DA 15-0158

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 272

FITTERER SALES MONTANA, INC.,

 Plaintiff and Appellee,

 v.

CLINT MULLIN, JR.; A & C SOARING EAGLE, INC.,

 Defendants and Appellants.

APPEAL FROM: District Court of the Seventh Judicial District,

In and For the County of Richland, Cause No. DV 09-84

Honorable David Cybulski, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Ben T. Sather, Sather & Holm, PLLC; Billings, Montana

For Appellee:

Nicholas C. Grant, Ebeltoft Sickler Lawyers, PLLC; Dickinson,

North Dakota

Submitted on Briefs: August 5, 2015

 Decided: September 15, 2015

Filed:

__________________________________________

Clerk

September 15 2015

Case Number: DA 15-0158
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Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Clint Mullin Jr. (Clint) and A&C Soaring Eagle, Inc. (A&C) appeal the findings of 

fact, conclusions of law, and order of the Seventh Judicial District Court, Richland 

County, which found that Clint and A&C owed Fitterer Sales Montana, Inc. (Fitterer) 

$114,398.06, plus additional prejudgment interest, pursuant to a contract for the sale of 

fertilizer and chemicals. We affirm in part, reverse in part, and remand for entry of an 

amended judgment consistent with this Opinion.

¶2 The issues on appeal are as follows:

1. Whether there was a valid, binding contract between A&C and Fitterer for the 

sale of fertilizer and chemicals.

2. Whether Fitterer is entitled to prejudgment interest.

3. Whether Clint is personally liable for money owed under A&C’s contract with 

Fitterer.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Fitterer (formerly known as Valley Crop Care, Inc.) is a North Dakota corporation 

licensed to do business in Montana. A&C is a Montana corporation based in Lambert, 

Montana, and Clint is the president and sole shareholder. Starting in May 2007, A&C 

purchased chemicals and fertilizer on account from Fitterer. Fitterer employee Sara 

DiFonzo set up the account, Account No. 1577, under the name of Clint’s son, Zach 

Mullin (Zach). Fitterer and A&C had no written agreement setting forth the terms of 

Account No. 1577.

¶4 A&C made chemical purchases from Fitterer through Zach in May and June of 

2007. When purchasing chemicals, customers would normally come into Fitterer’s office 
3

in Sidney, place the order, and sign a delivery ticket. According to DiFonzo, Zach 

normally stated he was with the “Mullins” and signed the tickets “Zachary.” In 2007, 

Fitterer had only one account under the name Mullin: Account No. 1577. DiFonzo was 

never informed by Clint or anyone else that Zach was not authorized to make purchases 

on A&C’s account.

¶5 A&C also made multiple orders of fertilizer from Fitterer in 2007. When a 

customer placed a fertilizer order with Fitterer, the order was recorded on a legal pad. 

Fitterer’s plant operator used the information to generate three copies of a delivery ticket. 

If the customer had any special instructions about the delivery, it was noted at the bottom 

of the delivery ticket. There were never any special instructions or restrictions placed on 

Account No. 1577. It was Fitterer’s standard practice in 2007 to leave one copy of the 

delivery ticket at the plant for inventory purposes and send the other two copies with the 

driver who delivered the order. The driver retained one copy and left one copy with the 

delivered load.

¶6 Although Fitterer preferred to have the customer sign the delivery ticket upon 

delivery, its drivers rarely saw customers at the point of delivery. Multiple fertilizer and 

chemical distributors from the area testified at trial that fertilizer deliveries to working 

farms rarely result in a signed delivery ticket. Jerys Enget, Fitterer’s general manager in 

2007, testified that farmers normally do not sign for fertilizer deliveries because “Farmers 

are busy,” and the delivery drivers “[c]an’t find them.”

¶7 Although it was uncommon in the industry, Clint signed two delivery tickets from 

Fitterer for fertilizer orders made by Zach on Account No. 1577, dated May 11, 2007, 
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and May 19, 2007. After realizing that Account No. 1577 was under the name “Zach 

Mullin,” Clint contacted Fitterer in early June 2007 and asked the company to change the 

name on the account to “A&C Soaring Eagle, Inc.” The name “A&C Soaring Eagle Inc.” 

appears on a charging invoice dated June 5, 2007.

¶8 Clint claimed at trial that it was his policy that Fitterer was not allowed to leave 

fertilizer with A&C unless he was present and could sign for the delivery. However, 

Clint never informed DiFonzo, Enget, or any other Fitterer employee of this policy. Clint 

also admitted at trial that he never told Zach that Zach could not order fertilizer or 

chemicals from Fitterer.

¶9 Fitterer sent copies of invoices to its customers every few weeks, and customers 

also received monthly statements showing every purchase made on their account during 

the preceding month. A&C received monthly statements from Fitterer for May and 

June 2007, and A&C did not dispute any of the charges on those statements made to 

Account No. 1577.

¶10 Account No. 1577 became past due on June 11, 2007, for purchases made in 

May 2007, and the account became past due on July 11, 2007, for purchases made in 

June 2007. A&C paid Fitterer four payments of $7,500, totaling $30,000. The four 

payments were made on October 1, 2008; November 1, 2008; December 1, 2008; and 

January 8, 2009. At the time of trial, the principal balance due on Account No. 1577 was 

$63,149.73.
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¶11 On September 30, 2009, Fitterer filed suit in the District Court alleging that A&C 

and Clint personally owed Fitterer $98,183.91 as of July 31, 2009 on Account No. 1577. 

Fitterer alleged that it was owed interest on the amount due at a rate of 18% per year.

¶12 On April 21, 2010, the District Court granted a motion by A&C to compel 

discovery and awarded A&C attorney fees in the amount of $1,035. Although the order 

required both the discovery requests to be completed and the attorney fees to be paid 

within 30 days, the record does not reflect whether Fitterer complied with the April 21, 

2010 order.

¶13 On April 23, 2012—over two years later—the District Court issued a “Notice of 

Older Case” to the parties. The notice stated: “[S]aid cause will be dismissed for failure 

of the Plaintiff to prosecute the action, unless, within sixty (60) days from the date hereof, 

good cause is shown why said action should continue.” Fitterer responded to the notice 

on June 19, 2012, stating that it had filed a motion for partial summary judgment that day 

and, alternatively, that “this matter is ready for trial and [Fitterer] requests a trial at the 

convenience of the Court.” A&C moved to dismiss the action, arguing that Fitterer was 

not authorized to do business in Montana. On October 24, 2013, the District Court 

denied both Fitterer’s motion for summary judgment and A&C’s motion to dismiss.

¶14 The District Court held a bench trial on December 3-4, 2014. On January 7, 2015, 

the District Court issued its findings of fact, conclusions of law, and order for judgment, 

finding that A&C and Clint personally breached the contract with Fitterer by failing to 

pay for the fertilizer and chemicals A&C ordered, accepted, and used. The District Court 
6

ordered A&C and Clint to pay Fitterer $114,398.06,1 which included $63,149.73 in 

unpaid principal and $51,248.33 in interest calculated at a rate of ten percent per year 

from June 11, 2007 to November 30, 2014. The court also ordered A&C and Clint to pay 

$526.04 per month in prejudgment interest, retroactive to December 1, 2014, until 

judgment was entered. A&C and Clint appeal the order of the District Court.

STANDARDS OF REVIEW

¶15 We review the findings of a trial court sitting without a jury to determine if the 

court’s findings are clearly erroneous. Conagra, Inc. v. Nierenberg, 2000 MT 213, ¶ 22, 

301 Mont. 55, 7 P.3d 369. A finding of fact is clearly erroneous if it is not supported by 

substantial 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 a mistake 

has been made. Nierenberg, ¶ 22. In determining whether the trial court’s findings are 

supported by substantial credible evidence, we must view the evidence in the light most 

favorable to the prevailing party. Nierenberg, ¶ 22.

¶16 We review a district court’s conclusions of law for correctness. Nierenberg, ¶ 23. 

We review a district court’s grant or denial of prejudgment interest to determine if the 

district court’s interpretation of the law is correct. Swank Enter., Inc. v. All Purpose 

Serv., Ltd., 2007 MT 57, ¶ 14, 336 Mont. 197, 154 P.3d 52.

 

1 The District Court’s January 7, 2015 order erroneously calculated the interest due to Fitterer on 

the $63,149.73 of unpaid principal. Fitterer moved to amend the judgment asking for a 

correction of the clerical error, and the motion was granted. The interest amounts in this Opinion 

are the corrected amounts from the February 27, 2015 order granting Fitterer’s motion to amend 

the judgment.
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DISCUSSION

¶17 1. Whether there was a valid, binding contract between A&C and Fitterer for the 

sale of fertilizer and chemicals. 

¶18 A&C argues that it had no valid, binding contract with Fitterer. A&C notes that 

“[i]dentifiable parties capable of contracting, consent, a lawful object, and sufficient 

consideration comprise the essential elements of any contract,” citing Zier v. Lewis, 

2009 MT 266, ¶ 19, 352 Mont. 76, 218 P.3d 465. A&C argues that only Clint had the 

authority to bind A&C to any contract for the purchase of chemical or fertilizer, and 

therefore only Clint could provide the requisite consent to form a binding contract 

between A&C and Fitterer. A&C argues that, because Clint never signed for fertilizer 

deliveries on behalf of A&C or purchased chemicals on behalf of A&C, no valid contract 

exists.

¶19 Fitterer argues that this was a contract for the sale of goods and is therefore 

governed by Chapter 2 of Montana’s Uniform Commercial Code (UCC), §§ 30-2-101 

et seq., MCA. “‘Goods’ means all things . . . which are movable at the time of 

identification to the contract for sale.” Section 30-2-105(1), MCA. Fitterer contends this 

includes fertilizer and chemicals used for agricultural purposes. We agree.

¶20 “[T]he U.C.C. rules governing sales agreements are far more permissive . . . than 

the general common law rules governing contract formation.” Nierenberg, ¶ 28. “A 

contract for sale of goods may be made in any manner sufficient to show agreement, 

including conduct by both parties which recognizes the existence of such a contract.” 

Section 30-2-204(1), MCA. A&C ordered, accepted, and used the deliveries of fertilizer 
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and orders of chemicals from Fitterer. This was sufficient to show agreement, and create 

a valid, binding contract under Montana’s UCC.

¶21 A&C argues that Zach was not an agent of A&C, and therefore he could not bind 

A&C to an agreement. A&C notes that Zach has never been employed by A&C, and 

A&C maintains that Zach did not have authority to make purchases on behalf of A&C.

¶22 “An agent is one who represents another, called the principal, in dealings with 

third persons.” Section 28-10-101, MCA. “An agency is ostensible when the principal 

intentionally or by want of ordinary care causes a third person to believe another to be the 

principal’s agent when that person is not really employed by the principal.” 

Section 28-10-103(1), MCA. “Pursuant to this statutory definition of ostensible agency, 

it must be the principal, not the agent, who ‘intentionally or by want of ordinary 

care causes a third person to believe another to be his agent.’” Sunset Point P’ship 

v. Stuc-O-Flex Int’l, Inc., 1998 MT 42, ¶ 22, 287 Mont. 388, 954 P.2d 1156 (citing 

§ 28-10-103(1), MCA). Agency can also be created “by a precedent authorization or a 

subsequent ratification.” Section 28-10-201, MCA.

¶23 Whether intentionally or by want of ordinary care, Clint rendered Zach an 

ostensible agent of A&C. Clint had actual knowledge of the fertilizer orders made by 

Zach when Clint signed two delivery tickets for fertilizer from Fitterer on May 11, 2007,

and May 19, 2007. Clint never informed DiFonzo or any other Fitterer employee that 

Fitterer was not allowed to leave fertilizer with A&C unless Clint was present and could 

sign for the delivery. Clint admitted at trial that he never told Zach that Zach could not 

order fertilizer or purchase chemicals from Fitterer. Furthermore, A&C ratified Zach’s 
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actions when it accepted and used the chemical purchases and fertilizer deliveries from 

Fitterer. A&C also never disputed the charges on the statements from Fitterer for 

Account No. 1577 in May, June, or July of 2007.

¶24 A&C accepted and used the fertilizer and chemicals ordered by A&C’s agent, 

Zach. A valid, binding contract for the sale of goods existed between A&C and Fitterer.

¶25 2. Whether Fitterer is entitled to prejudgment interest.

¶26 “A party is entitled to prejudgment interest when three criteria are met: (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.” DiMarzio v. Crazy Mountain Constr., Inc., 2010 MT 231, 

¶ 58, 358 Mont. 119, 243 P.3d 718 (citing § 27-1-211, MCA). Relying on DiMarzio, 

A&C argues that Fitterer is not entitled to prejudgment interest because there was no 

valid, binding contract between the parties, and the right to recover did not vest on a 

particular day.

¶27 In DiMarzio, the plaintiff (DiMarzio) hired Crazy Mountain Construction, Inc. 

(CMC) as a general contractor to remodel his home. F.L. Dye Company was hired to 

install an air conditioning and humidification system. DiMarzio, ¶ 2. After disputes 

arose among DiMarzio, CMC, and F.L. Dye regarding the quality of the work, DiMarzio 

terminated the project and sued CMC and F.L. Dye. F.L. Dye filed a counterclaim 

against DiMarzio for breach of contract. DiMarzio, ¶¶ 2-3. F.L. Dye prevailed in its suit 

against DiMarzio and sought prejudgment interest. DiMarzio, ¶¶ 8-9. We held that the 

District Court did not err by refusing to award prejudgment interest because “this was not 
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an action for the definite unpaid balance of a contract. Until the jury returned its verdict, 

neither party knew if a contract even existed, let alone a certain sum of damages.” 

DiMarzio, ¶ 60.

¶28 A&C’s reliance on DiMarzio is unavailing. The dispute at issue here satisfies the 

three requirements we articulated in DiMarzio: (1) there was a clear underlying monetary 

obligation—A&C’s balance due on Account No. 1577; (2) the amount due on Account 

No. 1577 was “capable of being made certain” by calculating the amounts due on each 

order, subtracting the payments A&C did make, and applying the applicable interest; and 

(3) the right to recovery vested on the dates the accounts became due per the terms of the 

statements. See Serrania v. LPH, Inc., 2015 MT 113, ¶ 27, 379 Mont. 17, 347 P.3d 1237 

(“Section 31-1-106(1)(b), MCA, however, authorizes interest ‘on all money at a rate of 

10% a year after it becomes due on . . . an account stated[.]’”).

¶29 Notwithstanding the DiMarzio criteria, A&C further argues that Fitterer should 

not benefit from its own delays in the legal proceedings by recovering prejudgment 

interest on a claim that Fitterer did not pursue for over two years. A&C notes that this 

case languished to the point that the District Court issued a “Notice of Older Case” in 

order to spur action from the parties. Fitterer responds that A&C’s argument does not 

satisfy either of the exceptions to the payment of prejudgment interest set forth in 

§ 27-1-211, MCA, which provides that a party has a right to prejudgment interest “except 

during the time that the debtor is prevented by law or by the act of the creditor from 

paying the debt.” Section 27-1-211, MCA. Fitterer notes that A&C was never prevented 

from paying its debt either by law or by any of Fitterer’s actions. We agree.
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¶30 In Price Bldg. Serv. v. Holms, 214 Mont. 456, 693 P.2d 553 (1985), almost nine 

years passed between the completion of the construction project underlying the dispute 

and the date of trial. Nevertheless, we reversed the District Court’s denial of 

prejudgment interest, noting that time delay was not one of the exceptions to an award of 

prejudgment interest listed in § 27-1-211, MCA. Price, 214 Mont. at 464-65, 693 P.2d 

at 557-58. We also rejected the argument “that as an equitable matter the contractor’s 

lack of diligence in taking the case to trial must invalidate the operation of the 

prejudgment interest statute.” Price, 214 Mont. at 465-66, 693 P.2d at 558. We noted 

that “[t]he record reveals that the [plaintiff] did not diligently pursue his claim but also 

reveals that the [defendants] did not ask for a speedy resolution of this matter. [The 

defendants] were content to let the case remain inactive.” Price, 214 Mont. at 464, 

693 P.2d at 557. Similarly, in this case the record reveals that A&C did not seek a 

speedy resolution of the matter.

¶31 Fitterer was properly awarded prejudgment interest on the unpaid principal 

amount due on A&C’s account under § 27-1-211, MCA.

¶32 3. Whether Clint is personally liable for money owed under A&C’s contract with 

Fitterer.

¶33 A&C argues that Fitterer has failed to establish any personal liability against Clint, 

despite the District Court’s finding that “[i]t appears that sometimes [Clint] and his 

entities are interchangeable.” Fitterer concedes on appeal that Clint should be dismissed 

as a defendant in this case, and only A&C should be held liable under the contract. We 
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therefore remand this case to the District Court for the dismissal of Clint personally as a 

defendant.

CONCLUSION

¶34 The District Court correctly determined that a valid, binding contract existed 

between A&C and Fitterer for the sale of goods. Fitterer is entitled to prejudgment 

interest on the amount due under the contract. This case is remanded to the District Court 

for dismissal of Clint Mullin as a defendant.

¶35 Affirmed in part, reversed in part, and remanded for entry of an amended 

judgment consistent with this Opinion.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ MIKE McGRATH

/S/ BETH BAKER

/S/ PATRICIA COTTER

/S/ MICHAEL E WHEAT