Murphy Homes, Inc. v. Muller

• Decision Date: 12 June 2007
• Docket Number: No. 05-237.,05-237.
• Parties: MURPHY HOMES, INC., a Montana Corporation, Plaintiff, Counter-Defendant and Respondent, v. Marilyn MULLER and Patrick Aberle, Defendants, Counter-Claimants and Appellants.
• Court: Montana Supreme Court

162 P.3d 106

2007 MT 140

337 Mont. 411

MURPHY HOMES, INC., a Montana Corporation, Plaintiff, Counter-Defendant and Respondent, v. Marilyn MULLER and Patrick Aberle, Defendants, Counter-Claimants and Appellants.

No. 05-237.

Supreme Court of Montana.

Submitted on Briefs January 31, 2006.

Decided June 12, 2007.

For Appellant: Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana.

For Respondent: Gary L. Davis, Candace Payne, Luxan & Murfitt, PLLP, Helena, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Patrick Aberle and Marilyn Muller, who are husband and wife (collectively "Aberle/Muller"), appeal a jury verdict in the District Court for the Fifth Judicial District, Jefferson County, awarding Murphy Homes, Inc. (Murphy Homes), damages, punitive damages, attorney's fees and costs. The case involves a cost-plus contract wherein Murphy Homes agreed to do certain building and remodeling to Aberle/Muller's residence. We affirm.

¶ 2 Aberle/Muller present eleven issues for review, however, their brief is broken down into six main issues or contentions (as Aberle/Muller refer to them) and more than 23 sub-issues. Such a "shotgun" approach serves no useful purpose and tends to obfuscate legitimate issues by peppering them with irrelevant asides. With difficulty we have disentangled Aberle/Muller's morass of issues and have consolidated them into the following seven issues:

¶ 3 1. Whether the District Court erred in denying Aberle/Muller's First and Third Motions for Summary Judgment.

¶ 4 2. Whether the District Court erred in denying Aberle/Muller's Motion for Judgment as a Matter of Law.

¶ 5 3. Whether the District Court erred in barring Aberle/Muller's "foreseeability" defense.

¶ 6 4. Whether the District Court erred in denying Aberle/Muller's Motion to Continue and, instead, ordering a bifurcated trial.

¶ 7 5. Whether the District Court erred in permitting the jury to view Aberle/Muller's residence and in admitting other evidence of Aberle/Muller's financial condition on the issue of liability.

¶ 8 6. Whether the District Court erred in refusing Aberle/Muller's proposed jury instructions.

¶ 9 7. Whether the District Court erred in denying Aberle/Muller's post-trial motions.

¶ 10 In addition, Murphy Homes has asked for an award of attorney's fees on appeal if we affirm the District Court's Judgment.

Factual and Procedural Background

¶ 11 Aberle/Muller hired Murphy Homes to remodel their existing home, construct a new building next to it, and connect the two, forming a U-shaped building to be used as Aberle/Muller's personal residence. Murphy Homes originally estimated the work at $438,000.00, but as Murphy Homes' President, John Murphy, and Aberle/Muller's architect, Robert Karhu, both testified, there was no actual bidding and no fixed price was established.

¶ 12 Aberle/Muller and Murphy Homes entered into a cost-plus contract for the proposed construction. Under the contract, Aberle/Muller were to reimburse Murphy Homes for actual costs plus a contractor's fee of 15% of the costs of material and labor as its compensation for managing the project and overseeing the subcontractors.

¶ 13 Once the project commenced, Aberle/Muller ordered numerous changes to the architect's original plans. Murphy Homes alleges that while the original plans called for minor remodeling of the existing structure, in the end, that structure was completely gutted and new electrical and plumbing systems were added, along with a new roof, new windows and new exterior siding.

¶ 14 Murphy Homes also alleges that when costs on the project reached $638,000.00, it became concerned about the costs it was carrying and about the 15% contractor's fee. Hence, Murphy Homes sent a bill to Aberle/Muller for $11,000.00 representing the 15% fee on the most recent construction draw. Murphy Homes further alleges that, besides the 15% contractor's fee, Aberle/Muller still owed Murphy Homes $160,000.00 for construction costs already incurred and paid by Murphy Homes.

¶ 15 Aberle/Muller allege that there were no written change orders or change directives adjusting the contract sum or the contract price which would have entitled Murphy Homes to more fees for changes in the work. They also allege that they paid Murphy Homes its entire fee and that when Murphy Homes realized that it had miscalculated its fee on the project, Murphy Homes made a claim for additional fees to be applied to the remainder of the project.

¶ 16 At a meeting on September 4, 2002, Aberle stated that he would not pay Murphy Homes any more money, consequently the relationship ended. Aberle/Muller contend that when they refused to pay the additional fee, Murphy Homes walked off the job and abandoned the project, leaving them to find other contractors to finish the work. Murphy Homes contends, on the other hand, that it was, in effect, fired from the project when Aberle/Muller refused to pay the additional fee.

¶ 17 After the relationship ended, Aberle/Muller paid Murphy Homes the $160,000.00 for construction costs already incurred, but refused to pay the $11,000.00 contractor's fee. On November 19, 2002, Murphy Homes filed a Complaint seeking to foreclose on a construction lien it had filed against the property. Aberle/Muller counterclaimed alleging defective work, fraud, slander of title and other claims.

¶ 18 During a protracted and contentious pretrial process, both parties filed numerous Motions to Compel and Motions for Sanctions which we need not go into here. The trial commenced on January 26, 2004, with a six-person jury and two alternates. The trial was originally scheduled for five days, however, as the trial got underway, it became apparent that five days was not sufficient, thus the District Court rearranged its court calendar to provide two more days. Nevertheless, after seven days, Aberle/Muller had only begun to present their defense, hence, the District Court ordered that the trial resume at some unspecified time in the future when the court could find additional time in its busy schedule.

¶ 19 After some difficulty in setting a date to resume trial (the details of which will be addressed more specifically under Issue 4), trial resumed August 9, 2004, and continued through August 12, 2004. The jury affirmatively responded to the question of whether Aberle/Muller had acted with fraud, deceit and malice towards Murphy Homes and they returned a unanimous verdict awarding Murphy Homes $366,100.00 in damages. Shortly thereafter, a punitive damages hearing took place wherein the jury unanimously awarded another $366,000.00 in punitive damages to Murphy Homes. The total judgment against Aberle/Muller was $896,494.62, which included accrued interest, attorney's fees and costs.

¶ 20 After trial, Aberle/Muller filed numerous post-trial motions including a Motion to Amend Judgment, a Motion to Limit Punitive Damages, and Defendants' Motion for Attorney's Fees and Costs, all of which were denied by the District Court.

¶ 21 Aberle/Muller appeal the District Court's Judgment. Additional facts are set forth where necessary to our resolution of the issues.

Discussion

¶ 22 Before examining the issues, we note that rather than setting forth the procedural background of this case in their brief as required by M.R.App. P. 23(a)(3), Aberle/Muller included that information in an appendix to their brief. In response, Murphy Homes asks this Court to disregard those eleven pages in Aberle/Muller's appendix and strike them from the record on appeal because they violate this Court's limitations on the length of briefs to be filed in this Court.

¶ 23 Murphy Homes' argument is well taken. By including in their appendix information that should have been included in their brief itself, Aberle/Muller not only violated M.R.App. P. 27(d), regarding the length of briefs allowed on appeal, but they violated M.R.App. P. 25(b), which sets forth what documents may be contained in an appendix to a brief.

[A]n appendix shall contain: (1) the relevant docket entries in the proceeding below; (2) any relevant pleading and relevant given or refused jury instruction, finding and opinion; (3) the judgment, order, findings of fact, conclusions of law, or decision in question, together with the memorandum opinion, if any, in support thereof; and (4) such other parts of the record as any party deems it essential for the judges of the court to read in order to decide the issues presented.

M.R.App. P. 25(b). A summary of a party's view of the proceedings below is wholly inappropriate for including in an appendix to a brief on appeal. Consequently, we conclude that Aberle/Muller's Appendix 7 consisting of eleven pages and entitled "Detail of the District Court Proceedings" is appropriately stricken from the record on appeal, and we have disregarded it.

¶ 24 We also note that Aberle/Muller have asked this Court to adopt and incorporate by reference into their brief facts; citations to deposition and trial testimony; authorities; and argument contained in their numerous filings before the District Court. This is also an attempt to circumvent this Court's page limitations on briefing. To do as Aberle/Muller ask would in effect add another 200 pages to Aberle/Muller's brief. M.R.App. P. 23(a)(4) "requires that an appellant present a concise, cohesive argument which `contain[s] the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and pages of the record relied on.'" In re Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d 1266, ¶ 6.

¶ 25 Aberle/Muller's brief is neither concise nor cohesive, and it has been with great difficulty that this Court has slogged through the quagmire of issues and contentions presented by Aberle/Muller on appeal. Nevertheless, we have managed to drain the swamp sufficiently to reveal at the bottom, seven issues for review by this Court.

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