Quagliana v. Exquisite Home Builders, Inc., 13723

• Citation: 538 P.2d 301
• Decision Date: 27 June 1975
• Docket Number: No. 13723,13723
• Parties: Joseph M. QUAGLIANA and Paula L. Quagliana, Plaintiffs and Appellants, v. EXQUISITE HOME BUILDERS, INC., et al., Defendants and Respondents.
• Court: Supreme Court of Utah

Page 301

538 P.2d 301

Joseph M. QUAGLIANA and Paula L. Quagliana, Plaintiffs and Appellants, v. EXQUISITE HOME BUILDERS, INC., et al., Defendants and Respondents.

No. 13723.

Supreme Court of Utah.

June 27, 1975.

Bryce E. Roe, Roe & Fowler, Salt Lake City, for plaintiffs and appellants.

Orval C. Harrison, Donald Sawaya, Wayne Ashworth, Salt Lake City, for defendants and respondents.

MAUGHAN, Justice:

Here on appeal is a matter involving two contracts, one for the design, and the other for the construction of a residence. It was tried to the court, sitting without a jury, and from money judgments in favor of defendants and against plaintiffs, plaintiffs appeal.

In the spring of 1971, plaintiffs wanted to build in Salt Lake City, utilizing plans previously used by Mrs. Quagliana's father. Some changes were desired in the plans, and for that reason the services of K. M. Design were engaged. K. M. Design is a partnership, with Gary Margetts and Allan Kruckenberg as partners, hereafter referred to as K. M.

An oral agreement was entered into by plaintiffs and K. M., under which K. M. agreed to prepare modified plans and specifications. Plaintiffs wanted a home in the Oak Hills area, and modified plans and specifications were to provide them with a view of the valley below. At that time, plaintiffs did not own a building lot, but began looking for one.

Subsequently, plaintiffs located a potential building lot on Sherwood Drive, in the Oak Hills area. At this juncture, plaintiffs requested Exquisite Home Builders, Inc., hereafter referred to as Exquisite, acting through one Marstella, an employee and representative of Exquisite, and K. M., to look at the lot to determine its suitability as a site for the home. K. M. acting through one Margetts and Exquisite, acting through Marstella, did so, and K. M. advised the plaintiffs that the lot was suitable, and that the home would fit on the lot properly. Margetts also said there would be a view. At the time no bargain had been struck between plaintiffs and Exquisite. Plaintiffs thereupon purchased the lot and K. M. prepared a plot plan showing the location of the house on the lot.

In October of 1971, a written agreement was executed by Exquisite and plaintiffs. The agreement contained the following provisions material to the issues in this case:

1. SCOPE OF WORK: Contractor agrees to provide all the labor and materials and do all things necessary . . . upon the building site . . . in strict accordance with this contract, the plans and specifications hereunto attached and made a part hereof . . . and in strict compliance with all applicable laws, ordinances and other governmental regulations affecting such construction.

4. . . . agrees to complete the construction of the dwelling house and improvements according to the plans and specifications, all applicable laws, ordinances and other government regulations applicable thereto, as well as in a manner satisfactory to the Owner and the Lender, . . ..

The location of the building and improvements upon the above described building site shall be made by the Contractor, and in making said location, he shall comply with all zoning ordinances and regulations and all building restrictions and protective covenants governing said real property.

17. LENDER'S COURTESY SERVICE: As a matter of courtesy and favor, the Lender has supplied the Owner and Contractor with this suggested form of agreement. The parties hereto declare that it was entirely optional with them to use said form and that they voluntarily adopted and completed same.

The plot plan prepared by K. M. showed a 30-foot setback on one street and a 20-foot setback on Sherwood Drive. It was this plot plan together with plans and specifications which Exquisite submitted to Salt Lake City, in making application for a building permit. At the time of submission the city's representative struck out the words '20 feet' and inserted the word 'average,' meaning the average setback for houses located on the same side of Sherwood Drive.

Exquisite engaged an engineering company to stake out excavation lines, directing the engineer to stake the lines exactly as shown on the original plot plan. After the excavation was completed, plaintiffs visited the property and discovered that the home was so located that there would be no view of the valley. Indeed, Exquisite, through Marstella, testified that it was fairly obvious at that time that the house would face directly onto the back of the other house, and 'would look up into the front hill on the northeast of the valley.'

At this point Marstella and plaintiffs attempted to rotate the location of the house on the lot to provide the view of the valley which plaintiffs desired. Exquisite then had a new plot plan prepared by a firm other than K. M. which, like the old one, showed a setback of twenty feet on Sherwood Drive; again the city changed it to 'average'; and again Exquisite had the excavation lines staked providing only a 20-foot setback. No effort was made to determine what the average setback was on Sherwood Drive.

At about this time plaintiffs were informed that plans and specifications for residences built in that area had to be approved by an Architectural Supervising Committee for the subdivision. The land in this particular subdivision is burdened with certain restrictive covenants, and the purpose of the Architectural Supervising Committee is to prevent construction which would violate these covenants. Plaintiffs requested Exquisite to submit the plans to this Committee, which it did, with a note asking that they be approved. The plans were not approved by this Committee, because the restrictive covenants required a minimum setback of 30 feet, and a roof of a lesser pitch than the one designed. Prior to receiving the letter of disapproval, Exquisite had poured the concrete and the error had been cast in stone. At about the same time, inspectors for the city placed their 'stop order' on construction.

These latter events put a stop to construction work, which was never resumed. Negotiations between plaintiffs and Exquisite produced no arrangements which would satisfy the purpose of the construction agreement, the city ordinance, or the restrictive covenants.

About a month after construction ceased plaintiffs requested their lender not to disburse any more funds to Exquisite; without their approval. Further negotiations between plaintiffs and Exquisite produced no solution, and on March 9, 1972, counsel for plaintiffs wrote to Exquisite terminating the company's right to proceed further with the construction, and telling them that plaintiffs would look to them for damages for breach of contract. Plaintiffs purchased a house in another area, and in December or 1972 sold the subject lot, for an amount in excess of its purchase price.

The court below concluded that plaintiffs had breached the contract by suspending payment, and by refusing to let Exquisite proceed further with construction; and that Exquisite was entitled to recover unreimbursed costs. It also concluded that plaintiffs' agreement with K. M. was to pay $1,000 for the plans and specifications, that only $500 had been paid, and that K. M. was entitled to recover the balance of $500 from plaintiffs.

Plaintiffs attack the judgment, making six assignments of error. These will be dealt with in their order.

First, plaintiffs claim the court should have found that the footings and foundations set by Exquisite violated the setback provisions of the Salt Lake City zoning ordinance and the restrictive covenants of the subdivision. We agree. This was a material issue, and although a finding of it was requested it was refused. It is the duty of a trial court to make findings of fact with respect to all contested issues in a case. ¹ One of the principal issues in this matter is the effect the 20-foot setback provision had on the activities and obligations of the parties here concerned. The record is replete with evidence upon which such a finding could be made. The testimony of Mr. Harry Hurley, zoning enforcement officer for Salt Lake City, corroborated by the testimony of Marstella, was that the 20-foot setback provision was stricken by the city and the word 'average' written in. This occurred on two different occasions. Hurley further testified that the 'average' on Sherwood Drive was thirty feet, that the city didn't enforce private covenants, and that the work was stopped because of the setback requirements. A member of the Architectural Committee for St. Mary's Hills, Plat E, testified that the average setback for the subject location was 30 feet; that the restrictive covenants required a 30-foot setback, and that a 20-foot setback could not be approved. None of this evidence is controverted.

Plaintiffs' second point attacks four findings of the trial court, (as not being supported by evidence), three of which have merit. However, in view of the resolution of plaintiffs' third assignment of error, it is not necessary to deal with point No. 2. This third point claims that Exquisite materially breached its contract when it located the home in such a manner that it did not comply with the zoning ordinances or the restrictive covenants for the subdivision. With this we cannot agree, for the reason there was no contract to breach.

At the time plaintiffs and Exquisite entered into the construction contract, each assumed that the purpose of the contract could be achieved, and that the designed construction could be so placed on the available lot, as to give plaintiffs the house they wanted, and so situated as to provide a view of the valley. This was the purpose of the contract, and was well known to Exquisite and K. M., from the outset. Exquisite promised to locate the house in compliance 'with all zoning ordinances and regulations and all building restrictions and protective covenants governing said real property.' This it could not do, from the outset.

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