Total Industrial Plant Services, Inc. v. Turner Industries Group, LLC.
2013 MT 5
| Mont. | 2013Background
- TIPS, an Oklahoma contractor, had a fixed-price subcontract with Turner for insulation work at a CHS refinery in Montana; work was delayed by weather and other subs, leading to a switch to time-and-materials invoicing in February 2008; TIPS submitted change orders for some increases, which Turner paid, but TIPS claims additional compensation for pre-February 4 costs and inefficiencies; TIPS filed a lien in September 2008 after Turner withheld further payments; Turner posted a substitution bond; District Court granted partial summary judgment for retainage return and denied other relief; bench trial in 2011 resulted in a verdict in Turner's favor on all counts, with decisions on lien timeliness and retainage appeal; on appeal, TIPS challenges contract-based remedies, lien timeliness, retainage, and costs; Court of Appeals reviews de novo and for clearly erroneous findings of fact; final opinion affirmed in part, reversed in part, remanded on prejudgment interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court err denying quantum meruit or unjust enrichment claims? | TIPS asserted oral promises and pre-February 4 costs warranted compensation. | Turner argued only written change orders could trigger extra pay under fixed price. | Yes; quantum meruit/undue enrichment claim rejected; no basis under express contract. |
| Was Turner the prevailing party entitled to costs? | TIPS contends it prevailed on retainage and partial summary judgment. | Turner argues no final judgment on merits and denial of prevailing party status. | No; court upheld Turner not prevailing party; but reversed on prejudgment interest issue and remanded. |
| Was TIPS's lien time-barred under § 71-3-535, MCA? | TIPS contends lien timely under ongoing work. | Work after June 25, 2008 under CHS contract tolls no Montana lien. | Lien barred; 91 days after final furnishing under Turner contract; not tolled by CHS work. |
| Did the district court err in granting partial summary judgment on retainage and ordering return? | Retention owed pending release of lien; bond discharge should release lien. | Bond discharge replaced lien; retainage should be released. | Reversed; prejudgment interest on retainage awarded and remanded for value of interest. |
| Was Turner’s bill of costs properly filed under § 25-10-501, MCA? | Costs allowed by contract subdivision; procedural compliance required by statute. | Contract displaces § 25-10-501; filing irregularities cured by contract. | No; § 25-10-501 applies; $. bill of costs timely filed given notice date; not abuse of discretion. |
Key Cases Cited
- Rodgers v. Mony Life Ins. Co., 2005 MT 290 (2005 MT 290) (costs on claims for money or damages; statutory costs rule applies)
- Dalakow v. Geery, 132 Mont. 457 (1957) (oral modifications evidence under contract)
- Lewistown Miller Constr. Co. v. Martin, 2011 MT 325 (2011 MT 325) (clearly erroneous standard; contract interpretation)
- Estate of Pruyn v. Axmen Propane, Inc., 2009 MT 448 (2009 MT 448) (quasi-contract claims require absence of express contract)
- Frank J. Trunk & Son v. De Haan, (Mont. 1964) (1964) (timing of lien continuation under multiple contracts)
- Helena Steam-Heating & Supply Co. v. Wells, (Mont. 1895) (1895) (early lien timing principles for construction projects)
- Sperry Rand Corp. v. United States, 201 Ct. Cl. 169 (1973) (fixed-price contract risk allocation to subcontractor)
- E.C.A. Envtl. Management Servs. v. Toenyes, 208 Mont. 336 (1984) (prevailing party; awards not limited to monetary judgments)
- Roseneau Foods v. Coleman, 140 Mont. 572 (1962) (costs recoverable outside strict statutory list by stipulation)