Gary Porter Const. v. Fox Const., Inc.

• Decision Date: 07 October 2004
• Docket Number: No. 20030071-CA.,20030071-CA.
• Citation: 2004 UT App 354,101 P.3d 371
• Parties: GARY PORTER CONSTRUCTION dba Porter & Sons, Plaintiff, Appellee, and Cross-appellant, v. FOX CONSTRUCTION, INC.; and National Surety Corp., Defendants, Appellants, and Cross-appellees.
• Court: Utah Court of Appeals

101 P.3d 371

2004 UT App 354

GARY PORTER CONSTRUCTION dba Porter & Sons, Plaintiff, Appellee, and Cross-appellant, v. FOX CONSTRUCTION, INC.; and National Surety Corp., Defendants, Appellants, and Cross-appellees.

No. 20030071-CA.

Court of Appeals of Utah.

October 7, 2004.

Jeffery R. Price and Michael E. Bostwick, Salt Lake City, for Appellants.

Brian W. Steffensen, Salt Lake City, for Appellee.

OPINION

BILLINGS, Presiding Judge:

¶ 1 Fox Construction, Inc. (Fox) appeals from a trial court order granting summary judgment to Gary Porter Construction Porter. We affirm. Porter appeals from a trial court order granting summary judgment and awarding attorney fees to National Surety Corporation National. We reverse in part and remand. The appeals have been consolidated.

BACKGROUND

¶ 2 The University of Utah the University contracted with Fox for the construction of a Women's Gymnastics Training Facility the Facility on the University campus. As required by Utah Code section 63-56-38 and its contract with the University, Fox and its surety, National, issued a payment bond the Bond for the benefit of persons supplying labor and material for construction of the Facility. See Utah Code Ann. § 63-56-38 (1997).

¶ 3 Fox entered into a subcontract with Porter whereby Porter was to perform various excavation and soil placement services. Specifically, the subcontract required Porter to "furnish and install all materials, equipment and labor per plans, specification sections 02000, 02070, 02230, 02601, 02680, 02700 and 02721 and addendums 1 and 2" Included Sections for the sum of $146,740.00. Subsequently, Fox and Porter mutually agreed that section 02680 had been included by mistake, and as a result, Porter did no work specified in that section. After work on the Facility had begun, Fox also asked Porter to perform additional work under sections 02300, 02665, and 02711 Excluded Sections, none of which were included in the subcontract or the bid.

¶ 4 When Porter invoiced Fox for its work, it identified the specific work done, the costs of the work by line item, and the particular section under which the work had been performed. At times, Fox verbally acknowledged that Porter was performing work outside the subcontract. Until sometime in early 1998, Fox paid for all work done by Porter, whether it fell under Excluded Sections or Included Sections. Thereafter, numerous disputes over payments arose between Fox and Porter. In short, Porter claimed that Fox owed it payments in addition to the $146,740.00 for work it had done under the Excluded Sections, and Fox claimed that because these sections had been mistakenly excluded from the subcontract when Fox had drafted it, Fox owed Porter no additional amounts. The last day Porter worked on the Facility was May 16, 1999.

¶ 5 Sometime in early spring of 1999, Porter verbally requested information on the Bond from Fox because it planned to file a lawsuit. On April 23, 1999, Porter sent a letter to the University requesting information on the Bond. The University forwarded the letter to Fox, but neither Fox nor the University provided Porter information on the Bond. In May 1999, Porter again verbally requested information on the Bond from Fox. Fox again did not provide the information to Porter.

¶ 6 Porter filed its complaint against Fox on March 16, 2000, alleging breach of contract, quantum meruit, and breach of the covenant of good faith and fair dealing. Porter did not make a claim upon the Bond at this time. In late June 2000, Fox provided Porter a copy of the Bond pursuant to a discovery request. Approximately six months later on January 12, 2001, Porter filed a motion to amend its complaint, which was unopposed and ultimately granted. On March 14, 2001, Porter filed its amended complaint naming National as a party and making a claim upon the Bond.

¶ 7 Porter moved for summary judgment on its claims against Fox. The trial court granted Porter's motion. Fox appeals.

¶ 8 National moved for summary judgment against Porter based upon its affirmative defense that the statute of limitations barred Porter's claim upon the Bond. The trial court granted National's motion after it concluded that (1) Porter had no legal justification for failing to name National and make a claim upon the Bond in its original complaint against Fox, which would have been timely; and (2) no identity of interest existed between National and Fox, and thus Porter's amended complaint did not relate back to its original complaint against Fox as required under rule 15(c) of the Utah Rules of Civil Procedure. The trial court then awarded attorney fees to National. Porter appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 9 First, Fox argues that the trial court erred by granting summary judgment to Porter after concluding that Fox had failed (1) to comply with rule 4-501(2)(B) of the Utah Rules of Judicial Administration¹ or (2) to create a material dispute with its additional facts. Second, Porter argues that the trial court erred by granting summary judgment to National after concluding that Porter's claims against National were barred by the applicable statute of limitations.

¶ 10 Motions for summary judgment should be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). When reviewing a grant of summary judgment, we view all facts and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and review the trial court's conclusions of law for correctness. See Lovendahl v. Jordan Sch. Dist., 2002 UT 130, ¶ 13, 63 P.3d 705

. However, "the trial court has discretion in requiring compliance with rule 4-501 [of the Utah Rules of Judicial Administration]." Fennell v. Green, 2003 UT App 291, ¶ 9, 77 P.3d 339.

¶ 11 Porter also challenges the trial court's calculation of attorney fees awarded to National. "Calculation of reasonable attorney fees is in the sound discretion of the trial court, and will not be overturned in the absence of a showing of a clear abuse of discretion." Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988) (citation omitted).

ANALYSIS

I. Fox's Appeal

¶ 12 The trial court granted Porter's motion for summary judgment on two separate grounds. First, the trial court ruled that Fox had failed to comply with rule 4-501(2)(B) of the Utah Rules of Judicial Administration. Second, the trial court concluded that Fox had not created a material dispute with the additional facts it had submitted. We address each ground.

A. Rule 4-501(2)(B)

¶ 13 When summary judgment papers were filed in this case, rule 4-501(2)(B) read as follows:

The points and authorities in opposition to a motion for summary judgment shall begin with a section that contains a verbatim restatement of each of the movant's statement of facts as to which the party contends a genuine issue exists followed by a concise statement of material facts which support the party's contention. Each disputed fact shall be stated in separate numbered sentences and shall specifically refer to those portions of the record upon which the opposing party relies. All material facts set forth in the movant's statement and properly supported by an accurate reference to the record shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the opposing party's statement.

Utah R. Jud. Admin. 4-501(2)(B) (2002). Because Fox did not "begin with a section that contains a verbatim restatement of each of [Porter's] statement of facts ... followed by a concise statement of material facts which support [Fox's] contention [that a genuine issue of facts exists]," the trial court concluded that Fox had failed to comply with rule 4-501; for this reason, the trial court admitted "[a]ll the material facts set forth in [Porter's] statement" of undisputed facts. Id. Based upon this admission, the trial court ruled that there were no disputed issues of fact and that Fox was thereby entitled to summary judgment.

¶ 14 Two cases decided after the trial court's ruling support the trial court's conclusion that it had discretion to admit facts not "specifically controverted" in the manner outlined in rule 4-501(2)(B). In Lovendahl v. Jordan Sch. District, 2002 UT 130, 63 P.3d 705, the Utah Supreme Court ruled that the trial court had properly admitted the moving party's facts because these facts were not "`specifically controverted by the opposing party's statement.'" Id. at ¶ 50 (quoting Utah R. Jud. Admin. 4-501(2)(B) (2002)). Similarly, in Fennell v. Green, 2003 UT App 291, 77 P.3d 339, this court held that the trial court had not "abused its discretion in requiring compliance with rule 4-501 and thus ruling that the facts, as stated in [the moving party's] motions and supporting memoranda, were deemed admitted." Id. at ¶ 9. Specifically, it was not an abuse of discretion for the trial court to admit all of the moving party's facts when the nonmoving party's opposition papers did "not refer to [the moving party's] statements of uncontroverted facts, but instead included only [its] own statement of undisputed facts ... [leaving] it unclear what facts ... were disputed." Id. at ¶ 7.

¶ 15 Both Lovendahl and Fennell support the conclusion that the trial court in this case did not abuse its discretion in enforcing rule 4-501(2)(B) by admitting Porter's facts as undisputed when Fox failed to comply with the rule. However, the Utah Supreme Court has since interpreted rule 4-501(2)(B), without mentioning these prior cases, in a somewhat more relaxed way. See Salt Lake County v. Metro W. Ready Mix, Inc., 2004 UT 23, ¶ 23 n. 4, 89 P.3d 155

. As the Court explained in Metro West, even where an

opposing memorandum [does] not set forth disputed facts listed in numbered sentences in a separate section as required [by the rule, as long as] the disputed facts [are] clearly provided in the body of the

...