*1 corporation, INC., a Montana LHC, Respondent, Plaintiff and as Trustee of the Alvarez ALVAREZ, ROBERTO Family Trust u/d/t dated Appellant,
Defendant and
INC.,
BANK OF MONTANA,
FIRST NATIONAL
Defendant.
No. DA 06-0407.
April
Briefs
Submitted on
2007.
May 30, 2007.
Decided
MT
Mont. 294.
JUSTICE LEAPHART delivered the of the Court. LHC, Inc., Plaintiff filed lien against ¶1 a construction defendant Montana, Roberto Alvarez and defendant First Inc. National Bank of The Bank was pursuant later dismissed to the stipulation of parties. LHC, gravel a concrete and had supplier, supplied concrete to Young, John Logging, Inc., Asphalt (Young), d/b/a D Bar J and D Bar J employed paving Young contractor Alvarez to do work. failed pay supplied LHC total due for LHC material. then filed a construction hen property. Alvarez’s Alvarez admitted supplied by concrete LHC was used in the of mini- construction storage facility, disputed the supplied, but dates and amount as well validity trial, as the of the construction lien. a bench After the District Court enforced the construction lien and awarded interest as well appeals costs. Alvarez from the judgment. We affirm. appeal: raises four
¶2 Alvarez issues on I. Did the court err when it considered deliveries outside of
timeline established in LHC’s construction lien? err II. Did the court that LHC’s concrete was delivered mini-storage facility August Alvarez’s 12 and 13? Did the err in
¶5 III. court interest? err awarding attorney IV. Did the court fees?
BACKGROUND In engaged Young perform paving Alvarez services Young of mini-storage facility. with the construction connection from for at the purchased concrete and other materials LHC use time, outstanding to LHC Young At the had debts Alvarez doing he for projects from unrelated to the work was Alvarez. past property August from 5 to LHC delivered concrete to (in $20,119). Invoice 8,2003, as in invoice 6521 the amount of recorded for delivered to the Alvarez 24470 is concrete (in $400.50). is, according the amount of Invoice 6576 to LHC’s (in 11, 12, records, delivery on amount of for $3356.10). invoice, flowboys The fourth is for and water trucks (in July 29 and 30 and $4,475). amount of Young’s for different separate LHC not maintain accounts use on Young began At the time materials for
projects. purchasing $28,000 outstanding he had balance of between property, Alvarez’s LHC, LHC $29,000 LHC. made Young payments with When outstanding invoices. applied payments Young’s those oldest $60,000 Young On paid a total of about his work. 25, 2003, Young $30,000. of this paid Only about job went to other invoices went to the Alvarez invoices. rest 9, 2003, Young paid prior to the Alvarez On $10,000. this invoices portions payment LHC directed *3 by Young after the Alvarez 10,2003, lien on Alvarez’s On November LHC filed a construction ¶11 remaining unpaid The that lien stated balance $16,568, Additionally, and the lien stated together with interest costs. 9, 2003, were furnished on and the “materials were first 7, 2004, Alvarez September last 2003.” On furnished on 1, 2004, filed On a complaint against filed a LHC. consolidated. After separate claim Alvarez. two cases were trial, LHC, the lien granting judgment found for a bench the court attorney fees, $24,241.40, including $620 in the amount of filing costs, $3,474.82 in interest from the date of the prejudgment of the lien. of the lien as the District Court’s enforcement appeals
¶12 interest. grant its well as OF STANDARD REVIEW law, statutory including interpretation, review conclusions of We ¶13 188, 26, Mont. P & D, 2006 MT 333 ¶ de James Talcott Const. novo. 107, 26, 141 ¶ ¶
297 Eire findings findings of fact to determine whether We review First, clearly using three-part a test. we review the record erroneous evidence; findings supported to determine if the are substantial evidence, second, are will findings supported if substantial we if the trial court has the effect of the misapprehended determine third, evidence; and if substantial evidence exists and the effect of the evidence has not the Court still conclude misapprehended, been clearly that a erroneous when a review of the record leaves Court with the definite and firm conviction that mistake has omitted). (citations Const., been made. James Talcott 26¶ de We review district court’s award of interest (citations omitted). Const., novo. James Talcott 28¶ granting denying attorney We review a district court’s order fees and costs to determine whether court abused discretion. (citations omitted). Const., James Talcott
DISCUSSION I. Did the court err it when considered deliveries outside of the timeline established in LHC’s construction lien? Alvarez contends that the granted judgment court should have
for deliveries made outside of the dates listed LHC’s construction lien. The lien states that is for materials furnished between 14,2003. (ii),MCA, Section 71-3-535(3)(g)(i)and requires Thus, a lien state the dates materials were furnished. Alvarez, the claimed lien should not be enforced for the amounts 8) (August (July documented invoice 6521 invoice 6612 August 5, 8), delivery and 30 and 7 and are because these invoices dates not stated in the lien. Court, however, The District refused to consider this
because Alvarez it for first post-trial findings raised time in his fact disputes and conclusions of law. this and he asserts that argued pretrial by stating: the issue in his “[t]he order LHC Lien was Similarly, filed right without whatsoever.” Alvarez stated in the complaint “[t]he lien is without whatsoever.” It is that we will on appeal well-established not address issues Leistiko, properly were raised in district court. Nason v. (citations 460, 11, 1998 MT 290 Mont. 963 P.2d ¶ ¶ *4 omitted). Overland, We concluded in in Marsh and reaffirmed Nason, in party pleadings, that where a fails to raise an issue the does argument on on the present during hearing the issue the merits case, any the does not move to the conform pleadings amend to
298 post- raises issue the time in a presented
evidence and the first in its hearing memorandum that the district court does not address order, timely and not be raised on the issue has not been raised Overland, Nason, Mont. 905 appeal. (citing Marsh v. 274 (1995)). assertion, Here, in his and in the general complaint Avarez’s whatsoever,” order, the failed pretrial that lien filed “without delivery in the raise the that dates not listed specifically general than his statement that lien should not be enforced. Other pleadings, right, lien did not raise the issue in was without Avarez issue, did not raise the pleadings did not amend the include the and Finally, issue at trial. the District Court refused consider Avarez’s argument. timely Avarez failed to raise the issue the district As court, appeal. we decline to address on Did LHC’s concrete was II. the court err August 11, 12 mini-storage facility on to Avarez’s 13? and argues prove that LHC failed to that concrete was Avarez also 11,12 and as claimed property
delivered Avarez’s delivery these dates was the lien. LHC’ssole evidence that occurred on corresponding Only employee, scale tickets. one invoice controller, invoice She Phillips, regarding testified Carol know the information on testified that she who tickets, She particular the dates and the location. invoice scale truck, that the material was not hauled further testified no and that she had did not know who hauled material she delivered, other of where the material was independent knowledge Finally, than written on the invoice and scale tickets. what was August 8. testified that no materials were delivered after Avarez 71-3-524, MCA, requires materials Avarez is correct that into an they incorporated intent supplied be with the be the lien attaches and that improvement property on the which Further, the improvement. are into the actually incorporated by the site whether delivery improvement, of materials to the another, that the materials presumption creates claimant 71-3-524(2), incorporated. Section were tickets, Here, corresponding scale 6576 and based explained by Phillips, objection and which were submitted without delivered, August that materials were District Court determined in the subsequently used to Avarez’s mini-storage facility. contention Despite Avarez’s construction of *5 otherwise, presented the evidence to the court substantial. Once was laid, a on proper rely foundation has been a court business records Here, object place. as evidence that event took Alvarez did not to of the admission the or scale tickets and admitted that the proper foundation was laid. Both invoice and scale state the tickets 11,12 on August asphalt was delivered to “ASHRDSTG.” Road, mini-storage facility As Alvarez’s located Ash these documents indicate that materials were delivered to Alvarez’sproperty 11, 12 and 13. The District corresponding Court’s clearly determination was thus not erroneous. III. awarding prejudgment Did the court err in interest? argues is not appropriate interest 27-1-211, MCA,
under rejected accounting § because the court LHC’s $16,568 $14,201.58. Thus, and reduced the lien from to to Alvarez, the amount was not certain. MCA, 27-1-211, provides: Section
Every person damages who is entitled to recover certain certain capable being by of right made calculation and the to upon particular day [is vested] recover is entitled also to recover interest that day thereon from .... The three criteria which must be satisfied for an of award (1) (2)
prejudgment interest an underlying monetary obligation; are: amount recovery being the of must be or capable certain of made (3) by calculation; right certain the to must on a recover vest particular day. Const., However, James Talcott “the fact that a disputed uncertain,” claim is does make long damage as the certainty day. amount is particular reduced on a Ins. Co. v. Safeco (1985) Lovely Agency, 215 Mont. 697 P.2d (citations omitted). Additionally, proper the for accrual date the calculation ofinterest on a construction lien is the date the lien is filed. (citations omitted). Const., James Talcott Here, underlying monetary obligation was the balance remaining provided for materials to Alvarez’s LHC’s $10,000 regarding payment calculations differed from court’s by Young portion made 2003. LHC credited $10,000 while by Young working on projects invoices court, however, subsequent undertaken to the Alvarez accounting “contrary accounting found was to its stated practice,” and applied therefore the full to the account. Consequently, remaining the court determined that the balance $14,201.58, to Alvarez’s less than by LHC.
amount calculated figure the original court’s differed from While the conclusion lien, being capable LHC in amount was still made listed Further, recover vested on certain calculation. Thus, correctly 10, 2003, when the lien was filed. court November 27-1-211, pursuant awarded interest attorney ¶32 Did the err in fees? IV. court dispute authority the court’s award Avarez does not Instead, Avarez of a construction lien. fees for enforcement attorney fees in only proportion contends that LHC should recover the court enforced. percentage of its claimed *6 attorney fees responds properly the court awarded 71-3-124(1), MCA, attorney fees in provides for award because § court with Additionally, a lien. an action to foreclose attorney its fees. in of the reasonableness of support an affidavit MCA, however, 71-3-124(1), only Avarez, replies that allows § is As the court attorney fees for a claimant “whose lien established.” $14,201.58 due, as claimed in opposed found that lien, LHC, Avarez, percent only should receive attorney fees, in to the ratio of LHC’s success proportion of its amount claimed in the lien. claimant] the entire amount [the “The fact that did not receive fees attorney does alter” the award of mandated §
of his claim not Orlando, 71-3-124, MCA. 221 Mont. Donnes (1986). MCA, lien 71-3-124, require a claimant’s be While does § awarded, and, fact, attorney to be in in order for fees established established, attorney a lien is not fees to a defendant where awards reduction require proportional statute does not claimed in the lien. for a amount than was judgment where is lesser thus its discretion The District Court did abuse attorney fees.
CONCLUSION LHC’s construction District enforcement of uphold We Court’s of prejudgment as its award lien Avarez’s well attorney fees and costs. interest and COTTER, RICE MORRIS and concur.
JUSTICES NELSON concurs. JUSTICE decision. reluctantly I in the Court’s concur lien states Opinion, of the the Court notes As 14,2003. Two August 9 and between
materials were furnished indisputably invoices admitted evidence cover Specifically, services outside times claimed in the lien. invoice $20,119.00, in the amount of is for concrete delivered from $4,475.00, 5 to in the amount of flowboys July and water trucks delivered on 29 and 30 and 7,5, Facially, and 8. these two invoices are for materials and services prior is, therefore, to the times covered the lien. (ii), deficient on face 71-3-535(3)(g)(i) under Unfortunately, because Alvarez raise properly this Court, in the District that court was and is in this now Court having position facially to enforce a deficient lien. construction reason, For I this would our specifically limit decision to the facts extent, of this case. To that I concur.