No. 14757 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

MORRISON-MAIERLE, INC., a corporation, Plaintiff and Respondent,

SELSCO, a Utah Corporation, qualified to do business in Montana, Defendantand Appellant.

Appeal from: DistrictCourt of the Eighteenth Judicial District, Honorable FrarkE. Blair, Judgepresiding. Counsel of Record: For Appellant: G. PageWellcome argued, Bozeman,Montana For Respondent: Berg, Angel, Morgan & Coil, Bozeman,Montana Gregory 0. Morgan argued, Bozeman,Montana

Submitted: November 1, 1979Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendant, Selsco Corporation, appeals from a judgment of the Gallatin County DistrictCourt foreclosing amechanic's lien filed by the plaintiff, Morrison-Maierle, Inc., and denying defendant's counterclaim against the plaintiff for alleged negligence in relation to the planning and supervising of construction of defendant's campground. The defendant raises twomajor issues in this appeal. Selsco first contends that themechanic's lien does not accurately describe the attachedproperty and thus cannotbe enforced to satisfy its judgment. In relation to its counterclaim, Selsco asserts that the evidence presented at trial established as a matter of law that itwas entitled to damages as a result of the plaintiff's failure to exercise care inplanning and inspecting theproject. The defendant, Selsco, a Utah corporation, (referredto herein as the owner), contracted with Morrison-Maierle, Inc.

a Helena engineering firm, (referredto as engineers), for the developmentof a project calledWest Yellowstone United Campgrounds. Pursuant to their agreement with the owner, the engineers developed a plan for facilities to accommodate 500 campers, and provided regular inspection of construction to assure that the construction was properly performed. All phases of the project

were completed in July 1972. Soon after the campground opened the owner experienced difficulties with the newly constructed facilities,and refused to completepayments to the engineer. The engineers filed suit onAugust 12, 1974, seeking payment of the amount still owed under the contract. The complaint sought collection of this debt by enforcement of a mechanic's lien on the campground improvements. The owner moved to dismiss the complaint alleging -2-that themechanic's lien did not properly describe the property involved. Later, the owner filed a counterclaim against the engineers. This counterclaim was amended to allege additional defects in construction of the campground facilities allegedly caused by the engineer's negligence. After a nonjury trial, the court granted judgment of $22,945 for the contractual debt, and $7,662.55 for costs and attorney fees. The courtdenied the owner's counterclaim and ordered the judgment to be satisfiedby foreclosure and sale of campground property. The owner appeals this judgment. The owner contends that the mechanic's lien should not be enforced because it is not in strict compliancewith the code's requirement that the lien contain a correct description of the charged property. See section 71-3-511(1), MCA. The lien states that Selsco owns or holds the charged landwhen in fact, Selsco occupies the land under a special use permit issued by the United States government. We do not consider this to be fatal to the lien. Nor does the lien description fail to adequately describe the property to which it attaches. Any error or mistake in the account or description does not affect the validity of the lien if the property can be identifiedby the description. Section 71-3-511(1), MCA. Here, the lien gave the correct legal description of the land onwhich the structureswere located and identified the attached property together with "all improvements, structures and fixtures thereunto appertaining or affixed." The purpose of the statutory requirements for filing a description of the attached property is simply to give notice of the existence of the lien to interested third parties. Cole



### v. Hunt (1949),123 Mont. 256, 211 P.2d 417. This purpose is not frustratedhere where it is not argued that the attachedimprovements can be confused with any other structures in the

area. Furthermore, the lien description is made even more specific by the accounts filedwith the lien which state that the engineers' bill is for "engineeringservices on United Campground,West Yellowstone,Montana." A person reading the lien should readily conclude that the lien attaches to the campground facilities. SeeVarco-Pruden v. Nelson (1979),



## -Mont. 

### , 593 P.2d 48, 36 St.Rep. 704. We conclude therefore that the lien documents taken as a whole adequately describe the property to which the lien attaches. In its appeal from the trial court's denial of its counterclaim, the essence of the owner's contentions is that the trial courthad a duty, as a matter of law, to find that the engineers breached their contractualduties and that the ownerswere injured by this negligence in design and inspection. We determine however, that therewas substantial credible evidence uponwhich the trial court could deny the counterclaim. The thrust of the argumentby the owner is that the trial court should have believed its own expert testimony rather than the expert testimony from the engineers. The counterclaim alleged that the engineers failed to design and inspect theproject in a workmanlike manner, and that the breach of this duty caused defects in four items for which it seeksdamages: the sewage lagoon (estimateddamage (643,240);valve boxes (estimateddamages $4,729);water lines

(estimateddamages $2,943); and loop roads (estimateddamage $2,000). At trial, the owners attempted to prove by expert testimony that the engkmeers had a duty of care to test the permeability of the lagoon's clay surfacebefore its certification. The engineers countered this evidencewith the testimony of their chief engineerwho stated that cracking in the lagoon's surface

was causedby insufficient flow from campground units during the period of 1973 to 1977 when the occupancy rate of the -4-campground was roughly 13percent of its designed capacity. We note in this regard, that it was in 1977when the campground owners first attempted to fill the lagoonwith water and then discovered that the cracks in the clay linerprevented the lagoon from filling. The trial courtwas not bound by testimony of either expert, and ithad the right to give greater weight to the engineer's testimony. See Ericksonv. Perrett (1977), Mont

# . , 572 P.2d 518; Robertson

### v. Valhi, Inc. (La.App. 1977), 345 So.2d 149; 32 C.J.S. Evidence 5572(1), at 669. Two of the remaining defects alleged in the owner's counterclaim,occurred as a result of time constraintsplaced on the engineers. Water valves installed in the campground began to leak and did notmeet the specificationsof the engineers' plans. However, it is not disputed that the specified water valves were unavailable at the time the project neared completion, and the engineer to complete the project on schedule,purchased the best available substitute. The owner claims that cracking in the campground's loop roadswas caused by the engineers' negligence,but uncontradicted testimony established that placing a permanent surface on the roadwould have delayed the scheduled opening of the campground. The parties did not decide upon a temporary surfaceuntil the ownershad been fully informed that settlingwould likely

occur in a temporary surface. The last contention concerning the counterclaim is that the engineers failed to lay thewater lines according to design specificationsand therefore that the water lines did not drain properly. The owners argue that a reasonable inspection of the bedding of thewater lineswould have prevented the defect from occurring. The record indicates, however, that during the major portion of construction the engineersmade almost continuous inspections -5-and they forwardeddaily progress reports to the owner. West Yellowstone United Campgrounds was a very large project and it ispredictable that some faultyworkmanshipwould go undetected by even careful inspection. An engineer is not

an insurer of a project against defects nor does he guarantee that he will complete it to perfection. He is required to exercise the care and competence expected of a member of his profession. Bloomsburg Mills, Inc. v. Sordoni Construction Company (1960),164A.2d 201, 401 Pa. 358; Gagne 

### v. Bertran

(1954),43Ql.2d 481, 275 P.2d 15, 21; 6 C.J.S. Architects 827,at 491-92. The trial court heard the evidence and determined that the engineers exercised reasonable care. Therewas sufficientevidence to conclude that the engineers had not breached their duty of care. The remaining issue concerns the cost bill. The owner contends that certaindeposition expenses and a partial transcript of trial are not properly chargeable as costs or expenses of litigation. The engineers included two depositions as part of their costs. Both witnesses later appeared and testified at trial. The engineers admit,however, that one of the depositions should not have been charged as costs, but contend that the costs of takingwitness Wetstein's deposition should be awarded to them,because they furnished a copy of the deposition to the owner who used it as evidence at trial. Since itwas so used,we conclude that itwas properly part of the costs of the action. The distinction is that if a deposition is taken solely for a party's own convenience,he cannot properly charge it to the other party as part of the costs. Lovely v. Burroughs Corp. (1974),165Mont. 209, 527 P.2d 557, appeal after remand 169 Mont. 454, 548 P.2d 610;Johnsonv. Furgeson, Et Al. (1971),158Mont. 170,489 P.2d 1032. Here the copy -6-was furnished to the owner at the engineers' expenses, and used by the owner at trial. It has no ground to complain. We hold, however, that the engineers could not properly order a partial transcript of the trial for use at the trial and charge it to the owner as part of the costs. Itwas not, under section 25-10-201,MCA, a reasonable and necessary expense. With the exception of the Wetstein depositionwhich should be excluded as an item of costs, the judgment of the District Court is affirmed.

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JUS i

We Concur:

Chief Justice

Justices