Ross v. Epic Eng'g, PC

• Decision Date: 20 June 2013
• Docket Number: No. 20110537–CA.,20110537–CA.
• Citation: 307 P.3d 576,737 Utah Adv. Rep. 38
• Parties: Jason ROSS, Plaintiff and Appellant, v. EPIC ENGINEERING, PC, Defendant and Appellee.
• Court: Utah Court of Appeals

307 P.3d 576

737 Utah Adv. Rep. 38

Jason ROSS, Plaintiff and Appellant,

v.EPIC ENGINEERING, PC, Defendant and Appellee.

No. 20110537–CA.

Court of Appeals of Utah.

June 20, 2013.

Aaron R. Harris and Stephen Quesenberry, for Appellant.

Brent E. Johnson and Rebecca A. Ryon, for Appellee.

Opinion

ORME, Judge:

¶ 1 Jason Ross appeals the district court's grant of Epic Engineering's motion in limine that excluded the testimony of Ross's expert. Ross also appeals the district court's subsequent grant of Epic's motion for summary judgment on Ross's breach of contract claim and the resulting dismissal of Ross's complaint with prejudice. We affirm.

BACKGROUND

¶ 2 In reviewing the district court's grant of summary judgment, we recite the facts in the light most favorable to Ross. See Bowers v. Call, 2011 UT App 143, ¶ 2, 257 P.3d 433 (per curiam). Ross retained Epic's services in 2006 for the design of a small commercial building to be constructed in Roosevelt, Utah. The contract defined the scope of Epic's work to be “structural engineering and drafting of [a] 70' x 100' office and warehouse building” for a fee of $8,250. ¹ The plans prepared by Epic included the instruction that “all footings shall bear 12? minimum into original undisturbed earth or on engineered fill.” Ross hired his brother as the general contractor for the building, and Ross's father assisted in the excavation of the site for the building's foundation.

¶ 3 After the building was constructed, it began to settle as a result of unconsolidated fill material underlying the site. Approximately ten months after Ross moved into the building, he notified Epic that the building was settling and that cracks had appeared on the interior and exterior walls. Ross claimed that Epic should have prepared a “soils report” as part of its engineering plans for the building. Epic denied that the contract required it to prepare a soils report and denied that the settling was the result of any inadequacies in the structural engineering plans, as the plans specifically required that “all footings shall bear 12? minimum into original undisturbed earth or on engineered fill.”

¶ 4 Ross filed suit against Epic for breach of contract and negligence, arguing that Epic “breached the contract by failing to properly engineer the plans.” Early in the litigation, the parties agreed to jointly commission a geotechnical investigation to determine the cause of the settling. The investigation determined that “[n]umerous pieces of asphalt, concrete, and other debris were observed in each of the test pits” and that the cause of the settling was insufficient compaction. The investigation revealed that “the footings for the ... building were placed on undocumented, loosely placed fill material. Moisture later infiltrated the subsurface soils next to the structure, causing the fill soil to settle under foundation loads.”

¶ 5 Ross and Epic each retained engineers to provide expert testimony. Ross retained a geotechnical engineer, while Epic secured a structural engineer who is also licensed as a general contractor. In his deposition, Ross's expert explained that his company “provide[s] geotechnical consultation for new construction of buildings [and] dams.... We also provide construction materials testing to verify that earthwork and concrete construction is conducted in accordance with the plans and specifications.” He further explained that geotechnical engineers evaluate subsurface soil conditions and the potential impacts of new construction, “and from that provide recommendations for design of whatever constructive facility we are evaluating.”

¶ 6 Ross's expert conceded that geotechnical engineers do not actually design buildings and that he did not have an opinion on the standard of care applicable to Epic.² Specifically, he stated:

The standard of care for this project is very important to recognize what happened in that locale with the local engineers at that time. That is not something that we have investigated. Our entire business is based on other engineers calling and asking for guidance and help in the geotechnical area.

He also testified that his personal experience with excavation was limited to operating a backhoe on two occasions: once to grade a road on recreational property that he owns and once to install window wells at his home.

¶ 7 Epic's expert was a structural engineer and licensed general contractor with “over 36 years of engineering experience in consulting, planning, and designing municipal, commercial and residential projects.” In his report, Epic's expert stated that he was retained to provide his professional opinion regarding the standard of care expected of structural engineers on projects like the one in this case. The expert opined:

Geotechnical Reports are very expensive and typically never ordered for residential or light commercial buildings. If the structural engineer is familiar with the soils in a particular area it is common to use the values listed in the International Building Code. Essentially the International Building Code has published minimum values that can be used for construction in lieu of data obtained from a geotechnical report. [Epic's engineer that prepared the plans] testified that he had designed similar projects in Roosevelt using the same design standards.

Epic's expert also concluded that “[t]he existing contours would not necessarily indicate the site had been filled” and “[i]f it was obvious the existing contours indicated the site had been filled I would have expected the City building inspector to alert the contractor/owner he needed to provide a soil report required by the International Building Code[.]”

¶ 8 At the close of discovery concerning the experts' opinions, Epic moved for summary judgment on both Ross's negligence claim and his contract claim. Epic contended that the negligence claim was barred by Utah's economic loss doctrine and that the breach of contract claim failed because Ross had not presented expert evidence demonstrating that Epic “failed to properly engineer the plans.” Epic asserted that Ross's engineering expert was unqualified to offer an opinion as to the applicable standard of care. The court granted Epic's motion in part, dismissing the negligence claim but denying summary judgment on the breach of contract claim.

¶ 9 After the matter was set for trial on the contract claim, Epic filed a motion in limine, essentially rearguing the points made in its earlier motion for summary judgment and seeking to preclude Ross's expert from testifying. As also argued in the earlier motion for summary judgment, Epic contended that Ross's expert, a geotechnical engineer, “lacked the relevant knowledge, skill, or experience” necessary to testify as to the standard of care expected of structural engineers, contractors, or excavators. At the final pre-trial hearing, the district court heard argument on the motion in limine. Ross objected because the deadline to respond to the motion had not yet passed. ³ After argument, the district court granted Epic's motion, stating, “This expert isn't going to be able to testify to the standard of care. I mean it's very clear that he in his deposition said he wasn't asked to make that analysis. He would be testifying to something that is not relevant to the case [.]” The court also concluded that Ross's expert's opinion that “a machine operator or contractor wouldn't necessarily be able to determine if the soil they were digging into was native or fill” was contrary to Utah law. See Smith v. Frandsen, 2004 UT 55, ¶¶ 18–19, 94 P.3d 919 (explaining that the law deems a contractor to have a high degree of specialized knowledge, including “familiar[ity] with conditions in the subsurface of the ground”).

¶ 10 The court then, sua sponte, reopened the motion for partial summary judgment on the breach of contract claim. The court clarified, “The reason the Court did not grant summary judgment initially on the first issue was ... the proffer that the expert[s] would disagree on critical issues. They don't.” The court then granted the motion, effectively eliminating all of Ross's claims, and it dismissed Ross's complaint with prejudice. Ross appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 11 Ross contends that the district court incorrectly granted Epic's motion in limine, which effectively precluded the introduction of his expert's testimony. “A decision to admit or exclude expert testimony is left to the discretion of the trial court, and that decision will not be reversed unless it constitutes an abuse of discretion.” State v. Holm, 2006 UT 31, ¶ 89, 137 P.3d 726 (citation omitted). “Our review of the district court's exercise of its discretion includes review to ensure that no mistakes of law affected a lower court's use of its discretion.” Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr., 2010 UT 59, ¶ 5, 242 P.3d 762 (citation and internal quotation marks omitted).

¶ 12 Ross also argues that the district court erred when it decided Epic's motion in limine before the expiration of the time allowed for him to respond under the Utah Rules of Civil Procedure. “We review the interpretation and application of a rule of procedure for correctness.” Edwards v. Powder Mountain Water & Sewer, 2009 UT App 185, ¶ 14, 214 P.3d 120. However, “ ‘[i]n order to justify reversal[,] the appellant must show error that was substantial and prejudicial in the sense there is at least a reasonable likelihood that in the absence of the error the result would have been different.’ ” Commonwealth Prop. Advocates, LLC v. Mortgage Elec. Registration Sys., Inc., 2011 UT App 232, ¶ 6, 263 P.3d 397 (second alteration in original) (quoting Ortega v. Thomas, 14 Utah 2d 296, 383 P.2d 406, 408 (1963)). SeeUtah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). Epic does not contend that...