No. 52-434 

IN TEE SUPREME COURT OF THE STATE OF MONTANA 

1983 

ACE PLCJ;I.IBING & HEATING, INC. , 

Plaintiff,and Respondent, 

HELENA FLATS SCHOOL DISTRICT 15, 

a political subdivision of Flathead 

County, and STEWART & JANES, general 

contractors, 

Defendants and Respondent,:, 

W. C. SIMONS & ASSOCIATES, 

Third-Party Defendant 

and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Robert C. Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Warden, Christiansen, Johnson & Berg; Steve Berg, 

Kalispell, Montana 

For Respondent: 

T,ed 0, Lympus, Couhby Atkorn&y, Rali$pell, Montqna 

Montana (Lane Bennett, Deputy) 

Thomas Q. Johnson, Helena, Montana 

William Evan Jones, Missoula, Montana 

Richard DeJana, Kalispell, Montana 

Submitted on Briefs: March 3, 1933 

Decided: Way 12, 1983 

Filed: ;. .:, 1 ? 1983 

d 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an appeal from a judgment issued by the District 

Court of the Eleventh Judicial. District, Flathead County, 

ordering in part that the third-party defendant, Simons and 

Associates (Simons) to pay the defendant, Helena Flats School 

District 15 (Helena Flats) $1,806.49 for a debt incurred in 

the construction of a school building. We affirm the 

judgment of the District Court in all respects. 

Helena Flats received a federal grant for expansion and 

remodeling of the Helena Flats elementary school. The school 

district contracted with Simons for architectural, planning 

and supervisory services. Simons provided all the contract 

documents and design specifications. Included within the 

plans and specifications and contracts for the project were 

requirements for a well and water system. 

Defendant Stewart and Janes, was selected as the general 

contractor. Plaintiff Ace Plumbing & Heating, Inc. (Ace) was 

selected by Stewart & Janes as mechanical subcontractor. Ace 

subcontracted the drilling of a water well to OIKeefe 

drilling. 

On August 25, 1978, Helena Flats and Simons entered into 

a supplemental agreement. This agreement provided that 

Simons was responsible for "insuring" completion of the 

project. This obligation included "insuring" that the 

contractors performed in accordance with the contract 

documents. This agreement also increased Simons' fee. 

In the summer of 1978 problems developed in the water 

system. Sand was being pumped into the tanks and lines 

rendering the water unusable for drinking purposes and 
damaging and clogging the fixtures. The cause of the problem 

was disputed by the parties. 

Simons claims the well was improperly drilled. He sent 

repeated requests to the general contractor suggesting the 

general contractor require the subcontractors to comply with 

the specifications, and provide an additional screen for the 

sand. 

The school district claimed the problem was Simons' 

faulty design. On February 13, 1979, the school district 

decided to ask Ace to correct the plumbing. Thereafter, Ace 

installed five extra tanks and a cut-off valve at a cost of 

$1,806.49. The problem was corrected. Ace sent a bill to 

the school district, the school district refused to pay. 

Ace filed this action against the school district and 

Stewart and Janes seeking payment. The school district filed 

a third-party complaint against Simons for the amount claimed 

by Ace. A non-jury trial was had on the third-party 

complaint. The District Court held against Simons and for 

the school district. The District Court found that the 

storage system, as designed, was inadequate to assure proper 

recycling and by reason of the recycling system, continued 

turbidity in the well itself caused excessive sand to 

permeate the entire system. The District Court further found 

that the school board discussed the problem with the 

architect and general contractor many times. 

The District Court concluded that by reason of the 

contract, Simons failed to take action that would resolve the 

problem and that any inadequacy in the specifications was the 

responsibility of the architect to the school board. The 

District Court ordered Simons to pay the school board the 
amount paid to Ace for installation of the tanks and other 

parts. Simons appeals. 

The issues presented for review are: 

1. Whether it is mandatory to invoke a sta.ndardized 

arbitration clause in an architect's service contract. 

2. Who is responsible for payment to Ace for the 

subsequent modification of the water system. 

3. Whether the ten percent contingency fund provided in 

the contract should be used to pay the debt. 

The first question is whether Simons can now claim that 

since the school district did not arbitrate they cannot now 

seek reimbursement for the payment to Ace. It is well 

settled in Montana that when there are issues of law or mixed 

issues of law and fact, arbitration is not mandatory without 

the consent of the parties involved. In this case, the 

underlying questions to be resolved by the District Court 

were: Was the architect negligent in his workmanship and 

inspection of the building? Does liability attach if the 

plans and specifications of the architect were properly 

followed? Who is responsible for payment to Simons? These 

are questions of law and mixed questions of law an.d fact. 

Section 28-2-708, MCA, provides: 

"Restraints upon legal proceedings void. Every 

stipulation or condition in a contract by which any 

party thereto is restricted from enforcing his 

rights under the contract by the usual proceedings 

in the ordinary tribunals or which limits the time 

within which he may thus enforce his rights is 

void. " 

This Court has held that contract provisions which 

require parties to submit future d.isputes as to questions of 

law or mixed questions of law and fact are void under this 

section. Palmer Steel Structures v. Westech, Inc. (1978), 

178 Mont. 347, 350, 584 P.2d 152, 154. In this case, neither 
party consented to arbitrate the dispute. Without the 

consent of the parties the clause was unenforceable. 

Furthermore, the defense of the arbitration provision of 

the contract was not raised by Simons in his answer and 

third-party complaint. The right to raise enforcement of the 

arbitration clause may be waived by failure to assert it in a 

timely manner. If a party fails to raise the right to 

arbitrate in his pleadings, he waives his right. 5 Am.Jur. 

Arbitration and Award S 51, at 556, 557. In this case, 

Simons did not raise the issue of arbitration until much 

later in the proceedings. 

For these reasons Simons is precluded from claiming that 

the dispute should have been submitted to arbitration. 

The second issue is who is responsible for payment for 

the construction. and modification of the water system. 

The District Court found that: "The specifications 

submitted pertaining to the drilling of the well, the 

development of the water supply, storage and water system, 

were inadequate; and were not in sufficient detail compared 

to specifications on other matters relating to said project." 

There was testimony presented at trial to show that the 

plans and specifications were insufficient, thereby rendering 

the system inoperative. Tom Smith, an expert in the field of 

well drilling, testified that the system was installed as 

provided in the plans and specifications and that this system 

was inadequate. He further testified that he felt the 

problem was apparent from the outset of the project. Simons 

testified that the tanks and pump were installed according to 

the architect's design. 

On review, this Court must determine whether there is 

sufficient evidence in the record to sustain the findings of 
the District Court. Only when the findings of the District 

Court are clearly erroneous will they be set aside. Rule 

52 (a) , M.R.Civ.P. ; McConnell v. Dempster (1982) , Mont . 

In the present case there was sufficient evidence to 

support the findings of the District Court that the 

specifications of the architect with regard to the water 

supply, storage and water system were inadequate. 

The contra.ctor is not responsible for errors or defects 

in the plans and is not liable, absent negligence on his 

part, where the owner's plans and specifications prove 

defective. Sandkay Construction Co. v. State Highway C~mm'n. 

(1965), 145 Mont. 180, 188-189, 399 P.2d 1002, 1007. In that 

case the State was found responsible for the defects in the 

plans and specifications as the owner/architect. In the 

present case the District Court found that: 

"Ordinarily the drilling of a well, development of 

same and establishment of water supply is not 

considered by contractors and the construction 

industry as part of any expansion, remodeling and 

addition project. However, it was required as such 

by reason of the EDA monies which included same. 

"By reason of said requirement, the Third-Party 

Defendant, W. C. Simons & Associates assumed the 

same responsibilities and duties as the architect 

for the project as it related to all other 

specifications, performances, etc. for 

construction, addition and remodeling." 

Simons testified that well systems are not normally 

included in the architect's contract but that this was one of 

the requirements necessary to obtain an EDA grant. William 

Janes, of Stewart and Janes also testified that the water 

well and water system not usually included in the architect's 

plans and specifications was included in this contract. 

Given the terms of the original contract, the 

supplemental agreement and the testimony presented there was 
sufficient evidence presented to uphold. the findings of the 

District Court that Simons was responsible for the 

performance of the architectural duties which were found to 

be deficient. 

When Simons directed the general contractor to remedy 

the problem, the plans were not sufficiently detailed to 

inform the general contractor of what changes were necessary. 

As a result, the school district was forced to hire Ace to 

remedy the problem in accordance with the advice of Tom 

Smith. Simons argues that he informed Stewart and Janes that 

they had to comply with state, federal and local laws 

requiring potable water. He argues that these laws were 

incorporated into the contract and were therefore binding on 

Stewart and Janes without further direction from him. 

In Sandkay, the State argued that the provisions of the 

"Standard Specifications" were incorporated by reference into 

the construction contra-ct. The "Sta-ndard Specifications" 

consisted of a printed book containing 502 pages. This Court 

agreed with the District Court: 

"That the provisions of the Standard 

Specifications . . . as part of said contract were 

intended by both parties and can only be construed 

to allow the Project Engineer to make those normal 

and anticipated changes in the plans and drawings 

required by the exigencies of ordinary and 

anticipated highway construction and were not 

intended by the parties and cannot be construed to 

apply to conditions which are abnormal, 

unanticipated and substantially different from 

those shown in the contract plans and drawaings, or 

to authorize or allow defendant to require 

different and more difficult excavation without 

additional compensation." 145 Mont. at 187. 

Simons argues that Sandkay does not apply in this case 

because the condition was not abnormal, unanticipated or 

substantially different from those in the contract plans and 

drawings. The remedy in this case was the installation of 
several new tanks and other parts at a cost of $1,806.49. 

Sand in the water system does not appear to be a normal or an 

anticipated condition. Installation of additional tanks and 

other parts does not appear to be normal or anticipated. 

Therefore the assertion that the rule in Sandkay does not 

apply is without merit. 

The third issue concerns the application of the EDA 

contingency fund. Simons argues that the 10 percent 

contingency fund, required as a condition to federal funding, 

should be used to pay for the subsequent installment of the 

new tanks and other parts. The owner/architect contract 

provides : 

"When a fixed limit of Construction Cost is 

established as a condition of this Agreement, it 

shall be in writing signed by the parties and shall 

include a bidding contingency of ten percent unless 

another amount is agreed upon in writing. When 

such a fixed limit is established, the Architect 

shall be permitted to determine what materials, 

equipment, component systems and types of 

construction are to be included in the Contract 

Documents, and to make reasonable adjustments in 

the scope of the Project to bring it within the 

fixed limit. The architect may also include in the 

Contract Documents alternate bids to adjust the 

Construction Cost to the fixed limit." 

Since Simon did not make the specific order to install 

the additional tanks and other parts and was uncooperative in 

his attempt to remedy the situation he cannot avail himself 

of the benefits of the contingency fund. The contract 

specifically provides that the architect may require the 

money in the fund be used to include contingencies. However, 

it was the school district that hired Ace to remedy the 

problem. It did so in accordance with the recommendation of 

Tom Smith to insure normal operation the facility. 

The judgment of the District Court is affirmed in all 

respects. 
' 

Justice d o 

We Concur: