Provo City Corp. v. Nielson Scott Co., Inc.

• Decision Date: 08 November 1979
• Docket Number: No. 16136,16136
• Citation: 603 P.2d 803
• Parties: PROVO CITY CORPORATION, Plaintiff and Respondent, v. NIELSON SCOTT COMPANY, INC., and Demetrois Agathangelides, dba Greek Gardens, Defendants and Appellants. NIELSON SCOTT COMPANY, INC., Third-Party Plaintiff and Appellant, v. Demetrois AGATHANGELIDES, dba Greek Gardens, Third-Party Defendant.
• Court: Utah Supreme Court

Page 803

603 P.2d 803

PROVO CITY CORPORATION, Plaintiff and Respondent, v. NIELSON SCOTT COMPANY, INC., and Demetrois Agathangelides, dba Greek Gardens, Defendants and Appellants.

NIELSON SCOTT COMPANY, INC., Third-Party Plaintiff and Appellant, v. Demetrois AGATHANGELIDES, dba Greek Gardens, Third-Party Defendant.

No. 16136.

Supreme Court of Utah.

Nov. 8, 1979.

Gerald L. Turner, of Turner & Perkins, Salt Lake City, Gordon J. Low of Hillyard, Low & Anderson, Logan, for defendants and appellants.

Glen J. Ellis, Provo, for plaintiff and respondent.

STEWART, Justice:

Provo City brought this breach of contract suit against a contractor, Nielson Scott Co., Inc., and a subcontractor, appellant Demetrois Agathangelides, dba Greek Gardens, who provided public improvements for the city in connection with a downtown redevelopment project. The trial court held that under a contractual warranty the risk of loss of trees planted to replace an initial planting of trees which did not live continued to be on the subcontractor beyond the express one-year warranty period provided in the contract. The city was awarded damages. We reverse.

Agathangelides was responsible for the tree planting and landscape portion of the development project. It is undisputed that he installed all the trees required by the contract, thus substantially completing his contractual duties, by December 10, 1975. An inspection of the trees on May 5, 1976, disclosed that twelve of the trees had died during the winter. The city, through its supervising architect, John L. Maas, made demand upon Agathangelides to replace the twelve trees. Agathangelides responded by memorandum as follows:

Because of the potential hazard of transplanting large trees this late in the year, I will transplant all large London Plane trees that have died this fall at the same time I complete the landscaping for the University Avenue Beautification Project no later than November 15, 1976. This will be done to fulfill my contract and at my expense.

The delay in replanting until fall was approved by the city, and the replacement trees were planted while in a dormant state in November 1976. It is not alleged or proved that they were dead or unhealthy at this time. However, in the spring of 1977 all twelve trees were found to have died over the winter. The city again made demand upon Agathangelides to replace the trees. He refused to do so on the ground that the warranty period of the contract expired on December 10, 1976, one year from the date of substantial completion according to the published specifications for the Provo City Center Street Project.

Agathangelides contended that his liability was limited by the express terms of his contract. The trial court rejected this contention and awarded the city a judgment representing the actual cost of replacement against the contractor, and a judgment for the same amount in favor of the contractor and against the subcontractor, Agathangelides. The court made the following pertinent conclusions of law:

1. That under the contract risk of loss for the trees planted by the subcontractor under his contract with the general contractor and the plaintiff, lies solely upon the subcontractor.

2. That the warranty of fitness provided for in the contract goes for one year from date of substantial completion which was December 9, 1976, plus sufficient additional time to determine that the replaced trees would actually sustain life through the dormant period and until the following Spring.

The issue presented on this appeal is whether Agathangelides was required under his contract to replace trees that were found to have died more than one year after the date of substantial completion, even though the cause of the deaths is unknown. In interpreting the contract in question, this Court deals with a question of law. As such, the same deference need not be accorded the lower court's position as we would accord findings of fact. See Polk v. Koerner, 111 Ariz. 493, 533 P.2d 660 (1975); Rooney v. Vermont Inv. Corp., 10 Cal.3d 351, 110 Cal.Rptr. 353, 515 P.2d 297 (1973).

The factual findings of the trial court are based on virtually undisputed evidence. Pertinent to this appeal are findings that December 9, 1975, was the date of substantial completion of Agathangelides' work and its acceptance by the city; that contract specifications required the subcontractor to correct any defects within one year from the date of substantial completion; that the replacement trees planted in November 1976 "were in a dormant stage such that it was impossible to tell whether they would live through the winter"; and that because the replacement trees failed to bud in the spring, the city asked Agathangelides for additional replacements in June 1977, eighteen months after the date of substantial completion. It is significant that no finding of fact was made as to the cause of the death of the trees, which might have been the effect of an unusually harsh winter, the failure of the city to water the trees during the winter, a defect in the trees themselves, or a number of other possible causes.

Agathangelides' subcontract agreement called for him to furnish labor, materials, and equipment "as per plans and specifications complete." The printed Specifications for Provo City Center Street Project included the following provisions applicable to Agathangelides' work:

Planting. 11. Plant Material . . . B. Plants shall be sound, healthy, vigorous and free from plant disease, shall be well-branched, full foliage when in leaf, and have healthy normal root system. Plants shall be freshly dug. Cold storage plants will not be accepted. All plants shall be nursery grown, meeting requirements specified. Plants that are sensitive to shock from elevation change shall be grown at elevations close enough to site to aleviate (sic) any plant damage.

Supplementary General Conditions. 31 Substantial Completion . . . . D. If within one year after the Date of Substantial Completion or within such longer period of time as may be prescribed by law or by the terms of any applicable special guarantee required by the contract documents, any of the work is found to be defective or not in accordance with the contract documents, the contractor shall correct it promptly after receipt of written notice from the owner to do so . . ..

There was no "special guarantee" given by Agathangelides in this case.

Except for the fact that they failed to survive the winter, there was no evidence presented to the court that the replacement trees were unhealthy or defective when planted. To the contrary, Mr. Maas, the supervising landscape architect, testified that he inspected the trees when they were planted and "(a)t that time they were satisfactory." He further stated that Agathangelides had done his replanting job properly. Maas was questioned as to the cause of the trees dying; he attributed their failure to survive the winter to dryness and the severe winter.

Agathangelides testified that the twelve replacement trees were part of a shipment that included five trees to be planted in Salt Lake City; those five trees all survived.

The evidence does not establish, nor did the lower court find, that Agathangelides had breached his contractual duty to provide sound...