January 26 2011
DA 10-0271
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 8N
LOKEN BUILDERS, INC.,
Plaintiff and Appellee,
v.
SHARON R. BOYCE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-06-1036
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Sharon R. Boyce (Self-Represented), Missoula, Montana
For Appellee:
David J. Steele, II., Geiszler & Froines, PC, Missoula, Montana
Submitted on Briefs: January 5, 2011
Decided: January 26, 2011
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court, and its case title, Supreme Court cause number, and disposition shall be included
in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Sharon Boyce and Loken Builders entered into a contract under which Loken
agreed to remodel a house owned by Boyce. Ultimately Boyce was dissatisfied with the
work and refused to pay a final installment payment. Loken filed a construction lien
against the property and litigation ensued. A jury ruled in favor of Loken and Boyce’s
counterclaims were dismissed. The court issued an order directing a foreclosure sale and
awarding Loken a deficiency judgment and attorney fees. Boyce appeals several rulings
issued by the District Court. We affirm.
ISSUES
¶3 A restatement of Boyce’s issues on appeal is:
¶4 Did the District Court err when it denied Boyce’s summary judgment motion
asserting Loken’s construction lien was invalid?
¶5 Did the District Court abuse its discretion when it denied Boyce’s motion to
amend the pretrial order to extend discovery, designate an expert witness, and designate
lay witnesses and exhibits?
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¶6 Did the District Court abuse its discretion when it truncated the time allotted for
Boyce’s presentation of her case at trial, and denied her the right to present a rebuttal?
¶7 Did the District Court abuse its discretion when it granted attorney fees to Loken?
STANDARDS OF REVIEW
¶8 We review an order granting or denying a motion for summary judgment de novo.
Alexander v. Bozeman Motors, Inc., 2010 MT 135, ¶ 15, 356 Mont. 439, 234 P.3d 880.
¶9 We review a district court’s discretionary rulings, such as denying a motion to
amend the pretrial order, denying rebuttal evidence, and awarding attorney fees, for an
abuse of discretion. Hobble-Diamond Cattle Co. v. Triangle Irrigation Co., 249 Mont.
322, 323, 815 P.2d 1153, 1154 (1991) (“The sole issue on appeal is whether the [d]istrict
[c]ourt abused its discretion in denying Hobble-Diamond’s motion to amend . . . the
pretrial order . . . .”); Massman v. Helena, 237 Mont. 234, 243, 773 P.2d 1206, 1211
(1989) (“A determination of whether proposed testimony is admissible as rebuttal
testimony in any given case is within the sound discretion of the [d]istrict [c]ourt, and we
will not reverse the [d]istrict [c]ourt’s ruling unless it abused this discretion.”); and Kuhr
v. City of Billings, 2007 MT 201, ¶ 14, 338 Mont. 402, 168 P.3d 615 (We review a
district court’s grant or denial of attorney fees for abuse of discretion.).
DISCUSSION
¶10 Boyce asserts the District Court incorrectly concluded that Loken’s construction
lien was valid. She claims that Loken failed to properly serve the lien and that the lien
did not include a proper description of materials furnished or services performed. The
District Court conducted a hearing on Boyce’s summary judgment motion and called for
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post-hearing briefs. In its written Opinion and Order in July 2008, the court clearly set
forth its reasons for adopting the “substantial compliance” rationale of Simkins-Hallin
Lumber Co. v. Simonson, 214 Mont 36, 692 P.2d 424 (1989), over the strict construction
rationale applied in the 19th century cases cited in Boyce’s post-hearing brief. Under the
specific facts of this case, the District Court’s application of Simkins-Hallin and its legal
determination of the lien validity were not incorrect.
¶11 The remaining issues raised by Boyce are trial administration matters which fall
within the broad discretion of the trial court. Buhmann v. State, 2008 MT 465, ¶ 41, 348
Mont. 205, 201 P.3d 70. Our review of the extensive record leads us to conclude that the
District Court’s rulings on these issues were not arbitrary, did not lack employment of
conscientious judgment, and did not exceed the bounds of reasoning. The District Court
did not abuse its discretion when it denied Boyce’s motion to amend the pretrial order to
reopen and extend discovery more than a year after discovery had closed. We also find
no abuse of discretion by the District Court’s allocation of trial time to the parties—40%
to Loken and 60% to Boyce—nor in its ruling that Boyce was not entitled to surrebuttal
as Loken did not offer rebuttal at trial. Lastly, given that the construction lien statutes
and the construction contract between the parties both contain an attorney fee provision
and Loken prayed for attorney fees in its complaint, the District Court did not abuse its
discretion in awarding fees to Loken.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
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memorandum opinions. It is manifest on the record before us that the District Court did
not err or abuse its discretion in its disposition of this matter. We therefore affirm.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ BETH BAKER
/S/ JAMES C. NELSON
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