No. 86-212 

IN THE SIJPREME COURT OF THE STATE OF MONTANA 

1986 

A. A. QUALITY CONSTRUCTION, 

a Montana Corporation, 

Plaintiff and Appellant, 

-vsTOMMATHEW T. THOMAS, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable H. R. Obert, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nye & Meyer; Jerrold L. Nye, Billings, Montana 

For Respondent: 

R. W. Heineman, Wibaux, Montana 

Filed : 

Submitted on Briefs: Sept. 11, 1986 

Decid-ed : November 18, 198 6 

sl! 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

A.A. Quality Construction (A.A. ) brought this action to 

foreclose a mechanics' lien. A.A. appeals the decision of 

the District Court for Dawson County, which instead awarded 

damages on a theory of contract and debt. Dr. Thomas 

cross-appeals. We affirm. 

The issues are: 

1. Was partial summary judgment granted without a 

hearing? 

2. Is A.A.'s mechanics' lien invalid? 

3. Should the trial court have awarded Dr. Thomas 

additional offsets for work not completed or improperly done? 

A.A. contracted to do plumbing work on Dr. Thomas' 

rental property on a time and material basis. Dr. Thomas 

paid A.A.'s first bill for some $2,700, but was dissatisfied 

with A.A.'s work and refused to pay a second bill of 

$3,745.55. A.A. filed a mechanics' lien with the Dawson 

County Clerk and Recorder, then filed this action to foreclose the lien. Dr. Thomas moved for partial summary judgment that the mechanics' lien was invalid because it was not 

verified by affidavit. Through a series of delays and a 

transfer of the case to a new judge, no hearing was ever held 

on the motion. After the pretrial conference, at which the 

motion for partial summary judgment was not discussed, the 

District Court issued an order granting the motion. 

At the beginning of trial, A.A. moved to set aside the 

partial summary judgment order, contending that no proper 

motion remained before the court and that a hearing on the 

motion was necessary. The court heard the parties' arguments 

for and against the summary judgment and took the issue under 
advisement. Trial went ahead on a breach of contract theory. 

During the trial, Dr. Thomas testified about his expenses in 

bringing A.A.'s work up to par. 

In its findings and conclusions, the court reaffirmed 

the partial summary judgment. It awarded A.A. damages on a 

theory of contract and debt, reducing the damages by $1,000 

for Dr. Thomas' costs to repair defective work and by $595.75 

for A.A.'s overcharges. The money judgment awarded to A.A. 

was then $2,149.80. The court also gave Dr. Thomas an offset 

of $930 for attorney fees in successful defense on foreclosure of the mechanics' lien. 

I 

Was partial summary judgment granted without a hearing? 

A.A. argues that Rule 56 (c) , M.R.Civ.P., requires a 

hearing on every motion for summary judgment: 

Motion and proceedings thereon. The motion shallbe served at least 10 days before the time fixed 

for the hearing. The adverse party prior to the 

day of hearing may serve opposing affidavits. . . 

On this record we need not decide whether partial summary 

judgment may be granted without a hearing, because the trial 

court heard the parties' arguments and reconsidered the 

partial summary judgment prior to the trial on the merits. 

After reconsidering the matter, it reaffirmed its judgment. 

We conclude that since the court allowed a hearing on the 

summary judgment motion, there is no reversible error. 

I1 

Is A.A.'s mechanicsv lien invalid? 

The trial court ruled that A.A.'s mechanics' lien did 

not meet the requirement of verification by affidavit in 

S 71-3-511, MCA. The lien was signed by the President of 

A.A. and was notarized as follows: 
STATE OF MONTANA 1 

COUNTY OF DAWSON 1 

On this day of September, 1981, before me, 

a Notary Public for the State of Montana, personally appeared ALBERT ALDINGER, known to me to be the 

person whose name is subscribed to the foregoing 

instrument and acknowledged to me that he executed 

the same. 

IN WITNESS WHEREOF, I have hereunto set my 

hand and affixed my official seal the day and year 

first above written. 

s/Jerrold L. Nye 

Notary Public for the State of 

Montana. Residing at Billings. 

My commission expires 5/18/82 

This is an acknowledgement, - see § 1-5-203, MCA, not an affidavit. The body of the lien is well-drafted and clearly 

sta-tes that A.A. provided labor and materials, and the amount 

due and owing. However, even when considered together, the 

body of the lien and the acknowledgement do not constitute a 

binding oath of the truth of the statements, which is the 

role of the affidavit. Saunders Cash-Way, Etc. v. Herrick 

(1978), 179 Mont. 233, 236, 587 P.2d 947, 949. Because of 

the extraordinary nature of the claim placed on property by a 

mechanics' lien, the affidavit is an essential part of the 

lien, and without it, no lien exists. Saunders, 587 P.2d at 

We affirm the District Court's ruling that A.A.'s mechanics' lien was invalid because it was not verified by 

affidavit. 

Should the trial court have awarded Dr. Thomas additional offsets for work not completed or improperly done? 

The District Court found that Dr. Thomas incurred $500 

in costs for repairing a basement leak caused by A.A. The 
court made findings that it would not award damages for 

certain other work, including installation of a second water 

line, because "the defendant failed to prove the majority of 

these damages" and "the Court cannot speculate at this time 

the cost of the work and materials. . . ." It concluded that 

Dr. Thomas was entitled to a $1,000 offset for costs necessary to correct A.A.'s work. It also granted Dr. Thomas an 

offset of $595.75 for overcharges by A.A. 

Dr. Thomas argues that he is entitled to additional 

offsets for the second water line and for repairs of defective work. He gave estimates of the amounts of costs and 

damages he incurred, totalling over $2,600. He argues that 

his estimates were sufficient proof of damages. A.A., on the 

other hand, presented testimony that its work was done in a 

satisfactory manner. 

The amounts listed in the trial court's findings of fact 

total less than the $1,000 offset it allowed to Dr. Thomas. 

Clearly, the trial court has granted some offset for Dr. 

Thomasf work, properly considering the contradictory evidence 

submitted by A.A. The offset awarded is within the range of 

evidence presented to the court. We conclude that the offset 

granted is supported by substantial evidence. 

Affirmed. 

We Concur: 

Chief ,Justice 

~YA 
QL ? -6 ,,UV 

I I / Justices 
IN THE SUPREME COURT OF TFE STATE OF MONTANA 

A. A. QUALITY CONSTRUCTION, 

a Montana Corporation, 

Plaintiff and Appellant, 

TOMMATHEW T. THOMAS, 

Defendant and Respondent. 

- -- 

ORDER 

The respondent and cross-appellant, Dr. Thomas, has 

petitioned for rehearing in this matter. He argues that 

under 71-3-124, MCA, he is entitled to his reasonable 

attorney fees on appeal for successful defense against the 

mechanic's lien of appellant A. A. ~uality construction. is 

attorney also submitted an affidavit of fees incurred in the 

appeal. The appellant has not filed any objections. Upon 

consideration of this matter, we ' conclude that Dr. Thomas' 

point is well-taken. We therefore amend our opinion dated 

November 18, 1986, by adding the following paragraph to the 

opinion, at page 5: 

Dr. Thomas points out that he is entitled to 

his attorney fees on appeal for his successful 

defense against A. A.'s mechanic's lien, under S 

71-3-124, MCA. Dr. Thomas is not entitled to 

attorney fees on his cross-appeal. Because a 

hearing before the District Court would involve 

considerable additional travel and legal expenses 

for both parties, and because Dr. Thomas' counsel 

has submitted an affidavit of fees with no objection by A.A., we will set the amount of reasonable 

fees on this appeal. We have considered the fee 

affidavit and conclude that a reasonable fee for 

this appeal is $500. 
In all other , the petition for rehearing is denied. 

of December, 1986 

i. --)PtWL -.- &, ,kLL-h17 

t J 

Justices 

Mr. Justice L. C. Gulbrandson did not participate in the 

foregoing decision.