Hendricks v. Interstate Homes, Inc.

• Decision Date: 09 November 1987
• Docket Number: D,No. 860094-CA,I--X,OWENS-CORNING,860094-CA
• Citation: 745 P.2d 475
• Parties: Bill G. HENDRICKS, dba Deseret Roofing Company, Plaintiff and Respondent, v. INTERSTATE HOMES, INC., Franz C. Stangl III, Elizabeth Ann Stangl, Nebraska Savings and Loan Association, F.A., Empire Land Title, Inc., a Utah Corporation, and John Doesefendants and Appellants. Bill G. HENDRICKS, dba Deseret Roofing Company, Third-Party Plaintiff, v.FIBERGLAS CORPORATION, Third-Party Defendant,FIBERGLAS CORPORATION, Plaintiff, v. Bill G. HENDRICKS, dba Deseret Roofing Company, and Stangl Construction Company, a corporation, Defendants.
• Court: Utah Court of Appeals

Page 475

745 P.2d 475

Bill G. HENDRICKS, dba Deseret Roofing Company, Plaintiff and Respondent, v. INTERSTATE HOMES, INC., Franz C. Stangl III, Elizabeth Ann

Stangl, Nebraska Savings and Loan Association, F.A., Empire

Land Title, Inc., a Utah Corporation, and John Does I--XX,

Defendants and Appellants.

Bill G. HENDRICKS, dba Deseret Roofing Company, Third-Party Plaintiff, v. OWENS-CORNING FIBERGLAS CORPORATION, Third-Party Defendant, OWENS-CORNING FIBERGLAS CORPORATION, Plaintiff, v. Bill G. HENDRICKS, dba Deseret Roofing Company, and Stangl

Construction Company, a corporation, Defendants.

No. 860094-CA.

Court of Appeals of Utah.

Nov. 9, 1987.

Henry S. Nygaard, Beaslin, Nygaard, Coke & Vincent, Salt Lake City, for Interstate Homes and Franz Stangl.

Robert A. Burton, Strong and Hanni, Salt Lake City, for Bill Hendricks.

W. Cullen Battle, Fabian & Clendenin, Salt Lake City, for Bill Hendricks and Deseret Roofing.

Alan Kent Shearer, Shearer & Carling, Salt Lake City, for Owens-Corning.

Before BILLINGS, GARFF and GREENWOOD, JJ.

GARFF, Judge:

Plaintiff/respondent Bill G. Hendricks (Hendricks), dba Deseret Roofing Company, was awarded summary judgment ¹ against defendant/appellant Interstate Homes, Inc., (Interstate), a modular building manufacturer, for $19,500 plus interest, costs, and attorney fees. The court dismissed Interstate's counterclaim for $50,000 damages with prejudice. Interstate appeals the dismissal of its counterclaim. We affirm.

Interstate contracted with Franz C. Stangl to manufacture a motel at its plant in Bountiful, Utah, and then to move and assemble it in Price, Utah. On April 3, 1983, Interstate accepted Hendricks' proposal to furnish and install a roof on the motel. Hendricks' proposal provided, in part, that he would furnish all roofing materials, including felt and nails. However, Interstate's personnel were to install the base felt at the Interstate plant, and Hendricks was not to be actively involved in the roof installation until the modular sections of the motel had been assembled in Price. Upon completion of the roofing job in Price, Interstate was to pay Hendricks $19,500.

Hendricks ordered sixty rolls of roofing felt from Owens-Corning Fiberglas Corporation (Owens-Corning). The felt was delivered directly to Interstate's factory, clearly identified as Type 28 Bondable Base felt. Invoices were delivered directly to Hendricks for payment. Interstate's employees installed the felt at its plant. Because these sixty rolls were insufficient to finish the modular units, Hendricks ordered another eighteen rolls of felt. He again received the invoice, which reflected that the same type of felt had been shipped directly to Interstate. However, the material actually shipped was not the material shown on the invoice, but an intermediate felt known as Type IV Ultra Ply. These eighteen rolls were clearly marked as such, and the material was porous, lighter, and visibly different from Type 28 Bondable Base felt, but Interstate's employees did not recognize the difference in the material and installed it on the modular units. Hendricks had no notice that the wrong material had been shipped to Interstate.

The completed modular units were transported to Price, Utah. Around June 8, 1983, immediately after the units arrived, a rainstorm occurred. A substantial amount of water leaked through the felt material causing approximately $52,000 damage to the building interior. Water damage occurred only in the areas where the final eighteen rolls of felt were installed.

Hendricks submitted a claim to his insurance carrier for the water damage, and demanded assurance from Interstate that he would be paid in full upon completion of the roofing contract. In response, Interstate's agent prepared, signed, and sent a copy of an interoffice memorandum to Hendricks. This memorandum stated, in part, that "payment on this job will not be affected by insurance claim in progress." Relying upon this memorandum, Hendricks satisfactorily completed the roofing contract.

Hendricks' insurance company refused to pay for the water damage, Interstate refused to pay Hendricks' $19,500 bill, and Hendricks refused to pay the $9,912.11 owed to Owens-Corning for materials.

In an effort to receive payment, Hendricks filed a mechanics' lien for the $19,500 claim; an additional claim for $2,852.14, plus interest, for supplemental work not included in the contract; and attorney fees. He then filed a complaint to enforce the lien. Interstate counterclaimed, seeking recovery for $50,000 of the property damage.

Hendricks moved for summary judgment. On November 13, 1984, the trial court entered summary judgment in favor of Hendricks for $19,500 plus interest, costs of $495.74, and attorney fees of $4,813.80, dismissing Interstate's counterclaim. Interstate filed this appeal. Subsequently, Interstate withdrew its appeal with respect to the money judgment, so the only issue remaining on appeal is whether the trial court was justified in summarily dismissing Interstate's $50,000 counterclaim for water damages.

Interstate sets forth two arguments in support of its contention that summary dismissal of its counterclaim was improper: (1) Material issues of fact existed as to whether Hendricks had a contractual duty to ensure that the correct materials were delivered to defendant and whether, in fact, this duty was fulfilled. (2) The counterclaim was non-frivolous, compulsory, and greatly exceeded the amount of relief sought by Hendricks, so, by law, should not have been dismissed.

Summary judgment is proper only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56; Frisbee v. K & K Constr. Co., 676 P.2d 387, 389 (Utah 1984); Bowen v. Riverton City, 656 P.2d 434, 436 (Utah 1982). It is used only to determine the existence of any material issues of fact, not to determine what the facts are. Hill v. Grand Central, Inc., 25 Utah 2d 121, 477 P.2d 150, 151 (1970).

In this summary judgment action, the materiality of Interstate's asserted genuine issues of fact, e.g., whether Hendricks had a contractual duty to ensure that correct materials were delivered to Interstate, and whether this duty was fulfilled, depends upon whether Interstate alleged in its counterclaim that Hendricks actually warranted that correct materials would be delivered, and that he breached this warranty because incorrect materials were delivered.

In its counterclaim, Interstate alleges that "on or about April 13, 1983 the plaintiff and defendant entered into a written contact [sic], including plans and specifications, under the terms of which plaintiff was to provide materials and labor that would insure the construction of a 'water tite' [sic] roof," that Hendricks ordered and caused the...