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                                                               No. 00-833

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2001 MT 218N



                                                  ROBERT CUMMINGS, d/b/a

                                              CUSTOM CUT CONSTRUCTION,

                                                     Plaintiff and Respondent,

                                                                      v.

                                                    LELAND D. PATTON and

                                                         TONI M. PATTON,

                                                    Defendants and Appellants.

                       APPEAL FROM: District Court of the Twenty-First Judicial District,

                                                In and for the County of Ravalli,

                                   The Honorable Jeffrey H. Langton, Judge presiding.

                                                    COUNSEL OF RECORD:

                                                            For Appellants:

                            Howard C. Greenwood, Attorney at Law, Hamilton, Montana

                                                            For Respondent:

                                 John D. Greef, Greef & Markette, Hamilton, Montana

                                              Submitted on Briefs: May 24, 2001
                                                 Decided: November 6, 2001

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                                                                    Filed:

                                    __________________________________________

                                                                    Clerk



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

¶1Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent. It 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 Leland D. Patton and Toni M. Patton appeal from a judgment entered by the Twenty-
First Judicial District Court, Ravalli County, in favor of Robert Cummings, d/b/a Custom
Cut Construction. We affirm in part, reverse in part, and remand.

¶3 Cummings, a building contractor, and the Pattons entered into a contract for
construction of a residence and garage on the Pattons' property. The contract price was the
fixed sum of $148,823.70, less items paid directly by the Pattons and plus amounts for
agreed-upon upgrades and work not originally contemplated. The contract provided for
"allowances" for certain specified items which would result in adjustments to reflect actual
amounts expended either greater or lesser than the corresponding amount contained in the
contract. Over the course of the work, the Pattons made progress payments to Cummings
in the total amount of $135,442.75.

¶4 As the work progressed, problems arose between the Pattons and Cummings over
alleged unsatisfactory work. Ultimately, Cummings ceased working on correcting
purported problems and the Pattons withheld the final payment due Cummings under the
contract. Cummings filed a construction lien on the property alleging the amount
remaining unpaid was $11,927.43, and sued the Pattons to collect that amount plus costs
and attorney fees. The Pattons responded and subsequently were permitted to file an
amended response and counterclaim. They denied that Cummings performed the contract
in its entirety or timely and that he was entitled to the amount asserted. Via counterclaim,
they alleged various breaches of the contract by Cummings including failure to complete

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the job timely, inadequate workmanship, unacceptable work and inferior materials. The
Pattons sought damages for, among other things, the costs they alleged would be incurred
to complete the project in compliance with the contract and reasonable construction
standards.

¶5 The District Court held a bench trial which resulted in a judgment in Cummings' favor
in the amount of $2,801.55. In its extensive findings of fact, the court found that the
breakdown in communications between the parties resulted from the hostile work
environment created by Leland Patton and that Cummings' failure to fully complete the
contract in a workmanlike manner resulted from Leland Patton's failure to give him the
reasonable opportunity to do so. The court also adjusted the subtotal bid amount to
$130,090.27 for certain "allowances," one modification and work not done; determined
the general contractor's fee of 10% of that amount would bring the total to $143,099.30;
and ruled that amount would have been due Cummings had the contract been fully
performed. Consequently, without further adjustments, and given the amounts already
paid to Cummings, the court determined the Pattons would have owed Cummings
$7,656.55, rather than the $11,927.43 alleged in Cummings' construction lien. The District
Court went on, however, to detail numerous shortcomings and defects in the work
performed and to determine that $4,455 in additional costs to cover labor and materials
would be necessary for final repairs. It also found that Cummings overcharged the Pattons
in the approximate amount of $400 for roofing materials.

¶6 The District Court concluded, based on its extensive findings, that Cummings breached
the contract but that his anticipatory breach was due to hostile working conditions created
by Leland Patton. It further concluded Cummings has a construction lien on the Pattons'
property to secure payment of the net sum of $2,801.55, plus interest and costs, and that
Cummings is statutorily entitled to reasonable attorney fees. The Pattons appeal and we
affirm in part, reverse in part, and remand for further proceedings.

¶7 The Pattons set forth nine issues on appeal. They challenge several District Court
findings of fact. They also argue, with regard to their counterclaim, that Cummings
breached the contract by not completing their house on time and that the judgment does
not fully address all the defects in the house or adequately compensate them for their
damages. They contend Cummings should not have been awarded his costs and attorney
fees and, finally, that the District Court improperly allocated trial time.

¶8 Our standard of review of district court findings of fact is whether those findings are


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clearly erroneous. Findings are clearly erroneous if they are not supported by substantial
credible evidence, if the district court misapprehended the effect of the evidence, or if this
Court is left with a definite and firm conviction that a mistake has been made. Interstate
Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

¶9 We conclude that two of the challenged findings are clearly erroneous. In Finding No.
9, the District Court found Cummings' subtotal bid amount should be reduced by $400
because Cummings only partially completed plumbing in the garage. In fact, Cummings'
testimony confirmed that the bid for plumbing of the garage should be reduced by $724, as
the Pattons assert. Cummings concedes on appeal that the $400 amount in Finding No. 9 is
not supported by the evidence. On remand, the District Court is instructed to correct the
adjustment for garage plumbing in Finding No. 9 to $724 and to flow the resulting $324
reduction through its calculations, ultimately reducing the amount of Cummings' judgment
against the Pattons accordingly.

¶10 The Pattons also challenge a portion of Finding No. 15, contending they are entitled to
an additional adjustment for overcharged roofing materials. The District Court determined
they were overcharged by "over $400" for such materials, but the evidence appears to
support the Pattons' assertion that the overcharge was, in fact, approximately $800. Indeed,
Cummings does not dispute the Pattons' version of the evidence in his response. Instead,
he contends the District Court did not credit the Pattons for the roofing material
overcharge it found existed, so the amount of the overcharge is irrelevant. We disagree.

¶11 The total of the amounts the trial court found necessary to cover final repairs was
$4,455. Subtracting that amount from the $7,656.55 to which the court determined
Cummings would have been entitled had all work been performed pursuant to the contract,
the amount owed Cummings by the Pattons would be $3,201.55. The court determined,
however, the Pattons owed Cummings only $2,801.55. Because the District Court found
the roofing materials overcharged to be "over $400," and $400 is the difference between
$3,201.55 and $2,801.55, we conclude the District Court credited the Pattons with that
amount in determining the net amount owed to Cummings. Consequently, the amount of
the roofing materials overcharged is relevant.

¶12 As stated above, the record appears to support the Pattons' view that the total
overcharge for roofing was $800 rather than $400. Furthermore, Cummings does not
dispute the evidence as to that amount. We conclude, therefore, that Finding No. 15I is not
supported by substantial credible evidence and is clearly erroneous. On remand, the


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District Court is directed to enter amended findings and conclusions as appropriate in this
regard, together with any appropriate corresponding amendment to the judgment.

¶13 With regard to other findings challenged by the Pattons, substantial credible evidence
via the testimony of Cummings and several of his subcontractors supports the findings that
Cummings was not given reasonable opportunity to complete the contract; Cummings was
justified in leaving the job site due to the increasingly hostile work environment; and
Leland Patton's conduct justified Cummings' anticipatory breach of the contract. We
conclude those findings are not otherwise clearly erroneous.

¶14 The Pattons also contend on appeal that Cummings first breached the contract by
failing to complete the house by the originally-anticipated completion date. They did not
raise this argument in their District Court proposed findings, conclusions, and judgment.
We will not consider for the first time on appeal an issue not raised in the district court.
Keller v. Dooling (1991), 248 Mont. 535, 540, 813 P.2d 437, 441.

¶15 The Pattons also state as an issue whether Cummings breached the contract by leaving
the job on March 19, 1998, and not returning. In this regard, the District Court found:

        Cummings was justified in leaving the job site due to the increasingly hostile work
        environment created by Mr. Patton. Accordingly, Mr. Patton's conduct justified the
        anticipatory breach by Cummings.

The court made the finding of breach advocated by the Pattons. It further found, however,
that Cummings' anticipatory breach was justified, and we concluded above that finding is
not clearly erroneous. Consequently, we need not address this issue further.

¶16 The Pattons contend the judgment does not fully address all the defects in the house or
adequately compensate them for their damages for Cummings' breach of contract.
Specifically, they urge that they will be left with responsibility for supervising--or hiring
someone to supervise--the remaining work needed to complete the house and that the
court did not award amounts to repair some of the defects it listed. In this regard, we
observe that the Pattons do not cite to evidence of record supporting a specific monetary
amount for the additional repairs they contend are needed and on which the District Court
could have based such awards. Furthermore, the Pattons ignore the trial court's finding that
"$1,000 should be adequate for labor and materials to finish/correct other items." Absent
specific record evidence establishing error in this finding, none of which is cited by the


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Pattons, we conclude they have failed to establish error in this regard.

¶17 The Pattons also argue they have not been "made whole" for Cummings' breach of
contract via compensatory damages for that breach and, moreover, that Cummings should
not be paid for work he has not done. These arguments ignore the fact that the Pattons
ultimately did not prevail on their counterclaim for damages against Cummings for his
breach of contract because his anticipatory breach was due to Leland Patton's creation of a
hostile work environment. Further, the District Court's calculation of the amount of
contractor's fee to which Cummings is entitled awards a fee only for the work completed.
It does not include a fee for uncompleted portions of the contract. We hold the Pattons
have not established error in this regard.

¶18 The District Court awarded Cummings attorney fees pursuant to § 71-3-124, MCA,
which provides for the award of attorney fees necessary to establish a construction lien.
The attorney fee award is based on the District Court's conclusion that Cummings has a
construction lien on the Pattons' real property. The Pattons base their argument that the
attorney fee is improper on their position that Cummings did not establish a lien. Because
the District Court concluded otherwise and the Pattons have not established error in that
regard, we hold the District Court did not err in awarding the attorney fees.

¶19 Finally, the Pattons point out that the District Court allowed for total trial time of
approximately four hours. They do not dispute the overall time allotted. They contend that,
while the court acknowledged their counterclaim would require the majority of trial time,
it limited each party to two hours for direct and cross-examination. The Pattons contend
generally that they were prejudiced by not having sufficient time to present their case.

¶20 There are several problems with the Pattons' contention. First, they do not cite to any
objection of record relating to the allocation of trial time. The Pattons' counsel did not
object when advised by the District Court that he had three minutes remaining and did not
object when, after seeking to call an additional witness, he was advised that all of his time
had been used. We conclude that, because the Pattons failed to timely raise this issue in
the District Court, they cannot properly raise it on appeal. See Nason v. Leistiko, 1998 MT
217, ¶ 18, 290 Mont. 460, ¶ 18, 963 P.2d 1279, ¶ 18.

¶21 Second, the Pattons advance no authority in support of their argument. Such authority
is required by Rule 23(a)(4), M.R.App.P. Consequently, we decline to address this
argument further.


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¶22 Affirmed in part, reversed in part and remanded for further proceedings consistent
with this opinion.

                                                     /S/ KARLA M. GRAY

                                                               We concur:

                                                    /S/ PATRICIA COTTER

                                                         /S/ JIM REGNIER

                                               /S/ W. WILLIAM LEAPHART




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