Weimar v. Lyons

• Decision Date: 01 August 2007
• Docket Number: No. DA 06-0106.,DA 06-0106.
• Citation: 164 P.3d 922,2007 MT 182
• Parties: William C. WEIMAR, Plaintiff and Appellant, v. Mike LYONS, individually and doing business as Lyons Concrete, Lyons Concrete, Inc., a dissolved corporation, Does 1 through 10, Defendants and Respondents. Mike Lyons, individually and d/b/a Lyons Concrete, Inc., Counterclaimant and Respondent, v. William C. Weimar, Counterclaim Defendant and Appellant.
• Court: Montana Supreme Court

164 P.3d 922

2007 MT 182

William C. WEIMAR, Plaintiff and Appellant, v. Mike LYONS, individually and doing business as Lyons Concrete, Lyons Concrete, Inc., a dissolved corporation, Does 1 through 10, Defendants and Respondents.

Mike Lyons, individually and d/b/a Lyons Concrete, Inc., Counterclaimant and Respondent, v. William C. Weimar, Counterclaim Defendant and Appellant.

No. DA 06-0106.

Supreme Court of Montana.

Submitted on Briefs December 13, 2006.

Decided August 1, 2007.

For Appellant: Wilmer E. Windham, Polson, Montana.

For Respondent: Matthew H. O'Neill, Polson, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Plaintiff William C. Weimar (Weimar) and Defendant Mike Lyons, individually and d/b/a Lyons Concrete, Inc. (individually and collectively "Lyons," as appropriate), entered into an agreement under which Lyons would construct certain concrete works on Weimar's property. Disputes over payment arose, leading to Lyons' filing of a construction lien on Weimar's property and this action by Weimar to expunge the lien. Weimar appeals from the findings of fact, conclusions of law and judgment entered by the Twentieth Judicial District, Lake County, granting Lyons judgment against Weimar in the amount of $16,763, plus interest at 1.5 percent per month from August 18, 2003, until paid, plus reasonable costs and attorney fees as determined by the District Court. We affirm in part and reverse in part.

¶ 2 We restate the issues on appeal as follows:

¶ 3 (1) Did the District Court abuse its discretion by going beyond the pretrial order to hear evidence on the nature of the parties' agreement?

¶ 4 (2) Was there sufficient evidence to support the District Court's findings and conclusions that there had been a written fixed price contract followed by a series of binding oral agreements, its determination of the amount owed thereunder, and that Weimar had waived deficiencies in the work by his actions?

¶ 5 (3) Did the District Court err by awarding Weimar only $8,967.19 for the costs of repair or replacement work done by Clark-Salsbury Contracting, Inc.?

¶ 6 (4) Did the District Court err in allowing Mike Lyons to offer expert testimony concerning the quality of the work?

¶ 7 (5) Did the District Court err by concluding that Lyons had standing to file his construction lien and counterclaim?

¶ 8 (6) Did the District Court err in granting Lyons interest at 1.5 percent per month under § 28-2-2104(1), MCA?

¶ 9 (7) Is Weimar entitled to his costs and attorney fees as the prevailing party?

BACKGROUND

¶ 10 The parties entered an agreement whereby Lyons would provide concrete work on Weimar's property.¹ The nature of this agreement was disputed. Lyons asserts that the parties entered into a series of agreements, beginning with a May 1, 2003, written contract to perform work for $19,810, followed by verbal understandings to perform certain additional concrete and related work on a time and material basis. Weimar alleges the parties agreed to a single, time and material-based contract.

¶ 11 After the project began, Lyons invoiced Weimar for $14,389, which he asserted at trial represented a portion of the work under the written contract and some of the additional work orally agreed to. Weimar paid that sum. Thereafter, Lyons completed the project and invoiced Weimar for that work in the amount of $25,731. Weimar did not make payment on that invoice and instead claimed that the $14,389 he earlier paid was sufficient to cover Lyons' work.

¶ 12 Lyons, as "Mike Lyons d/b/a Lyons Concrete, Inc.," filed a construction lien against Weimar's property, claiming the sum of $26,031. In response, Weimar instituted an action to expunge the lien and sought damages resulting from its filing, to which counterclaims reasserting the construction claim were filed by Mike Lyons, individually and d/b/a Lyons Concrete, Inc. Weimar responded by filing a motion to dismiss Lyons' counterclaim and to expunge the lien on the principal ground that the lien claimant had no standing to maintain an action under § 30-13-215, MCA, because Lyons Concrete, Inc., a Montana corporation, had been involuntarily dissolved by the Montana Secretary of State on December 2, 1996, pursuant to § 35-6-104, MCA, for failure to file the first annual corporate report. New articles of incorporation for Lyons Concrete, Inc., were filed by Lyons and approved by the Secretary of State on November 7, 2003. The court denied the motion to dismiss and to expunge the lien on February 11, 2004, and also held, in an order entered pursuant to Lyons' motion for partial summary judgment, that any and all relief that may be granted to Weimar pursuant to his complaint would be enforceable against the Defendants Mike Lyons, individually, Mike Lyons d/b/a Lyons Concrete, and/or Lyons Concrete, Inc., whether it be the original, the dissolved corporation, or the newly-formed corporation. The court reciprocally held that "[a]ny and all relief sought by [Lyons] pursuant to his counterclaim shall be enforceable by the same entities set forth above against [Weimar]."

¶ 13 On September 10, 2004, Weimar filed a motion for change of venue on the grounds that there was a sign advertising the business of Lyons Concrete on the courthouse lawn, which indicated that an impartial trial could not be had. The District Court denied this motion. On October 27, 2005, Lyons filed a motion in limine to exclude expert witnesses for Weimar's failure to answer interrogatories, which sought the identity of experts and the substance of their testimony. The motion also sought exclusion of evidence in support of Weimar's defense to Lyons' claim under § 28-2-2104, MCA, for interest on residential construction contracts exceeding $400,000 "at the rate of 1.5% a month or a pro rata fraction of that amount on the unpaid balance." Section 28-2-2104(1), MCA. The District Court denied Lyons' request to exclude Weimar's witnesses, but forbade Weimar from contesting the applicability of § 28-2-2101 et seq., MCA, to this contract, both as a discovery sanction and upon Weimar's admission that the total cost of construction work on Weimar's property performed by all contractors, not just Lyons, was over $400,000.

¶ 14 A bench trial was held on November 17, 2005. The District Court found the parties had entered into a written contract for identified work in the sum of $19,810, followed by "a series of binding oral agreements" for additional work and extras. The court further found that while some of the work performed by Lyons was not done in a workmanlike manner, Weimar had waived many of the deficiencies in Lyons' work by accepting the work, causing the deficiencies by direct order, contributing to the deficiencies by insisting on hasty performance, and contributing to the deficiencies by performing improper preparation work incorporated into the final product. Moreover, the court found that in "Weimar's rush to complete the project prior to the appraisal date, he repeatedly advised his subcontractors to disregard [Lyons'] potential defects with the admonition to do the best they can by the appraisal date, `even if we have to pull it out and fix it later.'" The court did, however, credit Weimar with the sum of $8,967.19 for the costs of work by Clark-Salsbury to repair that portion of Lyons' deficient work that had not been caused by Weimar or his employees or had otherwise been waived. As a result, the District Court entered judgment against Plaintiff Weimar and Weimar Investments Limited Partnership in the principal amount of $16,763, plus interest at 1.5 percent per month from August 18, 2003, until paid, plus reasonable costs and attorney fees to be determined by the District Court.

¶ 15 On December 16, 2005, Lyons filed an affidavit of attorney fees and costs totaling $24,442.50. Although not objecting to this amount, Weimar nonetheless asserted that he was the true prevailing party and, as such, was entitled to costs and attorney fees. He further filed a motion to alter or amend judgment on various grounds. The District Court denied Weimar's motion and, on February 1, 2006, entered an order awarding Lyons costs of $190 and attorney fees of $25,980.50 in addition to the amounts awarded under the contract claims. Weimar appeals.

STANDARD OF REVIEW

¶ 16 This Court applies a clearly erroneous standard using a three-part test to review a district court's findings of fact:

First, we review the record to determine if the findings are supported by substantial evidence; second, if the findings are supported by substantial evidence, we will determine if the trial court has misapprehended the effect of the evidence; and third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still conclude that a finding is clearly erroneous when a review of the record leaves the Court with the definite and firm conviction that a mistake has been made. Fiedler v. Fiedler (1994), 266 Mont. 133, 137-38, 879 P.2d 675, 678 (citations omitted).

James Talcott Const. v. P & D, 2006 MT 188, ¶ 26, 333 Mont. 107, ¶ 26, 141 P.3d 1200, ¶ 26. Our standard of review for conclusions of law is whether the district court correctly interpreted the applicable law. Talcott, ¶ 26. A court's ruling on the admissibility of evidence, which includes a witness's testimony, is subject to an abuse of discretion standard and we will not overturn a court's ruling absent a showing of an abuse of discretion. Miranti v. Orms, 253 Mont. 231, 833 P.2d 164 (1992).

¶ 17 We apply the abuse of discretion standard to our review of an award of damages. Graveley Simmental Ranch Co. v. Quigley, 2003 MT 34, ¶ 21, 314 Mont. 226, ¶ 21, 65 P.3d 225, ¶ 21. However, "[a] district court's award of prejudgment interest is a question of law; therefore, this Court determines whether the district court correctly applied the law." Talcott, ¶ 28 (citing American Music Co. v. Higbee, 2004 MT 349, ¶ 13, 324...