Lutman v. Ames

• Citation: 462 P.3d 244 (Table),2020 MT 117 N
• Decision Date: 05 May 2020
• Docket Number: DA 19-0101
• Parties: Gary LUTMAN, Plaintiff and Appellee, v. Craig AMES, Karen Ames and Does 1-10, Defendants and Appellants.
• Court: United States State Supreme Court of Montana

462 P.3d 244 (Table)

2020 MT 117 N

Gary LUTMAN, Plaintiff and Appellee,

v.Craig AMES, Karen Ames and Does 1-10, Defendants and Appellants.

DA 19-0101

Supreme Court of Montana.

Submitted on Briefs: November 6, 2019

Decided: May 5, 2020

For Appellants: Karl Knuchel, Eric T. Oden, Karl Knuchel, P.C., Livingston, Montana

For Appellee: Todd A. Stubbs, Stubbs Law, P.C., Manhattan, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶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 Appellants Craig and Karen Ames (Ames) appeal a judgment entered in the Sixth Judicial District Court, Park County, following a jury verdict and award of punitive damages in favor of Appellee Gary Lutman (Lutman). Ames also appeals the denial of their Motion for Summary Judgment, maintaining that the statute of frauds bars Lutman’s claims. We affirm.

¶3 Ames purchased real property in Livingston, Montana, with the intent of constructing a house. Lutman is a builder and orally agreed to build Ames’s house and put $30,000 toward its construction. In return, Lutman would share equally in the net proceeds from the sale of the house; or, if Ames decided to reside in the house following its construction, Lutman would receive fifty percent of the equity held in the house at the time of completion.

¶4 Ames decided to reside in the house upon its completion but refused to pay Lutman the fifty percent equity he was owed. Lutman filed a complaint against Ames, including claims for breach of contract, anticipatory breach, breach of the implied covenant of good faith and fair dealing, unjust enrichment, promissory estoppel, actual fraud, constructive fraud, deceit, tortious interference with prospective economic advantage, and negligent misrepresentation. Lutman alleged he provided countless hours in construction of the house and made a cash payment to Ames totaling $30,000.

¶5 Ames moved for summary judgment contending Lutman’s claims were barred by the statute of frauds. The District Court denied summary judgment after concluding the parties had partially performed the agreement. The District Court also concluded there were disputed facts regarding both the amount of hours Lutman worked and his payment of $30,000. The house sold for $220,000 during the pendency of these proceedings.

¶6 A jury trial was held on December 18 and 19, 2018. The jury returned a verdict in Lutman’s favor on nine of the ten claims and found Lutman should be awarded punitive damages. After the verdict was read, a separate proceeding commenced regarding punitive damages. Prior to beginning the punitive damages phase of the trial, the District Court and parties' counsel discussed and agreed to the procedure for the jury to determine punitive damages.

¶7 Ames first argues the District Court erred by not following § 27-1-221, MCA, respecting the jury’s award of punitive damages. A district court’s interpretation and application of a statute is a question of law reviewed de novo for correctness. Cote v. Smith-Cote , 2019 MT 10, ¶ 13, 394 Mont. 68, 433 P.3d 221. Specifically, Ames argues the District Court erred by not holding a separate hearing to determine their financial condition and net worth. Ames also asserts the District Court failed to issue findings of fact and conclusions of law stating the reasons for not increasing or decreasing the jury’s award. Lutman asserts Ames waived the procedural requirements for an award of punitive damages by agreeing to the procedure undertaken by the District Court.

¶8 The record shows the District Court held a separate proceeding to determine punitive damages. After the jury returned its verdict for an award of punitive damages, the District Court gave the jury an instruction consistent with the Montana Pattern Jury Instruction on punitive damages. The jury then awarded Lutman $25,000 in punitive damages. Prior to the jury’s determination, the District Court inquired of the parties: "[A]re counsel wanting to put on any testimony, at all, or just give the jurors the instruction and send them back in?" Counsel for Ames replied: "I think that’s all we can do, right now. We aren’t prepared to put on financial information." This Court will not hold a district court in error for an action in which the appealing party acquiesced or actively participated. Acquiescence takes away the right to object to the alleged error. City of Kalispell v. Salsgiver , 2019 MT 126, ¶ 42, 396 Mont. 57, 443 P.3d 504. We conclude Ames acquiesced to the procedure conducted by the District Court in handling the punitive damages phase of the trial.

¶9 Next, Ames asserts the District Court erred in denying their motion for summary judgment based on the statute of frauds. A district court’s grant or denial of a motion for summary judgment is reviewed de novo, using the same criteria of M. R. Civ. P. 56 as the district court. Pilgeram v. Greenpoint...