*1
AGENCY,
KENNETH D. COLLINS
corp.,
Architect,
HAGEROTT,
v. LEON R.
Respondent,
Plaintiff
professional
corp.,
Ap pellant.
Defendant
No. 83-506.
April
Submitted
1984.
July
Decided
Ralph argued, plaintiff Billings, Herriott respondent. Opinion
MR. JUSTICE GULBRANDSON delivered the of the Court. appeal
This case comes on from an of the District order County, Court, District, Thirteenth Judicial Yellowstone granting appellant, Hagerott, $10,000 Leon architec- *3 holding Hagerott’s tural fees and lien on estate certain real respondent, invаlid. The District Court also awarded the Agency, attorney’s Kenneth D. Collins in amount the. part $3,851.25. of We affirm in in vacate and remand. appellant professional corporation is a North Dakota (hereinafter Hagerоtt Hagerott) referred as to with Leon being principal Hagerott the officer and stockholder. is an Respondent architect in licensed the State of Montana. is a (hereinafter Collins) corporation as referred to being principal with Kenneth Collins the officer and stockholder. property
Collins is the of in owner certain real located County. Hager- During February, 1978, Custer Collins and contemplated application ott Admin- tо the Farmers Home (FHA) authority istration a to receive loan to build twenty-four housing low-cost units. The the units cost of was to be FHA to subsidized the and the units were County. located on in Collins’ Custer July Hagerott On entered into con- Collins and plans and provided would draw Hagerott tract which specifications architectural services for perform and 5 of the ar- twenty-four units. Section construction architect, provided as Hagerott, chitectural cоntract cost of the percent would receive five the construction specifications which plans project. Hagerott prepared and approved FHA. were Collins and the conjunc- in projeсt prepared Costs of the were Collins tion with of construction was Hagerott and the total cost $630,500. These costs were approximately determined to be signed set which was application forth the basic loаn application loan approved The FHA the Collins’ Hagerott. $570,000. the amount un- and an negotiations After between further on the was made letting, progress successful bid no further time with Hagerott until March of 1980 at which project On procured project. new bid on the approval, April 3, a new cost of prepared Collins and submitted the total and the FHA that raised project Hagerott $740,000. project cost of the May to Collins reiter- Hagеrott
On wrote a letter his project stating his and desire to continue with the ating late that willingness keep project going. and project Collins terminate same month decided to City and Tom Fields Miles Ramage contactеd John over turning application loan purpose project and Fields met with May, Ramage and them. late longer and him were no interested Hagerott told Fields never took Ramage his were terminated. services plans the fall project over the and abandoned terminated his services were When was notified *4 project original he filed a lien the real estate against con- in size and Eventually, project was reduced site. a different site. structed on lien Hagerott’s to remove this action
Collins commenced original project property at against filed real site and damages, attorney’s fees Hagerott and costs. counterсlaimed amount of architectural fees due under quantum the contract or on the basis of meruit. April
On Hagerott the District Court held that $10,000 was to quantum entitled on the basis of but meruit concluded that Hagerott against the lien filed the real property of Collins Hagerott was invalid because failed to show he furnished materials for the enhancement Collins’ property. that, The District Court stated “[t]he of proof burden is on a lien claimant to lien establish his burden; his he only must show not fur- that he materials, nished the but also that were used for the enhancement which he a right claims as security resort for the debt thus created. the absence of this his showing, equity does not arise.” The District Court Hagerott’s ordered expunged lien from the record and awarded Collins attorney’s fees for time spent on liti- gating removal of the lien but awarded on Hagerott the basis quantum appealed meruit. Hagerott and a cross-appeal was filed Collins.
Hagerott raises three appeal: issues on (1) Did the District Court err in awarding Hagerott $10,000 in architectural based meruit?
(2) Did the District Court err holding Hagerott’s against Collins’ real property invalid and from expunging it the record?
(3) Did the District Court attorney’s err the amount of fees awarded to Collins?
Initially, Hagerott asserts District Court erred awarding him only a fee upon quantum me- ruit. Collins contends the contract between the did Hagerott entitle fеe. correctly
The District Court held that was entitled to an upon quantum architectural fee based me ruit. the amount of the architectural fee found the District appropriate supported record. In its finding of faсt the District Court stated at *5 308 termi- services were
Finding 38: the time his number “[a]t nated, of time approximately 600 hours [Hagerott] had through his time in 1978 hourly charge project. The [Hagerott] though even per was hour. 1980 $30 hours, entitled to a lesser spent only of he is this number pro- value of his services to [$10,000] to the amount due (1983), 403,] 670 In Candee Mon. ject.” Robertus v. [205 540, 1391, me- quantum St.Rep. 40 this Court defined P.2d plaintiff. by done ruit as the market value for the work case, be the mar- In this meruit amount would the number ket value of the serviсes rendered of The evidence established spent project. hours on the of hours ex- per number reasonable amount hour and the Finding num- pended. incorporated The was into evidence no to show ber was еvidence 38 the District Court. There order, Court’s any reviewing lesser the District value. of the may for that judgment this Court not substitute its Court, if there was substantial District but must determine v. Bagnell findings. evidence to the District Court’s St.Rep. 238,] Lemery Mont. [202 is evidence which: Substаntial evidence which such “. . . will men and on convince reasonable it establishes may reasonably men as to whether differ men conclude if reasonable must the Plaintiff’s case and all it is not then that the evidence doеs establish such case inherently may be weak substantial The evidence Proper Olson v. and still be deemed substantial.” Westfork ties, Inc.(1916), P.2d 821. 171 Mont. measured Hagerott’s
The of services could be value value those the number of hours and the reasonable The District Court’s hours as the evidence. indicated supported in quantum meruit was not award per found $30 District Court substantial evidence. Since the no was fee and there appellant’s hour for 600 hours to bе District contrary, portion to the evidence vacated, awarding Hagerott Court’s order purpose for the cause is remanded to the District $18,000. entering judgment the amount Next, Hagerott argues that the District Court erred in holding filed Collins against was invalid. The District Court stated that the lien was in valid because Hagerott provided the services not en did property. pertinent hance the value of the statute MCA, this provides: issue Section 71-3-501 which may “Who havе lien. Every mechanic, machinist, miner, architect, foreman, artisan, builder, lumberman, engineer, workman, laborer, any person performing *6 material, work upon, any and labor furnishing or machin- for, ery, structure, or any flume, fixture building, bridge, cа- nal, ditch, claim, aqueduct, mine, lode, mining quartz coal tunnel, city farm, fence, railroad, lot, ranch, or town tele- graph, telephone, electric light, gas, plant or waterworks or or improvements, upon provisions complying with the of this material, for his work or labor done or machin- ery, or upon fixtures has a lien property upon the which the work or is labor done or material is furnished.”
In arguing that
the statute allowed
file
valid
lien, Hagerott
rеlies on
language
the
of this Court’s decision
Engineering
Caird
in
Seven-up
Works v.
Gold
Co.
Mine
(1941),
Caird,
471,
111
111
Mont.
P.2d 267. In
this
said that when the legislature
term
in
used the
architect
the
lien statute it did not mean that
the architect’s actual
labor
must be
upon
premises
done
being
the
er-
structure
Rather,
ected for a lien to arise.
Caird said the
this Court
term
“architect” as used
the lien statute means architec-
Caird,
tural services
usually performed.
supra,
as
are
neering
Shopping Center, Inc.
v.
Co.
(1940),
1964),
138,
826;
234 Wis.
v. Smith
168 So.2d
Clark
Hagerott argues is case analo- the situation Hartung gous and As- Architects on O’Hara v. facts (1974), Ind.App. 283, in 661, N.E.2d 326 sociation proposition general agreed with the which the court building an architect’s must be the еrection there by stating qualified proposition arise, but necessary always material went show that the “[i]t is not may given building. be in a case into the Circumstances building estopped from invok- such that the owner ing general rule.” principle Estoppel equity. v. Cremer Cremer is a (1979), Mont. Co. Rodeo Land and Livestock grant sought Equity in view all when P.2d 485. will relief par deny permit it would one of circumstances to party gross wrong hands of the other ties to suffer a at the brought De v. Inland Hostetter who about the condition. (1977), Corp. velopment 167, 561 172 Mont. Estoppel and will sus favored P.2d 1323. Reely convincing Tribble v. tained clear and bar, at In the case 171 Mont. *7 estoppel findings situa an there were insufficient сreate convincing tion clear and
Finally, Hagerott argues District Court erred attorney’s The Dis Collins. the amount of fees awarded attorney’s pay fees those trict Court ordered agreed find from the to removal of the lien. We that related proceedings stipulated on both statement of September expense 15, 1983, sheet sub time and and the counsel, the District Court awarded mitted attorney’s $3,851.25 of the invalid fees for the removal attornеy’s 71-3-124, No award lien under Section MCA. post or costs. time, briefs fees was made for trial trial fixing attorney’s largely the discretion within absent clear be disturbed the District Court and will not abuse of Carkeek v. discretion. Aver St.Rep. 1276. We find there wаs sub- stantial attorney’s evidence to fees. award of part,
Affirmed vacated and remanded to the entry District Court judgment of amended in accor- opinion. dance with this HARRISON, SHEA,
MR. JUSTICES SHEEHY and WEBER concur.
MR. JUSTICE MORRISON dissents and will file a writ- ten dissent later.
MR. CHIEF HASWELL, JUSTICE concurring dissenting:
I concur with the discussion on holding Issues and 3. I dissent from the discussion and on holding Issue
The vice in holding that the architect is entitled to an $18,000 award of his services based on meruit is that there is no evidence that this is the market value of $18,000 his services. The figure of is simply а mechanical calculation of the number of hours he spent multiplied by charged per rate he hour. necessarily This does not equal market value. The District recognized this and awarded which arbitrary figure itself an supported by substantial credible evidence.
I would vacate the award and remand for further proceedings to establish the market value the architect’s services.