Blecick v. School Dist. No. 18 of Cochise County

• Decision Date: 20 October 1965
• Docket Number: CA-CIV,No. 18,No. 2,18,2
• Citation: 406 P.2d 750,2 Ariz.App. 115
• Parties: George J. BLECICK, Lester Fischer, and Jasper Peters, copartners doing business under the style and firm name of George J. Blecick Construction Co., Appellants, v. SCHOOL DISTRICT NO. 18 OF COCHISE COUNTY, Arizona, Dave M. Farris, M. H. Barnes and Carl S. Graves, Jr., as members of the Board of Trustees of School Districtof Cochise County, Arizona; and Emerson C. Scholer and Santry C. Fuller, as individuals and Scholer & Fuller, Associated Architects, an Arizona corporation, Appellees. * 12.
• Court: Arizona Court of Appeals

Page 750

406 P.2d 750

2 Ariz.App. 115

George J. BLECICK, Lester Fischer, and Jasper Peters, copartners doing business under the style and firm name of George J. Blecick Construction Co., Appellants, v. SCHOOL DISTRICT NO. 18 OF COCHISE COUNTY, Arizona, Dave M. Farris, M. H. Barnes and Carl S. Graves, Jr., as members of the Board of Trustees of School District No. 18 of Cochise County, Arizona; and Emerson C. Scholer and Santry C. Fuller, as individuals and Scholer & Fuller, Associated Architects, an Arizona corporation, Appellees. ^*

No. 2 CA-CIV 12.

Court of Appeals of Arizona.

Oct. 20, 1965.

Carl W. Divelbiss, Phoenix, for appellants

Dunseath, Stubbs & Burch, by Dean Burch, Tucson, for appellees Emerson C Richard J. Riley, Cochise County Atty., Bisbee, for appellees School District No. 18 and Members of the Board of Trustees of School District No. 18.

Scholer and Santry C. Fuller As individuals, Scholer & Fuller Associated Architects, an Arizona corporation.

HATHAWAY, Judge.

In 1959, appellants (plaintiffs below) filed an action in Superior Court, Pima County, Arizona, against the appellees (defendants below), seeking to recover a balance allegedly due under the terms of a construction contract. This contract, entered into by the plaintiffs and School District No. 18 of Cochise County, Arizona, acting by and through its Board of Trustees, provided for the construction of school rooms for the San Simon Elementary School at an agreed price. The complaint in substance alleged:

A. That the contract was substantially completed in June, 1958 and fully completed in October, 1958;

B. That the agreed contract price was $140,785 and that during the course of construction various changes were made whereby the total contract price was increased to $144.485;

C. That plaintiffs had been paid the sum of $124,581.87, leaving a balance due to plaintiffs in the amount of $19,903.13;

D. That plaintiffs had demanded payment of the balance from the school district who refused to pay same;

E. That plaintiffs had fully performed in accordance with the plans and specifications;

F. That certain materials installed had proved to be defective through no fault of the plaintiffs but rather were because of errors in the plans and specifications;

G. That the defendants Scholer & Fuller, as the architects, arbitrarily refused to issue a final certificate certifying to full performance of the contract; and

H. That the acts of Scholer & Fuller were arbitrary, without just excuse and made for the sole purpose of hindering and delaying plaintiffs and damaging them in the amount of the balance due.

In lieu of a responsive pleading, defendants, Scholer & Fuller and Scholer & Fuller, Associated Architects, filed a motion to dismiss the complaint for failure to state a claim against them. The motion was granted and a judgment of dismissal entered. In the School District's answer it admitted nonpayment of the balance due because the architects' final certificate had not been issued and alleged that the plaintiffs had failed to complete the construction in accordance with the contract. In addition, the School District counterclaimed for damages in the sum of $25,000, alleging negligence and careless workmanship in the performance of the contract and failure to complete the construction. The plaintiffs stated in their reply that any damages sustained by the School District were the result of errors in the plans and specifications and the plaintiffs were not at fault. On defendant School District's motion for a change of venue, the cause was transferred to Cochise County.

The case was tried to the court sitting without a jury and submitted upon written memoranda. The school, subject matter of the dispute, was viewed by the court on stipulation of counsel. The decision of the court was that plaintiffs were entitled to recover the balance due on the contract, $19,903.13; that the defendant School District was entitled to damages on its counterclaim in the amount of $12,000 to be deducted from plaintiff's recovery; and that plaintiffs were entitled to have judgment for $7,903.13. Judgment for the plaintiffs against the defendant School District No. 18 for the sum of $7,903.13 plus costs was entered. Plaintiffs now appeal from this judgment, the judgment of dismissal Plaintiffs contend that the lower court erred in the following respects:

as to defendants Scholar and Fuller, and the denial of their motion for a new trial.

1. Granting the motion to dismiss as to the defendants Scholar and Fuller.

2. Allowing a $12,000 set-off against plaintiffs' recovery.

3. Excluding certain documentary evidence offered by plaintiffs.

4. Refusing to grant a new trial to the plaintiffs on the basis of 'newly-discovered evidence.'

MOTION TO DISMISS

A motion to dismiss a complaint for failure to state a claim on which relief can be granted admits the truth of the facts alleged therein for purposes of the motion. Pinkerton v. Pritchard, 71 Ariz. 117, 124, 223 P.2d 933 (1950); Roberts v. Spray, 71 Ariz. 60, 65, 223 P.2d 808 (1951); Davis v. State, 1 Ariz.App. 264, 401 P.2d 749, 753 (1965). For purposes of testing the propriety of the order granting the motion to dismiss, we must consider all the allegations as true. Davis v. State, supra.

The plaintiffs' allegation in the complaint as to the execution of the contract admits that the architects were not contracting parties. Consequently they have no contractual obligation to pay any balance due under the terms of the contract.

The other pertinent allegations of the complaint are as follows:

'Plaintiffs allege that although any and all materials were furnished and installed in accordance with the drawings, plans, and specifications as prepared by the said Scholer & Fuller and so directed by the said Scholer & Fuller and the said Board of Trustees, certain materials installed by plaintiffs as aforesaid did, by reason of errors in said drawings and specifications made on the part of the said Scholer & Fuller, prove to be defective all through no fault of plaintiffs, but that the said Scholer & Fuller, Architects, arbitrarily and without just cause refused to issue a final certificate stating that the contract had been completed and certifying as to the balance due plaintiffs. The difficulties experienced in connection with some of the materials installed by plaintiffs were a direct result of an error made in the drawings and specifications by the said Scholer & Fuller, and which said error the said Scholer & Fuller refused to admit or accept, and further, refused to correct the same. That any and all of the acts of the said Scholer & Fuller in refusing said final certificate as to completion and payment were arbitrary, without just cause or excuse, and made for the sole purpose of hindering, delaying and damaging plaintiffs, all in the aforesaid sum of $19,903.13. At all times herein mentioned the said Scholer & Fuller, as said architects, were acting as the agent of the defendant School District * * *'

The defendants-architects' motion to dismiss the complaint was accompanied by an affidavit which enumerated, in ipsis verbis, certain provisions of the construction contract relative to (a) the supervisory powers and duties of the architects, including issuance of a final certificate and (b) the performance required of the contractor.

The problem has two facets:

1. Is an architect liable to a contractor for the preparation of defective plans and specifications?

2. Is an architect immune from a civil action for damages by a contractor for refusal to issue a completion certificate as required in the contract between the owner and the contractor?

Assuming the truth of plaintiffs' allegations as to the defects in the plans and specifications, we agree with the trial court that no claim has been stated against On the other hand, the construction contract requires the plaintiffs to build in accordance with the plans and specifications. If they fulfilled their contract, they were entitled to recover the contract price, regardless of defects in the plans. In order for plaintiffs to maintain an action against the School District for payment, it was necessary for plaintiffs to allege full performance of their contractual obligation, i. e., performance in accordance with the plans and specifications. The mere co-existence of the two contracts, with one contracting party (the School District) common to both, does not give the plaintiffs a right to enforce obligations owed by the architects to the School District.

the architects. We must bear in mind that there are two separate and distinct contracts involved here: (1) a contract between the School District and the architects for preparation of plans and specifications and supervisory activities to be performed by the architects and (2) a construction contract between the School District and the plaintiffs. There is no privity between plaintiffs and the architects by virtue of the first contract nor are plaintiffs third-party beneficiaries thereof. The obligations of performance due thereunder by the architects are owed solely to the School District and only the School District can assert claims for breach of said contract.

Plaintiffs have cited numerous authorities to support their position that the defendants-architects are liable, inter alia, Mindeman v. Douville, 112 Wis. 413, 88 N.W. 299 (1901); Northwestern Marble & Tile Co. v. Megrath, 72 Wash. 441, 130 P. 484 (1913); Shine v. Hagemeister Realty Co., 169 Wis. 343, 172 N.W. 750 (1919); Haugen v. Raupach, 43 Wash.2d 147, 260 P.2d 340 (1953); Piper v. Murray, 43 Mont. 230, 115 P. 669 (1911); Guarantee Title & Trust Co. v. Willis, 38 Ariz. 33, 297 P. 445 (1931); Gillespie Land & Irrigation Co. v. Hamilton, 43 Ariz. 102, 29 P.2d 158 (1934); Reinhardt Construction Co. v. Mayor & City Council of Baltimore, 157 Md. 420, 146 A. 577 (1929); Howard County v. Pesha, 103 Neb. 296, 172 N.W. 55 (1919). Despite the wealth...