TOTAL INDUSTRIAL PLANT SERVICES, INC., an Oklahoma corporation, Plaintiff, Appellant, and Cross-Appellee, v. TURNER INDUSTRIES GROUP, LLC., a Louisiana limited liability company; CHS, INC., a Minnesota corporation; and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland corporation, Defendants and Appellees, and Cross-Appellants.
No. DA 11-0769.
Supreme Court of Montana
Decided January 15, 2013.
2013 MT 5 | 368 Mont. 189 | 294 P.3d 363
Submitted on Briefs October 10, 2012.
JUSTICE WHEAT delivered the Opinion of the Court.
¶ 1 Total Industrial Plant Services, Inc. (“TIPS“), appeals the District Court‘s entry of judgment in favor of defendants Turner Industries Group, LLC (“Turner“), and Fidelity and Deposit Company of Maryland (“Fidelity“), dismissing TIPS‘s claims for additional compensation under either quantum meruit or breach of contract, awarding fees and costs to Turner, and finding TIPS‘s construction lien
ISSUES
¶ 2 We restate the issues on appeal as follows:
¶ 3 1. Did the District Court err by denying TIPS‘s claim for additional compensation under a theory of either quantum meruit or breach of contract?
¶ 4 2. Did the District Court еrr by failing to find that TIPS was the prevailing party and awarding costs and fees to Turner?
¶ 5 3. Did the District Court err by finding TIPS‘s construction lien was barred by the 90-day statute of limitations found in
¶ 6 4. Did the District Court err by granting partial summary judgment to TIPS and ordering Turner to return the retainage?
¶ 7 5. Did the District Court err by dismissing Turner‘s bill of costs for being untimely filed pursuant to
FACTUAL AND PROCEDURAL BACKGROUND
¶ 8 This appeal stems from a construction contract dispute between TIPS, an Oklahoma corporation, and Turner, a limited liability company formed in Louisiana. Fidelity and Deposit Company of Maryland (“Fidelity“) is the surety for Turner‘s substitution bond filed in November of 2008 in lieu of TIPS‘s construction lien.
¶ 9 Turner entered into a written subcontract with TIPS to install insulation at a “coker” unit at a refinery in Laurel, Montana, on April 14, 2007. Turner also entered into two other subcontracts with TIPS for fireproofing and painting the coker, neither of which is at issue. Cenex Harvest States (“CHS“) owns the refinery and hired Turner to act as the general contractor on the coker project. The initial subcontract between Turner and TIPS was to be paid as a fixed price totaling $2,336,967.00, with payment rendered by percentage of completion. The subcontract further provided that TIPS was responsible for the costs of all labor, services, and materials.
¶ 10 The original subcontract contemplated a start date in May of 2007 and a completion date of December 31, 2007. While TIPS began work fireproofing structural steel in May, Turner did not release TIPS to start insulating until October of 2007. It soon became apparent that
¶ 11 The subcontract did address how the parties were to deal with delays, changes to the scope of work, jobsite conditions, and the costs of “manning up.” The recitals provided that “SUBCONTRACTOR shall furnish and pay for all labor, services and/or materials and perform all the work necessary or incidentally required for the completion of” the project. Section 7.2 directed that TIPS was to supply “a sufficient number of properly qualified workers” to perform the work “efficiently and promptly.” Section 11.2 stated that TIPS was to “take all measures necessary to eliminate... delays,” including hiring extra personnel, “at no cost” to Turner or CHS. Section 10 allowed Turner to make alterations to the scope of work and required TIPS to submit written change orders to cover any additional costs or time extensions that resulted. Moreover, Section 3 required TIPS to assume responsibility for unanticipated costs stemming from the location of the project and general and local conditions.
¶ 12 Despite these provisions, TIPS claimed that Turner‘s requested changes resulted in inefficiencies and extra costs not covered by the original fixed price subcontract and not paid for after the switch to time and materials. As noted, Section 10 specifically addressed how the parties were to handle Turner‘s requested changes to the project, and required TIPS to submit written change orders describing the nature and cost of the extra work. TIPS did submit a number of change orders following some of Turner‘s requests, and uncontested testimony at trial established that Turner paid every change order that TIPS submitted. Indeed, the parties had agreed that TIPS would have to submit a change order to cover the additional costs stemming from leaving welds without insulation. Whether TIPS submitted written
¶ 13 Turner and TIPS also agreed to several increases in the compensation paid to TIPS, eventually revising the subcontract five times to increase TIPS‘s pay. On January 4, 2008, Turner and TIPS agreed to a revised fixed price payment of $4,224,278.96, an increase of $1,887,311.96 over the original subcontract. This increase consisted of $38,300.00 for extra insulation, $1,460,756.00 for work approved over the original bid amount, $36,078.76 in additional equipment, and $352,177.20 for mineral wool.
¶ 14 TIPS and Turner subsequently began discussing changing from fixed price payment to “time and materials” invoicing in January of 2008. TIPS sought the change to realize direct compensation for the additional manpower and work it claims Turner was requesting. CHS and Turner agreed to the change on February 6, 2008, retroactive to February 4, 2008, believing that it would inсentivize TIPS to increase manpower and allow Turner to exact more control over the project. Turner also believed the change would eliminate issues concerning unknown extra costs, remove the need for future payment negotiations, and potentially preclude a claim by TIPS over compensation.
¶ 15 TIPS began to submit invoices based on time and materials costs on February 4, 2008. At that time, Turner calculated that TIPS had completed 47% of the insulation project under the fixed price subcontract. TIPS contested this calculation and payment, and also argued that it has not been compensated for losses it suffered from inefficiencies that resulted from Turner‘s requests.
¶ 16 Thereafter, on March 10, 2008, a second revision increased payment to TIPS to $7,000,000.00. This increase included payment of $94,685.00 for hydraulic powеr manifolds, $148,500.00 in filtration system materials, $347,051.90 in extra work, and $2,185,484.14 in estimated future time and materials work. This revision also incorporated a $4.00 per hour increase in the labor rate agreed to on February 13, 2008, bringing the hourly rate to $43.45. This was apparently done at TIPS‘s request to enable them to attract more qualified insulators.
¶ 17 A third revision increased TIPS‘s payment to $10,000,000 on April 17, 2008. This increase was based on an invoice TIPS submitted for
¶ 18 TIPS began to claim additional compensation was owed in the spring of 2008 despite these modifications. In particular, Turner refused to рay TIPS‘s invoice 1895-1, which claimed a payment of $700,095.00 for “inefficiencies,” and Turner thereafter left the work site on June 25, 2008. TIPS remained at CHS through July, and while the end date of TIPS‘s work under contract was in dispute, the parties do not dispute that TIPS completed its work under the subcontract. TIPS thereafter filed a construction lien against the CHS refinery on September 24, 2008, alleging Turner owed TIPS $1,283,704.08. Turner then filed a substitution bond for 1.5 times the lien.
¶ 19 TIPS filed its complaint on December 3, 2009, alleging theories of breach of contract, quantum meruit and unjust enrichment, breach of the covenant of good faith and fair dealing, and seeking foreclosure of the lien. The complaint sought $1,283,704.08.
¶ 20 Prior to trial, the parties filed cross-motions for summary judgment. The court granted TIPS‘s motion for partial summary judgment, ordering Turner to return the $374,225.82 in retainage it had withheld. The court also denied Turner‘s motion alleging that TIPS‘s lien was void and requesting the court dismiss the complaint, arguing venue in Montana was not proper and the court lacked subject matter jurisdiction.
¶ 21 A bench trial was held on July 11, 12, and 29, 2011. At trial, TIPS sought additional compensation for what it claimed was uncompensated additional work Turner requested under the fixed price contract, payment owed under the fixed price agreement for percentage completed, and unpaid time and materials work between January 1, 2008, and February 4, 2008. Turner presented testimony that TIPS was paid $13,250,000.00, argued that TIPS bore responsibility for extra costs under the fixed price contract, and presented evidence that TIPS had not submitted written change orders as required for the additional compensation it sought. The District Court entered its Findings of Fact and Conclusions of Law on November 22, 2011, and found for Turner on each allegation in TIPS‘s complaint.
¶ 22 “We review the findings of a trial court sitting without a jury to determine if the findings are clearly erroneous. Rule 52(a), M. R. Civ. P,” and we review the court‘s conclusions of law for correctness. Lewistown Miller Constr. Co. v. Martin, 2011 MT 325, ¶¶ 15, 17, 363 Mont. 208, 271 P.3d 48. A district court‘s construction and interpretation of a contract is a question of law that is also reviewed for correctness. Richards v. JTL Group, Inc., 2009 MT 173, ¶ 14, 350 Mont. 516, 212 P.3d 264. An order concerning attorney fees is reviewed for an abuse of discretion. B Bar J Ranch, LLC v. Carlisle Wide Plank Floors, Inc., 2012 MT 246, ¶ 10, 366 Mont. 506, 288 P.3d 288. This Court reviews a decision on summary judgment de novo. Dick Anderson Constr., Inc. v. Monroe Prop. Co., 2011 MT 138, ¶ 16, 361 Mont. 30, 255 P.3d 1257.
DISCUSSION
¶ 23 1. Did the District Court err by denying TIPS‘s claim for additional compensation under a theory of either quantum meruit or breach of contract?
¶ 24 TIPS alleges on appeal that the District Court erred by not finding that it was owed additional compensation under either a theory of breach of contract or quantum meruit and unjust enrichment. TIPS‘s claim specifically involves three sources of allegеdly owed compensation. First, TIPS disputes that it was adequately paid for the 47% of the project Turner calculated it had completed at the time of the switch to time and materials invoicing on February 4, 2008. Second, TIPS asserts that cold weather and changes in the scope of work increased costs, which TIPS contends Turner orally promised to pay for. Last, TIPS argues that it is owed for additional man hours provided in January of 2008. As a result, TIPS alleges that it is still owed $2,102,878.25 above the $13,250,00.00 it acknowledges receiving. In response, Turner argues that TIPS did not submit the required written change orders for the payments it is requesting, and that pre-February 4, 2008 labor costs were TIPS‘s responsibility.
¶ 25 At the outset, we find that the District Court properly concluded that because all of the work completed by TIPS was done pursuant to an express contract, there was no basis for TIPS‘s clаims under the theory of quantum meruit or unjust enrichment. Theories of quasi-contractual obligations are premised on the absence of an express contract, and as such, do not apply here. See Estate of Pruyn v. Axmen Propane, Inc., 2009 MT 448, ¶ 63, 354 Mont. 208, 223 P.3d 845. We accordingly affirm the court‘s dismissal of TIPS‘s quantum meruit and unjust enrichment claims.
¶ 26 The District Court also determined that TIPS‘s contract-based claims were “directly refuted by the plain language of the Subcontract.” The court based this conclusion on findings that the subcontract required written modifications, placed responsibility for site conditions on TIPS, allowed Turner to change the scope of work, and provided that written change orders were the exclusive mechanism by which TIPS could seek extra compensation in response to these changes. As noted above, we review the court‘s findings of fact for clear error, Lewistown Miller Constr. Co., ¶¶ 15, 17, and its legal conclusions for correctness. Richards, ¶ 14.
¶ 27 a. TIPS‘s Claimed Percent of Completion Payment
¶ 28 TIPS claims that Turner did not fully compensate it for the 47% of piping TIPS insulated prior to February 4, 2008, asserting that Turner‘s payments for “materials” could not be applied to sums owing for labor. Essentially, TIPS contests the characterization of fixed price payments as applying generally towards one “bucket” of owed money, and claims that invoices paid for rentals, vehicles, or storage cannot count towards money owed for labor. Turner counters that payments made under fixed price invoicing are essentially fungible and are applied towards the total contract price.
¶ 29 The District Court rejected TIPS‘s argument, finding that the evidence established that funds paid under the fixed price subcontract, whether labeled as for materials or labor, were interchangeable and applied to the total owed under the contract. On appeal, TIPS has not presented any authority, legal or otherwise, in support of their argument. While we recognize that the appellant, rather than this Court, is obligated to conduct legal research or develop legal analysis supporting their position,
¶ 30 b. TIPS‘s Claimed Inefficiency and Change in Scope Costs
¶ 31 TIPS also claims Turner owes for pre-2008 changes in scope and costs resulting from various inefficiencies. However, the subcontract required TIPS to submit written change orders for such costs under the fixed price scheme, and it is undisputed that TIPS did not submit written change orders to Turner referencing these costs. TIPS instead claims that Turner made oral representаtions to TIPS promising payment and disputes that the fixed price scheme made TIPS responsible for the costs of additional labor.
¶ 32 i. Fixed Price vs. Time and Materials Contracts
¶ 33 Initially, TIPS‘s argument mischaracterizes the nature of fixed price contracts, and the District Court concluded that costs for additional personnel and inefficiencies were the express responsibility of TIPS under the fixed price subcontract. As noted, the nature of fixed price contracts placed the burden of additional or unexpected costs on TIPS. See Sperry Rand Corp. v. United States, 201 Ct. Cl. 169, 181, 475 F.2d 1168 (1973) (“Absent unusual circumstances, a ‘fixed-price [subcontractor] ... shoulders the responsibility for unexpected losses, as well as for his failure to appreciate the problems of the undertaking ....’ “); Bruner & O‘Connor, Bruner & O‘Connor on Construction Law, § 6:71, 621-22 (noting that under a fixed price contract, “[i]f the work is more expensive than anticipated, that too is the [subcontractor‘s] solе risk.“). The subcontract specifically provided that TIPS would bear the cost of all labor and materials resulting from local conditions or changes in scope, unless it submitted a written change order. By contrast, under time and materials invoicing, “the [subcontractor] receives reimbursement for the costs it incurs, plus a fee.” Bruner & O‘Connor on Construction Law, § 6:81, 639-40 (emphasis added). Indeed, the parties’ contract revision switching to time and materials reflected this difference, as it paid TIPS‘s workers on a cost-plus hourly basis.
¶ 34 Recognizing the difference between fixed price and time and materials contracts, it is clear the fixed price subcontract did not intend to compensate TIPS for the costs of additional labor,
¶ 35 ii. The Alleged Oral Modifications
¶ 36 Despite the foregoing, TIPS contends that it is owed payment for inefficiencies and changes in scope because Turner made oral promises of payment that should be considered executed oral modifications. In support of this argument, TIPS asserts Turner should not be allowed to avoid executing these оral agreements by withholding payment, citing our decisions in Dalakow v. Geery, 132 Mont. 457, 318 P.2d 253 (1957), and Lewistown Miller.
¶ 37 TIPS‘s reliance on Dalakow and Lewistown Miller is misplaced. In Dalakow and Lewistown Miller, we recognized that while only executed oral agreements may modify a written contract,
¶ 38 However, in Dalakow, we found that “the record [was] replete” with evidence that the defendant knew an oral modification had been effected, Dalakow, 132 Mont. at 464, 318 P.2d at 258, and evidence of oral requests was similarly “unequivocal” in Lewistown Miller, ¶ 19. TIPS failed to provide similar evidence that Turner understood it was responsible for compensating TIPS for additional labor under fixed price invoicing without written change orders. Indeed, TIPS was responsible for the cost of labor under the subcontract, and TIPS failed to establish evidence of oral agreements to the contrary.
¶ 39 TIPS‘s claims are also contradicted by the testimony of Ted Estraca (“Estraca“), President of TIPS. Estraca‘s testimony indicates that he did not understand Turner‘s communications to say that
¶ 40 c. TIPS‘s Claimed Additional Pay for January 2008
¶ 41 TIPS finally claims Turner owes pay for additional labor provided between January 1 and February 4, 2008. The District Court found that TIPS failed to prove non-payment for any additional work performed by TIPS that complied with “the plain language” of the subcontract requiring written change orders. Again, the subcontract expressly required TIPS to submit written change orders for costs, like those for additional labor, incurred in response to Turner‘s changes in scope. Also again, TIPS admits it did not submit any change orders referencing these costs. It is further undisputed that time and materials invoicing did not begin until February 4, 2008. Thus, in January of 2008, TIPS was working under a fixed price contract. As we noted, fixed price contracts place all responsibility for additional costs on the subcontractor, namely TIPS. Because TIPS‘s claimed costs for additional labor occurred under the fixed price contract without the necessary written change orders, and because TIPS failed to establish oral agreements providing payment for these costs, we hold that the District Court correctly concluded these costs “were the responsibility of TIPS.”
¶ 42 2. Did the District Court err by failing to find that TIPS was the prevailing party and awarding costs and fees to Turner?
¶ 43 TIPS claims the District Court abused its discretion by concluding Turner was the prevailing party in the litigation. We have previously held that the “‘prevailing party is the one who has an affirmative judgment rendered in his favor at the conclusion of the entire case.‘” Avanta Fed. Credit Union v. Shupak, 2009 MT 458, ¶ 49, 354 Mont. 372, 223 P.3d 863 (emphasis added). We have also recognized that a money award is not dispositive in this determination. E.C.A. Envtl. Management Servs. v. Toenyes, 208 Mont. 336, 345, 679
¶ 44 3. Did the District Court err by finding TIPS‘s construction lien was barred by the 90 day filing deadline found in
¶ 45 The District Court fоund that TIPS‘s construction lien was filed at least one day after the 90 day statute of limitations found in
¶ 46 TIPS claims the court erred by finding that TIPS was off the site no later than June 25, 2008. In support, TIPS claims that the court ignored testimony that TIPS was on the job site after June 25th, and argues that because it “was performing essentially the same insulation duties before and after Turner left the site,” its later work for CHS should provide the relevant date for
¶ 47 Conversely, Turner argues TIPS‘s work under the subcontract ended on June 25, 2008. In support, Turner proffered a notice of final completion sent to CHS dated June 24, 2008. Turner also argues that
¶ 48 The court based its finding that TIPS finished its obligations under the Turner subcontract prior to June 25, 2008, on Turner‘s June 24, 2008, Notice of Completion, evidence that the last payment Turner made to TIPS was for work on June 25th, testimony by TIPS Project Superintendant Rumaldo Herrera that TIPS left the site on June 25th and began insulating for CHS on June 30th, tеstimony by Richard Day that TIPS was off the site on June 25th, and an affidavit by Pat Kimmet, CHS plant manager, that TIPS‘s work after June 25th was under a separate CHS contract.
¶ 49 As noted above, we review the court‘s findings of fact for clear error. A finding of a trial court sitting without a jury is clearly erroneous if it is not supported by substantial credible evidence, if the trial court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that the trial court made a mistake. Lewistown Miller Constr. Co., ¶ 15. From a review of the record, it is clear that the court‘s findings concerning the timeliness of the lien were supported by substantial credible evidence. Several parties testified that TIPS left the job site, and completed the subcontract with Turner, by June 25, 2008. TIPS‘s own Project Superintendant testified that the company quit insulating under Turner on June 25, 2008, аnd TIPS‘s Estraca testified that after Turner left, TIPS submitted an estimate to CHS and CHS issued a separate purchase order for TIPS‘s work. Significantly, Turner‘s admitted final notice of completion clearly shows a date of June 24, 2008. It was not clear error for the court to find TIPS finished working under Turner on June 25, 2008.
¶ 50 We are also not persuaded by TIPS‘s argument that the District Court erred by finding that its work at the refinery after June 25, 2008, was under a separate contract and could not toll the 90 day time limit. It is well-established that if work is performed under separate contracts, “the lien should be filed within the time prescribed by the statute after the delivery under each of such contracts.” See Frank J. Trunk & Son v. De Haan, 143 Mont. 442, 445, 391 P.2d 353 (1964), quoting Helena Steam-Heating & Supply Co. v. Wells, 16 Mont. 65, 69, 40 P. 78 (1895). It is a question of fact whether work was finished under one or more contracts, Frank J. Trunk & Son, 143 Mont. at 445-46, 391 P.2d at 355, and the District Court did not commit clear error
¶ 51 TIPS is also incorrect to argue that the District Court solely relied on inadmissible hearsay to find that TIPS‘s work after June 25th came under a separate contract. A review of the court‘s findings shows the court referenced testimony by Mr. Herrera, testimony by Mr. Day, invoices, and admitted correspondence between CHS and Turner, in addition to the Pat Kimmet affidavit. Even if, as TIPS claims, the Kimmet affidavit was inadmissible hearsay, its reference by the trial court was harmless error because the finding was supported by other admissible evidence that proved the same facts.
¶ 52 In light of the foregoing, we find that the court correctly concluded that because TIPS filed its construction lien on September 24, 2008, 91 days after it furnished services under the Turner subcontract, the lien was barred by operation of law. See
¶ 53 4. Did the District Court err by granting partial summary judgment to TIPS and ordering Turner to return the retаinage?
¶ 54 Turner cross-appeals the District Court‘s grant of TIPS‘s motion for partial summary judgment seeking the return of contractual retainage. Turner asserts that the District Court erred because the subcontract authorized retaining money in anticipation and defense of “any lien or claim.” In granting TIPS‘s motion for partial summary
¶ 55 Here, the subcontract allowed Turner to withhold 10 percent of payments to TIPS as retainage until TIPS provided “a final release of lien.” Turner had retained $364,757.32 when TIPS filed its construction lien on September 24, 2008. Turner subsequently filed a substitution bond in an amount 1.5 times the lien.
¶ 56 TIPS in turn claims it is owed prejudgment interest on the retainage, arguing that the court‘s decision to the contrary was clear
¶ 57 A district court‘s decision concerning prejudgment interest is a question of law, and as such, we review it for correctness. Am. Music Co. v. Higbee, 2004 MT 349, ¶ 13, 324 Mont. 348, 103 P.3d 518. Here, the court denied TIPS‘s claim for interest because of the lack of contractual language authorizing it. We conclude that this denial was incorrect.
¶ 58 Here, Turner filed the substitution bond in November of 2008, and, as noted above, this bond discharged TIPS‘s lien by operation of law. Because a final release of lien was rendered unnecessary by the substitution bond, Turner was required to remit the retainage once the bond was filed. However, Turner failed to do so until so ordered by the District Court on October 12, 2010.
¶ 59 A party is entitled to prejudgment interest if they establish “(1) the existence of an underlying monetary obligation; (2) the amount of recovery is certain or capable of being made certain by calculation; and (3) the right to recover the obligation vests on a particular day.” Talcott, ¶ 40. Moreover,
¶ 60 5. Did the District Court err by dismissing Turner‘s bill of costs for being untimely filed pursuant to
¶ 61 The District Court dismissed and denied Turner‘s bill of costs, finding it was filed after the statutory deadline, lacked a signature or notary, and was “unintelligible and not in a form of separately delineated costs pursuant to
¶ 62 a. Application of Title 25, Chapter 10, MCA, to Turner‘s Claimed Costs
¶ 63 At the outset, a party‘s entitlement to costs in a civil action is governed by Title 25, chapter 10, MCA. Under chapter 10, a defendant must be allowed costs “upon a judgment in the defendant‘s favor in the actions mentioned in 25-10-101.”
¶ 64 While Rodgers and
Should CONTRACTOR employ an attorney to enforce any of the provisions hereof, or to protect its interest in any matter arising under this SUBCONTRACT, or to collect damages for the breach of this SUBCONTRACT, or to prosecute or defend any suit resulting from this SUBCONTRACT or to recover on the performance bond given by SUBCONTRACTOR under this SUBCONTRACT, SUBCONTRACTOR and his surety, jointly, and severally, agree to pay CONTRACTOR all reasonable costs and attorney‘s fees expended or incurred therein.
Thus, while Turner‘s bill of costs falls within the ambit of
¶ 65 However, while we have long recognized a party‘s freedom to contract for costs not allowed by
The party in whose favor judgment is rendered and who claims the party‘s costs shall deliver to the clerk and serve upon the adverse party, within 5 days after the verdict or notice of the decision of the court ... a memorandum of the items of the party‘s costs. ... The memorandum must be verified by the oath of the party, the party‘s attorney or agent, or the clerk of the party‘s attorney...
¶ 66 In essence, Turner argues that Subsection 24 of the subcontract displaced the procedural requirements of
¶ 67 Instead, we have previously found that “Section 25-10-501, MCA, provides the procedure for which the party in whose favor judgment is
By its caption, and by the terms of the statutes contained therein, [Title 25, chapter 10,] Part 5 provides the means and manner in which costs are to be claimed. Nothing in those statutes makes a distinction or exception for costs being claimed in different types of actions. ... The language of the statute is plain and unequivocal in encompassing all claims for costs.
In re Lande, ¶ 22 (emphasis added).
¶ 68 Additionally, even if we were to accept Turner‘s argument that Subsection 24‘s allowance of costs displaces
¶ 69 In light of the plain language of the subcontract, we cannot conclude that the parties intended to displace the procedural requirements of
¶ 70 b. Effect of
¶ 71 We also disagree that Turner‘s bill of costs was nonetheless timely filed. Turner claims that becausе it filed a bill of costs on January 20, 2012, five days after the court issued its January 16, 2012 Notice of Entry of Judgment, we must reverse the District Court‘s order dismissing and denying their claim for costs. However, to do so we would have to disregard both Turner‘s prior recognition of the November 22, 2012 date of judgment and our holdings interpreting the language of
¶ 72 First, Turner filed a notice of entry of judgment on November 29, 2011, acknowledging November 22, 2011, as the date of judgment. Turner now argues that we should disregard this “premature” filing made before its counsel engaged in “close review of the newly revised Montana Rules of Civil Procedure.” As the District Court observed, “Turner not only filed a notice of entry of judgment but referred to the Court‘s Findings and Conclusions as a judgment. That judgment was from November 22, 2011.” Turner is bound by this recognition.
¶ 73 Second,
CONCLUSION
¶ 74 We accordingly affirm the decisions of the District Court regarding TIPS‘s claims for additional compensation, TIPS‘s claim it was the prevailing party, whether the construction lien was time barred, the return of the retainage, and Turner‘s bill of costs. We reverse the District Court‘s decision denying TIPS prejudgment interest on the retainage.
¶ 75 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion.
JUSTICES COTTER, RICE, BAKER and MORRIS concur.