Bailey-Allen Co., Inc. v. Kurzet

876 P.2d 421, 240 Utah Adv. Rep. 17, 1994 Utah App. LEXIS 82, 1994 WL 243151
CourtCourt of Appeals of Utah
DecidedMay 31, 1994
Docket930178-CA
StatusPublished
Cited by31 cases

This text of 876 P.2d 421 (Bailey-Allen Co., Inc. v. Kurzet) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey-Allen Co., Inc. v. Kurzet, 876 P.2d 421, 240 Utah Adv. Rep. 17, 1994 Utah App. LEXIS 82, 1994 WL 243151 (Utah Ct. App. 1994).

Opinion

OPINION

BILLINGS, Presiding Judge:

Stanley Kurzet, Anne Kurzet, and the Kur-zet Family Trust appeal from a district court order awarding Bailey-Alien Company, Inc., damages, prejudgment interest, and post-judgment interest under a construction contract and denying the Kurzets’ request for attorney fees on their successful summary judgment motion. We reverse and remand.

*423 FACTS

In July 1990, Stanley Kurzet and Bailey-Ailen Company, Inc. entered into a contract for the construction of the Kurzets’ home. The agreement, which Mr. Kurzet drafted, provides in relevant portion:

This Agreement covers all of the understandings existing between BAILEY-ALLEN (Contractor) and STANLEY KUR-ZET (Owner) for the construction of a residence on LOT #4 of the EVERGREEN development at DEER VALLEY, PARK CITY, UTAH.
The Contractor is retained by Owner on a cost plus fixed fee basis. Costs shall be billed monthly and payment shall be made within ten days of receipt of billing. The fee fixed for this contract is set at $100,000 for the residence as depicted in the drawings plus a maximum of $50,000 in directed additional work, if any. Any directed additional work in excess of an aggregate cost of $50,000 will result in additional fees based on 7% of the cost of such additional work.
[[Image here]]
Both Contractor and Owner stipulate that this contract cannot be changed except and unless in writing, bearing the date and signatures of both parties.
[[Image here]]
The Owner’s review authority notwithstanding, the Contractor is fully responsible to Owner for the performance of subcontractors. Accordingly, costs occasioned by the failure of a subcontractor to perform shall not be assessable to Owner.
The Contractor shall carry insurance specifically providing for saving Owner harmless from any action arising due to the injury of a worker even if an employee] of a subcontractor or supplier who is not properly or adequately insured. Contractor shall, within 10 days of the date of this agreement furnish a Certificate of Insurance prepared by the Carrier or its Authorized Agent. The Certificate shall specifically state the purpose and limits of the policy and these shall show that the work to be performed under this contract is covered.
[[Image here]]
Contractor takes note that Owner is concerned about the quality of workmanship and materials and that this concern stems from prior experience with a local contractor and ownership of several condominiums at the Pinnacle development. Owner will not make unreasonable demands, however, slovenly workmanship and/or substandard materials will neither be accepted [n]or paid for by Owner. Owner considers that the fees he pays to Contractor are • specifically for his expertise in selecting and supervising workers so as to avoid unacceptable and substandard workmanship and/or the use of substandard quality materials.

The agreement is silent regarding remedies in the event of a breach by either party.

Ten days after the contract was signed, Mr. Kurzet requested the required certificate of insurance, but never received it. Bailey-Alen later admitted that its policy had expired nearly two years earlier. In October 1990, Mr. Kurzet terminated Bailey-Alien's services, based on its failure to provide proof of insurance and Mr. Kurzet’s dissatisfaction with Bailey-Allen’s attention to the project. At the time of the termination, the work under the contract was approximately 10% complete, with the house framed and the roof partially finished.

Bailey-Alien filed a complaint against the Kurzets in December 1990, alleging breach of contract, mechanics’ lien, unjust enrichment, and failure to obtain a construction bond. The trial court subsequently granted the Kurzets’ motion for partial summary judgment on the latter three causes of action, reserving the breach of contract claim for trial to the bench. At the trial on the breach of contract claim, the court reinstated sua sponte the unjust enrichment claim and granted a continuance for the parties to present their evidence thereupon.

After hearing the evidence, the court determined “that the subject contract was ambiguous and incomplete as drafted and that the Court has a responsibility to add to it.” The court further concluded that Bailey-Allen’s failure to provide evidence of insurance and its lack of supervision of the project were *424 material breaches of the contract that justified the termination. The court determined the Kurzets had not breached the contract.

The trial court then concluded that Bailey-Alien was entitled to recover under its unjust enrichment theory and went on to consider the amount of damages due, concluding that “the most logical basis [was] the percentage of defendants’ residence that was completed during the period plaintiff was on the job.” Accordingly, the court awarded Bailey-Alien $15,500 “in quantum meruit/unjust enrichment, based on the contract between plaintiff and defendants, $10,000 representing ⅛> of the contract price for services in completing ¾0 of the construction, and $5,500 for services involving negotiations for the purchase of lumber.” Bailey-Alien was held liable to the Kurzets for $1800 in costs for repairing Bailey-Alien’s faulty construction of a retaining wall, for $2000 for repairing its faulty construction of concrete steps, and for $559 in costs for unnecessary materials.

The court entered judgment for Bailey-Alien in the amount of $11,141, representing its damages offset by the amounts owed to the Kurzets. The court awarded Bailey-Alien prejudgment interest and post-judgment interest from and after April 17, 1992, the date the trial court granted Bailey-Alien’s motion to compel findings of fact and conclusions of law. The court dismissed the Kurzets’ counterclaims and denied their claim for attorney fees and costs associated with their successful motion for partial summary judgment on the mechanics’ lien and construction bond claims.

The Kurzets appeal, claiming the trial court erred in: (1) awarding Bailey-Alien damages under the contract or in quantum meruit; (2) awarding prejudgment interest; (3) awarding postjudgment interest from the date it granted Bailey-Alien’s motion to compel findings of facts and conclusions of law, rather than from the date the judgment was entered; and (4) denying their claim for attorney feés and costs on their successful partial summary judgment motion under the mechanics’ lien and construction bond statutes.

I. DAMAGE AWARD

The trial court awarded Bailey-Allen $15,500 in damages “in quantum meru-it/unjust enrichment, based on the contract between the parties.” 1 Whether the court’s theory of recovery was proper raises a question of law, which this court reviews for correctness. Van Dyke v. Chappell, 818 P.2d 1023, 1024 (Utah 1991). We are also mindful that we may affirm a trial court’s decision on any proper ground. Mel Trimble Real Estate v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Smith v. Volkswagen Southtowne
2024 UT App 33 (Court of Appeals of Utah, 2024)
Larson v. Stauffer
2022 UT App 108 (Court of Appeals of Utah, 2022)
Brady v. Park
2019 UT 16 (Utah Supreme Court, 2019)
USA Power, LLC v. PacifiCorp
2016 UT 20 (Utah Supreme Court, 2016)
Bowen v. Hart
2012 UT App 351 (Court of Appeals of Utah, 2012)
Iron Head Construction, Inc. v. Gurney
2009 UT 25 (Utah Supreme Court, 2009)
Russo v. Ballard Medical Products
550 F.3d 1004 (Tenth Circuit, 2008)
SFR, INC. v. Comtrol, Inc.
2008 UT App 31 (Court of Appeals of Utah, 2008)
IRON HEAD CONSTRUCTION, INC. v. Gurney
2008 UT App 1 (Court of Appeals of Utah, 2008)
Alpha Partners, Inc. v. Transamerica Investment Management, L.L.C.
2006 UT App 331 (Court of Appeals of Utah, 2006)
J. Pochynok Co., Inc. v. Smedsrud
2003 UT App 375 (Court of Appeals of Utah, 2003)
Trench Shoring Services, Inc. v. Saratoga Springs Development, L.L.C.
2002 UT App 300 (Court of Appeals of Utah, 2002)
Becker v. Hsa/Wexford Bancgroup, L.L.C.
157 F. Supp. 2d 1243 (D. Utah, 2001)
Wood v. Utah Farm Bureau Insurance Co.
2001 UT App 35 (Court of Appeals of Utah, 2001)
Lefavi v. Bertoch
2000 UT App 5 (Court of Appeals of Utah, 2000)
Dejavue, Inc. v. U.S. Energy Corp.
1999 UT App 355 (Court of Appeals of Utah, 1999)
Interocean Ships, Inc. v. Samoa Gases
3 Am. Samoa 3d 190 (High Court of American Samoa, 1999)
Brown v. David K. Richards & Co.
1999 UT App 109 (Court of Appeals of Utah, 1999)
Bailey-Allen Co., Inc. v. Kurzet
945 P.2d 180 (Court of Appeals of Utah, 1997)
ProMax Development Corp. v. Mattson
943 P.2d 247 (Court of Appeals of Utah, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
876 P.2d 421, 240 Utah Adv. Rep. 17, 1994 Utah App. LEXIS 82, 1994 WL 243151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-allen-co-inc-v-kurzet-utahctapp-1994.