knudsen I, ¶ 20. We reversed the District Court’s certification of Class 3.
Knudsen I, ¶ 16.
¶7 Back in the District Court, the parties filed cross-motions for summary judgment.
The District Court ruled in part that the special relationship between the University and
Students gave rise to a fiduciary duty. Whether the University breached its fiduciary duty
to Students, the court ruled, was a question of fact for the jury to resolve. Students filed
5 several motions in limine, including a motion seeking to prohibit argument that damages
resulted from their own careless banking practices. The District Court denied this motion.
¶8 The case proceeded to a seven-day jury trial in January 2024. Through expert
testimony, Students argued that the federal standards governing the student loan process
obligated the University to act in their best interests during the 2010-2015 contract
timeframe. Contracting with Higher One to save money; failing—despite several federal
investigations into Higher One’s practices—to conduct due diligence or renegotiate the
contract to lower student fees; failing to make OneAccount fees transparent to students;
encouraging students to open a OneAccount over other reimbursement options; and
generally permitting Higher One to charge them unfair or deceptive fees, Students argued,
all constituted violations of the University’s duty to act in their best interests.
¶9 The University argued that the impetus for contracting with Higher One was not to
save itself money, but to expedite the process of issuing reimbursements to students. The
University’s expert told the jury that—during the lifetime of the contract with Higher
One—it was not obligated under federal regulation to act in students’ best interests. The
University contended that it did not violate its federal regulatory obligations to Students
and did not breach any fiduciary duty.
¶10 The jury returned a verdict finding that the University did not breach its fiduciary
duty to Students; that the University did not violate Students’ statutory or constitutional
rights to privacy through its contract with Higher One; and that the University was not
unjustly enriched through expense savings. Students appeal the jury’s verdict only on their
fiduciary duty claim.
6 STANDARDS OF REVIEW
¶11 We review each of the District Court’s challenged rulings on appeal for abuse of
discretion. See TCF Enters., Inc. v. Rames, Inc., 2024 MT 38, ¶¶ 15-16, 415 Mont. 306,
544 P.3d 206 (citations omitted) (admissibility of evidence and instructions to the jury);
State v. Edwards, 2011 MT 210, ¶ 12, 361 Mont. 478, 260 P.3d 396 (citation omitted)
(rulings on motion in limine). A trial court abuses its discretion when it acts arbitrarily
without employment of conscientious judgment or exceeds the bounds of reason, resulting
in a substantial injustice. TCF Enters., Inc., ¶ 15 (citations omitted).
¶12 An erroneous jury instruction does not constitute reversible error unless a party’s
substantial rights are prejudicially affected. State v. Kaarma, 2017 MT 24, ¶ 7, 386 Mont.
243, 390 P.3d 609 (citation omitted).
DISCUSSION
¶13 1. Were Students entitled to preclude the University from presenting evidence and argument about Students’ careless banking practices?
¶14 When it denied Students’ motion in limine, the District Court looked to Knudsen I,
in which we stated that “[s]tudents charged overdraft fees for their own careless banking
practices are not encompassed within the class definition.” Knudsen I, ¶ 20. The District
Court concluded that the University could introduce evidence and argument about students’
incurrence of overdraft fees due to their careless banking practices because these students
were not class members. The court also permitted the University to introduce evidence
and argument about banking fees generally, reasoning that it was “necessary for the parties
to present evidence as to whether students paid unauthorized fees as a consequence of
7 opening an account with Higher One to receive student loan refunds.” The jury would
have to resolve “whether the fees are banking fees, excessive, or a result of careless banking
practices.” The court allowed evidence regarding whether Higher One or its partner bank
was charging fees, pursuant to what authority or agreement, and the nature of the fees.
¶15 Students argue that the District Court’s pretrial ruling allowed the University to
impermissibly assert a comparative negligence defense. Quoting Bear Medicine v. U.S.,
192 F. Supp. 2d 1053, 1068-69 (D. Mont. 2002), Students contend that “it is consistent
with existing Montana law to find that the defense of comparative negligence is unavailable
in a claim for breach of fiduciary duty.” Students also assert that because Higher One
undisputedly was not a bank, the University could not argue or present evidence that Higher
One’s fees were banking fees. Whether certain fees were excessive and authorized, the
University responds, were disputed factual questions and therefore “it was appropriate to
allow both parties to put on evidence of what fees were authorized and what fees were
unauthorized.”
¶16 We interpreted the District Court’s class definition in Knudsen I to “include only
students who paid allegedly unauthorized fees as a consequence of opening an account
with Higher One to receive student loan refunds” but to exclude those whose careless
banking practices caused their losses. Knudsen I, ¶ 20. The District Court used
conscientious judgment when it relied on this articulation of the class definition to rule on
Students’ motion in limine. A student who used Higher One services beyond simply to
receive refunds and incurred additional fees associated with their own actions—such as
overdraft charges—would be excluded from the class definition. The District Court
8 appropriately allowed the University to present evidence and argument on any such
practices. Likewise, presentation of evidence and argument about banking fees was
necessary to explain which entity charged certain fees and to assist the jury in deciding
whether the fees were authorized. The District Court did not abuse its discretion in denying
Students’ motion in limine. See TCF Enters., Inc., ¶ 15 (citation omitted).
¶17 2. Did the University’s expert impermissibly testify to improper legal conclusions?
¶18 Students requested that the court prohibit the University’s expert witness, Dennis
Cariello, from testifying about the University’s compliance with federal regulations.
Before Cariello testified, the court orally ruled
[G]iven that the ultimate issue is did the University of Montana breach its fiduciary duties, which is beyond mere satisfaction of the . . . rules and regulations that, in some regard, the statute and regulations provide a form of standard of care that the University has to meet.
So, . . . it’s appropriate that Mr. Cariello can opine that the University of Montana has met its responsibilities. But I am going to caution the defendant that it ought not be some huge opinion about meeting all of the requirements.
The court further ruled that
the University following the regulations is setting a form of standard of care. And, so, much like any other standard of care witness, this expert may go ahead and talk about how requirements were met. Again, . . . the University . . . and Mr. Cariello ought to be very cautious[] about discussing his interpretation of the law, and focus on . . . specific facts of how the University met specific requirements that may be outlined by the law.
¶19 As an attorney in private practice, Cariello has spent his career helping universities
and higher education service providers comply with applicable federal regulations.
Cariello explained that the Department of Education issued new regulations in 2007 that
were applicable to universities from 2008 to 2016. These 2007 regulations, Cariello said,
9 were in effect during the lifetime of the 2010-2015 contract between the University and
Higher One. Cariello opined that the most important requirement of the 2007 regulations
was that there had to be convenient access to an ATM on or adjacent to campus. The 2007
regulations also required that once a university disbursed student funds to a third-party
service provider, the university could not pursue those funds, if, for example, the student
owed money for a parking ticket. Cariello testified that the Department of Education issued
new regulations in 2016 that obligated universities—for the first time—to negotiate for
third-party service provider contracts with students’ best interests in mind.
¶20 The federal government requires that universities conduct an annual compliance
audit to ensure they are complying with federal regulations. Cariello reviewed the
University’s compliance audits during the period it contracted with Higher One and found
“[n]othing . . . no mention of any infractions related to this service, or the timeliness, or
other disbursement history related to the relationship with Higher One.” Cariello also
opined that, under federal regulation and regulatory guidance, the University’s co-branding
of the Refund Choice Card was an allowable practice at the time. Higher One’s practice
of encouraging students to open a OneAccount to get their refund faster, Cariello said, was
a permissible practice during the University’s contractual relationship with Higher One.
Although Higher One was subject to two FDIC investigations between 2010 and 2015,
Cariello testified that it did not appear from the resulting consent decrees that Higher One’s
relationship with the University of Montana was at issue.
¶21 Cariello concluded that “the relationship with the University . . . and Higher One
materially met the standards of conduct in the industry at the time.” Cariello similarly
10 opined that the University’s contract with Higher One materially complied with the
industry standards for contracting with third-party servicers to disburse student credit
balances when the University entered the agreement in 2010. On redirect examination,
Cariello stated that
[t]he obligation that universities have, first and foremost in this process, is to receive that money from the Federal Government and apply it in the manner as dictated by the Federal Government. They are the ones that set the terms of this. And as long as the university fulfills that obligation, it has met its fiduciary duty.
Students objected, and the court held a sidebar discussion with counsel out of the jury’s
hearing. After the discussion, which was not put on the record, the District Court permitted
the University’s counsel to continue examining Cariello consistent with the sidebar
discussion. Defense counsel returned to specific questions about the University’s federal
regulatory obligations and the nature of Higher One’s debit card issued to students.
Cariello did not again offer an opinion that the University met its fiduciary duty to Students.
¶22 Students argue that Cariello violated the District Court’s ruling prohibiting him from
making broad statements about the law. Students specifically point to Cariello’s
statement—to which the court sustained their objection—that “so long as the university
fulfills that obligation [to the federal government], it has met its fiduciary duty.” Students
also assert that Cariello’s testimony contradicted the law of the case. Cariello testified that
the 2016 federal regulations obligated universities for the first time to keep students’ best
interests in mind when negotiating with third-party servicers. Students contend this
testimony contradicted the District Court’s conclusion that the special relationship between
the University and Students gave rise to a fiduciary duty.
11 ¶23 The University argues that Cariello did not offer improper legal conclusions. The
University cites a series of cases drawing the distinction between proper expert testimony
to an ultimate issue of fact and improper legal conclusion testimony. Compare Heltborg
v. Mod. Mach., 244 Mont. 24, 32-33, 795 P.2d 954, 958-59 (1990) (expert testimony that
employer was negligent in terminating employee; that reduction in workforce was
negligent; and that breach of obligations caused employee’s loss of benefits were legal
conclusions requiring new trial), and Citizens for a Better Flathead v. Bd. of Cnty.
Comm’rs, 2016 MT 256, ¶¶ 16-18, 385 Mont. 156, 381 P.3d 555 (no abuse of discretion in
striking expert report that applied law to county’s growth policy revision process), with
Mickelson v. Mont. Rail Link, Inc., 2000 MT 111, ¶¶ 100-03, 299 Mont. 348, 999 P.2d 985
(expert testimony covering a train crew’s obligations as they approach a crossing did not
state improper legal conclusions), and Mahan v. Farmers Union Cent. Exch., Inc.,
235 Mont. 410, 421-22, 768 P.2d 850, 857 (1989) (experts could testify that statistics
showed patterns of age discrimination, but not that age discrimination was or was not
exercised against plaintiff).
¶24 Like the expert testimony in Commissioner of Political Practices v. Wittich,
2017 MT 210, ¶ 45, 388 Mont. 347, 400 P.3d 735, the University argues, Cariello’s
testimony helped the jury understand the complex regime of federal rules and regulations
governing universities’ obligations when reimbursing students. The University highlights
the District Court’s comment that “the ultimate issue is did the University . . . breach its
fiduciary duties, which is beyond mere satisfaction of the . . . rules and regulations that, in
some regard, the statute and regulations provide a form of standard of care that the
12 University has to meet.” Cariello, the University contends, testified to the University’s
compliance with the federal regulatory scheme, but not to the ultimate issue of law in the
case—whether the University breached its fiduciary duty to Students.
¶25 M. R. Evid. 704 provides that “[t]estimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact.” “District courts ‘are vested with great latitude in ruling on the
admissibility of expert testimony.’” Wittich, ¶ 38 (quoting Cartwright v. Scheels All
Sports, Inc., 2013 MT 158, ¶ 37, 370 Mont. 369, 310 P.3d 1080). “[A]lthough an expert
may not state a legal conclusion or apply the law to the facts in an answer, an expert may
properly testify to an ultimate issue of fact.” Mickelson, ¶ 101. An expert witness may not
testify to “ultimate issues of law because legal conclusions offered by an expert witness
invade the province of the jury.” Wittich, ¶ 38 (quoting Perdue v. Gagnon Farms, Inc.,
2003 MT 47, ¶ 28, 314 Mont. 303, 65 P.3d 570).
¶26 In Wittich, the Commissioner of Political Practices filed a complaint against a state
senator, alleging that he violated Montana’s campaign finance laws when he failed to report
campaign contributions and coordination with certain entities. Wittich, ¶¶ 4-7. The district
court allowed the Commissioner to testify as an expert witness at trial. Wittich, ¶ 10. The
jury issued a verdict in favor of the Commissioner, concluding that Wittich violated state
campaign finance laws. Wittich, ¶ 12. Wittich argued on appeal that the Commissioner’s
testimony included improper legal conclusions, constituting reversible error. Wittich, ¶ 36.
¶27 We noted that “[i]ssues of fact and law do not neatly divide in a case brought to
assess compliance with campaign finance laws” and acknowledged that the
13 Commissioner’s answers “embraced the overlapping ultimate issues of fact and issues of
law.” Wittich, ¶ 43. We held that “[a]lthough Commissioner Motl offered some legal
conclusions, the majority of his testimony assisted the jury in ‘determin[ing] a fact in
issue,’ M. R. Evid. 702, by providing ‘actual, objective evidence showing coordination
between’ the entities and Wittich.” Wittich, ¶ 45. After viewing the Commissioner’s
testimony in its entirety and concluding that it was “dominated by hard factual evidence of
coordination between Wittich and the entities at issue,” we concluded that any error did
not prejudice the outcome and that the trial court did not abuse its discretion in admitting
the Commissioner’s testimony. Wittich, ¶¶ 44, 47.
¶28 In like manner, Cariello’s testimony in its entirety shows that he explained the
complex and evolving federal regulations applicable to universities between the early
2000s and 2016; provided accessible definitions for the jury to understand the concepts of
“credit balance” and “third-party servicer”; and grounded his broader opinions about the
University’s compliance with federal regulations in specific factual evidence. For
example, Cariello said he saw no issues related to Higher One in the University’s
compliance audits and opined that, at the time, the Department of Education allowed the
University both to co-brand the “Choice Refund Card” and to encourage students to open
a OneAccount. He also testified that the consent decrees resulting from the FDIC
investigations into Higher One did not relate to Higher One’s contract with the University.
Like the permissible testimony of many standard of care witnesses, Cariello then concluded
that “the relationship with the University . . . and Higher One materially met the standards
of conduct in the industry at the time.” See Howlett v. Chiropractic Ctr., P.C., 2020 MT 74,
14 ¶ 18, 399 Mont. 401, 460 P.3d 942 (expert testimony necessary in medical malpractice
action to establish applicable standard of care) (citations omitted); Young v. ERA
Advantage Realty, 2022 MT 138, ¶ 29, 409 Mont. 234, 513 P.3d 505 (“[A] professional
negligence claim generally requires expert testimony to establish breach of the applicable
standard of care . . . .”) (citation omitted).
¶29 Students conflate Cariello’s testimony—that the University met the standard of care
at the time, as dictated by federal regulation—with the ultimate issue in the case. As the
District Court explained, however, the ultimate issue was whether the University breached
its fiduciary duty to Students, “which is beyond mere satisfaction of the rules and
regulations” that set the standard of care. Students are correct that in one instance, Cariello
invaded the province of the jury when he stated that the University met its fiduciary duty
so long as it fulfilled its obligation to the federal government. The District Court, however,
sustained Students’ objection, the parties had an off-the-record discussion with the court,
and Cariello did not make a similar statement again. The record does not show that
Students’ counsel asked the court to strike his answer or to give any curative instruction.
¶30 Like Cariello, Students’ expert, Doug Brown, offered testimony about the standard
of care applicable to the University. He opined that the University violated this standard
when it entered into the contract with Higher One. Brown is a former CEO of various
banks and a member of the boards of regents for the University of Arizona and the
University of New Mexico. He also served as State Treasurer for New Mexico and Dean
of the University of New Mexico business school. Brown testified that he was familiar
with the requirements—as dictated by federal law and regulation—that universities must
15 follow when issuing student loan reimbursements. Brown testified that during the same
time period as the University’s contract with Higher One, the Department of Education
imposed a fiduciary duty on universities to act in students’ best interests and to ensure that
third-party servicers did the same. This fiduciary duty, Brown testified, came from the
Higher Education Act, federal regulations, and through “Dear Colleague letters” the
Department of Education sent to university presidents. Brown explained that the
Department of Education issues “Dear Colleague” letters as “periodic bulletins reinforcing
important points of . . . conduct” for universities. He characterized the guidance from the
Department of Education as “like the 11 commandments of the university to operate
properly with respect to third-party servicers.”
¶31 Brown opined that the University’s Higher One contract created a financial conflict
of interest with students and violated its fiduciary duty to act in their best interests. Brown
further testified that the University’s promotion of Higher One’s OneAccount over other
services violated the University’s duty to act in students’ best interests. Brown agreed that
“the standard of care applicable to universities across the country require[d] refraining from
entering into business arrangements with third-party servicers that are disadvantageous to
students[.]” Although Brown framed his opinions in different terminology, like Cariello
he offered permissible testimony on the University’s actions in light of the applicable
standard of care.
¶32 The District Court’s instructions to the jury further indicate that Cariello’s standard
of care testimony did not go to an ultimate issue of law. The District Court defined the
fiduciary relationship between Higher One and the University, outlined what would
16 constitute a breach of this duty, and explained that the University was obligated to follow
all state and federal law and regulations:
INSTRUCTION NO. 13 The University of Montana is required by the Department of Education to disburse student financial aid funds pursuant to Title IV of the Higher Education Act. When a student receives Title IV funds, the University first applies the funds to expenses charged by the University, such as tuition and fees. After those funds are applied to the student’s account with the University, the amount left over is called a “credit balance.” Both the University and its agents must follow all state and . . . federal laws and regulations in place at the time of disbursement of the credit balances to students.
INSTRUCTION NO. 16 [A] fiduciary relationship arises when one party has a high degree of control over the property or subject matter of another, when the party has a condition of superiority over another, or when the other party places a high level of trust and confidence in the fiduciary to look out for the best interests of another. In this case, the Court has determined that the University of Montana owed a special duty to Plaintiffs known as a “fiduciary duty.” This means that the University of Montana was a “fiduciary” with respect to Plaintiffs. This relationship was based on the fact that UM is responsible for processing student loan refunds (money not its own but for the benefit of Plaintiffs), that Plaintiffs were not a party to the contract with Higher One Holdings, and that Plaintiffs had little if any choice but to continue placing their trust in UM to implement a process for disbursing their credit balances in a manner that would not cause them to suffer loss or injury by reason of its negligence. The fiduciary duty in this case means that the University of Montana owed Plaintiffs a duty to act with the utmost good faith in the best interests of Plaintiffs when it came to the student loan refund process.
INSTRUCTION NO. 19 You must decide whether the University of Montana breached its fiduciary duty to Plaintiffs. The University of Montana breached its fiduciary duty if you find that it failed to act in the best interests of Plaintiffs or acted in a manner which would result in harm or loss to Plaintiffs. Plaintiffs have the burden to prove that the University: (1) breached its fiduciary duty it owed to Plaintiffs; (2) that such breach was the cause of damages to Plaintiffs; and (3) that Plaintiffs suffered damages.
17 To decide this question, you should consider: [w]hether University of Montana took reasonable steps to act in Plaintiffs’ best interests with regard to the student loan refund process by contracting with and continuing to work with Higher One Holdings; [and] [w]hether the University of Montana endorsed services provided by Higher One, or whether it provided only general information regarding the Higher One Holdings refund disbursement process.
Aside from instructing the jury that the University was obligated to follow state and federal
law, the court did not give specific instruction on the federal laws and regulations
establishing the standard of care or tell the jury that its job was to determine whether the
University complied with such laws and regulations. Rather, the jury was tasked to
determine whether the University failed to act in Students’ best interests in administering
the student loan refund process.
¶33 “A party’s substantial right ‘is not affected unless the challenged evidence is of
such character to have affected the result of the case.’” Wittich, ¶ 45 (quoting In re Estate
of Edwards, 2017 MT 93, ¶ 50, 387 Mont. 274, 393 P.3d 639). On the whole, both Brown
and Cariello addressed the third-party servicer arrangement, the standards put in place by
the federal government, and how those standards governed the relationship between the
University and Higher One. This testimony approached the territory of legal conclusions,
but it also helped to explain a complex process to the jury and to develop the parties’
theories of whether the University met its fiduciary obligations. See Wittich, ¶¶ 43, 47
(“Commissioner Motl’s often narrative answers embraced the overlapping ultimate issues
of fact and issues of law, notwithstanding his phrasing of his opinions as on ‘matters of
fact.’”). The District Court did not act “arbitrarily without employment of conscientious
judgment or so exceed[] the bounds of reason as to work a substantial injustice” when it
18 admitted Cariello’s testimony. TCF Enters., Inc., ¶ 15 (quotation omitted). When Cariello
did offer an opinion directly addressing compliance with fiduciary duty, Students objected,
and the District Court sustained the objection. Cariello’s single legal conclusion within
extensive, proper factual testimony is unlikely to have affected the result of the case and
caused Students prejudice. See Wittich, ¶ 45 (quotation omitted). Students have not shown
reversible error in the admission of Cariello’s testimony.
¶34 3. Did the University’s closing argument prejudice Students’ right to a fair trial?
¶35 Students contend that the University put an excluded matter before the jury in
closing argument, causing them prejudice and requiring reversal. Defense counsel said
several times that Cariello’s testimony showed there was “nothing illegal” about the
University’s relationship with Higher One. The District Court sustained Students’
objection to defense counsel’s statement that “there was no violation of any State or Federal
law in the University’s arrangements or contract with Higher One.” Citing Workman v.
McIntyre Construction Co., 190 Mont. 5, 617 P.2d 1281 (1980), Students maintain that
these closing arguments put “evidence, argument[,] or suggestion of an excluded matter
before the jury in contravention of [the] District Court’s ruling.”
¶36 “We consider alleged improper statements during closing argument in the context
of the entire argument.” Anderson v. BNSF Ry., 2015 MT 240, ¶ 75, 380 Mont. 319,
354 P.3d 1248 (citation omitted). “Improper argument requires reversal only when
prejudice has resulted which prevented a fair trial.” Harne v. Deadmond, 1998 MT 22, ¶ 5,
287 Mont. 255, 954 P.2d 732.
19 ¶37 In Anderson, ¶ 74, the District Court granted pretrial motions in limine prohibiting
BNSF from “making improper personalization, opinion, or commentary on [the Plaintiff]
and his attorneys and to prevent making arguments likely to inflame the jury by stating that
lawsuits should not improve a plaintiff’s standard of living or make him a millionaire.”
We reversed after BNSF’s counsel during closing argument repeatedly insinuated that there
was a conspiracy by union attorneys to bring bogus claims against the railway company;
questioned whether lawsuits should be about making people wealthy at a corporation’s
expense; “made repeated references to collateral sources, such as retirement benefits
railroad employees receive[;] and accused [the plaintiff] of trying to ‘double dip’ by
pursuing damages for lost fringe benefits.” Anderson, ¶¶ 74-76.
¶38 We also reversed for improper closing arguments in Harne. Plaintiffs sued
Deadmond for negligent construction of their home, alleging among other claims that
Deadmond was liable for violating the Montana Consumer Protection Act (MCPA).
Harne, ¶ 2. During closing argument, Deadmond’s attorney discussed his three terms as a
state representative, then described the MCPA as “a law passed by the Montana legislature
to get the scammers and swindlers who are preying upon Montana consumers,” and said
that he would hate to see it “on [Deadmond’s] record, that he was convicted of scamming
consumers.” Harne, ¶¶ 6-8. This was a misstatement of the law, as a plaintiff may seek
civil relief—not a criminal conviction—through the MCPA. Harne, ¶ 8. Deadmond’s
attorney also vouched for the credibility of his client during closing argument, in violation
of an attorney’s obligation in trial not to “assert personal knowledge of facts in issue except
when testifying as a witness, or state a personal opinion as to the justness of a cause, [or]
20 the credibility of a witness.” Harne, ¶ 9 (quoting M. R. Pro. Cond. 3.4(e)). We held that
in the absence of a curative instruction from the trial court, it was prejudicial for counsel
to improperly testify to his favorable personal experience with Deadmond. Harne, ¶ 11;
see also Workman, 190 Mont. at 12-13, 617 P.2d at 1285-86 (reversing defense verdict in
trial for wrongful death of plaintiff’s wife because counsel violated order in limine when
he referred to plaintiff’s remarriage).
¶39 The University’s closing argument is distinguishable from improper arguments that
have warranted reversal. Unlike Anderson, ¶ 79, where “BNSF’s attorneys consistently
violated the . . . orders in limine,” the District Court’s order in limine here did not prohibit
the University from arguing that it complied with state and federal law or that it did
“nothing illegal.” Likewise, the University did not introduce a prohibited fact into evidence
in violation of an order in limine. Cf. Workman, 190 Mont. at 12-13, 617 P.2d at 1285.
Nor did the University’s counsel misstate the law and rely on personal experience in
testifying to a party’s credibility, like the improper argument in Harne, ¶¶ 8-9. The
University’s argument that it did nothing illegal was not a clear violation of the District
Court’s order in limine.
¶40 The University defended against the class claims by arguing that its contract with
Higher One, and its conduct under that contract, were appropriate. Counsel’s argument
that the University acted in accordance with governing standards was not improper. As
class counsel pointed out in his closing, however, the University also was required—as a
fiduciary—to act in the students’ best interests. The court instructed the jury that the
University had “a duty to act with the utmost good faith in the best interests of Plaintiffs.”
21 Defense counsel addressed this by arguing that the fiduciary duty “began and
ended . . . with the student loan refund process” and did not extend to a student’s banking
relationship with Higher One or its partner bank. This did not exceed the permissible
bounds of closing argument. Students have not carried their burden on appeal to show
prejudice preventing a fair trial.
¶41 4. Are Students entitled to a new trial because the District Court improperly admitted the University’s fee comparison chart into evidence?
¶42 Bob Hlynosky, the University’s Procurement and Accounts Payable Director,
testified for the University. On direct examination, counsel asked Hlynosky whether, prior
to contracting with Higher One, the University undertook due diligence efforts to determine
whether Higher One’s reimbursement regime was reasonable. Hlynosky responded that
he researched Higher One’s fees and prepared a chart that compared Higher One’s fees
with the fees charged by certain banks. Students objected to the University’s attempt to
introduce Hlynosky’s fee comparison chart into evidence, arguing that it was hearsay. The
District Court overruled the objection and admitted the fee comparison chart.
¶43 Students argue Hlynosky’s fee comparison chart should have been excluded and
that its admission prejudiced their substantial rights. The District Court, Students note,
admitted the chart only because Hlynosky made it. Students contend that this rationale
misapplied M. R. Evid. 801(d)(1) because the chart was inadmissible as a prior consistent
statement. As they did not charge Hlynosky with subsequent fabrication or improper
influence or motive, the document was hearsay and improperly bolstered the witness’s
testimony. Students also argue that the court should not have sent the chart back with the
22 jury for deliberation, violating “the common law rule against submission of testimonial
materials to the jury for unsupervised and unrestricted review.” State v. Nordholm,
2019 MT 165, ¶ 10, 396 Mont. 384, 445 P.3d 799 (quoting State v. Stout, 2010 MT 137,
¶ 29, 356 Mont. 468, 237 P.3d 37).
¶44 The University responds that the chart was admissible under the business and the
public records hearsay exceptions. The University also points to Ann Heser’s testimony,
arguing that it established the same facts as the chart. Heser, the former financial officer
of a Missoula bank, opined that the fees Higher One charged were in line with those of
local and regional banks between 2010 and 2015. Admission of the chart, the University
contends, was not prejudicial because Heser’s testimony confirmed that Higher One’s fees
were comparable to local and regional banks in that timeframe.
¶45 Students rely on Nordholm—a criminal case—for their argument that the common
law prohibits submission of testimonial materials to the jury during deliberation. In a civil
trial, however, “[u]pon retiring for deliberation, the jurors may take with them all papers
which have been received as evidence in the case except depositions or copies of such
papers as ought not, in the opinion of the court, to be taken from the person having them
in possession.” Section 25-7-404, MCA; see also § 1-1-108, MCA (“In this state there is
no common law in any case where the law is declared by statute.”); accord Kyriss v. State,
218 Mont. 162, 173-74, 707 P.2d 5, 12 (1985) (no abuse of discretion in medical
malpractice action when court allowed plaintiff’s highlighted medical records to go to jury
during deliberation); Frederick v. Hale, 42 Mont. 153, 166-67, 112 P. 70, 75 (1910) (no
prejudice to defendant when trial court allowed pleadings to go back to jury during
23 deliberation). Though demonstrative aids are not ordinarily sent to the jury room, there is
no suggestion that the chart was prepared or used for that purpose.
¶46 When a trial court admits inadmissible evidence, we will not reverse the verdict
“unless the challenged evidence would have affected the result of the case.” Maier v.
Wilson, 2017 MT 316, ¶ 42, 390 Mont. 43, 409 P.3d 878 (citation omitted). The record
does not indicate that the chart played a significant role in the University’s case. Students
do not claim that Hlynosky’s testimony about his fee comparisons was improper, only the
chart he prepared. The District Court admitted Heser’s testimony to the same effect
without objection. And the University did not mention the comparison of Higher One’s
fees in closing argument. “Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected . . . .” M. R. Evid.
103(a). Viewing the record as a whole, we conclude that admission of Hlynosky’s chart,
even if error, did not affect Students’ substantial rights, as they have not demonstrated that
the chart “affected the result of the case.” Maier, ¶ 42.
¶47 5. Are Students entitled to a new trial because the District Court refused their requested burden-shifting instruction?
¶48 Students’ final argument is that the District Court improperly refused to instruct the
jury that “when a beneficiary has succeeded in proving that the trustee has committed a
breach of trust and that a related loss has occurred, the burden shifts to the trustee to prove
that the loss would have occurred in the absence of the breach.” Restatement (Third) of
Trusts § 100 cmt. f (Am. L. Inst. 2012). This instruction related to Students’ claims for
damages if the jury found the University liable. The jury found that the University did not
24 breach its fiduciary duty to Students, violate their privacy rights, or that it was unjustly
enriched. Because the jury found that the University was not liable to Students, it never
considered the issue of damages. Any pretrial error in the related instructions was therefore
harmless, and we decline to consider the issue further. Wenger v. State Farm Ins. Co.,
2021 MT 37, ¶ 33, 403 Mont. 210, 483 P.3d 480 (declining to consider plaintiff’s damages
argument where jury found no negligence).
CONCLUSION
¶49 Students have not demonstrated that the District Court’s challenged rulings
prejudiced their substantial rights to a fair trial. We affirm the jury’s verdict and the District
Court’s judgment in the University’s favor.
/S/ BETH BAKER
We Concur:
/S/ CORY J. SWANSON /S/ KATHERINE M BIDEGARAY /S/ LAURIE McKINNON /S/ JIM RICE