No. 84-386 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

JAMES P. ROBERTS, et ux., 

Plaintiffs and Respondents, 

MISSION VALLEY CONCRETE INDUSTRIES, 

INC., a Montana corporation, 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

French, Mercer, Grainey & Duckworth; John A. Mercer, 

Polson, Montana 

For Respondent: 

Terry Wallace, Missoula, Montana 

Submitted on Briefs: May 9, 1986 

Decided: July 17, 1986 

CP'T -j ; d> ,I-, vf;;; Filed: .. - I 

* 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a judgment issued by the District 

Court, Fourth Judicial District, in and for Lake County, 

Montana. After a bench trial, the Hon. James B. Wheelis 

awarded plaintiff damages, including punitive damages and 

attorney fees. We affirm in part and reverse in part. 

In 1979, Roberts and Mission Valley Concrete, through 

its vice-president, Warren Harding, entered into a written 

contract for the modification of three barns on Roberts' 

property near St. Ignatius, Montana, into so-called 

water-flush barn systems for raising hogs. A sewage lagoon 

also was to be constructed. A schematic drawing of the 

proposed lagoon was prepared by the Soil Conservation 

Service. Roberts designed the barns. He selected Harding's 

company to do the work by looking in the telephone book for 

area concrete dealers. 

Harding had built hog barns before. He did not have 

experience constructing water-flush hog barns, however. The 

two men discussed Roberts diagram and Harding indicated he 

could do the job. 

A major source of contention between Roberts and Mission 

Valley concerns the construction of the flush system. The 

theory behind the system is that gutters allow the hogs' 

waste to be flushed out of the barns by use of water which 

partially dissolves the waste and moves it down the gutter to 

sumps where it is then pumped into a lagoon. The plans which 

Roberts gave to Harding called for the slope of the gutters 

to be 3 inches over the 75 foot length of the gutters. Bob 

Atkinson, the job superintendent, increased the slope to 

almost 20 inches over the 75 foot length of the gutters. 
Consequently, the water gushed down the gutters, and rather 

than dissolving the waste, merely rushed over it. 

The inside of the gutters was not smooth, resulting in 

high spots and low spots where water and waste "pool" instead 

of flowing. Atkinson attempted to make the gutter smooth by 

applying grout, but did not finish the grouting work. The 

freezing and thawing of the waste and water has eliminated 

most of the grout which was applied. The floor of the 

gutters has fallen away from the walls causing the gutters to 

leak rather than holding the flush water for two to three 

days as Roberts intended. Roberts testified the system does 

not work at all--that he spends two hours a week on each 

gutter, hosing out the solids. 

No reinforcing steel was put in the barns' floors or 

under the gutters. Flush water flows under slabs of the 

barns, causing increased cracking. At least one sump has 

separated from a side wall. 

The sewage lagoon does not have the agreed capacity. 

Roberts must pump it out every three months instead of twice 

yearly as would be necessary had it been built according to 

specifications. 

When the job was completed, Mission Valley billed 

Roberts $9,505.00. Roberts paid $7,000.00, testifying he 

believed that was all he owed. Mission Valley credited 

Roberts $174.80 for the rebar (reinforcing steel) which was 

left out of the construction and then filed a lien against 

him for $2,330.20 for the balance of the bill. 

Roberts filed an amended complaint alleging fraud and 

misrepresentation and asking for damages. The second count 

of the complaint alleged Mission Valley deliberately and 

maliciously asserted a fraudulent mechanic's lien against his 
property. Following a bench trial, the court found for 

Roberts and awarded damages including punitive damages and 

attorney fees. Mission Valley appeals. 

Three issues are presented for review: 

1. Whether the findings of fact, conclusions of law, 

and judgment are supported by substantial credible evidence. 

2. Whether attorney fees may be awarded where there is 

neither statutory authority nor an agreement between the 

parties regarding attorney fees. 

3. Whether representations constitute fraud where there 

is no finding that the party making the representations knew 

they were false at the time they were being made. 

We will consider the issue of fraud first. The statutory 

definition of fraud is found at § 28-2-405, MCA: 

Actual fraud, within the meaning of this part, 

consists in any of the following acts committed by 

a party to the contract or with his connivance with 

intent to deceive another party thereto or to 

induce him to enter into the contract: 

(1) the suggestion as a fact of that which is not 

true by one who does not believe it to be true; 

(2) the positive assertion, in a manner not 

warranted by the information of the person making 

it, of that which is not true, though he believes 

it to be true; 

(3) the suppression of that which is true by one 

having knowledge or belief of the fact; 

(4) a promise made without any intention of 

performing it; or 

(5) any other act fitted to deceive. 

Fraud is more than merely making a promise which the 

promisor fails to keep. Svennungsen v. Svennungsen (1974), 

165 Mont. 161, 169, 527 P.2d 640, 644; Gallatin Trust & 

Savings Bank v. Henke (1969), 154 Mont. 170, 175, 461 P.2d 

448, 450. Actionable fraud requires that one prove the maker 

of the promise had no intention of performing it when he made 
it. Howe v. Messimer (1929), 84 Mont. 304, 313-314, 275 P. 

281, 283. 

Roberts claims he was defrauded by Mission Valley. The 

record shows that Roberts contacted Mission Valley about 

modifying three barns on his property to be used for raising 

hogs. He had designed what he wanted and showed the design 

to Warren Harding. Harding had had experience in 

constructing hog barns, but not the water-flush system 

Roberts had designed. Nevertheless, Harding represented to 

Roberts he could do what Roberts wanted. 

Harding testified he could do the concrete work to 

Roberts1 specifications, that he intended to do a good job, 

and that he did do a good job. He held himself out as 

capable of doing work in a skilled, professional manner. It 

is clear his performance was not consistent with professional 

standards. 

Rule 52(a), M.R.Civ.P., says in pertinent part: 

In all actions tried upon the facts without a jury . . . the court shall find facts specially and 

state separately its conclusions of law thereon, . . . Findings of fact shall not be set aside 

unless clearly erroneous,. . . 

This Court's function in reviewing findings of fact in a 

civil action tried by the district court without a jury is 

not to substitute its judgment in place of the trier of facts 

but rather it "is confined to determining whether there is 

substantial credible evidence to support the findings of fact 

and conclusions of law . . . " In determining whether the 

trial court's findings are supported by subtantial evidence, 

this Court must view the evidence in the light most favorable 

to the prevailing party [citing cases]. Cameron v. Cameron 

(1978), 179 Mont. 219, 227-228, 587 P.2d 939, 944. 
There is testimony showing Harding knowingly made false 

representations that were material, and promises he knew he 

could not keep. Roberts testified that at the time he 

entered into the agreement with Mission Valley he had "total 

faith in Warren to be able to do the job that he said he was 

going to do. " Roberts had a right to rely on Harding, and 

was injured because of this reliance. This being so, the 

court is not in error to find fraud. 

There is conflicting evidence in the findings. The 

findings, however, must be clearly erroneous to be set aside. 

Rule 52, M.R.Civ.P. We find no clear error constituting 

abuse of discretion, further the district court has the 

benefit of seeing and hearing witnesses testify. 

Roberts claims he is entitled to attorney's fees. It 

long has been the rule in Montana that absent either 

statutory authority or agreement between the parties, 

attorney's fees are not awarded. Bossard v. Sullivan (Mont. 

1983), 670 P.2d 1389, 1391, 40 St.Rep. 1733, 1735. Roberts 

is not entitled to attorney's fees. 

The judgment of the District Court awarding damages is 

affirmed, and reversed as to attorney's fees. 

We concur: 

f-\ 
sitting for Mr. 

J. A. Turnage 

ice