DiMarzio v. CRAZY MOUNTAIN CONST., INC.
2010 MT 231
| Mont. | 2010Background
- DiMarzio hired Crazy Mountain Construction (CMC) as general contractor for a Bozeman home Addition project (May 14, 2003); F.L. Dye installed HVAC/humidification systems.
- Disputes over workmanship and supervision led to termination of relationships with CMC and F.L. Dye in spring 2004.
- DiMarzio filed suit October 2004 alleging CMC negligent and breached contract and that F.L. Dye was negligent; both counterclaimed.
- Expert disclosures: Amende timely; Lynch disclosed June 2007 as supplemental expert; Amende conflict led to substitution issues; court delayed substitution and limited Lynch to rebuttal.
- Jury trial (Aug 25–Sept 1, 2009): verdict found no contract breach by CMC but CMC negligent; DiMarzio breach against CMC; Dye breach against DiMarzio; Dye not unjustly enriched; post-trial fee and prejudgment-interest disputes followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Expert disclosure timing and admissibility | DiMarzio: Lynch should be allowed in case in chief. | Dye/CMC: Lynch disclosure was untimely and not properly allowed. | No abuse of discretion; Lynch properly barred in chief but allowed as rebuttal. |
| Existence of a contract between DiMarzio and F.L. Dye | Contract was with DiMarzio; CMC/Dye testimony inconsistent; jury should decide. | Contract was with CMC and Dye; conflicting evidence supports jury decision. | Proper to deny directed verdict; jury question on contract existence. |
| Jury instructions adequacy | Instruction 22 improperly asserted implied contract showing; unfair when paired with unjust enrichment claim. | Instruction 22 compatible with evidence; instructions viewed in entirety. | No abuse; instructions 22–24 properly state law and not prejudicial. |
| Attorney's fees to CMC | CMC entitled to all fees as prevailing party since fees inseparable from contract claim. | Fees largely for negligence; insurer defended; windfall risk; court can award partial fees. | Not an abuse; district court exercised discretion to award partial fees. |
| Prejudgment interest for F.L. Dye | Dye’s damages vest when contract breach and amount certain; prejudgment interest proper. | No vesting until verdict; damages uncertain until trial. | District court correct; no prejudgment interest. |
Key Cases Cited
- Nelson v. Nelson, 329 Mont. 85, 122 P.3d 1196 (2005 MT) (admissibility of expert testimony; broad discretion of trial court)
- First Citizens Bank v. Sullivan, 200 P.3d 39 (2008 MT) (discovery sanctions and expert disclosure standards)
- Sunburst School Dist. No. 2 v. Texaco, Inc., 338 Mont. 259, 165 P.3d 1079 (2007 MT) (standard for reviewing expert testimony rulings; abuse of discretion)
- Tacke v. Energy West, Inc., 227 P.3d 601 (2010 MT) (attorney's fees; abuse of discretion standard; Plath factors)
- Allison v. Town of Clyde Park, 11 P.3d 544 (2000 MT) (directed verdict standard; evidence viewed in light most favorable to non-movant)
- Doig v. Cascaddan, 935 P.2d 268 (1997 MT) (attorney's fees; prevailing party considerations)
- Plath v. Schonrock, 64 P.3d 984 (2003 MT) (Plath factors guiding reasonable attorney’s fees)
- Carriger v. Ballenger, 628 P.2d 1106 (1981 MT) (precedent on prejudgment interest timing)