                              No. 83-290
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1984



DUANE R. BENDER, d/b/a PALM TREE
CONSTRUCTION,
                   Plaintiff and Appellant,


CARL ROOKHUIZEN, et al.
                   Defendants and Respondents.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable William J. Speare, Judge presiding.


                              J

COUNSEL OF RECORD:
     For Appellant:

               Hibbs, Sweeney, Colberg, Jensen and Roessles; Morton
               B. Koessler argued, Billings, Montana

      For Respondents :
               Wright, Tolliver & Guthals; Kenneth D. Tolliver argued,
               Billings, Montana



                               Submitted:     July 3, 1984
                                  Decided:    Jaly 26, 1984




                                                  -
                               Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

         The plaintiff, Duane R.                 Bender       d/b/a     Palm       Tree
Construction, appeals from a summary judgment entered on
April    1, 1983 in      the District Court               of     the    Thirteenth
Judicial District for the defendants, Carl Rookhuizen d/b/a
Rookhuizen Construction, the Housing Authority of Billings,
Universal Surety Company and the United States of America.
We reverse the judgment of the District Court.
         In March, 1981, Rookhuizen Construction (Rookhuizen)
was awarded the general contract to construct a housing
project known as Montana Housing Authority project MT 1-5
for the Housing Authority of Billings (Housing Authority), a
public nonprofit Montana         corporation.                 Prior to entering
into     the general    contract with            Rookhuizen,          the     Housing
Authority hired E.F.          Link     &   Associates architects, to
prepare     the   necessary    plans       and    specifications            for     the
project.     The entire project required and received approval
from the Housing and Urban Development (HUD) office of the
United    States Government.           E.F.      Link     &    Associates hired
various consultants for different phases                        of     the project
including the site preparation and mechanical work.                                 The
work of these individual consultants was compiled into a
project     Specifications Book            and     corresponding set                 of
drawings.
         Subsequently,        Rookhuizen           entered             into        four
subcontracts      for   completion of            various       portions       of    the
project including a subcontract entered into on April 22,
1981 with     Palm Tree Construction                 (Palm Tree) for the
project's utility work.          The terms and conditions of the
subcontracts         between        Rookhuizen        and         the        various
subcontractors were set forth in the Specifications Book and
corresponding drawings.
      On    August     21,   1981, a     dispute          arose      between      the

utility subcontractor, Palm Tree, and Rookhuizen over whose
responsibility it was to connect the water and sewer lines

to the individual housing units of the project.                             Palm Tree
claimed the mechanical             subcontractor was          responsible for
making     the   final connections.                Palm    Tree      based      this
assertion on its interpretation of the specifications and
corresponding drawings.            Rookhuizen maintained the contract
between    the parties       required    Palm Tree           to    complete       the
connections.     On the day the dispute arose Rookhuizen made a
written demand upon Palm Tree to connect the lines but Palm
Tree refused.
      Thereafter, Larry Marshall, an employee of E.F. Link                          &
                     02L WC.  ~&~~~~6~9. 2                , , V ; ~ L ~ L
Associates and                                             for the project,
became aware of the dispute and was asked to render an
opinion as to who was responsible for the connections.                            The
record does not indicate which party or parties requested
Marshall's opinion.          In a letter to Rookhuizen, Marshall
expressed the opinion that the mechanical subcontractor, not

Palm Tree, was responsible for the disputed work.
      Subsequently, Rookhuizen hired another subcontractor

to connect the lines and then set-off that subcontractor's
charges against the balance              owed Palm Tree under                    the
parties' subcontract.
      On    October    27, 1981, Palm Tree                filed      a      complaint
against    Rookhuizen,       the    Housing   Authority           and       Universal
Surety    Company     alleging      breach    of    contract         and      seeking
$17,750.32 the amount Rookhuizen set-off against the balance
owed Palm Tree plus certain sums for water expenses and
completion of       a meter    vault    lid.     In   addition   to   its
complaint, Palm Tree filed a mechanic's lien, lis pendens
and mechanic's lien forclosure action against the Housing
Authority's property.        On November 16, 1981, Palm Tree filed
an amended        complaint naming      the United      States   as    an
additional defendant.         The United States, through HUD, had
entered into a trust agreement with the Housing Authority to
secure completion of the project and payment on any bonds or
notes issued to finance the work.
         On February 17, 1982, Rookhuizen filed its answer to
Palm Tree's amended complaint counterclaiming for damages
due to breach of contract and the filing of a wrongful lien.
Rookhuizen claimed Palm Tree's refusal to complete the work
had caused damages in the amount of $25,000.
         Thereafter,   the parties       filed    cross motions       for
summary judgment.      On November 23, 1982, the District Court
denied Palm Tree's motion for summary judgment and granted
Rookhuizen's, reserving the issue of Rookhuizen's liability
for Palm Tree's water         expenses for trial.         In granting
Rookhuizen's motion for summary judgment, the District Court
concluded     that    Palm    Tree   breached    its   contract with
Rookhuizen when it failed to hook up the water and sewer
lines; that Palm Tree's         lien on the Housing Authority's
property was improper; and that Rookhuizen was entitled to
attorney's fees.
         On December 3, 1982, Palm Tree filed a motion to alter
and/or    amend    the District      Court's   findings of   fact and
conclusions of law or, in the alternative, a new trial.                On
January 7, 1983, the District Court clarified its original
findings      and    set   the    issue     of     water      expenses      and
Roolthuizen's damages for trial on April 1, 1983.                    On March
31,   1983,    the    parties    stipulated       to    an   accounting     and
judgment was entered for Rookhuizen on April 1, 1983, in the
amount of $2,555.13.       Thereafter, Palm Tree filed its notice
of appeal.
      The plaintiff, Palm Tree raises four issues on appeal:
       (1) The       District    Court    erred        in   ruling   that   the
contract between Palm Tree and Rookhuizen imposed a duty on
Palm Tree to hookup the water and sewer service lines.
       (2) The       District Court
decision of Larry Marshall, the
controlling the dispute.
       (3) The       District Court       erred    in       ruling   that   the
mechanic's lien filed by plaintiff was improper.
       (4) The contract was ambiguous and therefore should
have been construed against Rookhuizen.
       In granting Rookhuizen's notion for summary judgment,
the District Court held that Palm Tree was obligated to make
the necessary connections of the water and sewer service
lines according to two provisions of the general contract
that provided:
              "Article 3. Contract Documents.       The
              Contract shall consist of the following
              component parts:
                a. This Instrument
                b. Bidding Documents
                c. Conditions
                d. Technical Specifications
                e. Drawings
                f. Supplementary Drawings and Schedules
              This instrument, together with other
              documents enumerated in this Article 3,
              which said documents are as fully a part
              of the Contract as if hereto attached or
              herein repeated, form the Contract. -  In
          -----------------y-----------------
          the event that a n provision of a n y
          com~onentDart of this contract conflicts


          govern, except as otherwise specifically
          stated.   (Emphasis added.)


           "13. Specifications and Drawings

          "a. Anything mentioned in the Technical
          Specifications and not shown on the
          Drawings, or shown on the Drawings and
          not   mentioned     in   the    Technical
          Specifications, shall be of like effect
          as if shown on or mentioned in both. In
          case of difference between Drawings and
          -
          Technical Specifications, the Technical
          Specifications shall govern.   In case of
          any discrepancy in Drawings, of Technical
          Specifications, the matter shall be
          immediately submitted to the Architect
          without whose decision said discrepancy
          shall not be adjusted by the Contractor,
          save only at his risk and expense."
          (Emphasis added.)
     The District Court then relied on certain portions of
the Technical Specifications of the parties' subcontract to
conclude that Palm Tree was responsible for the hookup of
the water and sewer service lines:
          PALM TREE CONSTRUCTION hereinafter called
          the Sub-contractor and C.E. ROOKHUIZEN
          CONSTRUCTION hereinafter called the
          Contractor.
          "For the consideration hereinafter named,
          the Sub-contractor covenants and agrees
          with the said Contractor as follows:
          "FIRST. The Sub-contractor will furnish
          all materials and labor, including all
          necessary    scaffolding,    and   fully
          construct and in a good substantial,
          thorough and workmanlike manner perform
          and in every respect complete       .
          (sanitary sewer, manholes and services).
          (Emphasis added.)


           "5.1 Work to be Done: The work to be done
           under   this   Contract    includes   the
           furnishing of all material-s, equipment,
              tools, labor and supervision necessary
              for the construction of the project
              complete, pipe, supports, tees, services
              and ready for immediate and - continued
              use. (Emphasis added.)
              -
              "6.1 Work to be Done: The work under this
              Contract includes the furnishing of all
              materials, equipment, tools, labor and
              supervision     necessary      for    the
              construction of the project complete,
              including watermain pipe valves, valve
              boxes, fittings, pipe supports and
              services        read,y for immediate and
              continued use."  (Emphasis added.)
        However,    a more     complete    reading    of    the   parties'
agreement indicates Palm Tree was not required to make the
water   and   sewer hookups.         The    technical      specifications
applicable to Palm Tree's work state at section 0255 part
5.5   that the "[slervice lines shall be plugged or capped
watertight at terminal end to allow for testing."                 W




T h e Standard Water Service Detail shows the termination of
the water lines at a point five feet from the foundation.
The dimension line "5 feet typical" appears on plan RA2A
showing the termination of the sewer lines five feet from
the foundation.           Under the Note/Legend      appearing on plan
RA2A,   the utility contractor is instructed that, " [wlater
and sewer lines shall terminate no more than five feet from
the outside of building foundation."            On Plan XM-1, which
covers the plumbing contractor's duties for the project,
lines continue to a point five feet outside the building
foundation where they connect with the           utility contractor's
line.     When     read    together, these contractual provisions
indicate Palm Tree was not required to make the water and
sewer service lines connections.           The whole of a contract is
t o be t a k e n t o g e t h e r s o a s t o g i v e e f f e c t t o e v e r y p a r t i f

reasonably p r a c t i c a b l e , each c l a u s e helping t o i n t e r p r e t t h e

other.        S e c t i o n 28-3-202,          MCA;       K a n s a s C i t y F i r e and M a r i n e

I n s . Co. v . C l a r k ( D . C .       Mont. 1 9 6 3 ) , 217 F.Supp             231.

          W e a l s o note t h a t Larry Marshall,                      a n a s s o c i a t e a t E.

F.    Link      and     Associates,            who w e r e      the     architects         for     the

project,        expressed           to    the       parties       his       opinion      that      the

plurnbing         contractor             was     responsible            for     the      hookups.

Marshall         told       the    parties          the     ordinary         practice       in     the

industry is for               the u t i l i t y contractor              t o bring a service

from     t h e main         trunk     line      up    to     within      five      feet     of     the

building.             At     that        point,       Marshall         stated,       a    licensed

plumber must c o n n e c t t h e plumbing from t h e s t r u c t u r e t o t h e

service         line.             Although           Marshall's          opinion          was     not

n e c e s s a r i l y c o n t r o l l i n g on t h e p a r t i e s , h i s o p i n i o n t o g e t h e r

with     f a c t s previously discussed demonstrate                             Palm T r e e was

n o t r e s p o n s i b l e f o r t h e d i s p u t e d hookups.

          Palm      Tree      also       argues       the     District        Court      erred       in

r u l i n g t h a t Palm T r e e ' s       l i e n a g a i n s t p r o p e r t y owned by t h e

Housing        Authority            was    improper            and    should be           removed.

Appellant a s s e r t s t h a t Montana's mechanic's l i e n laws a r e t o

be     liberally            construed          to    protect          the    rights       of     lien

claimants             and     the        legislature             has        all-owed       housing

a u t h o r i t i e s t o s u e and b e s u e d u n d e r s e c t i o n 7-15-4455,               MCA,

which p r o v i d e s ;      " A l l housing p r o j e c t s of an a u t h o r i t y s h a l l

b e s u b j e c t t o t h e p l a n n i n g s , z o n i n g , s a - n i t a r y , and b u i l d i n g

l a w s o r d i n a n c e s and r e g u l a t i o n s a p p l i c a b l e t o t h e l o c a l i t y

i n which t h e h o u s i n g p r o j e c t i s s i t u a t e d . "          However, s e c t i o n

7-15-4532(2),           MCA c l e a r l y s t a t e s :

                   " A l l p r o p e r t y of t h e a u t h o r i t y s h a l l b e
                   exempt f r o m l e v y and s a l e by v i r t u e o f a n
             execution, and no execution or other
             judicial process shall issue against the
             same. No judgment against the authority
             shall be a charge or lien upon its real
             or personal property."
In addition, section 27-18-102 provides that property exempt
from execution is exempt from attachment and the Housing
Authority is exempt from execution.      Thus, the pertinent
statutes indicate the District Court did not err in holding
Palm Tree's lien was improper.
      The judgment is reversed and     the case remanded in




We concur:


 34&&
Chief Justice
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