KENYON-NOBLE LUMBER COMPANY, d/b/a KENYON NOBLE LUMBER CO INC. and KENYON NOBLE READY MIX, Plaintiff and Appellant,
DEPENDANT FOUNDATIONS, INC. and MARK MARKOVICH, MARCO MARKOVICH, individually and d/b/a DEPENDANT FOUNDATIONS, DEPENDANT FOUNDATIONS AND FLATWORK, LLC, and JOHN DOES 1 THROUGH 5, Defendants and Appellees.
Submitted on Briefs: September 26, 2018
FROM: District Court of the Eighteenth Judicial District, In
and For the County of Gallatin, Cause No. DV-14-199C
Honorable John C. Brown, Presiding Judge
Jessica Penkal Hodges, Hodges Law Group PLLC, Bozeman,
R. Knuteson, Knuteson Law PLLC, Bozeman, Montana
Matthew A. Dodd, Dodd Law Firm, P.C., Bozeman, Montana
James Dodd, Dodd and Burnham, P.C., Valdosta, Georgia
Kenyon-Noble Lumber Company ("Kenyon Noble")
appeals an order of the Eighteenth Judicial District Court,
Gallatin County, holding that Kenyon Noble had breached its
contract with Dependant Foundations, Inc. ("DF
Inc.") by allowing a former authorized agent to charge
on DF Inc.'s credit account after DF Inc. notified Kenyon
Noble that it had ceased operations. The court awarded DF
Inc. attorney fees. Kenyon Noble argues that because it
lacked notice of the agent's termination, it could not
have breached the contract. Kenyon Noble also contests the
award of attorney fees. We affirm and award the Defendants
their attorney fees for this appeal.
AND FACTUAL BACKGROUND
Mark Markovich founded DF Inc. in Michigan. In 2007, Mark
formed Dependant Foundations, LLC ("DF LLC") in
Montana. At that time, Mark continued to operate DF Inc. in
Michigan, and Shawn Karczewski operated DF LLC in Montana.
Mark's son, Marco Markovich, worked for DF LLC.
Kenyon Noble operates a building supply store. It allows
customers to establish credit accounts to purchase building
materials and concrete on a credit basis. Kenyon Noble
requires an individual personally to guarantee payment for
the debts of companies that hold credit accounts. In 2007, DF
LLC entered into a credit agreement with Kenyon Noble that
allowed DF LLC to purchase building materials and concrete on
credit. The contract included Mark's signed personal
guaranty for the debts incurred.
When Karczewski left DF LLC in 2008, he removed himself as an
authorized user on DF LLC's credit account and added
Marco as a new authorized user. In 2011, when Mark relocated
to Montana, he merged DF Inc. and DF LLC. DF Inc. became the
successor-by-merger. Marco continued as an employee and
authorized agent of DF Inc. DF Inc. did not notify Kenyon
Noble that it merged with DF LLC, but continued to use DF
LLC's credit account.
In 2012, Mark told Marco that he intended to wind down DF
Inc. and that Marco would need to start his own company.
Marco organized Dependant Foundations and Flatwork, LLC
("Foundations and Flatwork"). Mark decided to send
a letter to DF Inc.'s Montana-based suppliers to ensure
that they knew Foundations and Flatwork was a separate and
distinct company from DF Inc. and that Mark was not
responsible for Marco's debt. On September 20, 2012,
JoEllen Markovich, Mark's wife and DF Inc.'s
bookkeeper, sent a letter to DF ...