Hone v. Advanced Shoring & Underpinning, Inc.

Decision Date23 November 2012
Docket NumberNo. 20110256–CA.,20110256–CA.
Citation291 P.3d 832,722 Utah Adv. Rep. 40
PartiesMichael and Lana HONE, Plaintiffs and Appellees, v. ADVANCED SHORING & UNDERPINNING, INC., Defendant and Appellant.
CourtUtah Court of Appeals

OPINION TEXT STARTS HERE

Scott T. Evans and Gabriel K. White, Salt Lake City, for Appellants.

Justin D. Heideman and Travis Larsen, Provo, for Appellees.

Before Judges McHUGH, VOROS, and ROTH.

OPINION

ROTH, Judge:

¶ 1 Advanced Shoring & Underpinning, Inc. (Advanced Shoring) appeals from the trial court's denial of its two motions for summary judgment and motion for directed verdict. Specifically, Advanced Shoring asserts that the court erred as a matter of law in denying its first motion for summary judgment because Michael and Lana Hone did not establish that there was an issue of fact regarding whether Advanced Shoring's purported warranty was enforceable. It also challenges the denial of its second motion for summary judgment and its motion for directed verdict on the basis that the Hones did not present any expert testimony to establish that Advanced Shoring's geotechnical work caused the Hones' house to subside. Finally, Advanced Shoring contends that summary judgment was inappropriately denied because the Hones lost the home to foreclosure through no fault of Advanced Shoring. We conclude that Advanced Shoring's claims that the denials of summary judgment were inappropriate are not subject to review, and we affirm the trial court's denial of the motion for directed verdict.

BACKGROUND

¶ 2 In June 2004, the Hones built a home in La Verkin, Utah. Less than two months later, they noticed that their home was subsiding into the soil upon which it was built. As a result, the Hones sued the contractor who had constructed the home and eventually settled the case. Following the settlement, the Hones hired Advanced Shoring to address the subsidence problem. In early 2006, Advanced Shoring began work to install fourteen helical piers and forty-five grouted columns beneath the house in an effort to shore it up, or underpin it,1 against future sinking. By late March, however, the company recognized that its proposed solution was inadequate to prevent further settling. As a result, Kevin Garside, Advanced Shoring's project manager, called the Hones to inform them that additional underpinning work was needed. According to Lana Hone, Garside told her, ‘I won't guarantee it unless I get $10,000 more.’ 2 The Hones agreed and paid Advanced Shoring an additional $8,743 (the additional payment) to carry out the recommended work, which included installing one more helical pier and thirteen additional grouted columns.3 After the work was done, the home continued to settle, and Advanced Shoring carried out further repairs in December 2006 and June 2007 without success. After the final unsuccessful attempt to prevent their house from sinking, the Hones filed this case, asserting, among other things, claims for breach of contract and breach of warranty on the ground that Advanced Shoring had promised to repair the home in a manner that would prevent further subsidence for at least ten years. While the action was pending, the Hones “had to vacate the home because it was not safe” and Michael Hone suffered from unrelated medical issues that prevented him from working. When the Hones could no longer afford to pay for both the mortgage on the home and the rent for another place to live, they defaulted on their mortgage payments. They later filed for Chapter 7 bankruptcy and subsequently lost the home to foreclosure.

¶ 3 Advanced Shoring filed two motions for summary judgment seeking to dispose of the Hones' breach of contract and breach of warranty claims. Because the nature of the summary judgment motions and the trial court's basis for denying them is relevant to appellate jurisdiction, we describe Advanced Shoring's arguments and the Hones' responses in some detail. The first motion asserted that the Hones could not recover for breach of warranty because they had identified no express warranty within the parties' written contract and their oral warranty claim relied on a single piece of evidence—“a telephone conversation between an employee of Advanced Shoring and [the Hones,] in which “Advanced Shoring allegedly indicated that unless ... additional work was performed, Advanced Shoring's work on the [home] could not be guaranteed”—that was too indefinite as a matter of law to create an enforceable warranty. In their response, the Hones emphasized the oral statement of warranty by Garside: ‘I won't guarantee it unless I get $10,000 more.’ According to them, these words amounted to a valid express warranty and raised an issue of material fact about the warranty's scope. The Hones attached excerpts from their own depositions that explained why they understood Garside's statement to be a warranty. The trial court denied Advanced Shoring's first motion, “find [ing] that certain areas of material fact, particularly those relating to the alleged ‘warranty,’ remain in dispute.”

¶ 4 Advanced Shoring filed its second motion for summary judgment after the deadline had passed for expert witness disclosure and the Hones had failed to designate an expert witness. Advanced Shoring contended that the Hones could not prove their breach of contract or breach of warranty claims without expert testimony because, in order for the court to determine that Advanced Shoring breached its contractual or warranty obligations and caused damages, the Hones would have to prove that Advanced Shoring failed to correctly conduct a “complicated [geotechnical] analysis of the soil beneath the Property” before completing the underpinning work. Advanced Shoring also argued that, even if the claims could be proved without an expert, the Hones were not entitled to damages because they no longer owned the home and their loss of the home was unrelated to Advanced Shoring's performance.4 The Hones responded by asserting that expert testimony was not necessary to show breach or causation because “the terms of the warranty were simple and understood by both parties [to mean] that [Advanced Shoring] would perform work to stop the house from sinking,” yet the house continued to sink. In addition, the Hones disputed Advanced Shoring's contention that their loss of the home prevented them from recovering damages, noting that they incurred significant damages due to the continued subsidence of their home and that the cause of losing the home was a factual issue that needed to be developed at trial. The trial court denied Advanced Shoring's second motion for summary judgment in a minute entry without explanation.

¶ 5 The case then proceeded to a four-day bench trial. Following the Hones' case-in-chief, Advanced Shoring moved for directed verdict on the ground that the Hones had not presented expert testimony that it had caused them any damage.5 The trial court denied the motion without elaboration and eventually decided the breach of contract and breach of warranty claims in favor of the Hones. The court entered judgment against Advanced Shoring in the amount of $289,065.54. Advanced Shoring now appeals the trial court's denial of the two motions for summary judgment and the motion for directed verdict.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Summary judgment is appropriate only 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). “Conversely, if there is any dispute as to any issue, material to the settlement of the controversy, the summary judgment should not be granted.” Holbrook Co. v. Adams, 542 P.2d 191, 193 (Utah 1975). Following a trial, however, [a]ppellate courts may review the denial of a pretrial summary judgment motion [only] if the motion was decided on purely legal grounds.” Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 7, 215 P.3d 152. If there are material factual issues in dispute either at the time of the motion hearing or by the time of trial, the denial of the motion cannot be reviewed on appeal. Seeid. ¶ 15.

¶ 7 Advanced Shoring also challenges the denial of its motion for directed verdict.

[W]e review the denial of a motion for directed verdict by examining the evidence and all reasonable inferences that may fairly be drawn therefrom in the light most favorable to the party moved against, and will sustain the denial if reasonable minds could disagree with the ground asserted for directing a verdict.

Florez v. Schindler Elevator Corp., 2010 UT App 254, ¶ 8, 240 P.3d 107 (citation and internal quotation marks omitted).

ANALYSIS
I. The First Summary Judgment—The Warranty Issue
A. Whether a Denial of Summary Judgment Is Reviewable Depends on the Nature of the Issue on Which the Decision Turned.

¶ 8 In Normandeau v. Hanson Equipment, Inc., 2009 UT 44, 215 P.3d 152, the Utah Supreme Court held that the denial of summary judgment is not subject to review once a trial has taken place unless, in deciding the summary judgment motion, “the district court makes a legal ruling based on undisputed facts that do not materially change at trial.” Id. ¶ 9. In Normandeau, the heirs of a man killed in a tow truck accident brought a negligence action against the shop that had repaired the truck's hydraulic hose shortly before the accident. Id. ¶ 2. The repair shop filed a motion for summary judgment, in which it asserted both that it had no legal duty to its customer and that its repair work was not the proximate cause of the accident. Id. ¶ 3. The parties stipulated that duty was a legal question to be resolved by the court. Id. The district court denied the motion, however, on the issue of foreseeability because it determined that there were factual questions regarding whether “the faulty repair was a foreseeable cause of Mr. Normandeau's death.” Id. The court did not clarify whether its ruling on foreseeability went to both duty and proximate cause or just proximate cause, but ...

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