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5 years ago

I n and for the County of Rosebud, - Justia

I n and for the County of Rosebud, - Justia

Mr. Justice John C.

Mr. Justice John C. Sheehy delivered the Opinion of the Court. This is an appeal by Hardin Town Pump from a judgment and award of the Sixteenth Judicial District, Rosebud County. The judgment resulted from an action by Pirtz Construction, Inc., to recover the reasonable value of labor, materials and supplies furnished for a construction proiect. Pirtz cross-appeals its interest award. The judgment and award of the District Court are affirmed in all respects. This case involves an oral contract. On July 9, 1981, Pirtz Construction, Inc. filed a mechanic's lien on a residence in Colstrip, Montana owned by Hardin Town Pump. On October 8, 1981, Pirtz filed an action to recover $62,539 from Hardin Town Pump for work done on the residence and $5,991 for remodeling a gas station. Pirtz also sought 10% per annum interest and attorney's fees. The District Court awarded Pirtz Construction, Inc. $63,310 under the construction contract, $11,1.11 interest computed at 6% from April 20, 1981, and $21,103 attorney's fees. The court also granted Pirtz Constructjon, Inc. a lien for the total of $95,524. Hardin Town Pump raises the following issues: 1. Are the findings supported by substantial evid-ence? 2. Is the award of damages reasonable? 3. Is the award of attorney's fees correct? 4. Is a contingency fee agreement an appropriate measure of reasonable attorney's fees? 5. Should Hardin Town Pump recover the costs of correcting construction defects?

6. Should the case be remanded based on errors in the transcript? Pirtz's cross-appeal raises one jssue--should interest he calculated on the amount it paid on its operating loans rather than 6% from the date work was last performed? The parties stipulated the following facts: 1. Pirtz and Hardin Town Pump are both lawfully incorporated under Montana law. 2. Pirtz provided labor, material and supplies to relocate a pre-fab home for Hardin Town Pump from one location in Colstrip to a new location three to four blocks away. 3. The total amount for the project was $79,384 of which Hardin Town Pump paid $16,074. 4. In November 1980, Hardin Town Pump took possession of the pre-fab. 5. On July 9, 1981, Pirtz filed a lien on the pre-fab. Hardin Town Pump never filed a notice of completion. At issue here are the terms of an oral contract. The District Court in a non-jury trial. adopted Pirtz's version of the terms and, with the evidence in the record, we will not overturn the lower court's findings. In reviewing the record to resolve the issues raised on appeal-, we are governed by well established principles. In a nonjury trial, the credibility of witnesses and the weight of their testimony are matters for the District Court to determine. The sufficiency of the evidence must be reviewed from the perspective most favorable to the prevailing party. The District Court's findings and judgment are presumed correct and will not be overturned unless the appellant meets the burden of proving with a preponderance of evidence that they

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