Charles Pankow, Inc. v. Holman Properties, Inc.

• Decision Date: 26 May 1975
• Docket Number: No. 2373--I,2373--I
• Citation: 536 P.2d 28,13 Wn.App. 537
• Court: Washington Court of Appeals
• Parties: CHARLES PANKOW, INC., a corporation, Appellant, v. HOLMAN PROPERTIES, INC., a corporation, and Puget Western Inc., a corporation d/b/a 'Renton Village Company', a joint venture or partnership, Respondents, Federal Insurance Company, a New Jersey Corporation, Respondent, Allan M. Walter and Associates, Inc., a California Corporation, and T. Y. Lin, Kulka, Yang & Associates, a California Corporation, Defendants.

Page 537

13 Wn.App. 537

536 P.2d 28

CHARLES PANKOW, INC., a corporation, Appellant, v. HOLMAN PROPERTIES, INC., a corporation, and Puget Western Inc., a corporation d/b/a 'Renton Village Company', a joint venture or partnership, Respondents Federal Insurance Company, a New Jersey Corporation, Respondent Allan M. Walter and Associates, Inc., a California Corporation, and T. Y. Lin, Kulka, Yang &amp Associates, a California Corporation, Defendants.

No. 2373--I.

Court of Appeals of Washington, Division 1.

May 26, 1975.

Guttormsen, Scholfield & Stafford, Charles W. Mertel, Seattle, for appellant.

Perkins, Coie, Stone, Olsen & Williams, William S. Weaver, Seattle, for respondents.

ANDERSEN, Judge.

FACTS OF CASE

This is a construction contract dispute arising out of construction of the Evergreen Building at Renton Village, a shopping center and business complex in Renton.

The owner of the building is a joint venture comprised of Holman Properties, Inc., and Puget Western Inc., d/b/a Renton Village Company.

The joint venture, which also owns the Renton Village development, had the Evergreen Building built by a contractor, Charles Pankow, Inc. The surety on the contractor's performance bond was Federal Insurance Company.

The architect for the job was Allan M. Walter and Associates, Inc., and the engineer was T. Y. Lin, Kulka, Yang and Associates, a corporation. These firms, as well as the contractor, are California based corporations.

The contractor contracted to design and build a 6-story office building for the owner at a price in excess of $2 million.

Pursuant to the contract, the contractor was to prove and furnish final plans and specifications, all material, temporary utilities, equipment, supervision, labor and services for the proper construction of the building.

After the building was largely completed, problems arose as to whether certain of the work had been done according to the standards required by the construction agreement. This ultimately resulted in the contractor leaving the jobsite and, as the trial court was subsequently to find, the architect did not issue the certificate of completion called for by the contract.

This litigation began when the contractor sued the owner for approximately $35,000 it claimed to be owing on the contract. The owner counterclaimed asking some $50,000 for what it said was defective work. The owner by its pleadings also brought the contractor's surety, the architect and the engineer into the suit.

Prior to trial, the engineer was dismissed out by a summary judgment.

The case went to trial before the court sitting without a jury. The trial lasted 5 days. A number of witnesses, including expert witnesses, were presented by the respective parties and some hundreds of pages of documentary evidence were introduced.

The trial court thereupon entered its findings of fact and conclusions of law. The architect was dismissed out and the owner was granted a recovery of $36,265 against the contractor and its surety. The court fixed the amount of the unpaid contract balance at $33,949.76, set that sum off against the amount awarded the owner and then entered judgment in favor of the owner of the difference, being the sum of $2,315.24.

It is from this judgment that the contractor and its surety appeal.

The owner cross-appeals from the trial court's failure to award it all of the items of damage asked by its counterclaim against the contractor and the contractor's surety.

ISSUES

The following four issues are determinative of this appeal.

ISSUE ONE. Can an assignment of error directed to the trial court's denial of a motion in limine prevail where the brief contains no supporting citation of authority?

ISSUE TWO. Under the Renton Building Code, did the city's building department or its director have final authority to approve the use of 1/4 inch thick glass when the code called for 5/16 inch thick glass?

ISSUE THREE. Was the trial court's finding that the use of 1/4 inch thick glass violated the building code improper as a collateral attack on an administrative determination?

ISSUE FOUR. Was there substantial evidence to sustain the trial court's findings of fact?

DECISION

ISSUE ONE.

CONCLUSION. The contractor has not established that the trial court's denial of its motion in limine was erroneous.

The contractor argues that the trial court abused its discretion in denying the contractor's motion in limine which had asked that glass thickness evidence be excluded.

The contractor cites no authority in support of its assignment of error. This court will not give consideration to a claim of error which is unaccompanied by citation of authority unless it is apparent without further research that the assignment is well taken. DeHeer v. Seattle Post-Intelligencer, 60 Wash.2d 122, 126, 372 P.2d 193 (1962); Corbin v. Madison,12 Wash.App. 318, 322, 529 P.2d 1145 (1974).

Here the owner's counterclaim alleged that the contractor failed to do its work in conformity with, among other things, 'the applicable building code.' Testimony as to what the building code required as to glass thickness was offered by both the contractor and owner and was admitted without objection. The claim of error is not well taken.

ISSUE TWO.

CONCLUSION. The city's building director did not have discretion to approve the use of glass in direct contravention of the requirements of the building code.

The storefront plans approved by the city building director showed that 1/4 inch thick glass would be installed.

The contractor urges that this approval was binding on the trial court on two bases.

The contractor first suggests that the building director, as the administrator of the building code, had the discretion to authorize use of glass 1/4 inch thick rather than glass 5/16 inches thick as called for by the code.

The Renton Building Code provides otherwise:

The issuance or granting of a permit or approval of plans and specifications shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this Code.

Uniform Building Code § 302(c) (1967). Accord, Eastlake Community Council v. Roanoke Associates, Inc., 82 Wash.2d 475, 482, 513 P.2d 36 (1973).

The building director had no discretion in this case to alter the requirements of the building code as to glass thickness.

ISSUE THREE.

CONCLUSION. The rule prohibiting collateral attack on administrative determinations did not bar the trial court from considering whether or not the glass installed by the contractor complied with the building code.

The contractor's second argument as to the building director's approval being binding on the court is that it was an administrative determination which, not having been attacked in a direct proceeding, could not be collaterally attacked by the owner in this contract action.

It is a general rule that the order or determination of an administrative body acting with jurisdiction and under authority of law is not subject to collateral attack in the absence of fraud or bad faith. Knestis v. Unemployment Compensation & Placement Div., 16 Wash.2d 577, 581, 134 P.2d 76 (1943); 2 Am.Jur.2d Administrative Law § 493, at 299 (1962) 73 C.J.S. Public Administrative Bodies & Procedures § 146, at 479 (1951).

Even assuming, however, that the building director's approval of the plans is the kind of an order or determination of an administrative body that the prohibition against collateral attack applies to, that rule would still not pertain to the present case.

An administrative determination binds those who are parties to the proceeding and over whom jurisdiction has been acquired. 2 Am.Jur.2d Administrative Law § 481, at 288 (1962).

Conversely, an administrative determination does not bind one who was not a party to the proceeding. National Labor Relations Bd. v. Stone, 125 F.2d 752, 757 (7th Cir. 1942); Cochise Sanitary Services, Inc. v. Corporation Comm'n, 2 Ariz.App. 559, 410 P.2d 677, 679 (1966); Kunkel v. Eastern Iowa Light & Power Cooperative, 232 Iowa 649, 5 N.W.2d 899, 903 (1942); Juster Bros., Inc. v. Christgau, 214 Minn. 108, 7 N.W.2d 501, 509 ...