No. 83-513 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

FLOYD M. SACK, d/b/a EMPIRE 

DEVELOPMETJT COMPANY 

Plaintiff and Respondent, 

-VSA. V. DESIGN, INC., a corp., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert H. Wilson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant : 

Hendrickson & Everson; Jim Ragain, Billings, Montana 

Porterfield & Wheatley; Wendell B. PorterfFeld, JE-:,- 

Denver, Colorado 

For Respondent : 

James P. Murphy, Billings, Montana 

Submitted on Briefs: April 12, 1984 

Decided: July 3, 1984 

.-.-- 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This appeal concerns a construction contract dispute 

between the owner of a commercial office building erected in 

Billings, Montana, and the subcontractor corporation that 

furnished the heating, ventilating and air conditioning 

systems for the building. The matter was tried in the 

Thirteenth Judicial District, in and for the County of 

Yellowstone, before Judge Robert H. \4ilson, presiding 

without a jury. The District Court found appellant A.V. 

Design liable for breach of contract and awarded respondent 

Floyd M. Sack damages in the amount of $11,424.61. From the 

findings of fact and conclusions of law and judgment, A.V. 

Design appeals. 

Floyd M. Sack, d/b/a Empire Development Co. is the 

owner of several commercial buildings in Colorado, Utah 

Virginia and Montana. The subject matter of this action is 

a building owned by Sack in Billings. Acting as the general 

contractor, Sack requested A.V. Design to submit a bid on 

the heating, ventilating and air conditioning systems for 

this building. A.V. Design is a Denver based corporation 

with whom Sack had prior business dealings. Following 

preliminary discussions between the parties, a written 

contract dated August 27, 1980, was entered into between 

A.V. Design as subcontractor and Empire Development Company 

as the general contractor. The contract provided that the 

work was to be performed "continuously and uninterruptedly" 

until the project was completed. 

A.V. Design's bid was based on a system designed by it 

and submitted to Sack, called a variable air volume system 
(V.A.V.). This type of system was new to Sack and had not 

been utilized by him in any other buildings he owned. After 

the system was completed and the building occupied, Sack 

began receiving complaints from the tenants that the 

building was alternately too hot or too cold. Sack made 

several trips from his home in Denver to Billings to examine 

the system and the building, after which he determined that 

the system was not properly "balanced." Sack contacted A.V. 

Design and attempted to persuade them to complete the job by 

balancing the system. Despite Sack's efforts A.V. Design 

did not balance the system and eventually Sack was forced to 

have the system balanced by a Billings professional 

engineer. 

In the course of his repairs, the engineer found 

numerous problems; the return air system was improperly 

installed, thermostats and V.A.V. boxes were improperly 

installed, air diffusers were either not installed or 

improperly installed, V.A.V. coils were sticking open or 

closed, the hot water circulating pump was improperly 

installed, outside air sensors for the hot water pumps were 

not hooked up and static pressure sensors were installed in 

the wrong places. The major problem was that because of the 

defective equipment and improper installation, the system 

was forcing both hot and cold air into the building at the 

same time. As a result the temperature in the building 

fluctuated sometimes over 20' during a work day, and the gas 

bills (which were paid by Sack, not the tenants) were 

astronomical. The system was finally repaired and balanced 

after Sack made several trips from Denver to oversee the 

work and contract with qualified repairmen. 
In July 1982, Sack brought suit against A.V. Design to 

recover damages for breach of the contract. The complaint 

sought damages based upon the failure of A.V. Design to 

complete the installation of the system and adequately 

balance the system after repeated demands. This in turn was 

based on the warranty language contained in the subcontract, 

which also allowed Sack to repair or replace any defects 

covered by the warranty at A.V. Design's expense. 

Specifically, Sack claimed damages for the amounts paid 

other contractors or suppliers to complete the installation 

and adjustment of the system, the amount paid for excess 

natural gas consumed by the system and travel expenses 

incurred in shuttling between Denver and Billings. 

Following a trial before the District Court sitting 

without a jury, findings of fact and conclusions of law were 

entered. A.V. Design was found to be in breach of contract 

and Sack was awarded $15,146.39 as damages for the above 

mentioned claims. This amount was set off by a $3,722.78 

retainage held by Sack, and judgment for $11,424.61 was 

entered. A.V. Design filed a motion for new trial, which 

was denied. This appeal follows. 

Appellant raises three issues for our consideration: 

(1) Are the findings of fact and conclusions of law 

supported by the facts of this case? 

(2) Did the trial court err in awarding damages for 

natural gas consumption? 

(3) Did the trial court err in awarding Sack his 

travel expenses? 

In reviewing the findings of fact made by a lower 

court, we may not substitute our judgment in place of that 
of the trier of facts. This Court's function rather, is to 

determine whether there is substantial credible evidence to 

support the findings of fact. Cameron v. Cameron (1978), 

179 Mont. 219, 587 P.2d 939. In making that determination, 

the evidence is viewed in a light most favorable to the 

prevailing party. Cameron, supra. 

The District Court found that A.V. Design had breached 

the contract by failing to make the necessary final 

adjustments to complete the system. The court found this in 

breach of the warranty provisions and also that A.V. Design 

had simply not completed the contract. Despite appellant's 

contentions, these conclusions are supported by the evidence 

brought forth at trial. 

Sack presented the testimony of a professional 

engineer, whose specialty was testing and balancing heating, 

air conditioning and ventilating systems such as the one 

installed here. The engineer enumerated several defects in 

the system as installed and several items missing from the 

system which made it incomplete. He testified that these 

deficiencies in the system caused the problems of which the 

tenants complained. Appellant presented some conflicting 

evidence, contending that the work done by Sack's repairmen 

was "tenant finish" work not required by the contract. 

However this "tenant finish" work alluded to by A.V. Design 

did not cure the problems enumerated by the engineer. The 

changes suggested by the engineer cured defects in either 

the design or installation of the system; such as placement 

of thermostats and static pressure sensors, mechanical 

failure of equipment and missing parts. The fact that these 

changes were necessary to correct the problems with the 
system was not rebutted by appellant's testimony. Also, 

there being a marked decrease in complaints after these 

adjustments were made lends credence to the engineer's 

testimony that the defects uncovered by him were the cause 

of the problem. There is clearly sufficient evidence to 

support the findings of the trial court. 

The final two issues concern the award of damages made 

by the District Court. For a breach of contract, the amount 

of damages allowed "[Ils the amount which will compensate 

the party aggrieved for all the detriment which was 

proximately caused thereby or in the ordinary course of 

things would be likely to result therefrom. Damages which 

are not clearly ascertainable in both their nature and 

origin cannot be recovered for a breach of contract." 

Section 27-1-311, MCA. "Where the contractor fails to keep 

his agreement, the measure of the employer's damages . . . is always the sum which will put him in as good a position 

as if the contract had been performed." Kirby v. 

Kenyon-Noble Lumber Co. (1976) , 171 Mont. 329 at 332, 558 

P.2d 452 at 454. 

Appellant first contends that it was error to award 

Sack damages to compensate for the excess natural gas usage 

caused by the defects in the system. There was ample 

testimony to establish that during the five summer months 

when the system was improperly adjusted (May through 

September, 1981), the heating and cooling systems were 

operating at the same time, working against each other. 

This caused the energy bills for the building to skyrocket. 

Sack testified that the energy costs for the building were 

over twenty cents per square foot per annum, when they 
should have been between five and six cents per square foot 

per annum. Based on these figures, the court apparently 

reasoned that the defects in the system were causing it to 

consume eighty percent more natural gas than it would have 

if it had been properly adjusted. Therefore it awarded Sack 

damages in the amount of $2,493.18, which represents eighty 

percent of the total natural gas bills for May through 

September of 1981. 

Appellant contends that the District Court should not 

have awarded any amount for excess gas usage, and if it 

awarded any damages, the eighty percent figure was in error 

as too speculative. As noted above, there was sufficient 

evidence to establish that an award of damages for excess 

natural gas usage is proper. A plaintiff will not be denied 

recovery simply because it is difficult to ascertain the 

amount of his damages, as long as the amount can be proven 

with a reasonable degree of certainty. Smith v. Zepp 

(1977), 173 Mont. 358, 567 P.2d 923. As noted in Smith, the 

plaintiff must provide the trial judge with, "A reasonable 

basis for computation and the best evidence obtainable under 

the circumstances . . . which will enable the judge to 

arrive at a reasonably close estimate of the loss. . . " 173 

Pl0nt. at 370, 567 P.2d at 930, citing Brown v. Homestake 

Exploration Co. (1934), 98 Mont. 305 at 337, 39 P.2d 168 at 

179. 

Here, Sack presented the court with utility bills 

covering the period for which he was claiming damages, and 

bills covering the same months for the following year when 

the system was properly working. This clearly provided the 

judge with a reasonable basis for computation of his 
damages. Appellant simply claims the award is speculative, 

and offers no alternative method for computing damages. Any 

award of damages is grounded to a certain degree upon 

speculation. Sikorski v. 01in (1977), 174 Mont. 107, 568 

P.2d 571. However, the award of damages to Sack for excess 

natural gas usage is grounded upon the best available 

evidence and is a reasonably close estimate of the loss 

suffered. The award was not in error. 

Finally, appellant contends that the District Court 

erred by awarding Sack damages for the travel expenses 

incurred when he traveled from his home in Denver to 

Billings to oversee the repairs. Upon review of the record 

it is impossible to determine how this damage figure was 

arrived at by the District Court. The figures submitted by 

Sack to support these damages do not total the amount 

granted by the court, and also it appears most of the 

expenses claimed were included in a settlement paid by 

appellant's insurance company. The cause must be remanded 

for redetermination of the findings of fact and conclusions 

of law, as they relate to the award of travel expenses. 

Affirmed in part, remanded in part for redetermination 

of the findings of fact and conclusions of law as they 

relate to the award of travel expenses. 

We concur: 

%A.~*Q{~ Chief Justice 44