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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