Taylor, Thon, Thompson & Peterson v. Cannaday

• Decision Date: 18 January 1988
• Docket Number: No. 87-54,87-54
• Citation: 45 St.Rep. 102,230 Mont. 151,749 P.2d 63
• Court: Montana Supreme Court
• Parties: TAYLOR, THON, THOMPSON & PETERSON, a Partnership, Plaintiffs and Respondents, v. Doug CANNADAY and Shanne Cannaday, Defendants and Appellants.

Page 63

749 P.2d 63

230 Mont. 151

TAYLOR, THON, THOMPSON & PETERSON, a Partnership, Plaintiffs and Respondents, v. Doug CANNADAY and Shanne Cannaday, Defendants and Appellants.

No. 87-54.

Supreme Court of Montana.

Submitted on Briefs Nov. 6, 1987.

Decided Jan. 18, 1988.

Doug W. Cannaday, pro se.

Shanne L. Cannaday, pro se.

M. Dean Jellison, Kalispell, for plaintiffs and respondents.

WEBER, Justice.

Taylor, Thon, Thompson & Peterson (architects) brought suit against the Cannadays to recover fees for architectural services. After a trial to the judge, the District Court for the Eleventh Judicial District, Flathead County, entered judgment for the architects in the net amount of $90,989.28. Doug Cannaday appeals. We affirm the District Court.

We restate the issues as follows:

1. Did the court err by awarding interest to the architects?

2. Did the court err by refusing to vacate the second prejudgment attachment?

3. Did the court err by refusing to use the Architects' Handbook of Professional Practice as controlling authority to establish the architects' duties?

4. Are the court's findings supported by substantial evidence?

5. Did the court err by failing to enter judgment and damages for the Cannadays pursuant to Sec. 8.6.412, ARM, and the Montana Consumer Protection Act?

6. Did the court err in its award of damages under the parties' contract?

In the fall of 1981, the Cannadays contracted with the architects to design and oversee construction of a summer home on Flathead Lake. The Cannadays were Canadian citizens. Defendant Shanne Cannaday owned an existing home on Flathead Lake. Both Cannadays desired to build a second and larger home.

In April 1982, the Cannadays contracted with a general contractor for the amount of the low bid which was $1,226,000. The construction contract documents were signed by the parties. Construction was then started by the general contractor and continued until July 1982, when the contractor stopped work because of the Cannadays' failure to make payments due under the contract. Construction was not resumed by the general contractor and the home was not completed.

In December 1982, the architects sued the Cannadays for services rendered plus interest. The Cannadays counter-claimed, alleging breach of contract, negligence, constructive fraud, and wrongful attachment. After a one-week trial, the District Judge entered extensive findings and conclusions. He awarded the architects their fee, with minor set-offs for the Cannadays. The judgment has been satisfied by a sheriff's sale of the existing Flathead Lake home. Doug Cannaday, acting pro se, appeals. The architects moved to dismiss the appeal for mootness because the Cannadays have asserted that they have no interest in the existing Flathead Lake home. The Court has denied that motion.

I

Did the court err by awarding interest to the architects?

The lower court awarded interest to the architects in its finding 25 and in the judgment. The court did not state the basis for the award of interest. In his brief, Mr. Cannaday argues that this is not a proper case for an award of interest under Sec. 27-1-211, MCA.

The architects point out that they are entitled to interest on fees due and unpaid at the rate of twelve per cent per annum, under article 14.6 of the Cannaday-architect contract. Section 27-1-213, MCA, provides for the award of interest which is stipulated in a contract. We conclude that interest was properly allowable to the architects in this case, under the terms of the contract.

II

Did the court err by refusing to vacate the second prejudgment attachment?

At the commencement of this action, the architects discovered that the Cannadays did not have enough interest in the land and completed portions of the new house to pay the architects' fees. They obtained a writ of attachment against Shanne Cannaday's existing home on Flathead Lake. The District Court later granted the Cannadays' motion to strike the attachment, for three reasons. It found that the attachment was improperly issued by the clerk rather than the judge, that the notice was not posted, and that no notice of the right to a post-service hearing had been served upon Shanne Cannaday. At the same time, the court issued a second writ of attachment on the same property. That writ included the notice of the right to a post-service hearing and was posted pursuant to Sec. 27-18-701, MCA. Mr. Cannaday argues that this second writ should have been dismissed because it was not served personally upon him, Shanne Cannaday, or their attorney as required by the Montana Rules of Civil Procedure. However, in a situation such as this, where specific statutes provide for the method of service, those specifics govern over the general rules set out in the Montana Rules of Civil Procedure. Section 27-18-701, MCA, provides for service by posting on the property and in three public places in the county if the defendant cannot be found for personal service. The District Court concluded that the architects complied with that requirement. We affirm that ruling.

III

Did the court err by refusing to use the Architects' Handbook of Professional Practice as controlling authority to establish the architects' duties?

The court admitted in evidence a handbook published by the American Institute of Architects. The handbook describes the standard of practice for architects in the United States. Mr. Cannaday's argument on appeal is, in effect, that any deviation from the standards set forth in that handbook should be deemed negligence per se.

While violation of a statute may be classed as negligence per se, violation of other regulations is not generally classed as negligence per se. Stepanek v. Kober Const. (Mont.1981), 625 P.2d 51, 55-56, 38 St.Rep. 385, 391. More precisely on point, absent specific statutory incorporation, the provisions of a national code are only evidence of negligence, not conclusive proof thereof. Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 202, 657 P.2d 594, 602-03.

We affirm the holding of the lower court that the handbook standards were to be considered as evidence of a duty on the part of the architects. We refuse to accept the contention of the Cannadays that the violation of such standards constituted negligence per se on the part of the architects.

IV

Are the court's findings supported by substantial evidence?

Mr. Cannaday challenges the court's findings that the architects did not breach their contract when they 1) approved certain applications and certificates for payment submitted by the general contractor, 2) administered the contract with the concrete contractor, and 3) issued the Notice to Proceed. He also challenges finding No. 37 that Shanne Cannaday was bound by the acts of Doug Cannaday.

This Court's standard of review of a lower court's findings of fact is whether the findings are supported by substantial evidence. Where there is conflicting evidence, the trial court will not be overturned unless there is a clear preponderance of evidence against the findings. Phennicie v. Phennicie (1979), 185 Mont. 120, 125-26, 604 P.2d 787, 790. The record contains conflicting testimony on whether the architects' actions were or were not proper and within the terms of the contract, in the first three areas challenged by...