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No. 00-833
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 218N

ROBERT CUMMINGS, d/b/a CUSTOM CUT CONSTRUCTION, Plaintiff and Respondent,

v. LELAND D. PATTON and TONI M. PATTON, Defendants and Appellants. APPEAL FROM: District Court of the Twenty-First Judicial District, In and for the County of Ravalli, The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD: For Appellants: Howard C. Greenwood, Attorney at Law, Hamilton, Montana For Respondent: John D. Greef, Greef & Markette, Hamilton, Montana Submitted on Briefs: May 24, 2001 Decided: November 6, 2001

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Filed:

__________________________________________ Clerk

Chief Justice Karla M. Gray delivered the Opinion of the Court. ¶1Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.¶2 Leland D. Patton and Toni M. Patton appeal from a judgment entered by the TwentyFirst Judicial District Court, Ravalli County, in favor of Robert Cummings, d/b/a Custom Cut Construction. We affirm in part, reverse in part, and remand. ¶3 Cummings, a building contractor, and the Pattons entered into a contract for construction of a residence and garage on the Pattons' property. The contract price was the fixed sum of $148,823.70, less items paid directly by the Pattons and plus amounts for agreed-upon upgrades and work not originally contemplated. The contract provided for "allowances" for certain specified items which would result in adjustments to reflect actual amounts expended either greater or lesser than the corresponding amount contained in the contract. Over the course of the work, the Pattons made progress payments to Cummings in the total amount of $135,442.75. ¶4 As the work progressed, problems arose between the Pattons and Cummings over alleged unsatisfactory work. Ultimately, Cummings ceased working on correcting purported problems and the Pattons withheld the final payment due Cummings under the contract. Cummings filed a construction lien on the property alleging the amount remaining unpaid was $11,927.43, and sued the Pattons to collect that amount plus costs and attorney fees. The Pattons responded and subsequently were permitted to file an amended response and counterclaim. They denied that Cummings performed the contract in its entirety or timely and that he was entitled to the amount asserted. Via counterclaim, they alleged various breaches of the contract by Cummings including failure to complete

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file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-833%20Opinion.htm (5 of 7)1/19/2007 10:48:50 AMfile:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-833%20Opinion.htm Pattons, we conclude they have failed to establish error in this regard. ¶17 The Pattons also argue they have not been "made whole" for Cummings' breach of contract via compensatory damages for that breach and, moreover, that Cummings should not be paid for work he has not done. These arguments ignore the fact that the Pattons ultimately did not prevail on their counterclaim for damages against Cummings for his breach of contract because his anticipatory breach was due to Leland Patton's creation of a hostile work environment. Further, the District Court's calculation of the amount of contractor's fee to which Cummings is entitled awards a fee only for the work completed. It does not include a fee for uncompleted portions of the contract. We hold the Pattons have not established error in this regard. ¶18 The District Court awarded Cummings attorney fees pursuant to § 71-3-124, MCA, which provides for the award of attorney fees necessary to establish a construction lien. The attorney fee award is based on the District Court's conclusion that Cummings has a construction lien on the Pattons' real property. The Pattons base their argument that the attorney fee is improper on their position that Cummings did not establish a lien. Because the District Court concluded otherwise and the Pattons have not established error in that regard, we hold the District Court did not err in awarding the attorney fees. ¶19 Finally, the Pattons point out that the District Court allowed for total trial time of approximately four hours. They do not dispute the overall time allotted. They contend that, while the court acknowledged their counterclaim would require the majority of trial time, it limited each party to two hours for direct and cross-examination. The Pattons contend generally that they were prejudiced by not having sufficient time to present their case. ¶20 There are several problems with the Pattons' contention. First, they do not cite to any objection of record relating to the allocation of trial time. The Pattons' counsel did not object when advised by the District Court that he had three minutes remaining and did not object when, after seeking to call an additional witness, he was advised that all of his time had been used. We conclude that, because the Pattons failed to timely raise this issue in the District Court, they cannot properly raise it on appeal. See Nason v. Leistiko , 1998 MT 217, ¶ 18, 290 Mont. 460, ¶ 18, 963 P.2d 1279, ¶ 18. ¶21 Second, the Pattons advance no authority in support of their argument. Such authority is required by Rule 23(a)(4), M.R.App.P. Consequently, we decline to address this argument further.

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¶22 Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. /S/ KARLA M. GRAY
We concur: /S/ PATRICIA COTTER /S/ JIM REGNIER /S/ W. WILLIAM LEAPHART

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