Donnes, Inc. v. Four Beers, Inc.
| Decision Date | 15 March 2022 |
| Docket Number | DA 21-0304 |
| Court | Montana Supreme Court |
| Parties | DONNES, INC., a Montana Corporation, Plaintiff and Appellant, v. FOUR BEERS, INC., a Montana Corporation, d/b/a STILLWATER EXCAVATING, Defendant and Appellee. |
For Appellant:
W Scott Green, Daniel L. Snedigar, Patten, Peterman, Bekkedahl & Green, PLLC, Billings, Montana
For Appellee:
Adam J. Tunning, Morgan Hoyt, Moulton Bellingham, PC, Billings Montana
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, 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 Four Beers, Inc., (Stillwater Excavating) subcontracted with Donnes, Inc., to perform work on a large earthmoving project for the Stillwater Mine in South Central Montana (Mine). Donnes sued Stillwater Excavating for breach of contract and unjust enrichment to recover for "extra work" it claims to have completed during the mitigation of a highwall collapse in 2016. The District Court granted partial summary judgment to Stillwater Excavating on Donnes's breach of contract claim and, following a bench trial, entered judgment for Stillwater Excavating on Donnes's unjust enrichment claim. The court also granted Stillwater Excavating statutory attorney fees and costs. Donnes appeals, alleging that the District Court erred in its findings of fact and conclusions of law and improperly awarded attorney fees to Stillwater Excavating. We affirm.
¶3 In 2015, Stillwater Excavating entered a contract with the Mine for the "Benbow Project," under which Stillwater Excavating agreed to excavate and move earth around a mine entrance owned by the Mine. Stillwater Excavating entered a subcontract agreement with Donnes to provide some earth-moving services for the Benbow Project. In June 2016, the Benbow Project suffered the second of two "highwall collapses," in which previously excavated and placed material slid down a hill and needed to be replaced to satisfy safety regulations. As a result of the collapse, the Mine hired Knight Piesold Consulting (Knight Piesold) to recommend highwall mitigation measures. On June 27, 2016, Knight Piesold submitted a plan to the Mine recommending construction of a buttress adjacent to the highwall using materials excavated from an area around the mine entrance referred to as the "Portal Pad." The plan contained two measurements relevant to this dispute. The first pertained to the buttress's minimum elevation, which was necessary to satisfy safety regulations; Knight Piesold's plan stated that the Mine needed to construct the buttress at 6, 530 feet elevation. The second measurement pertained to the depth of the Portal Pad excavation; Knight Piesold recommended that the Mine excavate the Portal Pad thirteen feet below grade.
¶4 Stillwater Excavating and Donnes orally agreed to complete the necessary excavation to construct the buttress and to split evenly the proceeds paid by the Mine. They prepared a cost estimate for the project based on the volume of dirt they expected to move in accordance with Knight Piesold's plan. Consistent with that plan, Stillwater Excavating and Donnes estimated that they would need to excavate, haul, and place a total of 67, 500 cubic yards of dirt. On July 11, 2016, the Mine accepted the parties' cost proposal and entered into an agreement with Stillwater Excavating: "Field Change Notice No. 016" (FCN 16). FCN 16 provided, in part, that Stillwater Excavating would construct the buttress with material excavated from the Portal Pad and that Stillwater Excavating would lower the Portal Pad's elevation by thirteen feet.
¶5 In August 2016, while the project was still underway, the buttress reached a height of 6, 530 feet. The parties had at that point moved 60, 000 cubic yards of dirt, and the Portal Pad had not yet been excavated thirteen feet below its original elevation. After a short pause caused by confusion about the two measurements, the Parties agreed to continue excavating into the Portal Pad and adding the excavated material onto the buttress until they lowered the Portal Pad by thirteen feet. Donnes claims that it was to be compensated for work that exceeded the 6, 530-foot elevation mark; Stillwater Excavating denies discussing such additional terms. On August 10, 2016, Knight Piesold drafted a letter to the Mine revising the final height of the buttress, but the parties did not receive or rely on this letter.
¶6 Stillwater Excavating and Donnes completed the Portal Pad buttress project at the end of August 2016. As agreed, the Mine paid Stillwater Excavating $1, 159, 091.64, and Stillwater Excavating paid Donnes fifty percent of the proceeds ($579, 545.82). When they completed the project, the parties had moved roughly 69, 000 cubic yards of dirt onto the buttress. Of that volume, approximately 9, 938 cubic yards of dirt were added above the 6, 530-foot elevation point. Several months later, Donnes sent Stillwater Excavating a request for payment for the 9, 938 cubic yards it moved above 6, 530 feet, claiming that it was "extra" work. When Stillwater Excavating did not agree, Donnes sued for breach of contract, alleging unjust enrichment as an alternative claim. The District Court granted summary judgment to Stillwater Excavating on its breach of contract claim because, even if Donnes could establish that it had a separate contract with Stillwater Excavating to construct the buttress above 6, 530 feet elevation, the contract would be void for lack of certainty as there was no evidence the parties discussed any payment terms for work that went beyond what was included in the lump sum set forth in FCN 16.[1]
¶7 The District Court held a bench trial on Donnes's remaining claim for unjust enrichment. Greg Russell, Stillwater Excavating's project manager, testified that the 6, 530-foot mark represented the minimum elevation at which the buttress needed to be constructed for safety purposes. He said that the elevation of the buttress did not factor into the cost estimates, which were prepared by Stillwater Excavating and Donnes and submitted to the Mine, nor did the elevation of the buttress serve as the basis for Stillwater Excavating and Donnes's agreement. Rather, Russell testified that the cost proposal was based on the volume of dirt moved. He also explained that the 69, 000 cubic yards of dirt moved amounted to only two percent more than the agreed upon 67, 500 cubic yards. Donnes's expert, Richard Stryker, admitted that excavation contractors generally do not receive additional compensation for quantities that exceed estimates by less than ten percent. Donnes's president, Frank Donnes, testified that Stillwater Excavating and Donnes each received fifty percent of the $1, 159, 091.64 that the Mine paid Stillwater Excavating for the Portal Pad buttress. The parties did not have records detailing the amount of work each company completed. The president of Stillwater Excavating, Don Beers, testified that Donnes and Stillwater Excavating generally split the work fifty-fifty. He stated that the intent of the project was to pool resources and complete the work collectively without "figuring out man-hours or number of vehicles." Frank Donnes did not dispute that testimony, but he claimed Donnes did eighty percent of the work above the 6, 530-foot elevation point.
¶8 The District Court concluded that Donnes could not establish any element of unjust enrichment. It entered judgment in favor of Stillwater Excavating, including an award of attorney fees pursuant to § 28-2-2105, MCA. Donnes moved to amend the judgment on the ground that the award of fees was unlawful. Before the court could rule on its motion, Donnes filed an appeal to this Court. Eight days later, the District Court denied Donnes's motion regarding attorney fees for lack of jurisdiction. Having determined that the appeal was taken prematurely, we remanded the case to the District Court on January 28, 2022, to decide the pending motions and to determine the amount of attorney fees. On February 25, 2022, Donnes notified this Court of the District Court's orders denying its Rule 52(b) and Rule 59(e) motions and setting the amount of attorney fees for which it found Donnes liable.[2]
¶9 We review a district court's findings of fact for clear error and its conclusions of law for correctness. Boyne USA, Inc. v. Spanish Peaks Dev., LLC, 2013 MT 1, ¶ 28, 368 Mont. 143, 292 P.3d 432 (citations omitted). "Clear error exists if substantial credible evidence fails to support the findings of fact, if the district court misapprehended the evidence's effect, or if we have a definite and firm conviction that the district court made a mistake." Boyne USA, ¶ 28 (citation omitted).
¶10 We review for correctness a court's conclusion that legal authority exists to award attorney fees. DeTienne v. Sandrock, 2018 MT 269, ¶ 39, 393 Mont. 249, 431 P.3d 12. "If legal authority exists to award attorney fees, we review [a court's] decision to grant or deny the fees for abuse of discretion." DeTienne, ¶ 39. Abuse of discretion occurs when a court "acts arbitrarily, without the employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice." State v. Sage, 2010 MT 156, ¶ 21, 357 Mont. 99, 235 P.3d 1284.
¶11 Donnes argues that the court's findings of...
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