Cut Bank School District No. 15 v. Rummel

                                          No. 02-237

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 248


CUT BANK SCHOOL DISTRICT NO. 15,

              Plaintiff and Appellant,

         v.

RANDY RUMMEL, d/b/a RUMMEL CONSTRUCTION,

              Defendant and Respondent.



APPEAL FROM:         District Court of the Ninth Judicial District,
                     In and for the County of Glacier,
                     The Honorable Marc G. Buyske, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Thane P. Johnson, Deputy Glacier County Attorney, Cut Bank,
                     Montana

              For Respondent:

                     Robert G. Olson; Frisbee, Moore & Olson, Cut Bank, Montana



                                                  Submitted on Briefs: August 8, 2002

                                                             Decided: November 14, 2002
Filed:


                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1    Cut Bank School District No. 15 (District) appeals from the

order entered by the Ninth Judicial District Court, Glacier County,

awarding     judgment      in    favor     of   Randy     Rummel,      d/b/a    Rummel

Construction (Rummel), on the District’s complaint seeking damages

for breach of contract.           We affirm.

¶2    The dispositive issue on appeal is whether the District Court

erred in concluding that the District failed to prove the damages

element of its breach of contract claim.
                                     BACKGROUND

¶3    In    July    of   1999,   the    District     solicited       bids    from   area

contractors to repair and patch the steps and sidewalk in front of

the Cut Bank High School, resurface the steps and sidewalk with a

concrete texture finish and apply an epoxy sealant on all the

surfaces.     Rummel submitted a bid proposing to complete the work at

a cost of $7,950 and the District accepted his bid in early August

of 1999.      The District desired that the work be completed on or

before     August    29,   1999,    because     students     and     staff    would   be

returning to the school on the following day.                     There is no written

documentation that this timeliness element was a requirement of the

contract between the parties, but the District contends that Rummel

guaranteed the work would be finished by August 29, 1999.                             In

contrast, Rummel contends he made no guarantee, but told the

District he would make his best effort to complete the project by

that date.      On August 15, 1999, the District accepted another bid

from Rummel for $1,500 to repair and patch a second sidewalk on the

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north side of the high school.        Again, the District contended

Rummel guaranteed completion of the project by August 29, 1999.

¶4   On August 30, 1999, the District terminated the contracts with

Rummel because the work had not been completed.        The District

subsequently filed a complaint asserting that Rummel’s failure to

complete the projects by August 29, 1999, was a breach of the

contracts and requesting monetary damages.     After a bench trial,

the District Court entered an order granting judgment in favor of

Rummel based in its determination that, even assuming Rummel’s

failure to complete the projects was a breach of the contracts, the

District failed to present evidence establishing that damages

resulted.   The District filed a motion to reconsider, arguing that

it had proven damages at trial.       The District Court deemed the

motion a Rule 59(g), M.R.Civ.P., motion to alter or amend the

judgment and denied it.    The District appeals.
                          STANDARD OF REVIEW

¶5   In an action for breach of contract tried before a district

court sitting without a jury, we review the court’s findings of

fact to determine whether they are clearly erroneous and its

conclusions of law to determine whether they are correct.   Norwood

v. Service Distributing, Inc., 2000 MT 4, ¶ 21, 297 Mont. 473, ¶

21, 994 P.2d 25, ¶ 21.

                              DISCUSSION

¶6   Did the District Court err in concluding that the District
failed to prove the damages element of its breach of contract
claim?




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¶7    In   its   order    granting     judgment       in     favor    of   Rummel,   the

District Court found that no evidence of record established that

the District suffered damages as a result of Rummel’s alleged

breach of the contracts.           On that basis, it concluded the District

had failed to prove the damages element of the breach of contract

claim by a preponderance of the evidence.                  The District asserts the

District     Court’s     finding    that       it   failed    to     present   evidence

establishing damages is clearly erroneous.

¶8    Section 27-1-311, MCA, provides that
      [f]or the breach of an obligation arising from contract,
      the measure of damages, except when otherwise expressly
      provided by this code, is the amount which will
      compensate the party aggrieved for all the detriment
      which was proximately caused thereby or in the ordinary
      course of things would be likely to result therefrom.
      Damages which are not clearly ascertainable in both their
      nature and origin cannot be recovered for a breach of
      contract.

In   other   words,      damages    are    the      amount    which     will   put   the

nonbreaching party in as good a position as if the contract had

been performed.        Sack v. A.V. Design, Inc. (1984), 211 Mont. 147,

152, 683 P.2d 1311, 1314.          “A plaintiff will not be denied recovery

simply because it is difficult to ascertain the amount of his

damages, as long as the amount can be proven with a reasonable

degree of certainty.”        Sack, 211 Mont. at 153, 683 P.2d at 1315.

¶9    The District first argues that it proved damages resulting

from the breach of the first contract via Rummel’s testimony.                        On

cross-examination, Rummel was asked to give a rough estimate of

what it would cost in materials and labor to complete the first

contract project from the point at which he left it on August 29,



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1999.    In response, Rummel testified “I don’t know off the top of

my head . . . between three and 4,000, total, maybe.”   The District

presented no evidence of the actual cost to complete the project

originally contemplated in the first contract because the District

contracted in the summer of 2000 with another construction company

to repair the front steps and sidewalk using an entirely different

method and materials.     Thus, the only evidence relating to the

District’s damages for breach of the first contract was Rummel’s

purely speculative statement.      We conclude such speculation is

insufficient to prove damages to a reasonable degree of certainty

and, consequently, the District Court’s finding of fact in that

regard is not clearly erroneous.
¶10   The District also argues it proved damages resulting from

Rummel’s alleged breach of the second contract to repair the

sidewalk on the north side of the high school.          Indeed, the

District presented testimony that, shortly after August 29, 1999,

it employed two workers to complete the repairs to that sidewalk,

resulting in expenditures of $224 for labor and $50 for materials.

 However, Rummel testified that after the contract was terminated

he billed the District $1,276 for the work completed up to that

point.    This amount represented the original bid of $1,500 less

$224 as his estimate of what it would cost to complete the project.

 This $224 difference equals the amount the District subsequently

expended for labor and, consequently, the District suffered no

damages for the labor component of finishing the second contract.

Moreover, Rummel testified he offered to give the District all the



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materials he had purchased for the project, but the District

refused to accept them.     Had the District accepted the materials,

it may have been unnecessary to incur the additional $50 for

materials to complete the repairs to the north sidewalk.       On this

record, we conclude the District Court’s finding that the District

failed to establish damages with regard to the second contract is

not clearly erroneous.

¶11   We hold, therefore, that the District Court did not err in

concluding that the District failed to prove the damages element of

its breach of contract claim.
¶12   Affirmed.


                                           /S/ KARLA M. GRAY


We concur:



/S/   JIM REGNIER
/S/   W. WILLIAM LEAPHART
/S/   TERRY N. TRIEWEILER
/S/   JIM RICE




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