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Weimar v. Lyons
¶ 10 The parties entered an agreement whereby Lyons would provide concrete
work on Weimar's property.FN1 The nature of this agreement was disputed.
Lyons asserts that the parties entered into a series of agreements, beginning
with a May 1, 2003, written contract to perform work for $19,810, followed by
1/4 SW 1/4 of Section 32, Township 24 North, Range 21 West, P.M.M., Lake
County, Montana, Reference Certificate of Survey No. 3034.
¶ 11 After the project began, Lyons invoiced Weimar for $14,389, which he
asserted at trial represented a portion of the work under the written contract and
some of the additional work orally agreed to. Weimar paid that sum. Thereafter,
filing, to which counterclaims reasserting the construction claim were filed by
Mike Lyons, individually and d/b/a Lyons Concrete, Inc. Weimar responded by
filing a motion to dismiss Lyons' counterclaim and to expunge the lien on the
principal ground that the lien claimant had no standing to maintain an action
under § 30-13-215, MCA, because Lyons Concrete, Inc., a Montana corporation,
judgment, that any and all relief that may be granted to Weimar pursuant to his
complaint would be enforceable against the Defendants Mike Lyons, individually,
Mike Lyons d/b/a Lyons Concrete, and/or Lyons Concrete, Inc., whether it be the
original, the dissolved corporation, or the newly-formed corporation. The court
reciprocally held that “[a]ny and all relief sought by [Lyons] pursuant to his
limine to exclude expert witnesses for Weimar's failure to answer interrogatories,
which sought the identity of experts and the substance of their testimony. The
motion also sought exclusion of evidence in support of Weimar's defense to
Lyons' claim under § 28-2-2104, MCA, for interest on residential construction
contracts exceeding $400,000 “at the rate of 1.5% a month or a pro rata fraction
¶ 14 A bench trial was held on November 17, 2005. The District Court found the
parties had entered into a written contract for identified work in the sum of
$19,810, followed by “a series of binding oral agreements” for additional work
and extras. The court further found that while some of the work performed by
Lyons was not done in a workmanlike manner, Weimar had waived many of the
the best they can by the appraisal date, ‘even if we have to pull it out and fix it
later.’ ” The court did, however, credit Weimar with the sum of $8,967.19 for the
costs of work by Clark-Salsbury to repair that portion of Lyons' deficient work that
had not been caused by Weimar or his employees or had otherwise been
waived. As a result, the District Court entered judgment against Plaintiff Weimar
and attorney fees. He further filed a motion to alter or amend judgment on
various grounds. The District Court denied Weimar's motion and, on February 1,
2006, entered an order awarding Lyons costs of $190 and attorney fees of
$25,980.50 in addition to the amounts awarded under the contract claims.
Weimar appeals.
evidence; and third, if substantial evidence exists and the effect of the evidence
has not been misapprehended, the Court may still conclude that a finding is
clearly erroneous when a review of the record leaves the Court with the definite
and firm conviction that a mistake has been made. Fiedler v. Fiedler (1994), 266
Mont. 133, 137-38, 879 P.2d 675, 678 (citations omitted).
of discretion. Miranti v. Orms, 253 Mont. 231, 833 P.2d 164 (1992).
[4] Link to KeyCite Notes[5] Link to KeyCite Notes ¶ 17 We apply the abuse of
discretion standard to our review of an award of damages. Graveley Simmental
Ranch Co. v. Quigley, 2003 MT 34, ¶ 21, 314 Mont. 226, ¶ 21, 65 P.3d 225, ¶ 21.
However, “[a] district court's award of prejudgment interest is a question of law;
¶ 19 Weimar argues that the District Court violated the well established principle
that a court may not consider issues outside the pleadings. Weimar contends the
complaint alleged and Lyons' answer admitted that the original contract was
partially written and partially verbal, and was based on “time and material,” but
not to exceed $19,810. Weimar further contends that there was nothing in the
pretrial order.” Travelers Indem. Co. v. Andersen, 1999 MT 201, ¶ 34, 295 Mont.
438, ¶ 34, 983 P.2d 999, ¶ 34 (citing State ex rel. Ins. Fund v. Berg, 279 Mont.
161, 180, 927 P.2d 975, 986 (1996)). “A legal theory or factual issue for trial must
be ‘at least implicitly included in the pretrial order;’ however, pretrial orders
should be liberally construed to permit any issues at trial that are ‘embraced
parties' differing allegations regarding the nature of the agreement. In opposition
to Weimar's assertions, Lyons contended that:
On or about May 1, 2003, Plaintiff and Defendant Lyons Concrete, Inc. entered
into a written contract under the terms of which said Defendant agreed to install
certain concrete work on Plaintiff's property for the sum of $19,810.
conflicting views about their agreements and that the District Court did not abuse
its discretion by hearing evidence on the nature of the agreements.
¶ 23 (2) Was there sufficient evidence to support the District Court's findings and
conclusions that there had been a written fixed price contract followed by a series
of binding oral agreements, its determination of the amount owed thereunder,
4. That Lyons invoiced Weimar $14,389 [invoice # 7424] for a portion of the work
on the written contract and additional work performed under an oral agreement.
5. That Weimar paid invoice # 7424 in the amount of $14,389 in full.
6. That thereafter, Lyons completed performance of the written contract and
several additional items under oral agreements and invoiced Weimar for that
oral agreements for additional concrete work totaling $20,310.
¶ 25 Weimar argues there was insufficient evidence to support the court's
findings of a fixed price contract and maintains the parties' actual conduct is
inconsistent with that idea, as the testimony demonstrated that Weimar's
employees did some of the forming work-since Lyons was unable to do it-without
[9] Link to KeyCite Notes[10] Link to KeyCite Notes ¶ 26 “Whether or not a
contract exists is a combined issue of fact and law.” Austin v. Cash, 274 Mont.
54, 59, 906 P.2d 669, 672 (1995). We conclude that the record contains sufficient
evidence to support the District Court's findings and conclusions that there had
been a written fixed price contract, followed by subsequent binding oral
evidence, we conclude that the court's determination of the existence of multiple
agreements was supported by substantial credible evidence.
[11] Link to KeyCite Notes ¶ 27 With regard to Weimar's contention that, even if
there was a fixed price contract, the poor quality of Lyons' work, which required
corrective measures, constituted a breach of the agreement, thereby excusing
here. I need these caps poured on the fountains right away.” And I told him that I
could see-with the radius walls and stuff, I could try to form that cap up but that it
was going to take a long time. And I was real busy and I told him that I didn't
have time to do it. And he said his crew would do it. I said, “Well, if they could
form it up, we could come out and pour it.”
testified that Weimar told him to pour despite imminent rain and that Weimar had
stated “he would take responsibility,” with Berg likewise testifying that he
overhead Weimar tell Lyons to pour the concrete in the rain. The record
demonstrates that deficiencies found in the sidewalk were the result of pouring
the concrete in the rain. This continual rush to complete the project, even at the
agreements, the court weighed Weimar's testimony about the appropriate
amount owed against Lyons' testimony that he charged his regular, fair rate. “It is
well-established that the testimony of one witness is sufficient to prove any fact.”
Eustance v. State, 2005 MT 34, ¶ 11, 326 Mont. 77, ¶ 11, 107 P.3d 478, ¶ 11
(citations omitted). Moreover, “[i]n nonjury trials, the credibility of a witness and
the weight which his or her testimony should be afforded is within the sound
discretion of the district court. We will not reweigh the evidence and substitute
our judgment for that of the court under such circumstances.” In re Marriage of
Epperson, 2005 MT 46, ¶ 23, 326 Mont. 142, ¶ 23, 107 P.3d 1268, ¶ 23 (citations
omitted). Therefore, Lyons' testimony, even if self-serving, was sufficient to
¶ 10 The parties entered an agreement whereby Lyons would provide concrete
work on Weimar's property.FN1 The nature of this agreement was disputed.
Lyons asserts that the parties entered into a series of agreements, beginning
with a May 1, 2003, written contract to perform work for $19,810, followed by
1/4 SW 1/4 of Section 32, Township 24 North, Range 21 West, P.M.M., Lake
County, Montana, Reference Certificate of Survey No. 3034.
¶ 11 After the project began, Lyons invoiced Weimar for $14,389, which he
asserted at trial represented a portion of the work under the written contract and
some of the additional work orally agreed to. Weimar paid that sum. Thereafter,
filing, to which counterclaims reasserting the construction claim were filed by
Mike Lyons, individually and d/b/a Lyons Concrete, Inc. Weimar responded by
filing a motion to dismiss Lyons' counterclaim and to expunge the lien on the
principal ground that the lien claimant had no standing to maintain an action
under § 30-13-215, MCA, because Lyons Concrete, Inc., a Montana corporation,
judgment, that any and all relief that may be granted to Weimar pursuant to his
complaint would be enforceable against the Defendants Mike Lyons, individually,
Mike Lyons d/b/a Lyons Concrete, and/or Lyons Concrete, Inc., whether it be the
original, the dissolved corporation, or the newly-formed corporation. The court
reciprocally held that “[a]ny and all relief sought by [Lyons] pursuant to his
limine to exclude expert witnesses for Weimar's failure to answer interrogatories,
which sought the identity of experts and the substance of their testimony. The
motion also sought exclusion of evidence in support of Weimar's defense to
Lyons' claim under § 28-2-2104, MCA, for interest on residential construction
contracts exceeding $400,000 “at the rate of 1.5% a month or a pro rata fraction
¶ 14 A bench trial was held on November 17, 2005. The District Court found the
parties had entered into a written contract for identified work in the sum of
$19,810, followed by “a series of binding oral agreements” for additional work
and extras. The court further found that while some of the work performed by
Lyons was not done in a workmanlike manner, Weimar had waived many of the
the best they can by the appraisal date, ‘even if we have to pull it out and fix it
later.’ ” The court did, however, credit Weimar with the sum of $8,967.19 for the
costs of work by Clark-Salsbury to repair that portion of Lyons' deficient work that
had not been caused by Weimar or his employees or had otherwise been
waived. As a result, the District Court entered judgment against Plaintiff Weimar
and attorney fees. He further filed a motion to alter or amend judgment on
various grounds. The District Court denied Weimar's motion and, on February 1,
2006, entered an order awarding Lyons costs of $190 and attorney fees of
$25,980.50 in addition to the amounts awarded under the contract claims.
Weimar appeals.
evidence; and third, if substantial evidence exists and the effect of the evidence
has not been misapprehended, the Court may still conclude that a finding is
clearly erroneous when a review of the record leaves the Court with the definite
and firm conviction that a mistake has been made. Fiedler v. Fiedler (1994), 266
Mont. 133, 137-38, 879 P.2d 675, 678 (citations omitted).
of discretion. Miranti v. Orms, 253 Mont. 231, 833 P.2d 164 (1992).
[4] Link to KeyCite Notes[5] Link to KeyCite Notes ¶ 17 We apply the abuse of
discretion standard to our review of an award of damages. Graveley Simmental
Ranch Co. v. Quigley, 2003 MT 34, ¶ 21, 314 Mont. 226, ¶ 21, 65 P.3d 225, ¶ 21.
However, “[a] district court's award of prejudgment interest is a question of law;
¶ 19 Weimar argues that the District Court violated the well established principle
that a court may not consider issues outside the pleadings. Weimar contends the
complaint alleged and Lyons' answer admitted that the original contract was
partially written and partially verbal, and was based on “time and material,” but
not to exceed $19,810. Weimar further contends that there was nothing in the
pretrial order.” Travelers Indem. Co. v. Andersen, 1999 MT 201, ¶ 34, 295 Mont.
438, ¶ 34, 983 P.2d 999, ¶ 34 (citing State ex rel. Ins. Fund v. Berg, 279 Mont.
161, 180, 927 P.2d 975, 986 (1996)). “A legal theory or factual issue for trial must
be ‘at least implicitly included in the pretrial order;’ however, pretrial orders
should be liberally construed to permit any issues at trial that are ‘embraced
parties' differing allegations regarding the nature of the agreement. In opposition
to Weimar's assertions, Lyons contended that:
On or about May 1, 2003, Plaintiff and Defendant Lyons Concrete, Inc. entered
into a written contract under the terms of which said Defendant agreed to install
certain concrete work on Plaintiff's property for the sum of $19,810.
conflicting views about their agreements and that the District Court did not abuse
its discretion by hearing evidence on the nature of the agreements.
¶ 23 (2) Was there sufficient evidence to support the District Court's findings and
conclusions that there had been a written fixed price contract followed by a series
of binding oral agreements, its determination of the amount owed thereunder,
4. That Lyons invoiced Weimar $14,389 [invoice # 7424] for a portion of the work
on the written contract and additional work performed under an oral agreement.
5. That Weimar paid invoice # 7424 in the amount of $14,389 in full.
6. That thereafter, Lyons completed performance of the written contract and
several additional items under oral agreements and invoiced Weimar for that
oral agreements for additional concrete work totaling $20,310.
¶ 25 Weimar argues there was insufficient evidence to support the court's
findings of a fixed price contract and maintains the parties' actual conduct is
inconsistent with that idea, as the testimony demonstrated that Weimar's
employees did some of the forming work-since Lyons was unable to do it-without
[9] Link to KeyCite Notes[10] Link to KeyCite Notes ¶ 26 “Whether or not a
contract exists is a combined issue of fact and law.” Austin v. Cash, 274 Mont.
54, 59, 906 P.2d 669, 672 (1995). We conclude that the record contains sufficient
evidence to support the District Court's findings and conclusions that there had
been a written fixed price contract, followed by subsequent binding oral
evidence, we conclude that the court's determination of the existence of multiple
agreements was supported by substantial credible evidence.
[11] Link to KeyCite Notes ¶ 27 With regard to Weimar's contention that, even if
there was a fixed price contract, the poor quality of Lyons' work, which required
corrective measures, constituted a breach of the agreement, thereby excusing
here. I need these caps poured on the fountains right away.” And I told him that I
could see-with the radius walls and stuff, I could try to form that cap up but that it
was going to take a long time. And I was real busy and I told him that I didn't
have time to do it. And he said his crew would do it. I said, “Well, if they could
form it up, we could come out and pour it.”
testified that Weimar told him to pour despite imminent rain and that Weimar had
stated “he would take responsibility,” with Berg likewise testifying that he
overhead Weimar tell Lyons to pour the concrete in the rain. The record
demonstrates that deficiencies found in the sidewalk were the result of pouring
the concrete in the rain. This continual rush to complete the project, even at the
agreements, the court weighed Weimar's testimony about the appropriate
amount owed against Lyons' testimony that he charged his regular, fair rate. “It is
well-established that the testimony of one witness is sufficient to prove any fact.”
Eustance v. State, 2005 MT 34, ¶ 11, 326 Mont. 77, ¶ 11, 107 P.3d 478, ¶ 11
(citations omitted). Moreover, “[i]n nonjury trials, the credibility of a witness and
the weight which his or her testimony should be afforded is within the sound
discretion of the district court. We will not reweigh the evidence and substitute
our judgment for that of the court under such circumstances.” In re Marriage of
Epperson, 2005 MT 46, ¶ 23, 326 Mont. 142, ¶ 23, 107 P.3d 1268, ¶ 23 (citations
omitted). Therefore, Lyons' testimony, even if self-serving, was sufficient to
