Hill v. City of Covis

• Decision Date: 28 April 2000
• Citation: 94 Cal.Rptr.2d 901,80 Cal.App.4th 438
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 5 Dist. 2000) N. T. HILL, Plaintiff, Cross-defendant and Appellant, v. CITY OF CLOVIS, Defendant, Cross-complainant and Respondent; DEVELOPERS INSURANCE COMPANY, Cross-defendant and Appellant. F032045 Filed

94 Cal.Rptr.2d 901 (Cal.App. 5 Dist. 2000)

N. T. HILL, Plaintiff, Cross-defendant and Appellant, v. CITY OF CLOVIS, Defendant, Cross-complainant and Respondent; DEVELOPERS INSURANCE COMPANY, Cross-defendant and Appellant.

F032045

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed 4/28/00

APPEAL from a judgment of the Superior Court of Fresno County.

(Super. Ct. No. 521483-8)

Gary S. Austin, Judge.

Motschiedler, Michaelides & Wishon and Barbara A. McAuliffe for Plaintiff, Cross-defendants and Appellants.

Lozano Smith Smith Woliver & Behrens, Lozano Smith, Jerome M. Behrens, Thomas J. Riggs and Christine A. Goodrich for Defendant, Cross-complainant and Respondent.

CERTIFIED FOR PARTIAL PUBLICATION^*

OPINION

This is the third appeal arising out of a dispute over developer fees and obligations between appellant N. T. Hill (Hill) and respondent City of Clovis (Clovis). Developers Insurance Company (Developers), which issued the construction bond in this case, is also a party to the appeal. The two prior appeals (Nos. F025972 and F026809) were dismissed on procedural grounds on April 21, 1998.

STATEMENT OF FACTS AND EARLIER PROCEDURAL HISTORY¹

On February 5, 1990, Clovis entered into a "Subdivision Agreement" for tract No. 4154 with subdivider William R. Tatham, Jr. In relevant part, this agreement provided in paragraph 6(d):

"Subdivider shall construct the center 32 feet of permanent paving plus median island with landscaping and irrigation on Temperance Avenue from the north limits of this tract to Shaw Avenue prior to final acceptance of this tract or prior to final map approval of any other phase of tentative tract 3980, whichever comes first. Construction plans for the work shall be submitted prior to or concurrently with the final map submittal for the next phase of this tract but not later than March 1, 1990. The center travel lane fee for the next phase will be credited based on the actual construction cost of the center 24 feet plus median island, landscaping and irrigation."

Soon thereafter Tatham assigned his interest in the February 1990 subdivision agreement to Hill.

In October 1990, Clovis and Hill entered into a "Subdivision Agreement" for tract No. 4176. Paragraph 6(d)(12) of this agreement referred to a deposit of $55,000 by Hill as a right-of-way acquisition fee. It is undisputed that the subject right-of-way pertained to the land on which the central travel lane improvements, referred to in the February 1990 agreement, would be constructed. The October 1990 agreement also related in paragraph (6)(e):

"The right-of-way acquisition fee includes costs for the acquisition of land plus any legal and court costs. This fee is based on an estimate of land values in the area and any costs incurred by the City in the process of acquiring said land. Once actual costs have been determined, the fee shall be adjusted with the City reimbursing any under credit and the Subdivider [Hill] paying any over credit to the City prior to final tract acceptance."

Under the terms of the October 1990 subdivision agreement, Clovis also gave Hill a $57,141.88 credit in fees for constructing the central travel lane improvements. Clovis and Hill further agreed, in paragraph 6(g):

The center travel lane fee adjustment is based upon estimated cost. Upon construction and prior to final tract improvement acceptance, the Subdivider shall submit a financial statement signed by himself and the contractor of the work, stating the actual cost. The credit will then be adjusted with the City reimbursing any under credit and the Subdivider paying any over credit to the City prior to final tract acceptance."

The final map for tract No. 4176 was approved on October 15, 1990. The final map for tract No. 4154 was approved on February 20, 1990.

It is undisputed that Hill thereafter developed both tract Nos. 4154 and 4176, known respectively as Silverton I and Silverton II, but did not construct the center travel lane improvements as anticipated by the two subdivision agreements.

In a second amended complaint, Hill sued for declaratory relief with respect to the status of the $55,000 deposit (first cause of action) and the $57,141.38 credit or fee adjustment (second cause of action). Hill additionally alleged a cause of action for breach of contract (third cause of action), claiming that Clovis had not performed its agreement to reimburse Hill for unrelated public road improvements Hill had constructed, and a cause of action (fourth cause of action) for a portion of Hill's costs expended in building a city park in Silverton II. In its fifth and final cause of action, Hill contended it was entitled to statutory attorney fees.

Clovis cross-complained against Hill and Developers. As a first cause of action, Clovis alleged Hill breached the February 1990 subdivision agreement by failing to construct the center travel lane improvements. Clovis claimed damages of $32,257.16, which it said it had paid to a third party to build the improvements; Clovis alleged that "[i]f Hill obtains the relief requested in its complaint herein, then this amount is increased to $136,490.50." In a second cause of action, Clovis charged that Hill had breached the October 1990 subdivision agreement by failing to (1) construct the center travel lane improvements or to pay the city for the $57,141.88 it had credited Hill for the construction; and (2) pay the additional costs for the right-of-way acquisition. In a third cause of action, Clovis alleged Hill's performance under the terms of both subdivision agreements had been negligently done. As its damages, Clovis asked for the $32,257.16 it paid for construction costs, the $57,141.88 issued in credits to Hill, and whatever additional costs it could prove it spent in acquiring the right-of-way. In its fourth and final cause of action, Clovis sued on Hill's performance bond.

Shortly before trial was set to commence, Hill and Clovis filed competing motions under Code of Civil Procedure section 437c. Hill sought summary adjudication of various issues raised by its complaint. Clovis sought summary judgment in its favor on Hill's complaint and summary adjudication in its favor on the second and fourth causes of action of the city's cross-complaint. Clovis's motion made no mention of the first and third causes of action of its cross-complaint.

In its moving papers filed in support of its Code of Civil Procedure section 437c motion, Hill contended that Clovis had belatedly acquired a right-of-way to the land on which the center travel lane improvements were to be located, thereby excusing Hill from any obligation to construct them. The developer relied on the language of Government Code section 66462.5.²

Clovis argued that Hill's reliance on the Government Code provision was misplaced. According to the city, it did not condition the tentative tract map on construction of the center travel lane nor did it delay or refuse final map approval for tract Nos. 4154 and 4176. It further maintained that it gave Hill credit for the unrelated public road improvements identified in Hill's third cause of action but applied the credit to offset the balance Clovis believed Hill owed the city for the right-of-way acquisition and for the $57,141.88 credit the city gave Hill to build the central travel lane improvements.

After a hearing on the parties' motions, the trial court granted summary adjudication in favor of Clovis on Hill's first, second and fifth causes of action and otherwise denied both motions. The court concluded that (1) section 66462.5 did not apply to the facts of the case; (2) Clovis was entitled to keep the $55,000 deposit; (3) Hill must reimburse Clovis for the $57,141.88 credit issued by the city; and (4) Hill was not entitled to statutory legal fees. The court found that triable issues of fact existed pertaining to Hill's third and fourth causes of action and Clovis's second and fourth causes of action.

Thereafter, the parties filed an "ENTRY OF JUDGMENT ON STIPULATED FACTS," along with a "SEPARATE JUDGMENT ON STIPULATED FACTS," prepared for the trial court's signature. According to the separate judgment, Hill, Clovis and Developers "stipulated to facts that judgment be entered." The stipulated facts included:

"Given the law and motion Court's interpretation on summary adjudication, which will be binding at trial, Hill recognizes that it will not prevail on the City's claim for the right-of-acquisition costs.³ That amount is $104,135.60. Hill therefore stipulates to judgment on the City's cross-complaint. On the City's cross-complaint, Hill will have judgment entered against it on the second cause of action in the amount of $106,277.48 ($104,135.60 - $55,000 + $57,141.88), plus prejudgment interest, of which Developers is jointly liable under the fourth cause of action in the amount of $57,141.88 plus prejudgment interest. Developers will have judgment entered against it on the fourth cause of action in the amount of $57,141.88 plus prejudgment interest.

"On May 25, 1993, Hill and the City entered into an agreement (the 'Reimbursable Agreement') which required Hill to construct public road improvements across a park owned by the City at Peach and Alluvial Avenues.... Hill performed all work required by the Reimbursable Agreement and recorded a Notice of Completion on June 7, 1993. The parties now agree that the amount Hill is eligible for under the Reimbursable Agreement is $102,915.56. On the third cause of action of Hill's second amended complaint, the City will have judgment entered against it in the amount of $102,915.56, plus prejudgment interest.

"Pursuant to the Silverton II Agreement, Hill constructed a City park ('Silverton II Park') as part of the development of Silverton II. Since the Park benefited property in addition to Silverton II, Clovis agreed to collect contributions from the developers of the other benefiting subdivisions and reimburse Hill...