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, its Western 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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David Rodli, Missoula, Montana 

George Curtis DeVoe, Missoula, Montana 

For Respondent: 

Kim L. Ritter, Missoula, Montana 

Filed: 

Submitted on Briefs: June 28, 1990 

+ Clerk 
Chief 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 District Court err in refusing to dismiss the lien 

foreclosure action? 

2. Did the court err by denying the motion 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 installation and the performance of 

the elevator, which, according to him, remained unusable at the 

time of trial. 

In August 1987, having received no payment for the elevator, 

Lagerquist filed a lien against DeVoels building. At the same 

time, DeVoe filed a complaint against Lagerquist and Brown, 

alleging breaches of contract and warranty, negligent or fraudulent 

misrepresentation, and breach of the covenant of good faith and 
fair dealing. The following month, Lagerquist filed a complaint 

against DeVoe to foreclose its lien. 

The two actions were consolidated for jury trial, at which the 

evidence conflicted on several points. The original of the 

contract, which had been typed by DeVoets son, 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 Lagerquist would have 13 weeks to build and install the 

elevator. 

DeVoe testified that the 11 weeks began to run on 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 Lagerquistts workers left the job 

a few days before May 20 and only came back to answer repair calls 

after that date. Brown testified that the elevator was 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 misrepresent material facts; and that Lagerquist's 

actions did not damage DeVoe's business reputation. It also 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 the two actions be consolidated. The court granted the motion 

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 timely manner. 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 

services or materials were furnished. Section 71-3-535, MCA. The 

date triggering the ninety-day period is not the date that 
installation was completed, but the date that work was last done. 

In addition to stating that the elevator was completely installed 

by May 14, the answer to DeVoels complaint stated that a computer 

card in the elevator malfunctioned and was repaired subsequent to 

May 14. The answer to DeVoets complaint 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 the motion to alter or amend the 

verdict? 

DeVoe contends that the special verdict misled the jury into 

making inconsistent findings that the elevator 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 date was confirmed on February 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 

services provided. 

DeVoe also states that the testimony of one of Lagerquist's 

workers conflicted with Brown's testimony. Brown testified that 
installation of the elevator was essentially completed on May 13, 

but that workers returned on May 22 to do the final adjustment and 

to retrofit the control panel. The worker testified that he did 

repair work on the elevator on May 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 

sustain the counterclaim on the construction lien, Lagerquist must 

prove (among other elements) that the lien was filed within ninety 

days after the materials and labor were provided. Question 10 on 

the special verdict form asked, "1s Lagerquist entitled to 

enforcement of its construction lien?" We hold that the issue was 

adequately presented to the jury and that the court did not err in 

denying the motion to alter or amend the verdict. 

Did the court err in awarding prejudgment interest? 

This claim is based upon DeVoels position 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 is vested as of a particular day. In this case, interest 

was awarded on the contract price of the elevator from the date the 

construction lien was filed. Because we have concluded that it was 
not error to enforce the construction lien, we hold that there was 

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 it was 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 that defendants should have been 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 issues precludes [separating out expenses relating to proof of the construction 

lien]. 

DeVoe cites precedent which would support the lower court had it 

separated attorney fees relating to the lien from fees relating to 

the defense of DeVoels claims. 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 ,.." ;' 17