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Zirkelbach Construction, Inc. v. Dowl, LLC

Supreme Court of Montana

September 26, 2017

ZIRKELBACH CONSTRUCTION, INC., Plaintiff and Appellant,
v.
DOWL, LLC dba DOWL HKM, Defendant and Appellee.

          Argued: July 12, 2017

          Submitted: July 18, 2017

         APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV-14-1061 Honorable Michael G. Moses, Presiding Judge

          For Appellant: W. Scott Green (Argued), Daniel L. Snedigar (Argued), Patten, Peterman, Bekkedahl & Green, PLLC, Billings, Montana

          For Appellee: Matthew F. McLean (Argued), Kelsey E. Bunkers, Griffin B. Stevens, Crowley Fleck, PLLP, Bozeman, Montana

          OPINION

          Michael E Wheat Justice

         ¶1 Zirkelbach Construction, Inc. (Zirkelbach) appeals from the order of the Thirteenth Judicial District Court, Yellowstone County, granting DOWL, LLC's (DOWL) motion for partial summary judgment. We affirm.

         ¶2 We restate the issue on appeal as follows:

Did the District Court err in granting DOWL's motion for partial summary judgment?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 This case arises out of the construction of a FedEx Ground facility (Facility) in Billings, Montana. SunCap Billings, LLC (SunCap) is the owner of the real property upon which the Facility was to be constructed. SunCap hired Zirkelbach as the general contractor to construct the Facility. Zirkelbach is an experienced construction company maintaining offices in Florida, South Carolina and Montana. The construction of the Facility was Zirkelbach's forty-second project for FedEx. Zirkelbach hired DOWL to provide design work for the Facility. Likewise, DOWL is an experienced, professional design company.

         ¶4 Zirkelbach and DOWL entered into an agreement[1] for professional services (Agreement). Both parties presented their own form contracts, but ultimately, DOWL's form contract was agreed upon and signed by both parties. The Agreement provided for Zirkelbach to pay DOWL $122, 967 for services rendered. Subsequently, the parties made several addenda to the Agreement. The subsequent addenda raised the fee for any additional services being rendered by DOWL. DOWL's final fee for its services relating to the design of the Facility totaled approximately $665, 000.

         ¶5 Sub-section 5(D) of the Agreement between Zirkelbach and DOWL provides as follows:

         D. Consequential ...


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