Julian v. Mattson

• Decision Date: 18 December 1985
• Docket Number: No. 85-227,85-227
• Parties: Gordon JULIAN and Sara Williams Julian, Plaintiffs and Appellants, v. George MATTSON, Defendant and Respondent.
• Court: Montana Supreme Court

Page 707

710 P.2d 707

219 Mont. 145

Gordon JULIAN and Sara Williams Julian, Plaintiffs and Appellants, v. George MATTSON, Defendant and Respondent.

No. 85-227.

Supreme Court of Montana.

Submitted on Briefs Oct. 10, 1985.

Decided Dec. 18, 1985.

Larry W. Moran, Bozeman, for plaintiffs and appellants.

Gregory O. Morgan, Bozeman, for defendant and respondent.

SHEEHY, Justice.

Appellants, Gordon Julian and Sara Williams Julian, husband and wife, appeal from the order of the District Court, Eighteenth Judicial District, County of Gallatin, granting the motion for summary judgment of respondent, George Mattson.

We affirm.

The Julian's brought this action in District Court to recover damages for defects in construction alleged due under an oral contract to supervise construction. The District Court denied Mattson's motion for summary judgment based upon the statute of limitation but granted Mattson's motion for summary judgment because the activities for which recovery was sought in this case arose out of the same transaction or occurrence as that litigated in Mattson v. Julian (Mont.1984), 678 P.2d 654, 41 St.Rep. 544.

A review of Mattson is required here. The facts of that case were as follows: On June 1, 1978, Mattson, Dick Prugh and James Lenon, doing business as Design Construction, entered into a "cost plus" contract for the construction of a house for Gordon Julian in Bear Canyon, Gallatin County, Montana. The contract provided that the contractor would be compensated for services at 15% of the cost of the work.

Pursuant to the written contract Design Construction performed services, supplied materials and submitted statements to Julian on a regular basis from July 10, 1978 to January 5, 1979. Julian made payments of $31,636.90 out of $38,519.23 due under the contract. After extensive efforts by Mattson and his associates to collect the amount due, the Julians paid $500.00 on the account on April 30, 1980, reducing the balance to $6,382.33. After receiving no further payments, Mattson and his associates filed their complaint on May 14, 1981, naming Gordon Julian as defendant. On July 15, 1981, Julian filed an answer, generally denying the claim of work and services performed pursuant to the contract. The answer contained no specific denial of conditions precedent nor any statement of counterclaim.

The case was heard by the District Court without a jury on January 6, and 17, 1983. At trial Julian presented evidence that some of the work performed by Design Construction was defective. Admission of the evidence was objected to because Julian had failed to plead defects as a defense as required by the rules of Civil Procedure. Julian never attempted to amend his pleadings or obtain a continuance. The District Court ruled that failure to specifically plead defects barred evidence of defects under the Rules.

In Mattson, we said that because Julian did not plead or otherwise give notice of his defects theory prior to trial, it was not clear whether he was attempting to prove only failure of a condition precedent or was also seeking recoupment. Mattson, 678 P.2d at 657-58, 41 St.Rep. at 548. Whether Julian's evidence of alleged defective performance was intended to support a counterclaim or was merely defensive did not affect the outcome of that case, because in either case Julian failed to follow the simple pleading procedures set forth in Rule 9 and Rule 13(a), M.R.Civ.P. For these reasons we held that the District Court properly refused to admit the evidence of defective performance.

In the instant case, Julian filed a complaint naming only Mattson as defendant, averring that on July 12, 1977, the parties had entered into a prior oral agreement for the design of the residence in Bear Canyon. Pursuant to the oral agreement, Mattson worked on designs for Julian, billing him for architectural design work and the preparation of an estimate of the cost of construction. Thereafter, on June 1, 1978, Julian and Mattson, together with his partners, entered into the "cost plus" contract for the construction of the residence which was the subject of consideration in Mattson.

The District Court granted Mattson's motion for summary judgment in the instant case, stating:

The activities for which recovery is sought arose out of the same transaction or occurrence as that litigated in Mattson vs. Julian. Both parties of this suit were parties in Mattson vs. Julian, and the issues in this case arose out of the same transaction which was [the] basis of Mattson vs. Julian. Therefore, the plaintiff is precluded from litigation of those issues.

Julian raises one issue on appeal: whether the District Court erred in granting Mattson's motion for summary judgment.

The crux of Julian's contention is that the District Court improperly granted Mattson's motion for summary judgment on grounds of res judicata. We, however, do not find res judicata per se applicable to the instant case, but rather, Rule...