A Question of Ethics—Improper Incorporation.

Mike Lyons incorporated Lyons Concrete, Inc., in Montana, but did not file its first annual report, so the state involuntarily dissolved the firm in 1996. Unaware of the dissolution, Lyons continued to do business as Lyons Concrete. In 2003, he signed a written contract with William Weimar to form and pour a certain amount of concrete on Weimar’s property in Lake County for $19,810. Weimar was in a rush to complete the entire project, and he and Lyons orally agreed to additional work on a time-and-materials basis.

When scheduling conflicts arose, Weimar had his own employees set some of the forms, which proved deficient.

Weimar also directed Lyons to pour concrete in the rain, which undercut its quality. Midproject, Lyons submitted an invoice for $14,389, which Weimar paid. After the work was complete, Lyons billed Weimar for $25,731, but he refused to pay, claiming that the $14,389 covered everything.

To recover the unpaid amount, Lyons filed a mechanic’s lien as “Mike Lyons d/b/a Lyons Concrete, Inc.” against Weimar’s property. Weimar filed a suit to strike the lien, and Lyons filed a counterclaim. [Weimar v. Lyons, 338 Mont.

242, 164 P.3d 922 (2007)] (See pages 750–756.)

1. Before the trial, Weimar asked for a change of venue on the ground that a sign on the courthouse lawn advertised

“Lyons Concrete.” How might the sign affect a trial on the parties’ dispute? Should the court grant this request?

2. Weimar asked the court to dismiss the counterclaim on the ground that the state had dissolved Lyons Concrete in 1996. Lyons immediately filed new articles of incorporation for “Lyons Concrete, Inc.” Under what doctrine might the court rule that Weimar could not deny the existence of Lyons Concrete? What ethical values underlie this doctrine? Should the court make this ruling?

3. At the trial, Weimar argued, in part, that there was no

“fixed price” contract between the parties and that even if there was, the poor quality of the work, which required repairs, amounted to a breach, excusing Weimar’s further performance. Should the court rule in Weimar’s favor on this basis?