No. 89-606 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

CLAYTON E. DEVOE, Plaintiff and Appellant,

GUST. LAGERQUIST & SONS, INC., and JERRY BROWN, itsWestern Regional Manager, Defendants and Respondents.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Ed McLean, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: David Rodli,Missoula,Montana George Curtis DeVoe,Missoula, Montana For Respondent: Kim L. Ritter,Missoula, Montana

Filed: Submitted on Briefs: June 28, 1990

+ ClerkChief Justice J. A. Turnage delivered the Opinion of the Court. This suit arose out of a contract for the sale and installation of an elevator. A jury in the District Court for the Fourth Judicial District,Missoula County, found for defendants. Plaintiff Clayton E. DeVoe appeals. We affirm. The issues are: 1. Did the DistrictCourt err in refusing to dismiss the lien foreclosureaction? 2. Did the court err by denying themotion to alter or amend the verdict? 3. Did the court err in awarding prejudgment interest? 4. Did the court err by granting defendants attorney fees? In February 1987, Clayton E. DeVoe (DeVoe)contracted to buy

an elevator from Gust. Lagerquist & Sons, Inc. (Lagerquist)

### , through its representative, Jerry Brown. The elevator was installed in a building DeVoe owned in Missoula, Montana. DeVoe

was dissatisfied with both the installationand theperformanceof the elevator, which, according to him, remained unusable at the time of trial. InAugust 1987,having received no payment for the elevator, Lagerquist filed 

### a lien against DeVoelsbuilding. At the same time, DeVoe filed a complaint against Lagerquist and Brown, alleging breaches of contractandwarranty,negligent or fraudulent misrepresentation, and breach of the covenant of good faith andfair dealing. The following month, Lagerquist filed a complaint against DeVoe to foreclose its lien. The twoactionswere consolidated for jury trial,atwhich the evidence conflicted on several points. The original of the contract, which had been typed by DeVoetsson, was placed into evidence by DeVoe. It required n[c]ompletion to be on or before 11 weeks from this date or date of confirmation of shipping by factory whichever is later, or Seller will reduce cost by $50.00 per day, until c~mpleted.~~ It appeared that the It1lt1 had been typed over a It13." DeVoe testified that 11 weeks had been agreed upon. Brown testified that, following negotiations, they had agreed that Lagerquistwould have 13weeks tobuild and installthe elevator. DeVoe testified that the 11weeks began to runon February 12, by agreement. Brown testified that the 13 weeks began to run on February 26,the day he received confirmation of shipping from the factory. DeVoe testified that installation of the elevator was
never really completed,and that Lagerquisttsworkers leftthe job

a fewdaysbefore May 20 and only cameback to answer repair calls after thatdate. Brown testified that the elevatorwas completely installed on May 13 and that on May 22 it was retrofitted with a new computer control panel and finally adjusted. The testimony further conflicted on the extent and causes of problems with the elevator.The jury was given a special verdict form. It found that Lagerquist did not breach the contract, its warranties, or its implied duty of good faith and fair dealing; that Lagerquist did not fraudulently misrepresentmaterial facts;andthatLagerquist's actionsdid not damage DeVoe's business reputation. Italso found that Lagerquist was entitled to enforcement of its construction lien, setting the amount of damages at $21,500. The court ordered that DeVoe pay prejudgment interest of $3,762.50 and costs and attorney fees of $30,113.89. I Did the District Court err in refusing to dismiss the lien foreclosure action? After the two separate actions had been filed, DeVoe moved that the lien foreclosure be dismissed, or, in the alternative, that thetwo actionsbe consolidated. Thecourtgranted themotion to consolidate. DeVoe maintains that the lien foreclosure should have been dismissed under the doctrine of election of remedies. He argues that Lagerquist is precluded from claiming both that it installed the elevator within the time allowed and that it filed its lien in a timelymanner. He points out that, in their answer to his complaint, the defendants stated that the elevator was completely installed by May 14. A lien must be filed within ninety days after the final servicesor materialswere furnished. Section 71-3-535,MCA. The date triggering the ninety-day period is not the date thatinstallation was completed,but the date thatwork was last done. In addition to stating that the elevator was completely installed by May 14, the answer to DeVoelscomplaint stated that a computer card in the elevator malfunctioned and was repaired subsequent to May 14. The answer to DeVoetscomplaint in tort did not dispose of the issue in the lien foreclosure action of when work was last done on the elevator. We conclude that the court did not err in granting DeVoels motion to consolidate the two actions instead of his motion to dismiss the lien foreclosure action. I1 Did the court err by denying themotion to alter or amend the verdict? DeVoe contends that the special verdict misled the jury into making inconsistent findingsthattheelevator was installed within the time allowed and that the lien was timely filed. The jury's findings are not inconsistent. If the jury believed Brown's testimony that the shipping datewas confirmedonFebruary 26,that 13 weeks were allowed for installation,and that final adjustment work was done on May 22, then the jury properly found that the installation was completed within the time allowed and that the lien filed on August 18 was filed within ninety days of the last servicesprovided. DeVoe also states that the testimony of one of Lagerquist's workers conflicted with Brown's testimony. Brown testified thatinstallationof the elevator was essentially completed on May 13, but that workers returned onMay 22 todo the final adjustmentand to retrofit the control panel. The worker testified that he did repairwork on the elevator onMay 22. Resolution of any conflicts in the evidence is in the province of the trier of fact. Gee v. Egbert (1984), 209 Mont. 1, 18, 679 P.2d 1194, 1203. Finally, DeVoe asserts that the jury should have been asked to make a finding as to the date on which installation of the elevator was completed. The issue of whether the lien was timely filed was argued at trial. Instruction No. 55 stated that to sustainthe counterclaim on the construction lien, Lagerquistmust prove (among other elements) that the lienwas filedwithin ninety days after thematerials and laborwere provided. Question 10 on the special verdict form asked, "1s Lagerquist entitled to enforcementof its construction lien?" We hold that the issue was adequately presented to the jury and that the courtdid not err in denying themotion to alter or amend theverdict.

Did the court err in awarding prejudgment interest? This claim is based upon DeVoelsposition that the lien was not timely filed. Prejudgment interest is allowed under 27-1- 211,MCA, when the amount of damages is certain and the right to damages isvested as of a particular day. In this case, interest

was awarded on thecontractprice of theelevator fromthedatethe construction lienwas filed. Becausewe have concluded that itwasnot error to enforce the construction lien,wehold that therewas no error in the award of prejudgment interest.

Did the court err by granting defendants attorney fees? Like Issue 111, this issue is partially decided by our conclusion that itwas not error to enforce the construction lien. Under S 71-3-124,MCA, attorney fees are recoverable in an action to foreclose a construction lien. DeVoe argues thatdefendants shouldhavebeen awarded attorney fees only for work relating to enforcement of their lien and that $31,000 in attorney fees is unreasonable in relation to the size of the lien. The District Court determined that [tlhis action involved interlocking issues, resulting in litigation far more complicated than a simple foreclosure lien action. It is the Court's opinion that the inextricability of the issuesprecludes [separating out expenses relating to proof of the construction lien]. DeVoe cites precedent which would support the lower court had it separated attorney feesrelating to the lien from fees relating to the defense of DeVoelsclaims. Carkeek

### v. Ayer (1980), 188 Mont. 345, 613 P.2d 1013. However, the same precedent states that this Court will not disturb the amount of attorney fees fixed by a district court unless it represents an abuse of discretion. Carkeek, 613 P.2d at 1015. "An attorney fee that exceeds the amount in controversy is not per se excessive 

# . . . Each case depends on its own unique set of facts." Glaspey 

### v. Workman(1988), 234 Mont. 374, 378, 763 P.2d 666, 668. We have reviewed the record and conclude that the lower court did not abuse its discretion in awarding attorney fees. Affirmed.

We concur: Chief justice 

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