No. 89-606
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
CLAYTON E. DEVOE,
Plaintiff and Appellant,
GUST. LAGERQUIST & SONS, INC., and
JERRY BROWN, its Western Regional Manager,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David Rodli, Missoula, Montana
George Curtis DeVoe, Missoula, Montana
For Respondent:
Kim L. Ritter, Missoula, Montana
Submitted on Briefs: June 28, 1990
Filed:
+ Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
This suit arose out of a contract for the sale and installa-
tion of an elevator. A jury in the District Court for the Fourth
Judicial District, Missoula County, found for defendants. Plain-
tiff Clayton E. DeVoe appeals. We affirm.
The issues are:
1. Did the District Court err in refusing to dismiss the lien
foreclosure action?
2. Did the court err by denying the motion to alter or amend
the verdict?
3. Did the court err in awarding prejudgment interest?
4. Did the court err by granting defendants attorney fees?
In February 1987, Clayton E. DeVoe (DeVoe) contracted to buy
an elevator from Gust. Lagerquist & Sons, Inc. (Lagerquist),
through its representative, Jerry Brown. The elevator was
installed in a building DeVoe owned in Missoula, Montana. DeVoe
was dissatisfied with both the installation and the performance of
the elevator, which, according to him, remained unusable at the
time of trial.
In August 1987, having received no payment for the elevator,
Lagerquist filed a lien against DeVoels building. At the same
time, DeVoe filed a complaint against Lagerquist and Brown,
alleging breaches of contract and warranty, negligent or fraudulent
misrepresentation, and breach of the covenant of good faith and
fair dealing. The following month, Lagerquist filed a complaint
against DeVoe to foreclose its lien.
The two actions were consolidated for jury trial, at which the
evidence conflicted on several points. The original of the
contract, which had been typed by DeVoets son, was placed into
evidence by DeVoe. It required n[c]ompletion to be on or before
11 weeks from this date or date of confirmation of shipping by
factory whichever is later, or Seller will reduce cost by $50.00
per day, until c ~ m p l e t e d . ~ ~It appeared that the It1lt1
had been
typed over a It13." DeVoe testified that 11 weeks had been agreed
upon. Brown testified that, following negotiations, they had
agreed that Lagerquist would have 13 weeks to build and install the
elevator.
DeVoe testified that the 11 weeks began to run on February 12,
by agreement. Brown testified that the 13 weeks began to run on
February 26, the day he received confirmation of shipping from the
factory. DeVoe testified that installation of the elevator was
never really completed, and that Lagerquistts workers left the job
a few days before May 20 and only came back to answer repair calls
after that date. Brown testified that the elevator was completely
installed on May 13 and that on May 22 it was retrofitted with a
new computer control panel and finally adjusted. The testimony
further conflicted on the extent and causes of problems with the
elevator.
The jury was given a special verdict form. It found that
Lagerquist did not breach the contract, its warranties, or its
implied duty of good faith and fair dealing; that Lagerquist did
not fraudulently misrepresent material facts; and that Lagerquist's
actions did not damage DeVoe's business reputation. It also found
that Lagerquist was entitled to enforcement of its construction
lien, setting the amount of damages at $21,500. The court ordered
that DeVoe pay prejudgment interest of $3,762.50 and costs and
attorney fees of $30,113.89.
I
Did the District Court err in refusing to dismiss the lien
foreclosure action?
After the two separate actions had been filed, DeVoe moved
that the lien foreclosure be dismissed, or, in the alternative,
that the two actions be consolidated. The court granted the motion
to consolidate. DeVoe maintains that the lien foreclosure should
have been dismissed under the doctrine of election of remedies.
He argues that Lagerquist is precluded from claiming both that it
installed the elevator within the time allowed and that it filed
its lien in a timely manner. He points out that, in their answer
to his complaint, the defendants stated that the elevator was
completely installed by May 14.
A lien must be filed within ninety days after the final
services or materials were furnished. Section 71-3-535, MCA. The
date triggering the ninety-day period is not the date that
installation was completed, but the date that work was last done.
In addition to stating that the elevator was completely installed
by May 14, the answer to DeVoels complaint stated that a computer
card in the elevator malfunctioned and was repaired subsequent to
May 14. The answer to DeVoets complaint in tort did not dispose
of the issue in the lien foreclosure action of when work was last
done on the elevator.
We conclude that the court did not err in granting DeVoels
motion to consolidate the two actions instead of his motion to
dismiss the lien foreclosure action.
I1
Did the court err by denying the motion to alter or amend the
verdict?
DeVoe contends that the special verdict misled the jury into
making inconsistent findings that the elevator was installed within
the time allowed and that the lien was timely filed. The jury's
findings are not inconsistent. If the jury believed Brown's
testimony that the shipping date was confirmed on February 26, that
13 weeks were allowed for installation, and that final adjustment
work was done on May 22, then the jury properly found that the
installation was completed within the time allowed and that the
lien filed on August 18 was filed within ninety days of the last
services provided.
DeVoe also states that the testimony of one of Lagerquist's
workers conflicted with Brown's testimony. Brown testified that
installation of the elevator was essentially completed on May 13,
but that workers returned on May 22 to do the final adjustment and
to retrofit the control panel. The worker testified that he did
repair work on the elevator on May 22. Resolution of any conflicts
in the evidence is in the province of the trier of fact. Gee v.
Egbert (1984), 209 Mont. 1, 18, 679 P.2d 1194, 1203.
Finally, DeVoe asserts that the jury should have been asked
to make a finding as to the date on which installation of the
elevator was completed. The issue of whether the lien was timely
filed was argued at trial. Instruction No. 55 stated that to
sustain the counterclaim on the construction lien, Lagerquist must
prove (among other elements) that the lien was filed within ninety
days after the materials and labor were provided. Question 10 on
the special verdict form asked, "1s Lagerquist entitled to
enforcement of its construction lien?" We hold that the issue was
adequately presented to the jury and that the court did not err in
denying the motion to alter or amend the verdict.
Did the court err in awarding prejudgment interest?
This claim is based upon DeVoels position that the lien was
not timely filed. Prejudgment interest is allowed under 27-1-
211, MCA, when the amount of damages is certain and the right to
damages is vested as of a particular day. In this case, interest
was awarded on the contract price of the elevator from the date the
construction lien was filed. Because we have concluded that it was
not error to enforce the construction lien, we hold that there was
no error in the award of prejudgment interest.
Did the court err by granting defendants attorney fees?
Like Issue 111, this issue is partially decided by our
conclusion that it was not error to enforce the construction lien.
Under S 71-3-124, MCA, attorney fees are recoverable in an action
to foreclose a construction lien.
DeVoe argues that defendants should have been awarded attorney
fees only for work relating to enforcement of their lien and that
$31,000 in attorney fees is unreasonable in relation to the size
of the lien. The District Court determined that
[tlhis action involved interlocking issues,
resulting in litigation far more complicated
than a simple foreclosure lien action. It is
the Court's opinion that the inextricability
of the issues precludes [separating out expen-
ses relating to proof of the construction
lien].
DeVoe cites precedent which would support the lower court had it
separated attorney fees relating to the lien from fees relating to
the defense of DeVoels claims. Carkeek v. Ayer (1980), 188 Mont.
345, 613 P.2d 1013. However, the same precedent states that this
Court will not disturb the amount of attorney fees fixed by a
district court unless it represents an abuse of discretion.
Carkeek, 613 P.2d at 1015. "An attorney fee that exceeds the
amount in controversy is not per se excessive . . . Each case
depends on its own unique set of facts." Glaspey v. Workman
(1988), 234 Mont. 374, 378, 763 P.2d 666, 668. We have reviewed
the record and conclude that the lower court did not abuse its
discretion in awarding attorney fees.
Affirmed.
We concur: ,. 1
." 7 Chief justice
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