file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-196%20Opinion.htm




                                                                No. 99-196

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 85N



                MITCHELL R. BUDAY, and BUDAY CONSTRUCTION MANAGEMENT,

                                                      Plaintiffs and Appellants,

                                                                      v.

                DAVID A. PHILLIPS; YELLOWSTONE II DEVELOPMENT GROUP, INC.,

                      a Montana Corporation; PARK COUNTY TREASURER; ELK PARK

                      RANCH, INC., a Montana Corporation; GERALD G. WING, Trustee,

                        Gerald G. Wing, Inc.; RESTATED MONEY PURCHASE PLAN &

                              TRUST; GERALD G. WING; and CHANNELL LIBBEY,

                                                   Defendants and Respondents.


                            APPEAL FROM: District Court of the Sixth Judicial District,

                                                  In and for the County of Park,

                                     The Honorable Frank M. Davis, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellants:

                               Terry F. Schaplow, Attorney at Law, Bozeman, Montana

                                                           For Respondents:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-196%20Opinion.htm (1 of 5)4/5/2007 1:55:17 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-196%20Opinion.htm



                              James A. McLean and A. Suzanne Nellen, Attorneys at Law,

                                                           Bozeman, Montana

                                  Stephen C. Pohl, Attorney at Law, Bozeman, Montana



                                            Submitted on Briefs: December 16, 1999

                                                        Decided: April 4, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk



Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Plaintiffs Mitchell R. Buday and Buday Construction Management (Buday) appeal
from a partial summary judgment entered against them in this action as to defendants Elk
Park Ranch, Inc.; Gerald G. Wing, trustee Gerald G. Wing, Inc.; Restated Money Purchase
Plan & Trust; Gerald G. Wing; and Channell Libbey (the Elk Park defendants). We affirm
the judgment of the Sixth Judicial District Court, Park County.

¶3 Buday here seeks to recover for road construction services he performed on real
property in August and September of 1995 under a contract with defendants David A.
Phillips and Yellowstone II Development Group, Inc. (Yellowstone II), who were
purchasing the real property under an installment land contract for deed. In October of
1995, the installment land contract was terminated and Yellowstone II's purchaser's

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-196%20Opinion.htm (2 of 5)4/5/2007 1:55:17 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-196%20Opinion.htm


interest was forfeited and quitclaimed back to the seller, Elk Park Ranch, Inc.

¶4 Buday maintains that all of the defendants he has named herein claim interests in the
property upon which he supervised road construction. In his complaint, Buday listed four
counts under which he asserted that the defendants were liable to him for improvements to
the property: construction lien, breach of contract, quantum meruit and unjust enrichment.

¶5 The Elk Park defendants moved for summary judgment. The District Court first granted
summary judgment on the construction lien claim, ruling that Buday had failed to
substantially comply with statutory lien requirements. After a hearing, the District Court
also granted the Elk Park defendants' motion for summary judgment on the three
remaining counts of the complaint, from which judgment this appeal is taken.

¶6 A district court reviews a motion for summary judgment under Rule 56(c), M.R.Civ.P.,
which requires that judgment be rendered "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." This Court's standard in reviewing a district court's
summary judgment ruling is de novo. We use the same Rule 56(c), M.R.Civ.P., criteria
applied by the district court. Stutzman v. Safeco Ins. Co. of America (1997), 284 Mont.
372, 376, 945 P.2d 32, 34 (citations omitted).

                                                                   Issue 1

¶7 Did the District Court err in granting summary judgment on the count of Buday's
complaint alleging breach of contract?

¶8 Buday does not allege that he contracted directly with any of the Elk Park defendants.
The only connection between Buday and the Elk Park defendants was that Buday had
entered a contract to supervise roadbuilding for Yellowstone II on property which
Yellowstone II had contracted to purchase from Elk Park. Buday bases his breach of
contract claim against the Elk Park defendants on the idea that an agency relationship
existed between the Elk Park defendants, as principals, and Yellowstone II, as their agent
for building roads.

¶9 An implied agency relationship exists when the principal intentionally or by want of
ordinary care causes a third person to believe another to be his agent. Section 28-10-103,


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-196%20Opinion.htm (3 of 5)4/5/2007 1:55:17 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-196%20Opinion.htm


MCA. Buday simply has not offered any evidence that the Elk Park defendants
intentionally or by want of ordinary care caused him to believe that Yellowstone II was
their agent.

¶10 Citing cases from other jurisdictions, Buday also argues that an agency relationship
was created via language in the Yellowstone II/Elk Park installment land contract
"requiring" Yellowstone II to build roads on the property. The factual premise for this
contention is unsupported by either the contract language or by the record statements of
the parties to the contract.

¶11 We conclude that the District Court was correct in ruling that no implied or quasi
contract exists and in its entry of summary judgment for the Elk Park defendants on the
breach of contract claim.

                                                                   Issue 2

¶12 Did the District Court err in granting summary judgment on the counts alleging unjust
enrichment and quantum meruit?

¶13 Buday claims unjust enrichment in that the Elk Park developers have retained the
increased property value which results from his roadwork, without having to pay him for
it.

¶14 In establishing a prima facie case under the equitable doctrine of unjust enrichment,
the plaintiff must show misconduct or fault on the part of the defendant, or that the
defendant somehow took advantage of the plaintiff. Sebena v. State (1994), 267 Mont.
359, 367, 883 P.2d 1263, 1268. Buday asserts that this misconduct requirement is met by
the defendants' retention of his improvements to the property. We disagree.

¶15 Buday lost his right to file a contractor's lien to recover for his work on the property
not through any fault of the Elk Park defendants, but by his own failure to file a valid lien.
The Elk Park defendants have voluntarily paid the subcontractors who performed most of
the actual labor on the roads.

¶16 The contract for deed between Elk Park Ranch, Inc. and Yellowstone II gave the Elk
Park defendants no opportunity to decline the alleged benefit to the property that Buday
conferred. Nor has Buday alleged that the Elk Park defendants engaged in any form of


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-196%20Opinion.htm (4 of 5)4/5/2007 1:55:17 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-196%20Opinion.htm


misconduct or took advantage of him to induce him to perform his roadbuilding services.

¶17 As Buday acknowledges in his brief, quantum meruit is merely the measure of
equitable damages in an unjust enrichment action. See Storms v. Bergsieker (1992), 254
Mont. 130, 134, 835 P.2d 738, 741. Therefore, the count of Buday's complaint alleging
quantum meruit fails for the same reasons as does the count alleging unjust enrichment.
We hold that the District Court correctly granted summary judgment to the Elk Park
defendants on both counts.

¶18 If the conclusions of the district court are correct, this Court will affirm regardless of
the district court's reasoning. Norman v. City of Whitefish (1993), 258 Mont. 26, 30, 852
P.2d 533, 535. Because we have determined that the District Court correctly granted
summary judgment for the Elk Park defendants on the counts of Buday's complaint
alleging breach of contract, unjust enrichment and quantum meruit, we do not address
Buday's other claims that "material" issues of fact exist and that the District Court erred in
its reasoning and its citation to authority.

¶19 Affirmed.



/S/ KARLA M. GRAY




We concur:



/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER



 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-196%20Opinion.htm (5 of 5)4/5/2007 1:55:17 PM
