United States District Court, D. Montana, Missoula Division
W. MOLLOY, DISTRICT JUDGE.
suit involves the construction of a home in Philipsburg,
Montana and the general contractor's filing of a
construction lien. The general contractor Cornerstone, Inc.
sued homeowner Jeff Cadieux for breach of contract and
foreclosure of the lien, among other things. Cadieux has
moved for judgment on the pleadings on Cornerstone's
claims for breach of contract (Count I) and foreclosure
(Count II). (Doc. 14.) For the following reasons, Counts I
and II are dismissed, but Cornerstone is granted leave to
February 2017 until at least April but perhaps as late as
June 2017, Cornerstone and Cadieux negotiated a written
contract for the construction of a residence in Philipsburg.
(Compl., Doc. 3 at 2, ¶¶ 8-9; Ans., Doc. 4 at 3,
¶¶ 8-9.) Cornerstone claims the written contract
was never executed but that the parties entered an oral
agreement in March 2017. (Compl., Doc. 3 at 3, ¶ 10.)
Cadieux responds that the written contract was executed in
late May or early June 2017. (Ans., Doc. 4 at 3, ¶ 10.)
In any event, the parties agree Cornerstone's fee was 12%
of certain construction costs. (Compl., Doc. 3 at 3, ¶
13; Ans., Doc. 4 at 4, ¶ 13.) However, they dispute the
projected total of those costs. (Compl., Doc. 3 at 3, ¶
12; Ans., Doc. 4 at 4, ¶ 12.)
March 2017, Cadieux paid a $15, 000 deposit to Cornerstone.
(Compl., Doc. 3 at 4, ¶ 14; Ans., Doc. 4 at 4, ¶
14.) Construction began in April or May 2017. (Stip. Facts,
Doc. 8 at 2.) Over time, Cadieux made additional payments of
$4, 945.19, $6, 075.14, and $15, 042.37 for work on the home.
(Id.) But in October 2017, Cadieux terminated
Cornerstone from the project. (Id. at 3.) In
December 2017, Cornerstone filed a construction lien on the
property for $58, 094.50. (Id.) The amount
represents $35, 477.52 that Cornerstone claims in costs and
$22, 616.98 in construction fees. (Compl., Doc. 3 at 5,
February 1, 2018, Cornerstone filed this action in state
court for breach of contract, foreclosure of the lien, unjust
enrichment, promissory estoppel, and fraud, among other
things. (Compl., Doc. 3.) Cadieux removed to this Court on
March 13, 2018. (Doc. 1.) On March 19, 2018, he filed an
Answer and Counterclaim alleging slander of title, breach of
contract, fraud, negligent misrepresentation, and negligent
construction. (Doc. 4.) On February 29, 2019, he filed the
present motion. (Doc. 14.)
Rule of Civil Procedure 12(c) provides, "After the
pleadings are closed-but early enough not to delay trial-a
party may move for judgment on the pleadings."
"Dismissal under Rule 12(c) is warranted when, taking
the allegations in the complaint as true, the moving party is
entitled to judgment as a matter of law." Daewoo
Elec. Am. Inc. v. Opta Corp., 875 F.3d 1241, 1246 (9th
Cir. 2017). However, dismissal without leave to amend is
inappropriate unless it is clear the complaint cannot be
saved. Harris v. Cty. of Orange, 682 F.3d 1126, 1131
(9th Cir. 2012).
party presents matters outside the pleadings on a Rule 12(c)
motion, as Cornerstone has done here, the court can either
exclude those matters or treat the motion as one for summary
judgment. Fed.R.Civ.P. 12(d). Because Cadieux's motion
can be resolved on the pleadings alone, Cornerstone's
outside materials are excluded for present purposes.
Montana law, "[a] 11 contracts may be oral except such
as are specially required by statute to be in writing."
Mont. Code Ann. § 28-2-901. "An oral contract, when
expressly required to be in writing, is void."
Mandell v. Ward, 371 P.3d 1228, 1233 (Mont. 2016).
Montana Code § 28-2-2201 requires a residential
construction contract, defined as "a contract between a
general contractor and an owner for the construction of a new
residence," to be in writing. Accordingly, as the
Montana Supreme Court explicitly held in Mandell,
oral residential construction contracts are void. 377 P.3d at
1233. Mandell also held that because a
contractor's right to a construction lien depends on a
valid contract, a void contract invalidates the corresponding
lien. Id.; see also Mont. Code Ann. § 71-3-523.
Cornerstone has specifically alleged that the parties entered
an oral residential construction contract. The Complaint
states, "Although the written contract was never
executed by the parties to it, on or about March 16, 2017,
Defendants and Plaintiff entered into an oral agreement to
construct the residence ... ." (Compl., Doc. 3 at 3,
¶ 10.) Count I explicitly claims "Breach of Oral
Contract" and refers repeatedly to "the oral
agreement." (Id. at 6-7, ¶¶ 26-35.)
However, Cornerstone attached the written contract the
parties allegedly negotiated as Exhibit A to its Complaint,
complicating the analysis. (See Doc. 3-1.)
"When a plaintiff has attached various exhibits to the
complaint, those exhibits may be considered in determining
whether dismissal was proper without converting the motion to
one for summary judgment." See Parks Sch. of Bus.,
Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
unclear what Cornerstone meant to allege by attaching the
unexecuted written contract to the Complaint. While parties
can plead alternative or inconsistent claims, Fed.R.Civ.P.
8(d), Cornerstone has not done so here. Even when construing
the pleadings in favor of Cornerstone, as required at this
stage, Cornerstone has exclusively alleged that the contract
was oral. Cornerstone could have alternatively alleged that
the contract was written and oral. Or, Cornerstone
could have pled a general "breach of contract"
claim, rather than "breach of oral contract,"
allowing an interpretation of Exhibit A as an allegation that
a written contract existed. Instead, the Complaint's
plain language alleges the parties entered an oral contract,
and only an oral contract. The alleged oral contract is void
as a matter of law under Mandell and therefore
cannot form the basis of a breach of contract claim or a
construction lien. 377P.3datl233.
argues § 28-2-2201 is akin to a statute of frauds, such
that equitable principles that take a contract out of the
statute of frauds should apply here. Montana's Statute of
Frauds, codified at § 28-2-903 and §70-20-101,
requires certain contracts to be in writing. See Hayes v.
Hartelius,697 P.2d 1349, 1353 (Mont. 1985). Generally,
though, the parties' admission that a contract exists or
their partial performance renders the Statute of Frauds