Hoth v. White

799 P.2d 213, 142 Utah Adv. Rep. 53, 1990 Utah App. LEXIS 146, 1990 WL 132074
CourtCourt of Appeals of Utah
DecidedSeptember 7, 1990
Docket880308-CA
StatusPublished
Cited by17 cases

This text of 799 P.2d 213 (Hoth v. White) 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
Hoth v. White, 799 P.2d 213, 142 Utah Adv. Rep. 53, 1990 Utah App. LEXIS 146, 1990 WL 132074 (Utah Ct. App. 1990).

Opinions

OPINION

GARFF, Judge:

Plaintiffs Michael J. Hoth and Jeffrey R. Hoth, d/b/a Hoth Brothers (the Hoths), filed a mechanic’s lien against defendants, third-party plaintiffs, and appellees Karl R. and Amy H. White (the Whites), to enforce payment of their subcontract for framing a residence. The Whites responded and brought a third-party complaint against third-party defendants and appellants Dean R. Morgan, d/b/a Polar Bear Homes, and Charles R. Team, d/b/a Team Realty (collectively “appellants”), alleging that they, in their role as general contractor, had failed to pay sums due under the subcontract to the Hoths. The trial court ordered the Whites to pay the Hoths the amounts due under the subcontract and ordered appellants to indemnify the Whites. We affirm in part and reverse in part.

Morgan is the owner of Polar Bear Homes, a firm which specializes in building unique, energy efficient homes. The Hoths, Morgan’s nephews, are framing subcontractors. Team is a real estate broker, the sole proprietor of Team Realty, and claims that he has no business relationship with Polar Bear Homes or Morgan other than a real estate brokerage contract.

Amy White contacted Polar Bear Homes to inquire as to the possibility of it building the Whites’ new, custom house. Team was instrumental in showing her the merits of Polar Bear Homes by meeting with her several times and showing her some houses built by the company. Amy White testified that during these meetings Team identified himself as Morgan’s partner, and that during one meeting he spoke to a radio commentator on the telephone in order to advertise Polar Bear Homes, identifying himself as being associated with that company. He gave her a business card upon which was imprinted a Polar Bear Homes logo and his name. Amy White assumed on the basis of this information that Team was Morgan’s partner in Polar Bear Homes.

On August 26, 1986, the Whites met with Team and Morgan, and contracted’ with Polar Bear Homes to build a custom, energy efficient house according to plans and specifications drafted by Amy White and given to Morgan. The parties signed a standard earnest money agreement, Morgan signing on behalf of Polar Bear Homes, and Team receiving the $100 earnest money on behalf of Team Realty. Construction was to be completed by December 10, 1986. The contract required the Whites to supply construction financing of $40,000. Karl White requested that Morgan provide him with accountings, lien waivers, and copies of cancelled checks during the progress of the construction.

Soon after signing the earnest money agreement, Morgan subcontracted with the Hoths to frame the house for the price of $6,000. Morgan provided the Hoths with the plans but not with the specifications, which were listed on a separate sheet.

The Hoths began framing the house during the first week of October 1986, but did not complete their work until February 12, 1987, two months after the entire house was to have been completed. Many problems arose during construction which required changes to be made in the framing. Some of the required changes resulted from the improper pouring of the foundation, some from the Hoths’ ignorance of some of the specifications, some because the plans were incomplete or unclear, and some because Amy White changed her mind as to what she wanted. Amy White was present on the job site nearly every day, and interacted frequently with the Hoths. Although the Hoths substantially [215]*215completed framing the house, they did not completely finish the job, making it necessary for the Whites to hire other subcontractors to come in and complete the work.

During the months of October and November 1986, the Whites made progress payments on the construction, but were not provided with any accounting of the funds spent. By January 1987, the Whites had already provided appellants with $43,000. Soon after January 3, 1987, Morgan acknowledged that there was at least a $10,-000 overrun on the contract price, and asked the Whites to pay half of that. The Whites deferred making a decision on this request until the house was completed.

The Whites again demanded an accounting. Morgan provided a partial accounting on January 6, 1987. This accounting showed that Morgan had paid the Hoths $3,500 on the subcontract, leaving an unpaid balance of $2,500. It also indicated that Morgan had paid himself $3,007 and Team $2,000, which Morgan explained was an advance on Team’s sales commission. The Whites refused to give Morgan any more money, but began paying the construction bills directly, and began to directly hire subcontractors to complete the building, bypassing Morgan. Morgan testified that he felt he had lost all control over the project, and had been taken off the job. The Whites, however, stated that they consistently requested him to return to the job and assume his responsibilities, especially with the numerous structural problems present. They concluded that they had to take over because the construction was substantially behind schedule, and Morgan was not paying the bills or otherwise doing his job.

On March 16, 1987, at Morgan’s suggestion, the Hoths filed a mechanic’s lien on the house, claiming the unpaid balance of $2,500 plus an additional $1,410 for extra work and material supplied by them beyond the scope of the initial subcontract. Their total claim was $3,910.

Morgan subsequently provided the Whites with three more accountings: one on April 10, 1987, one on June 11, 1987, and one on November 18, 1987. These account-ings, although inconsistent with one another, indicated that Team had refunded his $2,000 payment made in January 1987, the Hoths had not been paid for the balance of their contract, and the total construction bills exceeded the total amount of payments made by the Whites. Morgan paid $1,227.94 of these costs out of his own funds, and he and Team were ultimately uncompensated for the project.

In September 1987, the Hoths filed this action to foreclose on their mechanic’s lien. On September 25, 1987, the Whites answered and counterclaimed for substandard work, disputing the amount and character of the “extra” items which the Hoths had determined were not within the scope of the original subcontract. The Whites also filed a third-party complaint in which they sought indemnity from third-party defendants Morgan and Team. Trial was held in the matter on March 3, 4, 7, and 9, 1988.

Upon the conclusion of closing arguments, the trial court announced its ruling and instructed the Hoths’ and Whites’ attorneys to prepare appropriate findings of fact, conclusions of law, and judgments. The attorneys, accordingly, did so. On March 29, 1988, the court, on its own motion, requested that all three attorneys appear. At this conference, the court rejected the proposed findings of fact and conclusions of law, and issued its own findings of fact and conclusions of law.

The trial court found that the Whites were liable to pay the Hoths the remaining $2,500 balance on the original contract plus $1,009 of the “extras,” less an offset of $516 for the costs the Whites had been required to pay to other subcontractors to finish the framing. It also ordered the Whites to pay the Hoths $1,000 in attorney fees, plus court costs to be determined from the record, for a net judgment of $3,993 plus costs. It then ordered appellants to indemnify the Whites in the amount of $2,993 and costs, plus pay $1,000 to the Whites for attorney fees.

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Hoth v. White
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Bluebook (online)
799 P.2d 213, 142 Utah Adv. Rep. 53, 1990 Utah App. LEXIS 146, 1990 WL 132074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoth-v-white-utahctapp-1990.