Lewistown Miller Construction Co. v. Martin
271 P.3d 48
Mont.2011Background
- LMCC bid $338,400 for Martin’s cabin and entered a written contract incorporating the Bid and Specifications.
- Allowances were included for certain materials; if actual costs exceeded, overruns were contract-price increases.
- Many changes were made; only one written change order was used, but contract price was increased beyond the original bid.
- Martin requested numerous changes; LMCC performed them with no formal written change orders and some payments were made for these changes.
- LMCC filed a construction lien and suit; Martin counterclaimed for various reliefs; LMCC sought statutory attorney fees.
- District Court foreclosed the lien, awarded damages to LMCC, denied contract-based attorney fees to Martin, and denied LMCC statutory attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Foreclosure of construction lien valid? | LMCC argues waiver of writing requirement and time-and-materials modification supported by owner-directed changes. | Martin contends no valid oral modifications; contract remained firm-price unless written changes. | Lien foreclosure sustained; contract modifications valid as oral under waiver and performance. |
| Attorney fees—lien foreclosure fees owed? | LMCC entitled to mandatory statutory attorney fees for establishing the lien. | Martin not entitled to contractual fees; statutory fees not granted to LMCC? (implied) | LMCC entitled to statutorily mandated attorney fees; district court's denial reversed; remand for reasonableness as to fees. |
Key Cases Cited
- Dalakow v. Geery, 132 Mont. 457 (1957) (oral modifications and full performance can modify written contract)
- Matos v. Rohrer, 661 P.2d 443 (Mont. 1983) (contract changes without ceiling may be enforceable under oral modification doctrine)
- Westfork Const. Co. v. Nelcon, Inc., 877 P.2d 481 (Mont. 1994) (focus on execution of subsequent oral agreements and written terms)
- Matzinger v. Remco, Inc., 558 P.2d 650 (Mont. 1976) (written contract modified by oral agreements; entitlement to compensation)
- Roberts v. Sinnott, 177 P.2d 252 (Mont. 1918) (oral modifications valid where supported by consideration)
- Kebschull v. Nott, 714 P.2d 993 (Mont. 1986) (judicial approach to determining damages with discretion)
- In re Porter v. Galarneau, 911 P.2d 1143 (Mont. 1996) (principles on modification and waiver (Montana context))
- Plath v. Schonrock, 64 P.3d 984 (Mont. 2003) (reasonableness standard for attorney fees on appeal or lien matters)
- Avanta Fed. Credit Union v. Shupak, 223 P.3d 863 (Mont. 2009) (prevailing-party concept in fee shifting)