Pack v. Case

• Decision Date: 27 July 2001
• Docket Number: No. 990616-CA.,990616-CA.
• Citation: 30 P.3d 436,2001 UT App 232
• Parties: Richard PACK, Plaintiff and Appellee, v. Ronnie W.A. CASE and Shain Case dba Ron Case Roofing, Defendants and Appellants.
• Court: Utah Court of Appeals

30 P.3d 436

2001 UT App 232

Richard PACK, Plaintiff and Appellee, v. Ronnie W.A. CASE and Shain Case dba Ron Case Roofing, Defendants and Appellants.

No. 990616-CA.

Court of Appeals of Utah.

July 27, 2001.

John Dustin Morris, Salt Lake City, for Appellants.

F. Kevin Bond and Budge W. Call, Salt Lake City, for Appellee.

Before Judges JACKSON, DAVIS, and THORNE.

OPINION

DAVIS, Judge:

¶ 1 Appellants Ronnie W.A. Case and Shain Case, dba Ron Case Roofing (Case), appeal the trial court's judgment awarding appellee Richard Pack (Pack) $34,801.39 based on its conclusion that Case breached a contractual guaranty of warranty. We affirm in part, reverse in part, and remand for recalculation of the amount awarded to Pack.

BACKGROUND

¶ 2 The parties do not challenge the trial court's findings of fact; therefore, "we recite those facts in accordance with the trial court's findings."¹ J.V. Hatch Constr., Inc. v. Kampros, 971 P.2d 8, 9 (Utah Ct.App. 1998).

¶ 3 Pack entered into a written contract with Case to install a roof, with a life expectancy of twenty years, on Pack's home. Pack and Case agreed that the roofing, labor, and materials would cost $2.25 per square foot, and estimated the roof would cover 4,000 square feet. The contract terms required Pack to pay one-half of the total cost before construction started. Accordingly, Pack issued a check to Case for $4,500.00, and Case began construction of the roof in late June of 1994. The contract required Pack to pay the remainder upon completion of the job, at which time a measurement of the roof's actual square footage would determine the balance owed to Case. The contract was silent as to the exact details of this calculation.

¶ 4 The contract contains several other relevant provisions. Paragraph 11 is a warranty clause which guarantees the new roof for two years after the original completion date. This provision requires Case to "repair any defect from faulty workmanship for the period of the guarantee at no charge to the property owner." However, paragraph 11 provides that non-payment of the contract balance for more than thirty days after completion of the roof voids all warranties. Paragraph 18 states: "All roof repairs or maintenance during the warranty period on warranted roofs must be done by Contractor to maintain Contractor's warranty." Finally, paragraph 27 provides that the prevailing party in a lawsuit "shall be entitled to an award of attorneys fees and costs, including witness fees, professional experts fees and such other costs to prosecute or defend any action described [in the Contract]."

¶ 5 During installation of the roof, workers engaged in other aspects of constructing the home damaged a portion of the partially installed roof. Pack's son, who was assisting his father with construction of the home, authorized Case to make whatever extra repairs necessary to fix this damage. Neither Pack nor Case discussed the price for the extra work at this time. Case completed construction of the roof, including the extra work, in September 1994.

¶ 6 On November 30, 1994, Case billed Pack with an invoice for $10,750.00. This amount reflected a total cost of $15,250.00, minus the $4,500.00 already payed by Pack. Case billed for a total of 5,000 square feet at $2.25 per square foot (equaling $11,250.00) and an additional $4,000.00 for the extra repair work.

¶ 7 Pack disputed the amount of square footage in the invoice and measured the roof with his son. Pack's measurement indicated that Case had completed only 3,900 square feet of roofing. Based on this figure, Pack sent a check to Case for $4,275.00. (3,900 x $2.25 = $8,775.00 minus $4,500.00 = $4,275.00). Pack did not address the extra repair work at this time.

¶ 8 In the spring of 1995, Pack and Case had representatives meet and measure the roof together. At this time, the representatives agreed that the total square footage was actually 4,200. This left a balance of $675.00 to be paid by Pack, not including the extra repair work. Pack disputed this figure, because he claimed that the existence of skylights on the roof diminished the amount of roofing actually installed to something less than 4,200 square feet. As a result, Pack did not pay the $675.00.

¶ 9 Shortly thereafter, the roof developed significant leaks. Pack and his son patched portions of the roof to avoid further damage to the inside of the home. Pack eventually notified Case about the leaks and requested that Case repair the leaks. However, Case refused to do any repair work and commenced a small claims court action to collect the $675.00 plus the $4000.00 for the extra repair work. On August 29, 1996, Pack filed a lawsuit alleging breach of contract, negligence, and breach of warranty. Case's small claims court action was consolidated into this action.

¶ 10 On October 17, 1996, Case served its first set of interrogatories, requests for admissions, and requests for production of documents. Included were requests for the names of all persons who worked on or supplied materials, in any capacity, for the construction of the Pack house. On January 7, 1997, Case filed a motion to compel, based on Pack's failure to respond completely, requesting that the court order Pack to complete the interrogatories and provide the requested information. The court denied this motion.

¶ 11 The court conducted a pretrial conference and set June 20, 1997, as the final date for designating witnesses. On June 20, 1997, Pack supplemented his designation of witnesses to include Richard Nelson, a Salt Lake City building inspector. At trial, the court qualified Mr. Nelson as an expert and allowed him to testify. Case objected to Mr. Nelson's testimony based on his qualifications and because Pack had not provided Mr. Nelson's name in any previous discovery requests. The court overruled this objection.

¶ 12 At the conclusion of the trial, the court found that Case had improperly installed the roof. In addition, the court ruled that Pack's failure to pay Case the amount due under the contract and for the extras, and Pack's attempts to repair the roof, did not void the contractual warranty. Thus, the court concluded that Case breached his guaranty of warranty on the roof. The court determined that in order to provide Pack with a 20-year roof, a new roof needed to be installed, and the total cost of conforming to the warranty was $32,255.26.² The court also awarded Pack one hundred percent of his attorney fees, making the total amount owed to Pack $40,131.84.

¶ 13 The court also determined that Pack owed Case for the repair work that was done on the roof and $675.00 on the original contract. However, although Pack did not dispute the amount that Case claimed for the repairs,³ the court found that Case was entitled to $3,200.00 for the extra work rather than the $4,000.00 claimed by Case. The court calculated the $3,200.00 figure by noting that Case's original invoice for 5,000 square feet was inflated by twenty percent. Thus, the court elected to reduce the $4,000.00 requested for extra repairs by an equal twenty percent, making $3,200.00 the total amount for the extra work. The court acknowledged that this determination was "pretty arbitrary."

¶ 14 Finally, the court found that Case was entitled to $1,455.00 (twenty percent of its claim) for costs and attorney fees, by estimating that twenty percent of its total trial time was spent by Case proving those claims on which it prevailed. Thus, the court determined that the total amount owed to Case was $5,330.00. The court then offset this amount from the $40,131.84 that Case owed Pack resulting in an award to Pack of $34,801.39.

¶ 15 Case appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 16 Case first argues that the trial court erred by enforcing the warranty provision of the contract. "Interpretation of the terms of a contract is a question of law. Thus, we accord the trial court's legal conclusions regarding the contract no deference and review them for correctness." Nova Cas. Co. v. Able Constr. Inc., 1999 UT 69, ¶ 6, 983 P.2d 575. Next, Case argues that the trial court erred when it denied Case's motion to compel discovery. We review the trial court's denial of the motion to compel under an abuse of discretion standard. See Roundy v. Staley, 1999 UT App 229, ¶ 5, 984 P.2d 404. Case also argues that the trial court erred when it allowed Richard Nelson to testify as an expert witness. We review the trial court's determination regarding the admissibility of expert testimony under an abuse of discretion standard. See Dikeou v. Osborn, 881 P.2d 943, 947 (Utah Ct.App. 1994). Case next asserts that the trial court erred when it arbitrarily reduced the amount of money that Pack owed Case for the extra work done on the roof. "We uphold a lower court's findings of fact unless the evidence supporting them is so lacking that we must conclude the finding is `clearly erroneous.'" Jeffs v. Stubbs, 970 P.2d 1234, 1244 (Utah 1998) (citations omitted). Finally, Case argues that the trial court erred in its assessment/allocation of attorney fees between the parties. "`The standard of review on appeal of [the amount of] a trial court's award of attorney fees is patent error or clear abuse of discretion.'" Keith Jorgensen's, Inc. v. Ogden City Mall Co., 2001 UT App 128, ¶ 11, 26 P.3d 872 (citation omitted).

I. Breach of Warranty

¶ 17 Case argues that the trial court erred in ruling that Pack's actions did not void the contractual warranty. Specifically, Case argues that Pack voided the contractual warranty by 1) not paying the full amount demanded by Case, and 2) attempting to repair the roof during the warranty period.⁴

A. Pack's Failure To Pay Full Amount Demanded By Case

¶ 18 "When one party to a valid contract commits an `uncured material failure' in its performance of the contract, the non-failing party is relieved of its duty to continue to perform under the contract." Aquagen Int'l Inc. v. Calrae Trust, 972 P.2d 411,...