No. 86-212 INTHE SIJPREME COURT OF THE STATE OF MONTANA 1986

A. A. QUALITY CONSTRUCTION, a Montana Corporation, Plaintiffand Appellant,-vsTOMMATHEW T. THOMAS, Defendant and Respondent.

APPEAL FROM: DistrictCourtof the SeventhJudicial District, Inand forthe Countyof Dawson, TheHonorableH. R. Obert, Judge presiding.
COUNSEL OF RECORD:
For Appellant: Nye & Meyer; Jerrold L. Nye, Billings, Montana
For Respondent: R. W. Heineman, Wibaux, Montana

Filed: Submittedon Briefs: Sept. 11, 1986 Decid-ed: November 18, 198 6



# sl! ClerkMr. 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. IsA.A.'s mechanics' lien invalid? 3. Should the trial court have awarded Dr. Thomas additional offsets for work not completedor 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. Thomasmoved for partial summary judgment that the mechanics' lienwas invalid because it was not verified by affidavit. Through a series of delays and a transfer of the case to a new judge,nohearingwas 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 themotion. 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 motionwas necessary. The court heard the parties' arguments for and against the summary judgment and took the issue underadvisement. Trialwent ahead on abreach of contract theory. During the trial,Dr. Thomas testified about his expenses in bringingA.A.'s work up topar. 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 forDr. Thomas' costs to repair defectivework 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 themechanics' 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 everymotion 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. 

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# . On this record we need not decide whether partial summary judgmentmay 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 judgmentmotion, there is no reversibleerror. I1 IsA.A.'s mechanicsvlien 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. andwas notarized as follows:STATEOF MONTANA 1 COUNTY OF DAWSON 

### 1 On this day of September, 1981,beforeme, aNotary Public for the State ofMontana, personally appeared ALBERT ALDINGER, known tome 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 firstabove 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-testhatA.A. provided labor andmaterials, and the amount due and owing. However, even when considered together, the body of the lien and the acknowledgementdo 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 onproperty 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 courthave awarded Dr. Thomas additional offsets forwork not completed or improperlydone? The District Court found that Dr. Thomas incurred $500 in costs for repairing a basement leak caused by A.A. Thecourt made findings that it would not award damages for certain otherwork, including installationof a secondwater line,because "thedefendant failed toprove the majority of these damages" and "the Court cannot speculate at this time the cost of the work andmaterials. 

# . .." Itconcluded 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 overchargesby 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 estimateswere sufficient proof ofdamages. A.A., on the other hand, presented testimony that its work was done in a satisfactorymanner. 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. Thomasfwork,properly considering the contradictory evidence submittedby A.A. The offset awarded iswithin the range of evidencepresented to the court. We conclude that the offset granted is supportedby substantialevidence. Affirmed.

We Concur: 

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I
I / JusticesIN THE SUPREME COURT OF TFE STATE OF MONTANA

A. A. QUALITY CONSTRUCTION, aMontana Corporation, Plaintiff andAppellant,

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 lienof appellantA. 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. ofDecember, 1986



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Justices

Mr. Justice

### L. C. Gulbrandsondid notparticipate in the foregoing decision.