Total Industrial Plant Services, Inc. v. Turner Industries Group, LLC. , 368 Mont. 189 ( 2013 )


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  •                                                                                            January 15 2013
    DA 11-0769
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    
    2013 MT 5
    TOTAL INDUSTRIAL PLANT SERVICES,
    INC., an Oklahoma corporation,
    Plaintiff, Appellant, and Cross-Appellee,
    v.
    TURNER INDUSTRIES GROUP, LLC.,
    a Louisiana limited liability company;
    CHS, INC., a Minnesota corporation;
    and FIDELITY AND DEPOSIT COMPANY
    OF MARYLAND, a Maryland corporation,
    Defendants and Appellees, and Cross-Appellants.
    APPEAL FROM:           District Court of the Thirteenth Judicial District,
    In and For the County of Yellowstone, Cause No. DV 09-1688
    Honorable Gregory R. Todd, Presiding Judge
    COUNSEL OF RECORD:
    For Appellant:
    Jon E. Doak, Doak & Associates, P.C., Billings, Montana
    Norman A. Abood, Attorney at Law, Toledo, Ohio
    For Appellee:
    Alan L. Joscelyn; KD Feeback; Gough, Shanahan, Johnson
    &Waterman, PLLP, Helena, Montana
    Submitted on Briefs: October 10, 2012
    Decided: January 15, 2013
    Filed:
    __________________________________________
    Clerk
    Justice Michael E Wheat delivered the Opinion of the Court.
    ¶1    Total Industrial Plant Services, Inc. (“TIPS”), appeals the District Court’s entry of
    judgment in favor of defendants Turner Industries Group, LLC (“Turner”), and Fidelity and
    Deposit Company of Maryland (“Fidelity”), dismissing TIPS’s claims for additional
    compensation under either quantum meruit or breach of contract, awarding fees and costs to
    Turner, and finding TIPS’s construction lien time barred by operation of § 71-3-535, MCA.
    Turner cross-appeals, arguing the District Court erred both by granting TIPS partial
    summary judgment on the return of retainage and by dismissing Turner’s bill of costs as
    being untimely filed.
    ISSUES
    ¶2    We restate the issues on appeal as follows:
    ¶3    1. Did the District Court err by denying TIPS’s claim for additional compensation
    under a theory of either quantum meruit or breach of contract?
    ¶4    2. Did the District Court err by failing to find that TIPS was the prevailing party and
    awarding costs and fees to Turner?
    ¶5    3. Did the District Court err by finding TIPS’s construction lien was barred by the
    90-day statute of limitations found in § 71-3-535, MCA?
    ¶6    4. Did the District Court err by granting partial summary judgment to TIPS and
    ordering Turner to return the retainage?
    ¶7    5. Did the District Court err by dismissing Turner’s bill of costs for being untimely
    filed pursuant to § 25-10-501, MCA?
    FACTUAL AND PROCEDURAL BACKGROUND
    2
    ¶8     This appeal stems from a construction contract dispute between TIPS, an Oklahoma
    corporation, and Turner, a limited liability company formed in Louisiana. Fidelity and
    Deposit Company of Maryland (“Fidelity”) is the surety for Turner’s substitution bond filed
    in November of 2008 in lieu of TIPS’s construction lien.
    ¶9     Turner entered into a written subcontract with TIPS to install insulation at a “coker”
    unit at a refinery in Laurel, Montana, on April 14, 2007. Turner also entered into two other
    subcontracts with TIPS for fireproofing and painting the coker, neither of which is at issue.
    Cenex Harvest States (“CHS”) owns the refinery and hired Turner to act as the general
    contractor on the coker project. The initial subcontract between Turner and TIPS was to be
    paid as a fixed price totaling $2,336,967.00, with payment rendered by percentage of
    completion. The subcontract further provided that TIPS was responsible for the costs of all
    labor, services, and materials.
    ¶10    The original subcontract contemplated a start date in May of 2007 and a completion
    date of December 31, 2007. While TIPS began work fireproofing structural steel in May,
    Turner did not release TIPS to start insulating until October of 2007. It soon became
    apparent that TIPS would not meet the completion date. Both sides acknowledge that this
    was due to delays in the work of other subcontractors, a harsh winter, a change in insulation
    material, and an inability to obtain pipe and cable following Hurricane Katrina. Specifically,
    TIPS testified at trial that the cold weather reduced productivity because workers would
    periodically take breaks to warm in tents, and Turner also requested that TIPS not insulate
    welds on the piping to accommodate hydrostatic pressure testing that had run behind
    schedule. TIPS could thereafter only insulate straight-run piping in the first pass and had to
    3
    leave the welded sections of pipe without insulation, returning to finish the job once the
    welds were tested. In response to the increasing delays, Turner repeatedly requested that
    TIPS increase the number of workers on the job.
    ¶11    The subcontract did address how the parties were to deal with delays, changes to the
    scope of work, jobsite conditions, and the costs of “manning up.” The recitals provided that
    “SUBCONTRACTOR shall furnish and pay for all labor, services and/or materials and
    perform all the work necessary or incidentally required for the completion of” the project.
    Section 7.2 directed that TIPS was to supply “a sufficient number of properly qualified
    workers” to perform the work “efficiently and promptly.” Section 11.2 stated that TIPS was
    to “take all measures necessary to eliminate . . . delays,” including hiring extra personnel, “at
    no cost” to Turner or CHS. Section 10 allowed Turner to make alterations to the scope of
    work and required TIPS to submit written change orders to cover any additional costs or time
    extensions that resulted. Moreover, Section 3 required TIPS to assume responsibility for
    unanticipated costs stemming from the location of the project and general and local
    conditions.
    ¶12    Despite these provisions, TIPS claimed that Turner’s requested changes resulted in
    inefficiencies and extra costs not covered by the original fixed price subcontract and not paid
    for after the switch to time and materials. As noted, Section 10 specifically addressed how
    the parties were to handle Turner’s requested changes to the project, and required TIPS to
    submit written change orders describing the nature and cost of the extra work. TIPS did
    submit a number of change orders following some of Turner’s requests, and uncontested
    testimony at trial established that Turner paid every change order that TIPS submitted.
    4
    Indeed, the parties had agreed that TIPS would have to submit a change order to cover the
    additional costs stemming from leaving welds without insulation. Whether TIPS submitted
    written change orders to cover the requested changes and increased costs was contested,
    however, and TIPS has instead argued that Turner made oral promises of compensation that
    obviated the need for written change orders.
    ¶13    Turner and TIPS also agreed to several increases in the compensation paid to TIPS,
    eventually revising the subcontract five times to increase TIPS’s pay. On January 4, 2008,
    Turner and TIPS agreed to a revised fixed price payment of $4,224,278.96, an increase of
    $1,887,311.96 over the original subcontract. This increase consisted of $38,300.00 for extra
    insulation, $1,460,756.00 for work approved over the original bid amount, $36,078.76 in
    additional equipment, and $352,177.20 for mineral wool.
    ¶14    TIPS and Turner subsequently began discussing changing from fixed price payment to
    “time and materials” invoicing in January of 2008. TIPS sought the change to realize direct
    compensation for the additional manpower and work it claims Turner was requesting. CHS
    and Turner agreed to the change on February 6, 2008, retroactive to February 4, 2008,
    believing that it would incentivize TIPS to increase manpower and allow Turner to exact
    more control over the project. Turner also believed the change would eliminate issues
    concerning unknown extra costs, remove the need for future payment negotiations, and
    potentially preclude a claim by TIPS over compensation.
    ¶15    TIPS began to submit invoices based on time and materials costs on February 4, 2008.
    At that time, Turner calculated that TIPS had completed 47% of the insulation project under
    the fixed price subcontract. TIPS contested this calculation and payment, and also argued
    5
    that it has not been compensated for losses it suffered from inefficiencies that resulted from
    Turner’s requests.
    ¶16     Thereafter, on March 10, 2008, a second revision increased payment to TIPS to
    $7,000,000.00.    This increase included payment of $94,685.00 for hydraulic power
    manifolds, $148,500.00 in filtration system materials, $347,051.90 in extra work, and
    $2,185,484.14 in estimated future time and materials work. This revision also incorporated a
    $4.00 per hour increase in the labor rate agreed to on February 13, 2008, bringing the hourly
    rate to $43.45. This was apparently done at TIPS’s request to enable them to attract more
    qualified insulators.
    ¶17     A third revision increased TIPS’s payment to $10,000,000 on April 17, 2008. This
    increase was based on an invoice TIPS submitted for additional work. A fourth revision on
    June 6, 2008, increased TIPS’s pay to $13,000,000.00, and was similarly based on a TIPS
    invoice for work under time and materials. A final, fifth, revision on July 25, 2008,
    increased TIPS’s payment to $13,250,000.00. It is uncontested that TIPS was paid the final
    revised amount, and all time and materials claims from February 4, 2008, onward have been
    paid.
    ¶18     TIPS began to claim additional compensation was owed in the spring of 2008 despite
    these modifications. In particular, Turner refused to pay TIPS’s invoice 1895-1, which
    claimed a payment of $700,095.00 for “inefficiencies,” and Turner thereafter left the work
    site on June 25, 2008. TIPS remained at CHS through July, and while the end date of TIPS’s
    work under contract was in dispute, the parties do not dispute that TIPS completed its work
    under the subcontract. TIPS thereafter filed a construction lien against the CHS refinery on
    6
    September 24, 2008, alleging Turner owed TIPS $1,283,704.08. Turner then filed a
    substitution bond for 1.5 times the lien.
    ¶19    TIPS filed its complaint on December 3, 2009, alleging theories of breach of contract,
    quantum meruit and unjust enrichment, breach of the covenant of good faith and fair dealing,
    and seeking foreclosure of the lien. The complaint sought $1,283,704.08.
    ¶20    Prior to trial, the parties filed cross-motions for summary judgment. The court
    granted TIPS’s motion for partial summary judgment, ordering Turner to return the
    $374,225.82 in retainage it had withheld. The court also denied Turner’s motion alleging
    that TIPS’s lien was void and requesting the court dismiss the complaint, arguing venue in
    Montana was not proper and the court lacked subject matter jurisdiction.
    ¶21    A bench trial was held on July 11, 12, and 29, 2011. At trial, TIPS sought additional
    compensation for what it claimed was uncompensated additional work Turner requested
    under the fixed price contract, payment owed under the fixed price agreement for percentage
    completed, and unpaid time and materials work between January 1, 2008, and February 4,
    2008. Turner presented testimony that TIPS was paid $13,250,000.00, argued that TIPS bore
    responsibility for extra costs under the fixed price contract, and presented evidence that TIPS
    had not submitted written change orders as required for the additional compensation it
    sought. The District Court entered its Findings of Fact and Conclusions of Law on
    November 22, 2011, and found for Turner on each allegation in TIPS’s complaint.
    STANDARD OF REVIEW
    ¶22    “We review the findings of a trial court sitting without a jury to determine if the
    findings are clearly erroneous. Rule 52(a), M. R. Civ. P,” and we review the court’s
    7
    conclusions of law for correctness. Lewistown Miller Constr. Co. v. Martin, 
    2011 MT 325
    ,
    ¶¶ 15, 17, 
    363 Mont. 208
    , 
    271 P.3d 48
    . A district court’s construction and interpretation of a
    contract is a question of law that is also reviewed for correctness. Richards v. JTL Group,
    Inc., 
    2009 MT 173
    , ¶ 14, 
    350 Mont. 516
    , 
    212 P.3d 264
    . An order concerning attorney fees is
    reviewed for an abuse of discretion. B Bar J Ranch, LLC v. Carlisle Wide Plank Floors,
    Inc., 
    2012 MT 246
    , ¶ 10, 
    366 Mont. 506
    , 
    288 P.3d 288
    . This Court reviews a decision on
    summary judgment de novo. Dick Anderson Constr., Inc. v. Monroe Prop. Co., 
    2011 MT 138
    , ¶ 16, 
    361 Mont. 30
    , 
    255 P.3d 1257
    .
    DISCUSSION
    ¶23    1. Did the District Court err by denying TIPS’s claim for additional compensation
    under a theory of either quantum meruit or breach of contract?
    ¶24    TIPS alleges on appeal that the District Court erred by not finding that it was owed
    additional compensation under either a theory of breach of contract or quantum meruit and
    unjust enrichment. TIPS’s claim specifically involves three sources of allegedly owed
    compensation. First, TIPS disputes that it was adequately paid for the 47% of the project
    Turner calculated it had completed at the time of the switch to time and materials invoicing
    on February 4, 2008. Second, TIPS asserts that cold weather and changes in the scope of
    work increased costs, which TIPS contends Turner orally promised to pay for. Last, TIPS
    argues that it is owed for additional man hours provided in January of 2008. As a result,
    TIPS alleges that it is still owed $2,102,878.25 above the $13,250,00.00 it acknowledges
    receiving. In response, Turner argues that TIPS did not submit the required written change
    8
    orders for the payments it is requesting, and that pre-February 4, 2008 labor costs were
    TIPS’s responsibility.
    ¶25    At the outset, we find that the District Court properly concluded that because all of the
    work completed by TIPS was done pursuant to an express contract, there was no basis for
    TIPS’s claims under the theory of quantum meruit or unjust enrichment. Theories of quasi-
    contractual obligations are premised on the absence of an express contract, and as such, do
    not apply here. See Estate of Pruyn v. Axmen Propane, Inc., 
    2009 MT 448
    , ¶ 63, 
    354 Mont. 208
    , 
    223 P.3d 845
    . We accordingly affirm the court’s dismissal of TIPS’s quantum meruit
    and unjust enrichment claims.
    ¶26    The District Court also determined that TIPS’s contract-based claims were “directly
    refuted by the plain language of the Subcontract.” The court based this conclusion on
    findings that the subcontract required written modifications, placed responsibility for site
    conditions on TIPS, allowed Turner to change the scope of work, and provided that written
    change orders were the exclusive mechanism by which TIPS could seek extra compensation
    in response to these changes. As noted above, we review the court’s findings of fact for clear
    error, Lewistown Miller Constr. Co. ¶¶ 15, 17, and its legal conclusions for correctness.
    Richards, ¶ 14.
    ¶27    a. TIPS’s Claimed Percent of Completion Payment
    ¶28    TIPS claims that Turner did not fully compensate it for the 47% of piping TIPS
    insulated prior to February 4, 2008, asserting that Turner’s payments for “materials” could
    not be applied to sums owing for labor. Essentially, TIPS contests the characterization of
    fixed price payments as applying generally towards one “bucket” of owed money, and claims
    9
    that invoices paid for rentals, vehicles, or storage cannot count towards money owed for
    labor. Turner counters that payments made under fixed price invoicing are essentially
    fungible and are applied towards the total contract price.
    ¶29    The District Court rejected TIPS’s argument, finding that the evidence established
    that funds paid under the fixed price subcontract, whether labeled as for materials or labor,
    were interchangeable and applied to the total owed under the contract. On appeal, TIPS has
    not presented any authority, legal or otherwise, in support of their argument. While we
    recognize that the appellant, rather than this Court, is obligated to conduct legal research or
    develop legal analysis supporting their position, M. R. App. P. 12(1)(f), it is clear that the
    original fixed price subcontract contemplated a total payment of $2,336,967.00 to TIPS, all
    costs included. Indeed, under fixed price contracts generally, “[t]he [sub]contractor receives
    one fixed price for performing the work no matter how costly it is to perform,” and periodic
    payments “are typically based upon the percentage of the project completed.” Philip L.
    Bruner & Patrick J. O’Connor, Jr., Bruner & O’Connor on Construction Law vol. 2, § 6:71,
    621-22, (West 2002) (emphasis added). Because fixed price contracts consist of essentially
    indistinguishable periodic payments applied towards a set price, it is clear that TIPS places
    undue significance on the labels affixed to various payments. In light of the nature of fixed
    price contracts generally and, more specifically, the subcontract at issue, the court correctly
    concluded that payments made under the fixed price subcontract were functionally
    indistinguishable, and we affirm the District Court’s dismissal of TIPS’s claim for owed
    completion pay.
    ¶30    b. TIPS’s Claimed Inefficiency and Change in Scope Costs
    10
    ¶31    TIPS also claims Turner owes for pre-2008 changes in scope and costs resulting from
    various inefficiencies. However, the subcontract required TIPS to submit written change
    orders for such costs under the fixed price scheme, and it is undisputed that TIPS did not
    submit written change orders to Turner referencing these costs. TIPS instead claims that
    Turner made oral representations to TIPS promising payment and disputes that the fixed
    price scheme made TIPS responsible for the costs of additional labor.
    ¶32       i. Fixed Price vs. Time and Materials Contracts
    ¶33    Initially, TIPS’s argument mischaracterizes the nature of fixed price contracts, and the
    District Court concluded that costs for additional personnel and inefficiencies were the
    express responsibility of TIPS under the fixed price subcontract. As noted, the nature of
    fixed price contracts placed the burden of additional or unexpected costs on TIPS. See
    Sperry Rand Corp. v. United States, 
    201 Ct. Cl. 169
    , 181, 
    475 F.2d 1168
     (1973) (“Absent
    unusual circumstances, a ‘fixed-price [subcontractor] . . . shoulders the responsibility for
    unexpected losses, as well as for his failure to appreciate the problems of the
    undertaking . . . .’ ”); Bruner & O’Connor, Bruner & O’Connor on Construction Law, §
    6:71, 621-22 (noting that under a fixed price contract, “[i]f the work is more expensive than
    anticipated, that too is the [subcontractor’s] sole risk.”). The subcontract specifically
    provided that TIPS would bear the cost of all labor and materials resulting from local
    conditions or changes in scope, unless it submitted a written change order. By contrast,
    under time and materials invoicing, “the [subcontractor] receives reimbursement for the costs
    it incurs, plus a fee.” Bruner & O’Connor, Bruner & O’Connor on Construction Law,
    11
    § 6:81, 639-40 (emphasis added). Indeed, the parties’ contract revision switching to time
    and materials reflected this difference, as it paid TIPS’s workers on a cost-plus hourly basis.
    ¶34    Recognizing the difference between fixed price and time and materials contracts, it is
    clear the fixed price subcontract did not intend to compensate TIPS for the costs of
    additional labor, inefficiencies, or local conditions without a written change order. Under the
    fixed price scheme, TIPS only realized compensation for additional labor if the extra workers
    increased TIPS’s percent of completion. Moreover, Turner was free to increase the scope of
    work under the terms of the subcontract, and TIPS was required to submit written change
    orders for “all costs and time extensions” associated with these requests. As it was
    undisputed that TIPS did not submit written change orders for the costs at issue, the court
    correctly concluded that alleged inefficiencies and additional labor were the sole
    responsibility of TIPS under fixed price invoicing.
    ¶35        ii. The Alleged Oral Modifications
    ¶36    Despite the foregoing, TIPS contends that it is owed payment for inefficiencies and
    changes in scope because Turner made oral promises of payment that should be considered
    executed oral modifications. In support of this argument, TIPS asserts Turner should not be
    allowed to avoid executing these oral agreements by withholding payment, citing our
    decisions in Dalakow v. Geery, 
    132 Mont. 457
    , 
    318 P.2d 253
     (1957), and Lewistown Miller.
    ¶37    TIPS’s reliance on Dalakow and Lewistown Miller is misplaced. In Dalakow and
    Lewistown Miller, we recognized that while only executed oral agreements may modify a
    written contract, § 28-2-1602, MCA, one side’s refusal to pay following an oral request for
    services did not prevent a valid oral modification “merely because of that fact.” Dalakow,
    12
    132 Mont. at 464, 
    318 P.2d at 258
    ; see also Lewistown Miller Constr. Co., ¶ 23. TIPS
    argues Turner orally promised payment for additional labor and, following Dalakow and
    Lewistown Miller, it should not be allowed to avoid allegedly valid oral modifications by
    withholding payment.
    ¶38    However, in Dalakow, we found that “the record [was] replete” with evidence that the
    defendant knew an oral modification had been effected, Dalakow, 132 Mont. at 464, 
    318 P.2d at 258
    , and evidence of oral requests was similarly “unequivocal” in Lewistown Miller,
    ¶ 19. TIPS failed to provide similar evidence that Turner understood it was responsible for
    compensating TIPS for additional labor under fixed price invoicing without written change
    orders. Indeed, TIPS was responsible for the cost of labor under the subcontract, and TIPS
    failed to establish evidence of oral agreements to the contrary.
    ¶39    TIPS’s claims are also contradicted by the testimony of Ted Estraca (“Estraca”),
    President of TIPS. Estraca’s testimony indicates that he did not understand Turner’s
    communications to say that Turner would pay the additional workers brought on in January
    outside of the payments provided according to the subcontract’s fixed price scheme. Estraca
    also testified that when Turner asked TIPS to increase manpower in January he asked to
    convert to time and materials, but Turner said no, revealing that both parties understood that
    the additional labor was TIPS’s responsibility. This testimony cannot be reconciled with
    TIPS’s claim to the contrary, and Estraca admitted that TIPS did not submit written change
    orders for the costs of “manning up.” Thus, the record does not support TIPS’s claims for
    additional pay prior to February 4, 2008, and we find that the District Court correctly
    dismissed TIPS’s claims.
    13
    ¶40    c. TIPS’s Claimed Additional Pay for January 2008
    ¶41    TIPS finally claims Turner owes pay for additional labor provided between January 1
    and February 4, 2008. The District Court found that TIPS failed to prove non-payment for
    any additional work performed by TIPS that complied with “the plain language” of the
    subcontract requiring written change orders. Again, the subcontract expressly required TIPS
    to submit written change orders for costs, like those for additional labor, incurred in response
    to Turner’s changes in scope. Also again, TIPS admits it did not submit any change orders
    referencing these costs. It is further undisputed that time and materials invoicing did not
    begin until February 4, 2008. Thus, in January of 2008, TIPS was working under a fixed
    price contract. As we noted, fixed price contracts place all responsibility for additional costs
    on the subcontractor, namely TIPS. Because TIPS’s claimed costs for additional labor
    occurred under the fixed price contract without the necessary written change orders, and
    because TIPS failed to establish oral agreements providing payment for these costs, we hold
    that the District Court correctly concluded these costs “were the responsibility of TIPS.”
    ¶42    2. Did the District Court err by failing to find that TIPS was the prevailing party and
    awarding costs and fees to Turner?
    ¶43    TIPS claims the District Court abused its discretion by concluding Turner was the
    prevailing party in the litigation. We have previously held that the “ ‘prevailing party is the
    one who has an affirmative judgment rendered in his favor at the conclusion of the entire
    case.’ ” Avanta Fed. Credit Union v. Shupak, 
    2009 MT 458
    , ¶ 49, 
    354 Mont. 372
    , 
    223 P.3d 863
     (emphasis added). We have also recognized that a money award is not dispositive in
    this determination. E.C.A. Envtl. Management Servs. v. Toenyes, 
    208 Mont. 336
    , 345, 679
    
    14 P.2d 213
     (1984). In essence, TIPS claims that it is the prevailing party because the court
    granted its motion for partial summary judgment and found that TIPS was entitled to the
    retainage once Turner had posted a substitution bond. However, the court’s grant of TIPS’s
    Motion for Partial Summary Judgment was not an affirmative judgment rendered at the
    conclusion of the entire case, but was rather an interlocutory order determining a subordinate
    question that did not finally decide the case TIPS alleged in its complaint. See M. R. App. P.
    4(1)(b); Farmers Union Mut. Ins. Co. v. Bodell, 
    2008 MT 363
    , ¶ 16, 
    346 Mont. 414
    , 
    197 P.3d 913
    . As such, the court’s order granting TIPS’s motion for the retainage did not make
    TIPS the prevailing party in the litigation, and TIPS ultimately lost on each count of its
    complaint when a final decision was rendered. We therefore affirm the District Court’s
    decision that TIPS was not the prevailing party and was not entitled to costs and fees.
    ¶44    3. Did the District Court err by finding TIPS’s construction lien was barred by the 90
    day filing deadline found in § 71-3-535, MCA?
    ¶45    The District Court found that TIPS’s construction lien was filed at least one day after
    the 90 day statute of limitations found in § 71-3-535, MCA. The statute directs that a
    construction lien must be filed “not later than 90 days after” the person’s “final furnishing of
    services or materials” or the owner files a notice of completion. Section 71-3-535(1), MCA.
    Here, the District Court found that Turner left the job site on June 25, 2008, and that while
    TIPS continued to work at the refinery, it did so under a series of purchase order contracts
    with CHS and not under the Turner subcontract. Because TIPS filed the construction lien on
    September 24, 2008, 91 days after the Court determined TIPS had stopped working for
    Turner, the Court found that the lien was barred by operation of law. We agree.
    15
    ¶46    TIPS claims the court erred by finding that TIPS was off the site no later than June 25,
    2008. In support, TIPS claims that the court ignored testimony that TIPS was on the job site
    after June 25th, and argues that because it “was performing essentially the same insulation
    duties before and after Turner left the site,” its later work for CHS should provide the
    relevant date for § 71-3-535(1), MCA. TIPS finally claims the court erred by relying on
    hearsay to find a separate contract existed.
    ¶47    Conversely, Turner argues TIPS’s work under the subcontract ended on June 25,
    2008. In support, Turner proffered a notice of final completion sent to CHS dated June 24,
    2008. Turner also argues that TIPS entered into a separate contract with CHS after June
    25th, and asserts this work therefore did not toll the 90 day time limit with respect to the
    Turner subcontract.
    ¶48    The court based its finding that TIPS finished its obligations under the Turner
    subcontract prior to June 25, 2008, on Turner’s June 24, 2008, Notice of Completion,
    evidence that the last payment Turner made to TIPS was for work on June 25th, testimony
    by TIPS Project Superintendant Rumaldo Herrera that TIPS left the site on June 25th and
    began insulating for CHS on June 30th, testimony by Richard Day that TIPS was off the site
    on June 25th, and an affidavit by Pat Kimmet, CHS plant manager, that TIPS’s work after
    June 25th was under a separate CHS contract.
    ¶49    As noted above, we review the court’s findings of fact for clear error. A finding of a
    trial court sitting without a jury is clearly erroneous if it is not supported by substantial
    credible evidence, if the trial court misapprehended the effect of the evidence, or if a review
    of the record leaves this Court with the definite and firm conviction that the trial court made
    16
    a mistake. Lewistown Miller Constr. Co., ¶ 15. From a review of the record, it is clear that
    the court’s findings concerning the timeliness of the lien were supported by substantial
    credible evidence. Several parties testified that TIPS left the job site, and completed the
    subcontract with Turner, by June 25, 2008. TIPS’s own Project Superintendant testified that
    the company quit insulating under Turner on June 25, 2008, and TIPS’s Estraca testified that
    after Turner left, TIPS submitted an estimate to CHS and CHS issued a separate purchase
    order for TIPS’s work. Significantly, Turner’s admitted final notice of completion clearly
    shows a date of June 24, 2008. It was not clear error for the court to find TIPS finished
    working under Turner on June 25, 2008.
    ¶50    We are also not persuaded by TIPS’s argument that the District Court erred by finding
    that its work at the refinery after June 25, 2008, was under a separate contract and could not
    toll the 90 day time limit. It is well-established that if work is performed under separate
    contracts, “ ‘the lien should be filed within the time prescribed by the statute after the
    delivery under each of such contracts.’ ” See Frank J. Trunk & Son v. De Haan, 
    143 Mont. 442
    , 445, 
    391 P.2d 353
     (1964), quoting Helena Steam-Heating & Supply Co. v. Wells, 
    16 Mont. 65
    , 69, 
    40 P. 78
     (1895). It is a question of fact whether work was finished under one
    or more contracts, Frank J. Trunk & Son, 143 Mont. at 445-46, 
    391 P.2d at 355
    , and the
    District Court did not commit clear error by finding TIPS’s work after June 25th was under a
    separate contract. Both sides agree that Turner left the site on June 25th, and it is undisputed
    that CHS paid TIPS under separate purchase orders for its later work. TIPS Superintendant
    Herrera stated that TIPS began work on June 30th under CHS, and testimony by Mr. Day,
    Superintendant for Turner, established that the last day of the job was “Wednesday the 25th”
    17
    of June and that no TIPS personnel were left working on site. Further, TIPS Invoice # 1971,
    admitted at trial, clearly shows that TIPS submitted 330 hours of work for Turner on June 25,
    2008, and none thereafter. This was confirmed by Turner’s project engineer, Mr. Stampley,
    who testified that Invoice 1971 was the last invoice Turner processed for TIPS labor at the
    refinery, and by Plaintiff’s Exhibit 73, which shows TIPS billed CHS, not Turner, for its
    work starting June 30th. Based on this review of the record, we conclude that it was not
    clearly erroneous for the court to find that TIPS operated under a separate contract with CHS
    after June 25, 2008.
    ¶51    TIPS is also incorrect to argue that the District Court solely relied on inadmissible
    hearsay to find that TIPS’s work after June 25th came under a separate contract. A review of
    the court’s findings shows the court referenced testimony by Mr. Herrera, testimony by Mr.
    Day, invoices, and admitted correspondence between CHS and Turner, in addition to the Pat
    Kimmet affidavit. Even if, as TIPS claims, the Kimmet affidavit was inadmissible hearsay,
    its reference by the trial court was harmless error because the finding was supported by other
    admissible evidence that proved the same facts. M. R. Civ. P. 61; State v. Sanchez, 
    2008 MT 27
    , ¶ 22, 
    341 Mont. 240
    , 
    177 P.3d 444
    .
    ¶52    In light of the foregoing, we find that the court correctly concluded that because TIPS
    filed its construction lien on September 24, 2008, 91 days after it furnished services under
    the Turner subcontract, the lien was barred by operation of law. See Section 71-3-535(1),
    MCA; Johnston v. Palmer, 
    2007 MT 99
    , ¶ 33, 
    337 Mont. 101
    , 
    158 P.3d 998
     (requiring that
    the procedural requirements for construction liens be strictly followed).
    18
    ¶53    4. Did the District Court err by granting partial summary judgment to TIPS and
    ordering Turner to return the retainage?
    ¶54    Turner cross-appeals the District Court’s grant of TIPS’s motion for partial summary
    judgment seeking the return of contractual retainage. Turner asserts that the District Court
    erred because the subcontract authorized retaining money in anticipation and defense of “any
    lien or claim.” In granting TIPS’s motion for partial summary judgment on the retainage, the
    District Court found that because Turner had filed a substitution bond in lieu of TIPS’s lien,
    the lien was discharged by operation of § 71-3-552, MCA. Section 71-3-552, MCA,
    provides that “[u]pon the filing of a bond as provided in 71-3-551, the lien against the real
    property shall forthwith be discharged and released in full and the bond shall be substituted
    for such lien.” The District Court thus concluded that by filing a substitution bond, Turner
    obviated the need for TIPS to submit a final release of lien because § 71-3-552, MCA,
    effected a release by operation of law.
    ¶55    Here, the subcontract allowed Turner to withhold 10 percent of payments to TIPS as
    retainage until TIPS provided “a final release of lien.” Turner had retained $364,757.32
    when TIPS filed its construction lien on September 24, 2008. Turner subsequently filed a
    substitution bond in an amount 1.5 times the lien. Section 71-3-551, MCA, provides that a
    “contracting owner of any interest in the property” may file a bond in an amount 1.5 times
    the lien, and § 71-3-552, MCA, declares that this bond discharges and releases the lien in
    full. However, Turner is not a “contracting owner” pursuant to § 71-3-522(4)(a), MCA, and
    therefore does not fall within the operation of § 71-3-551, MCA. While this is so, it is
    generally recognized that the purpose of allowing a construction lien to attach to a release
    19
    bond is to “allow the property to be entirely free of liens” and allow “a general contractor,
    acting on the owner’s behalf, to substitute a bond for the property.” 53 Am. Jur. 2d
    Mechanics’ Liens § 307 (2012); see also AAA Constr. of Missoula, LLC v. Choice Land
    Corp., 
    2011 MT 262
    , ¶ 33, 
    362 Mont. 264
    , 
    264 P.3d 709
     (“[A] bond ‘does not change the
    relation or rights of the parties otherwise than in substituting its obligations for the [property]
    subject to the lien . . . .’ ”); Hutnick v. United States Fidelity & Guaranty Co., 
    47 Cal. 3d 456
    , 462, 
    763 P.2d 1326
    , 1330 (1988). This intent was demonstrated by the parties’
    stipulation dismissing CHS from the case, which can be seen as the parties acquiescing to the
    release of the lien in light of Turner’s bond. Turner therefore may not now oppose the return
    of the retainage by asserting TIPS has not filed a final release of lien. The subcontract
    authorized Turner to hold the retainage until a final release of lien, but a release was made
    superfluous by the parties’ actions. We accordingly affirm the District Court’s grant of
    TIPS’s motion for partial summary judgment on the retainage.
    ¶56    TIPS in turn claims it is owed prejudgment interest on the retainage, arguing that the
    court’s decision to the contrary was clear error. TIPS alleges that interest is appropriate
    because the retainage was a liquidated sum payable under a construction contract, citing
    James Talcott Constr., Inc. v. P&D Land Enterprises, 
    2006 MT 188
    , 
    333 Mont. 107
    , 
    141 P.3d 1200
    , while also claiming that the subcontract’s silence on retainage interest is
    immaterial. The District Court rejected TIPS’s claim, finding that as “[t]he Subcontract does
    not provide for payment of interest on retainage,” TIPS is not owed interest on the
    $374,225.82 that Turner withheld. Turner argues that the retainage is a cost of business and
    20
    that Subsections 16.2 and 16.6 authorized withholding money pending litigation, but did not
    permit any payment of interest.
    ¶57    A district court’s decision concerning prejudgment interest is a question of law, and as
    such, we review it for correctness. Am. Music Co. v. Higbee, 
    2004 MT 349
    , ¶ 13, 
    324 Mont. 348
    , 
    103 P.3d 518
    . Here, the court denied TIPS’s claim for interest because of the lack of
    contractual language authorizing it. We conclude that this denial was incorrect.
    ¶58    Here, Turner filed the substitution bond in November of 2008, and, as noted above,
    this bond discharged TIPS’s lien by operation of law. Because a final release of lien was
    rendered unnecessary by the substitution bond, Turner was required to remit the retainage
    once the bond was filed. However, Turner failed to do so until so ordered by the District
    Court on October 12, 2010.
    ¶59    A party is entitled to prejudgment interest if they establish “(1) the existence of an
    underlying monetary obligation; (2) the amount of recovery is certain or capable of being
    made certain by calculation; and (3) the right to recover the obligation vests on a particular
    day.” Talcott, ¶ 40. Moreover, § 27-1-211, MCA, provides a right to prejudgment interest
    that arises independent of contractual authorization, see Turner, ¶ 44, and the statute
    “mandates interest as long as the legal situation fits within the broad guidelines of the
    statute.” Price Bldg. Serv. v. Holms, 
    214 Mont. 456
    , 469, 
    693 P.2d 553
    , 560 (1985). Thus, a
    party is entitled to interest on “amounts capable of being made certain” that are required “in
    order to make [the party] whole.” Talcott, ¶¶ 44, 46. Here, Turner’s substitution bond
    discharged the lien in November of 2008, and Turner no longer had a right to keep the
    retainage. Turner therefore wrongly withheld $374,225.82 from TIPS, and it did not raise
    21
    issues concerning the quality or completeness of TIPS’s work as a possible justification. As
    the overriding purpose of § 27-1-211, MCA, is “to fully compensate the injured party for the
    loss of use of his money during the period in which a valid claim was not paid,” Holms, 214
    Mont. at 469, we conclude that TIPS is entitled to interest at the legal rate on the retainage
    from the date the bond was filed until the court’s October 12, 2010 order. The decision of
    the District Court is therefore reversed and we remand to the District Court with instruction
    to determine the dollar value of 10% interest on the retainage from the November 2008 filing
    of the substitution bond until October 12, 2010.
    ¶60    5. Did the District Court err by dismissing Turner’s bill of costs for being untimely
    filed pursuant to § 25-10-501, MCA?
    ¶61    The District Court dismissed and denied Turner’s bill of costs, finding it was filed
    after the statutory deadline, lacked a signature or notary, and was “unintelligible and not in a
    form of separately delineated costs pursuant to § 25-10-501.” On appeal, Turner argues that
    Subsection 24 of the subcontract displaces the requirements of § 25-10-501, MCA, based on
    freedom of contract, citing Arrowhead Sch. Dist. No. 75 v. Klyap, 
    2003 MT 294
    , ¶ 20, 
    318 Mont. 103
    , 
    79 P.3d 250
    . Turner alternatively claims that the bill of costs was timely filed
    because the court failed to file a separate judgment pursuant to M. R. Civ. P. 58(a) until
    January 16, 2012. We review a court’s order concerning costs for an abuse of discretion,
    Hitshew v. Butte/Silver Bow County, 
    1999 MT 26
    , ¶ 29, 
    293 Mont. 212
    , 
    974 P.2d 650
    , and a
    district court’s application of a statute in determining entitlement to costs is a question of law
    reviewed for correctness. Neal v. State, 
    2003 MT 53
    , ¶ 4, 
    314 Mont. 357
    , 
    66 P.3d 280
    .
    ¶62    a. Application of Title 25, Chapter 10, MCA, to Turner’s Claimed Costs
    22
    ¶63    At the outset, a party’s entitlement to costs in a civil action is governed by Title 25,
    chapter 10, MCA. Under chapter 10, a defendant must be allowed costs “upon a judgment in
    the defendant’s favor in the actions mentioned in 25-10-101.” Section 25-10-102, MCA.
    One of the “actions” mentioned in § 25-10-101, MCA, is “an action for the recovery of
    money or damages, exclusive of interest, when a plaintiff recovers over $50.” Section
    25-10-101(3), MCA. We previously construed the interaction of § 25-10-101 and -102,
    MCA, in Rodgers v. Mony Life Ins. Co., 
    2005 MT 290
    , 
    329 Mont. 289
    , 
    124 P.3d 137
    . There,
    we found that a defendant may recover costs by way of § 25-10-102, MCA’s reference to
    § 25-10-101(3), MCA, even if the plaintiff does not recover $50. Rodgers, ¶ 21. We
    reasoned the relevant action specified in § 25-10-101(3), MCA, is “ ‘an action for the
    recovery of money or damages,’ ” and concluded that “[t]he language, ‘when plaintiff
    recovers over $ 50[]’ does not change the type of action.” Rodgers, ¶ 21. We found that the
    latter clause was “only applicable to a plaintiff,” and concluded that if we were to interpret it
    as applicable to the defendant, “a defendant could never recover costs in an action for
    recovery of money or damages. Such is not the intent of the Legislature.” Rodgers, ¶ 21.
    As TIPS’s claim against Turner is clearly an action for money or damages under
    § 25-10-101(3), MCA, Turner’s claim for costs is enabled by § 25-10-102, MCA, and our
    decision in Rodgers.
    ¶64    While Rodgers and § 25-10-102, MCA, establish a statutory basis for Turner’s claim
    for costs, we have frequently allowed parties to contract for costs not allowed by Title 25,
    chapter 10. Section 25-10-201, MCA, enumerates the types of costs “generally allowable” in
    a party’s bill of costs, but we have long held that the list of items in that section “is exclusive
    23
    except as to cases taken out of its operation by special statute, by stipulation of parties, or by
    rule of court.” Roseneau Foods v. Coleman, 
    140 Mont. 572
    , 580, 
    374 P.2d 87
     (1962)
    (emphasis added); accord Kuhr v. City of Billings, 
    2007 MT 201
    , ¶ 37, 
    338 Mont. 402
    , 
    168 P.3d 615
    ; Springer v. Becker, 
    284 Mont. 267
    , 275, 
    943 P.2d 1300
     (1997); Masonovich v.
    School Dist., 
    178 Mont. 138
    , 140, 
    582 P.2d 1234
     (1978). Subsection 24 of the subcontract is
    such a stipulation allowing costs, and reads:
    Should CONTRACTOR employ an attorney to enforce any of the provisions
    hereof, or to protect its interest in any matter arising under this
    SUBCONTRACT, or to collect damages for the breach of this
    SUBCONTRACT, or to prosecute or defend any suit resulting from this
    SUBCONTRACT or to recover on the performance bond given by
    SUBCONTRACTOR under this SUBCONTRACT, SUBCONTRACTOR and
    his surety, jointly, and severally, agree to pay CONTRACTOR all reasonable
    costs and attorney’s fees expended or incurred therein.
    Thus, while Turner’s bill of costs falls within the ambit of § 25-10-102, MCA, following our
    decision in Rodgers, Turner and TIPS have also entered into a stipulation allowing costs
    regardless of statutory authority, a practice that we have frequently upheld.
    ¶65    However, while we have long recognized a party’s freedom to contract for costs not
    allowed by § 25-10-201, MCA, the District Court’s denial of Turner’s bill of costs was based
    on the procedural requirements of § 25-10-501, MCA.                Section 25-10-501, MCA,
    specifically requires:
    The party in whose favor judgment is rendered and who claims the party’s
    costs shall deliver to the clerk and serve upon the adverse party, within 5 days
    after the verdict or notice of the decision of the court . . . a memorandum of
    the items of the party’s costs. . . . The memorandum must be verified by the
    oath of the party, the party’s attorney or agent, or the clerk of the party’s
    attorney . . . .
    24
    Section 25-10-501, MCA (emphasis added). Here, the District Court issued its final
    Findings of Fact and Conclusions of Law on November 22, 2011. Turner filed a notice of
    entry judgment on November 29, 2011. This notice both acknowledged the date of the
    judgment and attached a copy of it. Turner filed its bill of costs, without either a signature or
    notary, on December 12, 2011, well more than 5 days after Turner had notice of the
    judgment. Turner clearly failed to adhere to the requirements of § 25-10-501, MCA, and
    failure to file a timely bill of costs results in waiver of the right to receive an award of costs.
    Pastimes, LLC v. Clavin, 
    2012 MT 29
    , ¶ 38, 
    364 Mont. 109
    , 
    274 P.3d 714
    . However, on
    appeal Turner challenges the court’s application of § 25-10-501, MCA, to the subcontract.
    ¶66    In essence, Turner argues that Subsection 24 of the subcontract displaced the
    procedural requirements of § 25-10-501, MCA. As support, Turner cites our prior holdings
    that parties are free to contract what costs may be awarded. See Kuhr, ¶ 37 (“Section
    25-10-201, MCA, is an exclusive list of costs which may be taxed to an opponent unless the
    case is taken out of its operation by a more specialized statute, by stipulation of the parties,
    or by rule of the court.”); Bovee v. Helland, 
    52 Mont. 151
    , 155, 
    156 P. 416
    , 417 (1916).
    Thus, following Kuhr, Turner claims Subsection 24 of the subcontract is a stipulation that
    displaces § 25-10-501, MCA, despite the Kuhr decision’s clear reference to § 25-10-201,
    MCA. Indeed, § 25-10-501, MCA, concerns the form, not the substance, of a bill of costs.
    Turner’s citation to our previous decisions upholding contractual stipulations for costs
    beyond those allowed under § 25-10-201, MCA, is therefore misplaced. Deciding what
    procedures govern filing a bill of costs is a different question than determining what costs
    25
    are allowed either by operation of Title 25, chapter 10 or by stipulation of the parties.
    Turner’s citations regarding the latter question are therefore unpersuasive.
    ¶67    Instead, we have previously found that “Section 25-10-501, MCA, provides the
    procedure for which the party in whose favor judgment is rendered claims his costs,” and
    routinely hold parties to its requirements. Sage v. Rogers, 
    257 Mont. 229
    , 242, 
    848 P.2d 1034
     (1993); see also Doyle v. Clarke, 
    2011 MT 117
    , ¶ 40, 
    360 Mont. 450
    , 
    254 P.3d 570
    ;
    Kuhr ¶ 38, (“§ 25-10-501, MCA, [controls] when a party was required to file his or her
    memorandum of costs.”); McDermott v. Carie, 
    2005 MT 293
    , ¶ 26, 
    329 Mont. 295
    , 
    124 P.3d 168
     (finding § 25-10-501, MCA, requires a notary to verify the oath, and concluding that
    failure to properly swear to the accuracy of the bill renders it invalid). We reiterated the
    broad applicability of § 25-10-501, MCA, in In re Estate of Lande, 
    1999 MT 179
    , 
    295 Mont. 277
    , 
    983 P.2d 316
    . There, we recognized:
    By its caption, and by the terms of the statutes contained therein, [Title 25,
    chapter 10,] Part 5 provides the means and manner in which costs are to be
    claimed. Nothing in those statutes makes a distinction or exception for costs
    being claimed in different types of actions. . . . The language of the statute is
    plain and unequivocal in encompassing all claims for costs.
    In re Lande, ¶ 22 (emphasis added). Section 25-10-501, MCA, clearly applied to Turner’s
    bill of costs.
    ¶68    Additionally, even if we were to accept Turner’s argument that Subsection 24’s
    allowance of costs displaces § 25-10-501, MCA, the subcontract’s language is utterly devoid
    of any indication whatsoever of what procedures the parties intended to replace those found
    in § 25-10-501, MCA. We all recognize the language of a contract governs its interpretation,
    however there is nothing in Subsection 24 that either addresses or purports to replace the
    26
    requirements of § 25-10-501, MCA. Accepting Turner’s argument would therefore require
    us to infer that the lack of contractual procedures for filing a bill of costs necessarily implies
    that the parties had some other procedures in mind. What those procedures would be,
    however, is a mystery. Without the application of § 25-10-501, MCA, to the subcontract,
    Turner would seemingly be free to submit the bill of costs at any time, in any form, and
    without either Turner or Turner’s counsel attesting to its accuracy. We have previously
    recognized that the requirements of § 25-10-501, MCA, serve an important informational
    function, in that filing a bill of costs pursuant to § 25-10-501, MCA, facilitates the uniform,
    timely notification of what costs are claimed and enables the opposing party to enter an
    objection. See Sherner v. Nat’l Loss Control Servs. Corp., 
    2005 MT 284
    , ¶ 55, 
    329 Mont. 247
    , 
    124 P.3d 150
    . Accepting Turner’s argument would therefore run contrary to the clear
    purposes of § 25-10-501, MCA. Sherner, ¶ 55.
    ¶69    In light of the plain language of the subcontract, we cannot conclude that the parties
    intended to displace the procedural requirements of § 25-10-501, MCA. This decision does
    not restrict the parties’ freedom of contract. See Klyap, ¶ 20. Because the subcontract
    contained no procedural language concerning how to file the bill of costs, it could not
    displace § 25-10-501, MCA. We conclude that Turner was correctly required to abide by the
    procedures contained in § 25-10-501, MCA, and therefore hold that the District Court’s
    denial of Turner’s bill of costs was not an abuse of discretion.
    ¶70    b. Effect of M. R. Civ. P. 58(a)
    ¶71    We also disagree that Turner’s bill of costs was nonetheless timely filed. Turner
    claims that because it filed a bill of costs on January 20, 2012, five days after the court issued
    27
    its January 16, 2012 Notice of Entry of Judgment, we must reverse the District Court’s order
    dismissing and denying their claim for costs. However, to do so we would have to disregard
    both Turner’s prior recognition of the November 22, 2012 date of judgment and our holdings
    interpreting the language of § 25-10-501, MCA.
    ¶72    First, Turner filed a notice of entry of judgment on November 29, 2011,
    acknowledging November 22, 2011, as the date of judgment. Turner now argues that we
    should disregard this “premature” filing made before its counsel engaged in “close review of
    the newly revised Montana Rules of Civil Procedure.” As the District Court observed,
    “Turner not only filed a notice of entry of judgment but referred to the Court’s Findings and
    Conclusions as a judgment. That judgment was from November 22, 2011.” Turner is bound
    by this recognition.
    ¶73    Second, § 25-10-501, MCA, requires a bill of costs to be delivered to the clerk and
    served upon the adverse party “within 5 days after the verdict or notice of the decision of the
    court . . . .” We have previously found that “notice” under the statute “indicated knowledge
    of the court’s decision and that formal notification was not necessary.” Karell v. American
    Cancer Soc’y, 
    239 Mont. 168
    , 176-77, 
    779 P.2d 506
     (1989); accord Shull v. Lewis & Clark
    County, 
    93 Mont. 408
    , 419, 
    19 P.2d 901
     (1933); Miles v. Miles, 
    76 Mont. 375
    , 382, 
    247 P. 328
     (1926). Turner had notice of the decision of the court at least at the time it filed its
    notice of entry of judgment on November 29, 2011. Turner’s earliest bill of costs, filed
    December 12, 2011, and received by TIPS no earlier than December 9, 2011, came more
    than five days after this date. We therefore find that the District Court’s order denying and
    28
    dismissing Turner’s bill of costs as untimely was not an abuse of discretion and affirm its
    decision.
    CONCLUSION
    ¶74    We accordingly affirm the decisions of the District Court regarding TIPS’s claims for
    additional compensation, TIPS’s claim it was the prevailing party, whether the construction
    lien was time barred, the return of the retainage, and Turner’s bill of costs. We reverse the
    District Court’s decision denying TIPS prejudgment interest on the retainage.
    ¶75    Affirmed in part, reversed in part, and remanded for further proceedings consistent
    with this Opinion.
    /S/ Michael E Wheat
    We Concur:
    /S/ Patricia O. Cotter
    /S/ Jim Rice
    /S/ Beth Baker
    /S/ Brian Morris
    29
    

Document Info

Docket Number: DA 11-0769

Citation Numbers: 2013 MT 5, 368 Mont. 189

Judges: Baker, Cotter, Morris, Rice, Wheat

Filed Date: 1/15/2013

Precedential Status: Precedential

Modified Date: 8/6/2023

Authorities (28)

Hutnick v. United States Fidelity & Guaranty Co. , 47 Cal. 3d 456 ( 1988 )

Karell v. American Cancer Society, Montana Division, Inc. , 239 Mont. 168 ( 1989 )

AA Construction of Missoula, LLC v. Choice Land Corp. , 362 Mont. 264 ( 2011 )

Sherner v. NATIONAL LOSS CONTROL SER. CORP. , 329 Mont. 247 ( 2005 )

Richards v. JTL Group, Inc. , 350 Mont. 516 ( 2009 )

American Music Co. v. Higbee , 324 Mont. 348 ( 2004 )

Dalakow v. Geery , 132 Mont. 457 ( 1957 )

Farmers Union Mutual Insurance v. Bodell , 346 Mont. 414 ( 2008 )

Masonovich v. School District No. 1 , 178 Mont. 138 ( 1978 )

Price Building Service, Inc. v. Holms , 214 Mont. 456 ( 1985 )

Hitshew v. Butte/Silver Bow County , 293 Mont. 212 ( 1999 )

Johnston v. Palmer , 337 Mont. 101 ( 2007 )

AVANTA FEDERAL CREDIT UNION v. Shupak , 354 Mont. 372 ( 2009 )

Miles v. Miles , 76 Mont. 375 ( 1926 )

Dick Anderson Const. Inc. v. Monroe Property Co. LLC. , 361 Mont. 30 ( 2011 )

Doyle v. Clark , 360 Mont. 450 ( 2011 )

B Bar J Ranch, LLC v. Carlisle Wide Plank Floors, Inc. , 366 Mont. 506 ( 2012 )

Pastimes, LLC v. Clavin , 364 Mont. 109 ( 2012 )

Roseneau Foods, Inc. v. Coleman , 140 Mont. 572 ( 1962 )

Arrowhead Sch. Dist. 75, Park Co. v. Klyap , 318 Mont. 103 ( 2003 )

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