Bouten Construction Co. v. H.F. Magnuson Co.

Washington-Idaho- The Trustees 992 P.2d 751 Carpenters Montana Laborers Retire- COMPANY, BOUTEN CONSTRUCTION Fund, Defendants-Appel- ment Trust Plaintiff-Respondent, lants, v. COMPANY,

H.F. MAGNUSON and Defendant-Appellant, Company, corpora- M L& Land an Idaho Magnuson Company; tion and H.F. The Company, M & L corpora- Land an Idaho Inn, Inc., corporation; Wallace an Idaho tion; Inn, Inc., The Wallace an Idaho Masonry, Inc., Washington Johnson a corporation; Washing- The Trustees of corporation; Associated Terrazzo & Ce- Carpenters-Em- ton-Idaho-Montana ramics, Inc., Washington corporation; a ployers Fund; Retirement Trust The Doering Doering, Richard and Jane Doe Washington-Idaho-Labor- Trustees of wife, husband and residents of Koote- ers-Employers Funds; Pension Trust County, Idaho, nai Washington-Idaho Divi- Trustees of State Ce- d/b/a Masons-Employers ment Eight; Electric, Inc., Retirement sion Aztech a Fund; Washing- Trust The Trustees of Washington corporation; Contract- Sun Carpenters-Labor- ton-Idaho-Montana ing Spokane, Inc., Washington a cor- Fund; ers Retirement Trust Johnson poration; Viking Sprinkler Automatic Masonry, Inc., Washington corpora- a Company, corporation; an Idaho Per- tion; Ceramics, Associated Terrazzo & Contracting, Inc., formance a Kansas Inc., Washington corporation; a Rich- corporation; K. Robert and Jo- Monroe Doering Doering, ard and Jane Doe Monroe, wife, die husband and resi- wife, husband and residents Koote- Spokane County, dents of State of County, Idaho, nai State of Divi- d/b/a Washington, Design Wall Cover- d/b/a Eight; Electric, Inc., sion Aztech a ing; Dupree Building Specialties, a corporation; Washington Sun Contract- Washington proprietorship; sole ing Spokane, Inc., Washington a cor- poration; Viking Turk, Inc., Washington Sprinkler McClintock Automatic & Company, corporation; an Idaho Per- corporation, Defendants. Contracting, Inc., formance a Kansas Nos. 23681. corporation; Robert K. Monroe and Jo- Monroe, wife, die husband and resi- Idaho, Supreme Spokane County, dents of State of Lewiston, April 1999 Term. Washington, Design Wall Cover- d/b/a ing; Dupree Building Specialties, Nov. Washington proprietorship; sole Turk, Inc., Washington McClintock & Rehearing Denied Feb. corporation, Defendants. Company,

Bouten Construction

Plaintiff-Respondent, Washington-Idaho-Mon-

The Trustees of Carpenters Employers

tana Retirement Fund; Washing-

Trust Trustees of Employers

ton-Idaho Cement Masons Fund;

Retirement Trust The Trustees of Carpenters

Washington-Idaho-Montana Fund; Retirement Trust

Laborers

Evans, Keane, Gibler, Kellogg; Fred M. d’Alene, Kellogg; Magnuson, John F. Coeur appellants. Fred M. Gibler and John F. Magnuson argued. P.S.,

McCormick, Black, & Dunn Sand- point, Spokane, Washington. Idaho and Joel argued. C. III McCormick KIDWELL, Justice. parties dispute interpretation of a

construction contract and an award both pre- post-judgment con- agreed plus” tractor and the owner to a “cost $1,790,643,dated June setting a GMP Inn for the Wallace contract construction Wallace, Idaho, price. maximum set by the dur- made owner Because mod- provisions for contained The contract construction, greatly

ing exceeded the costs GMP, which allowed GMP ifying the price, upon completion, the maximum con- “adjusted upon final up to 5% based pay difference. The refused owner ar- furnished being documents tract found district court and the Court provided that further The contract chitect.” most of the for the contractor and awarded percent five greater than a changes are “[i]f pre- in- post-judgment costs as well (5%) add, scope the work will appeals owner terest on the award. The mutually agreeable negotiated downward to a the inter- judgments both the with the Maximum Price in part part. Guaranteed est. We affirm in and reverse change The changes the owner.” directed writing in and required to be orders I. by the architect. issued Mag- process, AND PROCEDURAL HISTORY Throughout FACTS construction the original changes in the that nuson ordered (Bouten) Company Bouten Construction archi- design made. the drawings be Since agreement into an to build Wal- entered plans having difficulty producing the tect was (Inn) Magnuson Company Inn for H.F. lace fashion, point Magnuson timely a in some L Land (Magnuson) on land owned M & plans on the architect to concentrate told the L) (M Wallace, Company & in Idaho. The change orders. worry about the and not to contract, 17,1988, a signed on June “cost agreement plus” set a “Guaranteed May in completed the Inn was When (GMP). However, Price” because Maximum Magnu- sought collect from Bouten plans pre- for the Inn had detailed in excess the GMP son the amount pared Magnusoris prior to the architect changes in that was attributable to contract, signing of the the amount of the periodically by Magnuson during plans made open GMP was left when the contract Magnuson refused to construction. When signed. specified a The contract that GMP Magnuson for breach pay, Bouten sued required develop- design would be when the L Bout- for foreclosure of contract and M & drawings completed. ment had been was filed on property. Suit en’s lien on the 29,1989. August Bouten, however, for the de- did not wait days completed, three plans tailed to be and trial, Following a signed, Magnuson sent after contract a and that held there had been contract $1,790,643. setting a a Bouten letter GMP its in- for some of Bouten should recover in price experience its based this Further, district court creased costs. business on the architect’s construction Magnuson agreed had while found that representations Inn be of would orders, change changes requiring without quality as the “Best Western” motel- similar Magnuson not waived abandoned Bouten was familiar with chain standards. opinion was The court’s memorandum GMP. complet- it motels because was Best Western 5,1991. dated March remodeling ing project on Best Western in area. motel of the dis appealed the decision court, af Appeals trict parties agreement full between the Bout part. part and remanded firmed (1) the documents: “Stan- consisted of three (Bouten L Co. Co. v. M & Land en Constr. Owner Agreement Form of Between dard I), (Ct.App. Contractor,” on June executed 1994). Appeals found that the The Court (2) of the Contract Conditions “General plans delay the architect’s in the creation of Construction,” also dated June being meaningful set. (3) from Magnuson prevented a GMP a letter from Bouten to Id. at 935. The Court of This remand. awarded Bouten at- Appeals upheld torney $126,716.64. also the district court’s factu- fees calculated at finding Magnuson al that while had not aban- figure contingent was based on 20% fee GMP, indirectly doned the agreed it had agreement attorneys between Bouten and its price changes increase the due following the trial. The district court further plans. Magnu- Id. at 877 P.2d at 936. continuing post-judgment awarded Bouten argued son required proce- that since the $388,482.60 April interest on the followed, dures had not been it was not liable until in full. Each of the awards for the changes. additional costs pursuant of interest was made to the statuto- Appeals argument Court of did not find this ry interest rate as set forth 28-22- persuasive however, Magnuson since it was 104(2). The district court further modified who told the architect to concentrate prior judgment and ruled that Bouten’s plans prepare any and not to change more superior hen claim should be to all other hen orders. Id. at 877 P.2d at 938. Magnuson appeals claimants. decision the district court on remand.

The Court of remanded the case to the district court with instructions II. prove expended allow Bouten to the amounts plans. due to the in the Id. at STANDARD OF REVIEW remand, 877 P.2d at 945. On Bouten had the The findings of a trial factual court (1) proving: particular burden of that they clearly will not be set aside unless are (2) made, changes had been that the Shields, erroneous. Hunter v. 131 Idaho (3) costly, were more the amount 148, 151, 588, (1998). Findings P.2d costs, (4) increased that each increased of fact which are based on substantial and 968, cost was reasonable. Id. at 877 P.2d at competent will evidence overturned on 939. The permitted, district court was but appeal, conflicting. even the evidence is not required, to hear additional evidence. Hosac, 67, Highlands, v. The Inc. 69, 1309, (1997); Rice v. Hill 5, 1995, On December the district court 576, 579, City Stock Yards supplemental judgment, issued its first find- (1992). 1288, credibility The ing in favor of Bouten. court heard no given weight province is in evidence evidence, new findings and based its on the Valley of the trial court. Sun Shamrock previously evidence admitted. The district Resources, Leasing Corp., Inc. v. Travelers $298,609.54 court awarded Bouten for addi- tional costs of construction. This amount light of the trial court’s role in pro April was nunc tunc back to the weighing judging evidence credibili original judgment, provided date which ty, liberally the trial this Court construes interjudgment Bouten with findings judg court’s of fact favor of the court also awarded Bouten ment entered. when the issue statutory pre-judgment interest at the rate law, is one the Court exercises free review 21, 1989, July April 1, from because Savage of the trial court’s Lateral decision. liquidated. found Addi- Ass’n Pulley, Ditch Water Users 125 Ida tionally, the district court awarded Bouten ho $28,037.86for fees and costs associated with appeal contains issues of fact and both law. having prove Bouten’s the additional contract, amounts under the and awarded III. post-judgment the entire award ANALYSIS $388,482.60 April until the Correctly Finally, A. The District Court Found award was full. the court Necessary Proved, determined that Bouten that Bouten’s hen inferior to Certainty, of the prop- the other lien on M L the Increased Costs claimants the & by Magnuson. Changes erty. Made that, remand, Magnuson January Bout- On the district court contends proof en meet burden of for each supplemental entered a second failed to its added, during modified design changed, or or original changes made the work.” argues course of drawings. Magnuson that also adjust did not the awards for district court prepared the district court On costs, instead, simply but the increased findings evidence. We of facts based on the awarded Bouten all the costs claimed. reviewed find that when the evidence is totality, evidence there is substantial December the district On its decision. based findings supplemental of facts entered sponse to the order of the Court of Dam- Award of B. The District Court’s It that had met on remand. found ages Bouten for the Increased proof required the Court of the burden of and Non-Arbi- was Consistent Costs thirty-two Appeals. The court then set out trary. items, items, groups would be Magnuson argues the decision further awarded to Bouten. not in court on remand was of the district assessing Magnuson’s attack on the with the directions of Court accord evidence, this must adequacy of the Magnuson Additionally, contends Appeals. findings determine whether the of fact was not con- district court’s decision clearly pre- erroneous based on evidence rulings, and was arbi- sistent with its sented trial. specific trary provide find- because it did ings on each of the increased costs awarded. This Court will find that the district Appeals, from the Court of On remand clearly erroneous to review the rec- district court was directed supported when it is not “substantial ord, if needed to and take additional evidence competent, although conflicting, evidence.” had met its bur- determine whether Bouten Coop., Washington Kootenai Elec. Inc. v. proof of each costs den of increased Co., Water Power 127 Idaho I, 968, GMP. 125 Idaho at 1333, above the Bouten “Substantial and at 877 P.2d 939. competent is evidence” “relevant evidence might accept which a reasonable mind Appeals The of noted: Court support a Greg, conclusion.” Mancilla v. findings of fact and con- trial court’s 368, 963 P.2d law, although of clusions extensive only certain of well-prepared, discuss remand, On the district court had before changes. of [Bouten’s] list While the court all of the evidence admitted at trial. The explained why addi- [Bouten] was allowed directed, remand, Appeals of Court that for some of the claimed tional costs additional evidence needed to taken exactly why changes, it is not clear kept that it Bouten could establish relief court denied of the remainder. introducing all of its evidence at trial as result of the district court’s error. Absent Id showing,

this district court was to decide al- Also the district court “upon previously the issue the evidence of- lowed Bouten additional costs over and above I, 968, fered trial.” Bouten Idaho at specified thirty-two the GMP. The court 877 P.2d at 939. items, items, of it found Bout- groups or that items, each of these en should recover. For transcript ninety-six of the trial lists court found that Bouten had met district of exhibits which were admitted. Some proof. its burden specific exhibits were created for the these findings of the district court purpose summarizing explaining the While by Mag- specific and detailed as remand are not and increased costs ordered trial, produced at the initial we find example, of Bouten’s wit- those nuson. For one that, overall, they are suffi- when considered that Exhibit was created nesses testified work[,] the directions of the comply in a cient to explain “the total cost of the remand. The assignment to subcontractors Court breakdown item that was specifically set forth each elements that either and various were to be reviewed and pre-judgment then ruled on which though Even interest proved to be reasonable. agreement can be allowed an a contract statute, either, grant pre under C. Court Declines to Address requires showing that Magnuson Issue Whether Was damages liquidated. pre When Credited for Instances Where granted under Subcontractors’ Bids Were Less 28-22-104, governing legal of in rate Expected Than That Es- Bouten’s judgments, terest on the amount bear timate. liquidated. interest must be See Ervin Magnuson argues that the contract Co., Constr. 125 Idaho at 874 P.2d at provided with Bouten savings in the Likewise, pre-judgment 515. subcontractors’ bids over the GMP was to be contract, under awarded the terms passed However, Magnuson. on to Magnu the amount must be or ascertain son did not raise this issue at trial. able mere process. mathematical Barber Magnuson contends that the issue was Honorof, v. 116 Idaho at 780 P.2d tangentially raised below because it is Bouten relies on Rosecrans v. Intermoun- plaintiffs reply ferred to in Bouten’s memo- & Soap tain Chemical pursuant August randum order (1980), proposition 605 P.2d 963 for the However, filed memorandum was agreed-upon interest rate a contract response to the order on remand after require liqui- does not to be trial and appeal after the dated. Bouten’s reliance Appeals. is mis- Thus it raised at the trial Rosecrans, placed. level. Court noted “pre-judgment interest should not be allowed The Court of Appeals has ruled that “un principal liability when the amount of principle, der the ‘law the case’ on a unliquidated.” Id. at 605 P.2d at 966 subsequent appeal second or gen the courts Hernandez, (citing Corp. Farm Dev. erally will not consider errors which arose (1970)). appeal might to the first and which Furthermore, the Court found that “[i]n have raised as issues in the earlier case, liability instant the contractual is readi- Green, appeal.” Hawley v. ly ascertainable.” Id. Therefore, (Ct.App.1993). since the at issue was raised the trial then issue before this is wheth- Appeals court level nor to of the Court on the damages, er Bouten’s are the in- appeal, by it be first will not considered construction, liqui- creased costs of were See, Court. Post Falls Trailer v. Park Development dated. In Farm Corp., this Fredekind, 637, 634, 131 Idaho 962 P.2d pre-judgment Court denied interest where (1998). 1018, 1021 liability disputed by of the amount was 920, parties. Corp., Farm Dev. 93 Idaho at D. The District in Court Erred Award- 478 P.2d at 300. This Court found that the ing Pre-Judgment Interest to Bout- contract, price was set but because Unliquidated en on Claims. price conflicting there was evidence of the It pre is settled law Idaho that actually paid and the actual value of is available when product, the amount was not “ascertainable damages liquidated or are ascertainable (in- by processes.” mere mathematical process. mere mathematical Doolittle v. omitted). ternal citation 2, Dist. Meridian Joint Sch. No. 128 Idaho 805, 814, (1996); 334, P.2d 343 919 Pocatello Here, required, Bouten was re on Color, Inc., Coatings, Auto Inc. v. Akzo 127 mand, to that each the increased establish (1995); 896 Er P.2d Orden, 695, changes costs was the result of ordered vin v. Van 125 Idaho Constr. Co. 704, 506, (1993); Magnuson. present proof Bouten also had to 874 v. P.2d 515 Barber 767, Honorof, 770, 89, change costly each 92 that was more 116 Idaho 780 P.2d (1989). change rea- the amount the increased was

763 arguing that interjudgment remand, was district court sonable. On Idaho case law. We weigh presented not consistent with the evidence instructed to agree. it was whether determine above, district As discussed reasonable. III), 117 Ida- Long (Long Hendricks In v. option hearing given new court (1990), 1051, this Court P.2d 1223 ho 793 needed; however, decid- the court evidence interjudgment inter- an award considered proceed previously ed with the evidence to Bouten. est to the award similar I, at at trial. Bouten 125 Idaho established instance, plaintiff Long Hendricks for sued 968, 877 P.2d expenses arising wages for medical lost some, but not The district court found that accident. The district of an automobile out all, proven to had been $21,027.85 damages, Long court awarded damages became reasonable. $2,000 wages. Long v. for lost of which was court determined when the district 75-76, 73, I), (Long 705 Hendricks proven to be which of the amounts had been 78, Long’s (Ct.App.1985). On 80-81 P.2d ruled Until the district court reasonable. remanded appeal, the Court first reasonable, proven which of the costs were court “to recon- to allow the district the case damages was not amount of Bouten’s sider, findings particular more and to make readily has ascertainable. This Court held 79, on, wages.” Id. at 705 the issue of lost damages readily are not “ascer- remand, Also on P.2d remand,” proceedings tainable provide findings as directed Hendricks, they liquidated. Long v. are not expenses why Long’s medical some of 1223, 793 P.2d granted and others were not. These holding Our with what accord findings Ap- were essential the Court prevail Court has determined to be the peals court’s failure to review “whether the See, ing pre-judgment e.g., view oversight or as a result include them Botwin, Miller v. 258 Kan. 899 P.2d them.” of a determination exclude (1995); Hosp. Montana Northern ruled that the district court On 1276, 1282 Knight, v. Mont. P.2d Long was to an additional award entitled (1991); Baysing Pierce Couch Hendrickson $21,100 wages and in medical for lost $899.79 Freede, er & Green II), 114 expenses. Long (Long v. Hendricks Wilcox, (Okla.1997); Cornia v. (Ct.App. (Utah 1995); 1No. v. Public Util. Dist. 1988). II, Long’s appeal, Long second International Ins. Wash.2d argued Long that both increased awards 1020, 1032 wages expenses and medical should lost these circumstances the increased Under original pro nunc to the date of the tunc sought which Bouten post-judgment judgment, and that readily until the district ascertainable time, giving Long run from that thus should Therefore, ruled. “interjudgment” interest. Id. at pre-judgment award of interest is reversed. at 1197. opinion, In its second the Court of Interjudgment Award Inter- E. The of denial of inter- affirmed the district court’s Improper. est was review, 162, 754 P.2d at 1199. est. Id. at On remand, On the district court found Long sought to have this Court reverse the was entitled to additional sums that Bouten regarding Appeals’ of decision the Court agreement construction for under the as inter- post-judgment well the by Magnuson. changes been made III, Long at judgment The district court awarded Bouten interest affirmed 1224. This Court sums, of on the amount the additional part Appeals in and reversed of the Court April the was to run from date part. January original judgment the to III, Long held that the lost entering supplemental judg In this Court of the second to interest be- Magnuson disputes wage this claim not entitled on remand. ment cause the additional amount awarded not sup- rate of interest from the second readily proceed- plemental “ascertainable the until the is ings full, on remand.” Id. at the 793 P.2d at rate set the formula in 28-22-104(2). II, (quoting § Long provides This Idaho at 754 I.C. statute 1199). However, legal P.2d at that the rate of interest is arrived at this held that adding percent the five base rate for expenses, additional the the medical which had trial, year. year The base rate each overlooked at is determined were entitled to July the State Treasurer 1 of each interjudgment they interest because year. rate, liquidated. The base added the P.2d at 1227. statutory percent, equals of Thus, rate five the where the additional amounts awarded legal succeeding year. rate of interest the on remand were the result of the district Therefore, legal rate of factual court’s of determination reasonable- January 1997, applied to Bouten’s award fair reevaluating ness and value after July rate which was in effect on 1997. evidence, this Court held that interest should question then becomes whether run judg- from the of the supplemental date owing rate the balance should ment and not from the date change if the interest rate the fol- judgment. lowing year. Following cases, Long line The statute states that the interest rate Court now determines that Bouten’s claims applied judgments should be “to all declared were not at the original time (12) during succeeding such twelve month decision of the district court. While evi- added). period.” (emphasis We resolve already dence possession question by review former amend- court, liqui- Bouten’s claims were not ments to current statute. actually until the dated district court entered § 28-22-104 was amended to findings as to which additional sums change previous fixed interest rate to a should be awarded. provides variable rate formula. The formula Additionally, recently this Court has clari- July that the interest rate should be set interjudgment fied that the interest allowed year. of each provided new scheme expenses Long the medical were the yearly change, formula for rather than the court, oversight result of “an of the trial past requiring method an amendment to the which is tantamount to a clerical error.” change statute to the rate. 1987 Sess. Bros., Weaver v. Searle § Laws ch. On again. the statute was amended district court in I Bouten was to make factual legislature phrase time This added the findings as to whether Bouten had met his judgments remaining “to all declared un- proof burden each increased § paid.” Sess. Laws ch. considerably costs. This is more than clearly legislative intent shows the mere clerical error. Therefore the district year applied the new rate for the should be interjudgment court’s award interest was judgments existing to all at the time of the appropriate and is reversed. change, just ones dur- new declared ing succeeding twelve months. This F. Entitled to the Bouten Is Fixed amendment created a variable interest rate Rate of Interest Pursuant to I.C. applied judgments all entered after 28-22-104(2). 1,1987. July interjudgment legislature again Since the In the disallowed, statute, to removing Bouten is issue of words the which amended the the “or apply judgment remaining rate to the unpaid.” to is moot. 1996 Idaho Sess. Laws Bouten, damages provide § The award of to which was ch. 94 1. This altered the statute to granted supple- year the shall the district court’s second that the interest rate for be judgment, judgments during post-judgment mental should bear fixed for all new declared January 23,1997. year. Thus, applied interest from the the interest rate to Magnuson, once in the against remain creased the decision will district again full, judgment on remand supplemental the until the same judgment on re- supplemental in the second regardless the rate fluctuates of how awards, Bouten In both of years. mand. these in future Magnuson against sums additional ceived Court Had G. District Jurisdiction also determined only. The district Determine the Priorities the

to the liens superior to of Bouten were the liens Property the Liens on Construction parties. of the other by M & L. Owned 17,1996, May court heard a On reconsideration, Magnuson argue objection standing has to an to motion priorities fees, the the lien holders. and motion for additional claim for the During proceedings, those district fees. argues Magnuson does Bouten only M the court held that & L had satisfied standing not have to raise the issue of wheth work, it the judgment against site L, by upon er land owned M & which the therefore, proper. The lien was Bouten’s built, subject by Inn be to a lien should did, however, point out against Magnuson. property to against lien should be limited “[a]ny party Appellate Rule 4 allows Magnuson’s property. interest in the by aggrieved appealable judgment an ... statute, adopted in mechanics lien Supreme appeal such decision to the [to] 1893,states: provided by Court as these rules.” I.A.R. 4. “Any party aggrieved” interpreted has been or in The land which connection injuriously any party by judg as affected per- professional services Howell, ment. State ex rel. Moore v. any building, improvement or or formed (Ct.App. constructed, together with a structure is Moots, 1986); see also Roosma same, space about the or so convenient 450, 455, 112 1000, 1002 may required much as be for the conve- thereof, occupation use and to be nient supplemental judgment, its second rendering court on determined superior district court held that Bouten had a lien, if, subject judgment, to the is also lien on M over other liens the & L land. One furnishing the commencement having others named inferior professional services or other work or Magnuson Company. claim was H.F. same, furnishing of the material for directly Magnuson decision affected and its belonged person land who lien, ability on to foreclose should de- per- professional to caused said services Therefore, Magnuson cide to do so. a building, improvement or formed said party aggrieved by the district court’s deci- constructed, altered or re- structure to standing sion this and has to raise issue less than a paired, person but such owns appeal. issue land, simple estate in such then fee subject to such lien. his interest therein is property lien on the Bouten’s added). (emphasis Inn which the is located is limited Magnuson’s prop- interest in 45-505. erty. interpreted has This statute Through pro course these limit the amount of lien ceedings, Bouten has been awarded held property in the which is trial, different In the first on several claims. v. Twin Falls Nelson Bennett Co. debtor. damages against M Bouten was awarded & 5, 93 P. 789 & Water Land L. That satisfied (1908), agreed build Bennett several M L is appeal, first and therefore & Twin Falls Land & of canals for the miles party appeal. to this construction Company. Water When the ended, Bouten, sought its lien on Bennett to foreclose original award to Since adjacent the in- and on the lands to court has twice awarded Bouten the canal district Id. considering judgment. canal. 93 P. at 790. claim Id. Bouten filed its on statute, the mechanics lien this Court limited January only days the after first recovery the “only under the lien to the supplemental judgment on was en- remand interest, right claim and 60(b) Twin Falls Thus, tered. Bouten’s Rule was motion Company” Land & Water and added that timely. therein, “[i]f it has no interest it cannot necessary point It is to first out that the suffer a foreclosure sale under lien.” this court, in original post-trial opin- district Id. at 93 P. at 792. ion, ranked priorities the mechanics lien Similarly, Naylor in v. Lewiston & South- Thus, following the subcontractors. re- Railway eastern Electric mand, statutory duty the district court had a (1908), again P. 573 the Court the limited priorities to establish the both mechanics lien recovery of the lien under the lien mechanics mortgage priorities. and the lien There, Naylor’s company per- statute. had court in sup- district stated its second work railway railway formed for the the plemental judgment on remand that it was easements. Id. at P. at 576. The setting priorities “pursuant lien to Idaho Naylor work was for and lien filed a section, § standing Code 45-512.” This against Railway and the easements. Id. alone, give juris- does not court 96 P. at 576. This Court ruled prioritize diction to in mechanics liens rela- railway “whatever company mortgages. to necessary tion It is consid- to subject lien, in property said would be to the conjunction § er I.C. in 45-506 I.C. simple whether that be a fee or a less title.” § setting priorities 45-512 when of mort- Id. at 96 P. at 579. gage liens in relation priority to me- Here, Bouten received a lien for the chanics liens. See States Loan Sav. Pacific judgment against Magnuson Dubois, Bldg. Co. 83 P. property on Inn on which the con- was However, structed. as demonstrated In its on order motion reconsideration plain meaning these cases statute, supplemental of the first Bouten’s lien limited to the mand, priori- the district court discussed the by Magnuson amount of interest held in the “pursuant § ties to I.C. 45-506.” property. Insofar the district court found same, its decision is affirmed. provides: § Idaho Code 45-506 “The provided chapter liens jurisdiction district court had lien, any preferred [mechanics liens] are to to mortgage priority determine lien encumbrance, mortgage other which § under I.C. connection A5-512 may subsequent have attached time § loith I.C. 4.5-506. building, improvement when or struc- supplemental judgment The first done, commenced, ture work or mate- January remand entered on professional rials or services were com- judgment, the district court determined menced to be furnished....” that Bouten’s lien to those was inferior § 45-506. However, parties. other the district court supplemental judgment found in its second Therefore, did err January claim that Bouten’s should priorities when set the the mechanics superior change other liens. This Furthermore, mortgages. and the we liens prompted by Bouten’s motion recon obligated find that the district court was judgment. supplemental sider the first Code statute do so. 45-512 di- pursuant every motion was that “in Bouten’s made rects case which different 60(b), change against property, I.R.C.P. which allows a court to liens asserted its final order rank order was based must declare the lien____” “mistake, Thus, inadvertence, surprise, or excusa- of each lien or class of priorities of neglect.” ble the claim must the district court had to set the brought parties six within months of the final the lien holders attorney fees and costs......182.56 Overlooked Therefore, we that the district hold suit. with costs associated Fees and mortgage review of the lien the court’s proving amounts on the additional appellant Trusts was property held the remand............................28,037.86 fees, based on the §§ 45-506 and -512 remand proper. Post Idaho Code agreement..........126,716.64 contingency fee the to provided the district court mechanism lien as priority the of Bouten’s mechanics set costs.............$154,937.06 fees and Total against mortgage Trusts’ hens. calculated fees were post-remand supplemental of the total adding the amount Subtracting the H. After Amount of ($298,609.54 judgment, plus additional award Attorney Award Fees Based $388,- totaling attorney fees Prejudgment Interest, Affirm We 482.60) point to the interest accrued Attorney Fees the Award of amount, $633,583.19, ($245,100.59). The total Bouten. multiplied by contingency the 20% then supplemental judgment, In its second $126,716.64. fee, resulting in an award of $126,716.64 district court awarded attorney Magnuson fees. contends review, appears it award On award was excessive and should have part on attorney fees was based in a small based been on awards of attorney past For exam award of fees. ple, fee included overlooked $182.56 reviewing district $28,037.86in fees attorney fees and attorney fees, apply we an abuse of award proving with additional associated dispute concerns discretion standard where Thus, amounts on remand. attorney have the amount of fees that contingency agree court awarded fees on properly v. awarded. Barber State Farm amounts, it ment these awarded and included Co., 679, Auto. Mut. Ins. previously attorney fees on the awarded at (1997); v. P.2d Brinkman Aid Therefore, attor torney fees. the award of Co., Ins. ney contingency agree fees based on the fee pre Determination of who is a solely on the ment should have been based vailing party is committed the sound dis $298,609.54. supplemental Addi cretion the tidal court and will not be tionally, have held that since we disturbed absent abuse of Col discretion. $61,- amount, inappropriate, Jones, lins v. 131 Idaho 625.64, from the contin should be deducted (1998); Cunningham see also gency fee base. 843-14, Waford, (Ct.App.1998). 203-04 Valley, it Applying the factors from Sun that, appears exception of the inac- with the determining whether the trial calculation, court did curate discretion, court has abused this Court attorney in its its discretion award abuse applies fashioned Sun the three-factor test properly fees to Bouten. The district Ctr., Valley Inc. v. Idaho Power Shopping discretionary fees found that could Further, the trial court under I.E.C.P. 54. “(1) three Those factors whether should receive costs for stated that Bouten correctly perceived the trial the issue claims, separate which included each of its (2) discretion; whether the trial as one proceeding and the con- the lien foreclosure of its court acted within the outer boundaries Finally, uti- the district court tract action. consistently legal discretion and with the determining lized proper specific applicable choices standards attorney amount of fees be awarded. (3) it; the trial available to whether its decision an exercise of court reached Therefore, exception reason.” in- pre-judgment amounts attributable attorney previously awarded terest and supplemental In its second fees, dis- did not abuse its the district court awarded Bouten the district court attorney fees. in its award following costs and fees. cretion Hence, property. Finally, Bouten’s award of fees and is affirm we modified as follows: attorney fees, award of by modified attorney findings Attorney above Overlooked Court. fees..............182.56 Fees and costs associated with appeal. fees are not awarded to either side

proving the additional amounts remand............................28,037.86 SILAK, SCHROEDER, Justices and fees, Post-remand based on the contingency agreement...........59,721.91 fee concur. costs..............$87,942.33 Total fees and SCHILLING, Tern., Justice Pro Magnuson I. Neither Bouten nor Are concurring part in dissenting part. and in Attorney Appeal. Entitled to Fees on I opinion with except concur the Court’s requested While both sides have at respectfully that I dissent from D Sections torney fees on appeal, presented neither has view, my and E. In the additional costs any argument why toas the fees should be by capable claimed Bouten were of ascertain- A party argument awarded. must make in purposes ment for of the District Court’s argument section of its to brief receive pre-judgment interjudgment award of and attorney 35(a)(6). appeal. fees on I.A.R. This Court attorney has held that when fees requested, are are but not discussed I. INTRODUCTION argument portion brief, request It pre- is weh settled law Idaho Weaver, will not be considered. 131 Idaho at may interest be where awarded 616, Therefore, 962 P.2d at 387. we do not liability liquidated capa- amount of is attorney party. fees either ble of ascertainment mere mathematical process. Development Corp. Farm v. Her-

IV. nandez, 918, 920, 298, 93 Idaho (1970). CONCLUSION damages sought through Whether con- Upon ten-year extensive review of the rec- statute, grant prejudgment tract or a in- ord, hearing considering argument and oral requires showing terest that the matter, on the we conclude as follows: Be- were or ascertainable. cause there is substantial evidence § Code 28-22-104 for allows an award of support record to findings the district court’s money interest due ex- facts, they clearly we hold that Id.; press contract or when due. becomes Magnuson erroneous. Because did prop- Blaser, Child v. 111 Idaho erly preserve raise or issue whether it (Ct.App.1986). See also Bott v. Idaho savings should be credited for of subcontrac- Bldg. Authority, State 128 Idaho estimate, over tor bids Bouten’s the issue will (1996), citing 917 P.2d 737 Ervin Co. Constr. appeal. not be considered on Orden, Van P.2d Furthermore, since the amounts of addi- (1993); 28-22-104(1), tional costs to Bouten for the construction of action, may a breach of contract interest Inn over and above the GMP were not awarded the date the breach “when ascertainable, readily liquidated, and thus not is to pre-judgment the district court’s award of definitely mathematically based ascer- post- is reversed. The award of Const., tainable.” Ervin 125 Idaho at run from interest should the date Honorof, citing Barber v. supplemental judgment of the second on until it mand full. liquidated if fur- A claim is the evidence which,

Additionally, believed, affirm makes it we the district court’s nishes data concerning priority possible compute decision Bouten’s exact- as a the amount with ness, mortgage opinion lien holder. Bouten’s reliance or discre- without against property Examples upon promises hen L of M & is limited tion. are claims sum, Magnuson’s money pay amount of interest in a fixed claims for received, out, employment contract receive money paid claims $1,000 salary return goods per month to be and claims for services $10,000 fixed at 8%. deposit agreed paid for rate. footnote, distinguished the case Excavators, Corp., Inc. v. Seubert Eucon noting that while Development, from Farm (Ct.App. n. 874 P.2d 555 plain- specified that the that case contract 1993), citing McCormick, C. Handbook on cost of ferti- entitled to one-half the tiff was Damages 54, 213; § at accord the Law of land, actually lizing the amount piece of Co., Trimble American Ins. 152 v. Sav. Life value and its paid for the fertilizer 548, (App.1986); Ariz. 733 P.2d 1131 Jet 1, Rosecrans, 788, 100 at n. dispute. Idaho Boats, Bank, Puget 44 Inc. v. Sound Nat. 966, 605 at n. 1. P.2d (1986). 32, 18, 23 Wash.App. 721 P.2d Child, In the of found that Equitable principles are Court emphasized, “in the of certain lots was ascertain- prejudgment proper interest is deemed value able, fully injured party prejudgment therefore compensate order to money trial court determined during improper, the their where the loss use of conflicting Chenery of lots based on pendency of the action.” v. the value 281, 289, differing expert testimony and theories Agri-Lines Corp., Idaho 766 115 Child, 707, (1988), P.2d recovery. 111 at 727 citing Realty, Ace Inc. v. Idaho P.2d 751 742, Anderson, prejudgment at 106 Idaho P.2d 1289 682 Flandro, (1984); 228, expended for v. on amounts taxes Mitchell 95 Idaho allowed lots, (1972); against Development, Farm 506 P.2d 455 93 water assessments 920, expenditures 478 P.2d at See amounts and dates those Idaho at also Seubert, 750, 555, disputed. Id. The Court found 125 Idaho at were not Meldco, plaintiffs 28-22-104; liquidated and citing § Inc. v. those amounts were Hol- Mills, lytex Carpet 118 Idaho 796 were interest from dates entitled 142, judgment. McCormick, (Ct.App.1990); the date C. 7, Damages, ch. Handbook on Law liability that Court found This 50, at 205 mathematically under a con- ascertainable question here is whether Bouten’s provided that for termi- contract struction construction, damages, the increased costs of by “an payment nation of contract were ascertainable to remand. appropriate percentage completed of work net and value of

based on contract amount II. CASE Construction, IDAHO LAW Ervin materials installed.” trial at 874 P.2d 506. The Idaho Idaho courts case determine a case net amount was court found that the contract damages liquidated, basis whether are at time of the readily ascertainable ascertainable, purposes awarding pre- breach, numerous defects of construction but judgment interest. A review of Idaho case the value and materials used affected suggests law the trial and bar bench and thus rendered the installed materials guidance regarding would benefit clear unascertainable. value application prejudgment case, damages held another this Court Development, In Farm affirmed Court “definitely ascertainable” where cheeks holding although the trial court’s by a paid and delivered certain date allowed contract, conflicting price evi- was set damages to calculate actually paid and the dence the amount checks. Davis adding up the amount of the product led to a value of the conclusion Services, v. Business was not ascertainable. Farm amount Professional (1985), Development, 478 P.2d 298. 93 Idaho aff'd r’hrg. principal amount of found the contrast, overpayment that an liability v. Inter- it found ascertainable Rosecrans Co., sufficiently support definite to Soap & 100 Idaho amount not mountain Chem. par- (1980), where the Rosecrans interest award P.2d 963 where produced conflicting ties ... regarding subsequently evidence amended.” Seubert Exca- vators, overpayment. Burt v. Corp., Inc. v. Eucon Ranch, added). Springs (1994) Clarendon Hot (emphasis 871 P.2d 826 1042, 1045,793 P.2d 715 damages Indefinite prejudg also barred III. DISCUSSION where, ment plaintiff time Washington A provides review law also possession cattle, took of defendant’s “nei guidance liqui on this issue. “A claim is party ther long [plaintiff] idea how easily dated computed would retain the livestock or how much the objective reference to sources.” Flint caring reasonable costs of for them would Hart, Wash.App. be.” Holdaway Nelson v. Land and Cattle (1996), citing County Walla Walla Fire Prot. 729 P.2d 1098 Carriage, Dist. 5 v. Wash. Auto 50 Wash. (Ct.App.1986). “It was not until the district 355, 358, App. 745 P.2d court, determined the recovera liquidated “A claim occurs the ‘evi ble on reasonably loss—based incurred costs which, believed, dence furnished data fixing and amount of a nominal award— possible compute makes it to the amount that party any either had idea of the extent exactness, [owed] with without reliance on damages.” of Id. Id., opinion citing or discretion.’” Kiewit- Clinton, In Haley State, Grice v. Wash.App. (Ct.App.1996), prejudgment in- (quoting P.2d 6 Refrigeration Engi Prier v. terest inappropriate was held where a main neering 74 Wash.2d 442 P.2d 621 issue at trial was the amount of fees incurred (1968)), denied, rev. 127 Wash.2d and the previously amount that had been P.2d 299 paid. Appeals The of Court found that the Appeals Washington The of Court of found liquidated not nor was ascertainable appellant’s liquidated respon- claim where amount, because order to “[i]n calculate the any dent did offer of fair not evidence market required the district court was to make credi- value not and did controvert witness’s determinations, bility conflicting examine testimony or the amount claimed. Walla documentary evidence and choose between Fire, County Walla 745 P.2d at 1335. arguments competing regarding different sums.” Id. Washington Appeals, The Court of Divi- sion found that of awards “reasonable” Seubert, appellant argued that the damages' through could be determined Respondent liqui- amount due to was not an weighing exercise discretion after of con- dated until fixed the district court where evidence, flicting opinion, testimony, and and parties prevailed both offsetting subjective analysis that such would result in Seubert, claims. 125 Idaho at Flint, unliquidated claim amounts. at of found The Court that the prejudgment 599. The court held a that respondent’s payment for claim the withheld specific on a claimed amount $10,622.93 fixed, clearly liqui- of was for attorney proper of was fees where its reason- Further, dated amount. “the fact that it jury challenged ableness and the reduction, subject to and was in fact charged determining with its reasonable- reduced, change liquidated [did] not char- ness. Id. acter.” Id. Supreme Washing- district of

This Court affirmed the Court interest, finding award of ton that it has held is the character principal liability amount of was ascer- claim and not of the that determines defense Prier, by appellant’s August liquidated tained letter whether is or not. a claim respondent. Additionally, opinion, “substantial P.2d at 627. this writer’s competent supported] analysis and Prier evidence ... court offers the correct and determining application conclusion that the bal- for easiest whether purposes prejudg- ance of sums are for the accounts was ascertained date, sum The since the withheld not ment interest. court states: [was] Damages 626, citing McCormick, C. It the existence would seem (1935) (Italics § 54 Series) (Hornbook dispute part whole or claim over the Washington). Supreme Additional- change the character should not quotes: ly, Washington liquidated, to one one claim sum, conclusion unliquidated, and this tendency may safely that the “It said * * * support cases. allowing rath- in favor of finds has been course, question, arises connec- same it, degree of against that the er than claim's, resting upon tion with whether approxi- certainty ease with which the or contract, contract, tort, quasi which grown has can be ascertained mate amount * * * money allegations that have for their basis stringent. less less actually or dealt with has been received principle, based “The true which is a definite under such circumstances that justice commu- in the business sense plaintiff. In these sum is due to the cases statute, nity he who on our is that according “liquidated” also sum is still money ought pay to he retains which view, better to what believed be the charged upon it. should be another although by agree- the sum is not fixed said difficulty is that it cannot well be although ment and facts pay money, he can ought one unless may disputed, the claim based ought pay how he ascertain much though adversary successfully even Mere reasonable exactness. difference challenges the amount succeeds in re- and is, however, opinion no more as amount ducing it. than a reason to excuse him from view, only Under those claims legally this opinion whether he difference of ought “unliquidated” all, would be termed where the has pay at which never be exact amount sum to allowed held an excuse.” of be definitely cannot fixed from facts Parker, 627, quoting Laycock, 103 proved, disputed undisputed, or but must (1899), 5 quoted Wis. 79 N.W. as 327 analysis depend upon the last the opin- Corbin, A. 1046 n. 69 Contracts jury judge ion or discretion or as to of majority opinion Bout- concludes that larger whether a or a smaller amount readily eris were not ascertainable so, claim, be If should allowed. be a this until ruled on the district court $1,000 for the full for amount a note is proved increased were reasonable. claims, “liquidated” though the defendant carefully must Conflicting Idaho case law be dispute is in evidence such issue, clarify oppor- examined to this defense, he has half this sum. So tunity provide guidance not clear should $1,000 alleged also a claim for to have been be overlooked. in small amounts at different times embez- issue, this was at by a Where reasonableness zled bank cashier should be consid- prejudgment amounts unascer- “liquidated,” Court found though ered the fact and con- parties tainable where the introduced separate taking disput- amount each testimony short, regarding a flicting reasonable In ed. the character hourly trial court rate determined that is claim and not deter- defense necessary reaching for the amount of question minative whether an Barber, damages. 116Idaho at 780 “liquidated money amount sued is a for ” at 92. sum. Barber, that, however, held foregoing It where Prior to this Court follows from readily by arrived that an amount was ascertainable may the amount sued for computation per was a process a measurement based on evidence that hour $10 or charge” leveling Guy given by land. proof, the data without “reasonable Anderson, opinion 271 or discretion man v. reliance Guyman, the Court have been deter- concrete facts after mined, dispute found that while the between the amount is and mil pay, and no parties involved the rate of bear interest. agreement existed to what the rate analysis would This directive led to the that the be, there was amounts were not ascertainable until made the

... “reasonableness” per some evidence that determina- hour is a $10 so, any charge party tion. If prove time a must leveling reasonable land with deprived pre- reasonableness it would equipment by plaintiff, used and that such a interest and no court charged by rate was could award others. Al- scant, prejudgment though though by proof even furnishes some recognized doing complete it could standard for so not afford the determina- relief. case, proceeded by tion of the amount district court due. The rule above considering only unliquidated [interest on that evidence claim established at allowed trial, finding readily where due some can be ascer- reason- presented able based on the computation legal tained evidence mere or is, therefore, others were not. recognized or ap- standard] plicable legal here and interest at the rate If a decision to award interest is based should have been allowed from date disputed the claim litigat- whether completed____ the work was ed, “... interest would never (citations 296-297, Id. at 271 P.2d at 1021 party delay payment be awarded —a could omitted); cases, Washington but see Tri-M incurring expense by disput- without Erectors, Co., Inc. v. Donald M. Drake 27 ing litigating any Ace Realty, claim.” (1980) Wash.App.2d 618 P.2d 1289, citing 106 Idaho at e.g., (holding attorney unliquidat- a claim for fees Food, Sons, Giant Inc. v. Jack I. Bender & ed principal where the must be arrived at (D.C.App.1979); A.2d Fluor reasonableness); determination Ski Corp. v. U.S. ex rel Steel Mosher Development Acres Douglas Co. v. G. Gor- (9th Cir.1969). F.2d See also Seu- man, Inc., WashApp. bert, 125 Idaho at 874 P.2d at 561. (1973) (holding that where there Similarly, if this a Court allows determina- question was a of reasonableness of the cost tion of reasonableness under these facts to repairs, unliquidated the claim was until negate prejudgment on the addition- interest by jury). resolved costs, the party al effect will be the same. A together, Read Guyman sug- Barber and delay payment, waiting could until trial to gest that a determination “reasonable- challenge the reasonableness costs to purposes awarding prejudgment ness” for interest, prejudgment prejudgment avoid immediately interest does an render would interest be allowed rare cir- amount due as “unascertainable.” The Bar- cumstances. damages ber Court found unascertainable Guyman, Under a determination rea- reasonableness; conflicting due to evidence of merely operates proof sonableness as of a Guyman Court indicated that evidence of recognized determining standard for merely supplied proof reasonableness some due. amount Bouten’s burden to show rea- recognized of a for standard determination of did sonableness not render costs claimed the amount due. Prejudgment unascertainable. prove Bouten had the burden at trial to should be awarded here where the amounts made, change each change that the was more by pro- due determinable mathematical were costly, cost, of such amount increased The court that an cess. determined and that the amount was reasonable. Bout due, Magnuson was had the benefit of the (Bouten en Constr. v. M & L Land Co. Co. expended Inn, amounts construction I), (Ct.App. 877 P.2d 928 by amounts calculable and the due were 1994). The on remand was directed to parties disputed. even base on its decision Bouten’s claims addi Bouten, previ appeal tional costs of evidence On the cross the Court trial, ously upheld Appeals finding unless showed court in offered at Bouten prevented meeting proved its burden of that Bouten had the reasonableness proof through at trial. of its site-work costs substantial evi-

773 did charac- trial or not affect record. Const. Co. v. M dence on the Bouten specific amounts were ter of claim that & L Land Idaho and com- due. (Ct.App.1994). The substantial testimony regarding petent evidence included prejudg- Additionally, party a is entitled to work, the complexity of the extent liquidated even where ment sums placed structural material amount of claim is not considered the entire site, fact had access and the that the owners Child, Idaho at or ascertainable. billings by the subcontractor. all submitted 898; Flint, 599. 727 P.2d at The court Id. at stated: Therefore, its Bouten should not lose entitle- considering the evidence in the all [a]fter prejudgment interest based on ment all record, [Bouten] that BCC we conclude certain costs. the district court’s denial of prima facie case that its costs made out found, authority clear has been While no for the site work were reasonable and clarify and ease this Court could the law short, necessary. there substantial determining future application in the competent evidence of the reasonable- finding fact produced L no ness of the costs. M & clearly set unless which shall not be aside prove evidence claimed Although specifically setting erroneous. were unreasonable. review, several Idaho out standard suggest that trial decisions re- cases courts’ essentially garding prejudgment interest were reviewed solving dispute owed. as amounts Excavators, findings of fact. See Seubert capable owed The amounts were ascertain- Corp., Inc. v. Eucon and, ment mathematical calculation al- Construction, (1994); Ervin L, though disputed proved by M & were 515; Haley, 874 P.2d at Here, analysis ap- Bouten. same should 126-127, Idaho at 910 P.2d at 799. ply. expended amounts, certain ca- pable of mathematical ascertainment. Al- IV. CONCLUSION amounts, though disputed HFMCO those opinion, prejudgment they produce have would evidence awarded in interjudgment interest should be they were unreasonable in order have following this case for the reasons: a particular cost amount reduced. As indi- Prier, cated in P.2d at “where mon- ascertainable Bouton’s ey actually has been received or dealt with notwithstanding the to the lower directive under such that a definite sum circumstances reasonableness; regarding plaintiff, is due to the it is the better view prejudgment 2. An interest here ‘liquidated,’ although that the sum is still Court’s and would be consistent with this although agreement sum is not fixed awarding other movement towards courts’ may upon which claim is the facts based interest, thereby affording prejudgment adversary disputed, though even relief; complete more successfully challenges the amount and suc- interest, prejudgment 3. The award reducing it.” ceeds judge’s based trial determination that on the determination here The reasonableness ascertainable, should be con- amount was merely necessity treated as should be subject finding of to review sidered a fact standard, recognizable proving of a “clearly under the erroneous” standard. opinion quiring exercise or respectfully Accordingly, I dissent. required was not discretion. trial court regarding proper- value make decisions STEGNER, Tern., concurs. Pro Justice ty, workmanship, quality used materials costs, thus it did in relation additional opinion or discretion that

not exercise in-

would disallow award determination, whether made

terest.

Case Details

Case Name: Bouten Construction Co. v. H.F. Magnuson Co.

Court Name: Idaho Supreme Court

Date Published: Nov 15, 1999

Citation: 992 P.2d 751

Docket Number: 22707, 23681

Court Abbreviation: Idaho