978-1285770178 Case Printout Case CPC-04-09 Part 2

Unlock access to all the studying documents.

View Full Document

support the District Court’s determination that his billing was the correct amount

due for the additional services provided.

reimbursement for the cost of repair or replacement of the deficiencies in Lyons’

the deficiencies by accepting the work, making improper additions to the work,

and issuing hasty and ill-conceived commands. Although not assessing monetary

values to the individual losses occasioned by each of Weimar’s actions, the

District Court nonetheless had before it the evidence of those actions and their

consequences, which provided substantial evidence for its assessment of costs

necessary to repair those deficiencies that were Lyons’ responsibility. Although

District Court did not err in so doing.

¶ 34 (4) Did the District Court err in allowing Mike Lyons to offer expert testimony

concerning the quality of the work?

¶ 35 Weimar argues that because Lyons failed to serve an expert disclosure

statement required by the scheduling order, he should have been barred from

¶ 30 We affirm the District Court’s findings and conclusions regarding the parties’

Lambert, 249 Mont. 455, 462, 817 P.2d 219, 223 (1991) (Court committed

reversible error when it allowed the defendant to solicit undisclosed expert

testimony from a witness previously called to discuss factual issues, when

¶ 18, 49 P.3d 565, ¶ 18 (citing Babcock, 157 Mont. at 92, 482 P.2d at 1020).

[18] Link to KeyCite Notes ¶ 37 However, such concerns about prejudicial

impact are not evident under the circumstances here. Lyons was not only the

contractor who had performed the work, he was also the party being sued. It was

obvious that he would testify regarding the extent and quality of his own work.

¶ 38 We conclude that the District Court did not abuse its discretion in permitting

Lyons to give opinion testimony concerning the quality of his own workmanship

and the reasons for the lower quality of work on this project.

¶ 39 (5) Did the District Court err by concluding that Lyons had standing to file his

construction lien and counterclaim?

be a valid lien claimant. The District Court further ruled that any relief awarded to

Weimar would be enforceable against any of the Lyons entities and individuals.

After trial, the court concluded that “Defendants Mike Lyons and Lyons Concrete,

Inc.,” were entitled to judgment on the lien.

¶ 41 Weimar argues that because the lien was recorded and sought to be

state under such name.” Thus, Weimar reasons that, because Lyons Concrete,

Inc., was not registered, and “Mike Lyons, individually,” was not named on the

lien as a claimant, neither Lyons Concrete, Inc., nor Mike Lyons were valid lien

claimants and the construction lien was void ab initio and unenforceable. Further,

he asserts that Lyons’ counterclaim was similarly afflicted. We disagree.

construed so as to give effect to their remedial character.” General Elec. Supply

Co., Etc. v. Bennett, 192 Mont. 110, 113-14, 626 P.2d 844, 846 (1981) (citations

omitted).

FN2. Now known as a “construction lien.” See § 71-3-521 et seq., MCA.

¶ 43 Weimar challenges none of the procedures employed by Lyons, only the

admonition that the lien statute “must be interpreted liberally to protect the right of

the lien.” Kosena, 195 Mont. at 22, 635 P.2d at 1293.

[20] Link to KeyCite Notes ¶ 44 Likewise, it is clear in this case that Mike Lyons

was listed individually as a lien claimant. The lien adequately identified Mike

Lyons and imparted notice to Weimar of Mike Lyons’ status as a lien claimant.

[21] Link to KeyCite Notes[22] Link to KeyCite Notes[23] Link to KeyCite Notes ¶

45 Regarding Lyons Concrete, Inc., the District Court concluded that the

corporation was likewise a valid lien claimant and entitled to judgment “under the

doctrine of Corporation by Estoppel.” Weimar acknowledges this equitable

doctrine, but argues that its application here makes no sense because a

the issue as to whether or not the corporation is validly incorporated.

“In short, the fact that an entity is not a corporation FN3 should not, in and of

itself, be a defense to an otherwise valid obligation.” General Comments to § 35–

1-119, MCA. We applied this doctrine in Valley Victory Church v. Sandon:

FN3. Including, according to the General Comments, an entity “whose certificate

P.2d 1109, 1112. The doctrine may apply to the corporation itself, or to the

corporation’s opponent. Compare Ohaco Sheep Co., Inc. v. Heirs of Ohaco

(Ariz.App.1986), [148 Ariz. 142,] 713 P.2d 343, 346 (applying doctrine to

stockholders or partners of the purported corporation); with Lettinga v. Agristor

Credit Corp. (6th Cir.1982), 686 F.2d 442, 446 (“A person or entity who has

application here. In support of his motion for partial summary judgment on this

issue, Lyons filed an affidavit averring that he was unaware of the involuntary

dissolution of Lyons Concrete, Inc., that he continuously acted in good faith as a

corporation until he was made aware of the dissolution, and that he filed new

articles of incorporation under the same name of Lyons Concrete, Inc.,

acted in good faith through its principals, had been involuntarily dissolved.

Weimar is estopped from denying the corporate status of Lyons Concrete, Inc.,

and, with that conclusion, it was not necessary for Lyons Concrete, Inc., to

confident that Lyons will devise a solution to the practical issue of whom Weimar

motion, forbidding Weimar from contesting the applicability of the statute to his

contract with Lyons, both as a discovery sanction for Weimar’s failing to answer

discovery and upon Weimar’s admission that the total cost of the construction

work on Weimar’s property exceeded $400,000.FN4 Thus, the District Court, in

its findings of fact, conclusions of law and judgment, concluded that, pursuant to

FN5. Section 28-2-2104(1), MCA, provides: “If a periodic or final payment that is

required by a construction contract to be paid by an owner to a contractor is

delayed by more than 30 days from the date the payment is required by the

contract to be made, the owner shall pay to the contractor interest … at the rate

of 1.5% a month….”

notice provision at any time prior to or during the trial, instead raising it for the

first time in his post-trial motion to alter or amend, and at that point there was no

evidence in the record from which the notice issue could be determined. As such,

we agree with Lyons that Weimar waived his right to contest the lack of notice.

The interest statute had been raised prior to trial by Lyons and was the subject of

in concluding that Lyons was entitled to recover interest under these statutory

provisions, because Weimar’s contract with Lyons did not call for construction

work valued greater than $400,000. Weimar does not dispute that all of the

improvements to his property totaled more than $400,000, but he argues this

interest provision only applies when an individual contract costs that much.

is imposed upon “a periodic or final payment that is required by a construction

contract to be paid by an owner to a contractor….” Section 28-2-2104(1), MCA.

“Construction contract” is defined as “a written agreement FN6 between an

owner and a contractor for the contractor to construct or improve” real property.

Section 28-2-2101(1), MCA. In turn, “improvement” means “all or a part of a

$400,000.” Section 28-2-2107, MCA. From a plain reading of these provisions,

we conclude that the exception applies to a construction contract between an

owner and contractor for an improvement to residential real property with a total

cost of less than $400,000. Clearly, Weimar’s contract with Lyons was for less

than $400,000, and, therefore, this interest statute did not apply. Other interest

sanction for discovery abuse. While a sanction may have been appropriate for

the discovery error, Weimar should not have to bear the penalty of an interest

assessment under a statute which, as a matter of law, did not apply to his

contract, and that assessment is reversed. Upon remand, if Lyons yet clamors for

imposition of a discovery sanction that matter may be brought to the attention of

consistent herewith.