Morrison-Maierle, Inc. v. Selsco

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,
Defendant and Appellant.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable FrarkE. Blair, Judge presiding.
Counsel of Record:
For Appellant:
G. Page Wellcome argued, Bozeman, Montana
For Respondent :
Berg, Angel, Morgan & Coil, Bozeman, Montana
Gregory 0 Morgan argued, Bozeman, Montana
.
Submitted: November 1, 1979
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Defendant, Selsco Corporation, appeals from a judgment of
the Gallatin County District Court foreclosing a mechanic'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 two major issues in this appeal.
Selsco first contends that the mechanic's lien does not accurately
describe the attached property and thus cannot be 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 it was entitled to damages as a result of
the plaintiff's failure to exercise care in planning and
inspecting the project.
The defendant, Selsco, a Utah corporation, (referred to
herein as the owner), contracted with Morrison-Maierle, Inc.
a Helena engineering firm, (referred to as engineers), for the
development of a project called West 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 complete payments to the engineer. The engineers filed
suit on August 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
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that the mechanic'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 court denied the owner's counterclaim and ordered
the judgment to be satisfied by 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 compliance with 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 land when 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 identified by the description. Section
71-3-511(1), MCA. Here, the lien gave the correct legal
description of the land on which the structures were 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 frustrated here where it is not argued that the attached
improvements can be confused with any other structures in the
area. Furthermore, the lien description is made even more
specific by the accounts filed with the lien which state that
the engineers' bill is for "engineering services on United
Campground, West Yellowstone, Montana." A person reading
the lien should readily conclude that the lien attaches to the
campground facilities. See Varco-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 court had a duty, as a matter of law, to find
that the engineers breached their contractual duties and
that the owners were injured by this negligence in design
and inspection. We determine however, that there was substantial
credible evidence upon which the trial court could deny the
counterclaim. The thrust of the argument by 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 the project in a workmanlike manner, and
that the breach of this duty caused defects in four items for
which it seeks damages: the sewage lagoon (estimated damage
(643,240); valve boxes (estimated damages $4,729); water lines
(estimated damages $2,943); and loop roads (estimated damage
$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 surface before its certification. The
engineers countered this evidence with the testimony of their
chief engineer who stated that cracking in the lagoon's surface
was caused by insufficient flow from campground units during
the period of 1973 to 1977 when the occupancy rate of the
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campground was roughly 13 percent of its designed capacity.
We note in this regard, that it was in 1977 when the campground
owners first attempted to fill the lagoon with water and then
discovered that the cracks in the clay liner prevented the
lagoon from filling. The trial court was not bound by testimony
of either expert, and it had the right to give greater weight
to the engineer's testimony. See Erickson v. 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 counter-
claim, occurred as a result of time constraints placed on the
engineers. Water valves installed in the campground began to
leak and did not meet the specifications of 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
roads was caused by the engineers' negligence, but uncontradicted
testimony established that placing a permanent surface on the
road would have delayed the scheduled opening of the campground.
The parties did not decide upon a temporary surface until
the owners had been fully informed that settling would likely
occur in a temporary surface.
The last contention concerning the counterclaim is that
the engineers failed to lay the water lines according to
design specifications and therefore that the water lines did
not drain properly. The owners argue that a reasonable
inspection of the bedding of the water lines would have
prevented the defect from occurring.
The record indicates, however, that during the major portion
of construction the engineers made almost continuous inspections
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and they forwarded daily progress reports to the owner. West
Yellowstone United Campgrounds was a very large project and
it is predictable that some faulty workmanship would 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), 164 A.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.
There was sufficient evidence to conclude that the engineers
had not breached their duty of care.
The remaining issue concerns the cost bill. The owner
contends that certain deposition 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 taking witness 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 it was
so used, we conclude that it was 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), 165 Mont. 209, 527 P.2d 557, appeal
after remand 169 Mont. 454, 548 P.2d 610; Johnson v. Furgeson,
Et Al. (1971), 158 Mont. 170, 489 P.2d 1032. Here the copy
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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. It was
not, under section 25-10-201, MCA, a reasonable and necessary
expense.
With the exception of the Wetstein deposition which
should be excluded as an item of costs, the judgment of the
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District Court is affirmed.
JUS i
We Concur:
Chief Justice
Justices