Hunt v. Mayr

686 P.2d 74, 107 Idaho 129, 1984 Ida. LEXIS 531

Opinions

BISTLINE, Justice.

On April 19, 1978, plaintiff, V.J. Hunt, entered into contracts with defendants, Lambert A. and Betty Mayr and Kenneth P. and Lonette Zander (hereafter “homeowners”), to construct houses for each of them. The contracts provided that the houses would be built according to the plans supplied by the homeowners except for redline alterations which were to be mutually agreed upon before construction. A provision for the supply of and payment for “extras” was included. After the homeowners moved into their houses, they began noticing problems with the construction of the houses. Because of their dissatisfaction with the construction of their homes and the repairs and attempts at repairs by Hunt, the homeowners refused to pay the balance due on their contracts— $4,035.75 on the Mayr contract and $10,-534.09 on the Zander contract. Hunt thereafter brought actions against the homeowners, which actions were consolidated for trial. Hunt sought to collect the balance due on the contracts, plus $100,000 in special damages incurred as a result of loss of income to his business, loss of reputation, and disruption of his relationship with his subcontractors, all claimed to have been occasioned by the homeowners’ failure to complete payment on their contracts.¹ The homeowners then filed answers and counterclaims seeking damages for the cost of repairs and loss of value to their homes as well as for inconvenience and discomfort as a result of the faulty construction work, and for embarrassment and humiliation and impairment of credit due to the filing of liens against the homes by Hunt’s subcontractors and material suppliers.

The district court, after trial without a jury, awarded damages to the homeowners for the cost of repairs. Additionally, the court awarded the Mayrs $5,000 in general damages and $5,000 in attorney’s fees; the Zanders were awarded $7,500 in general damages and $5,000 in attorney’s fees. The court also awarded both the Mayrs and the Zanders the value of liens placed on the houses by subcontractors and material suppliers “to be held in trust, in such form as the parties may agree, or ... as subsequently ordered by the Court, until such time as there was a final determination of the validity and amount of the lien claims then in litigation pending,” R., p. 93, as well as attorney’s fees to be prorated among the lien claimants. Hunt was allowed offsets against the homeowners’ damages awards for the balances due on the contracts as well as the cost of certain “extras.”

On appeal, Hunt argues that the trial court erred in awarding damages to the homeowners for the cost of repairs necessitated by the faulty construction work. After reviewing the record we hold that the trial court’s $450 award to each of the homeowners for “defects in the installation of styrofoam insulation around the foundation” (Finding of Fact VII, R., p. 82) of the homes is not supported by substantial and competent evidence in the record. The original blue prints specified that two inches of styrofoam insulation be placed on the foundation walls with no insulation in the floor joists or the outside vents. Hunt deviated from the requirements of the blueprints and instead placed six inches of insulation under the floor and insulated the vents. He testified that he had discussed with the homeowners the fact that the plans were inadequate and if followed would result in a great deal of heat loss and would not supply their insulation needs. He stated: “I told them I would put in the six-inch fiberglass insulation under the floor simply because it was the logical and the best way to do it. And even though it would cost me more to do it that way, that I wouldn’t charge them an extra for it.” Tr., Vol. II, p. 575. Hunt testified that the homeowners agreed to and were appreciative of this deviation from the original blueprints. Tr., Vol. II, p. 575. Neither of the homeowners disputed Hunt’s testimony that they agreed to the departure from the blueprints but merely offered testimony concerning the relative merits of both procedures. The evidence being uncontroverted that the parties agreed to this alteration of the blueprints, we fail to find any support for the trial court’s award of $450 to each.

We also hold that the trial court’s award of $200 to the homeowners for defects relating to footing depth are not supported by the record. The contract provision relating to the footing depth provided that:

“Due to the necessity of moving several large rocks, Builder agrees to pay for all excavating and backfill and grading up to the following agreed upon limits $500.00 allowance for digging and grading for footings for house and garage and backfill and rough grade around foundation walls.”

Plaintiffs’ Ex. B, R., p. 63.

There is no dispute in the record that Hunt incurred the $500 in excavating, back-fill and grading pursuant to the contract. Thus, the cost of any additional back filling necessary to protect the footings must be borne by the homeowners.

Hunt contends that the other damages for repairs awarded are not supported by substantial and competent evidence in the record. Hunt argues that the trial court’s award of damages for improper wiring, insulation in the homeowners’ ceilings and attics, warping in the Zanders’ ceiling and the Mayrs’ entry door were erroneous. He contests these awards not on the ground that he is not contractually responsible or that the contract has been modified, as was the case above, but that the trial court awarded too much for the individual repairs. It is apparent, however, that the trial court set the awards at intermediate figures between the more costly approaches submitted by the homeowners and the less expensive approaches offered by Hunt. The trial court’s findings are supported by substantial, albeit conflicting, evidence and will not be disturbed on appeal. Rueth v. State, 103 Idaho 74, 644 P.2d 1333 (1982); Javernick v. Smith, 101 Idaho 104, 609 P.2d 171 (1980). Hunt’s second assignment of error is that the trial court erred in awarding to the homeowners the amount of the lien claims filed by contractors and material suppliers, the validity of which was presently being litigated. In his contracts with the homeowners, Hunt specifically agreed that he would pay his contractors and suppliers out of the contract payments made by the homeowners before taking any money for himself. Hunt did not comply with this obligation, but rather paid his contractors and suppliers only $90,000 of the $109,700 in payments he received leaving $17,000 in bills unpaid, which failure resulted in liens being filed against the residences. Hunt does not contest the amount of the liens, Tr., Vol. II, p. 420, nor the fact that the home owners, when and if the subcontractors obtained a judgment against them in their lien foreclosure actions, would have an action against him. Hunt argues only that the homeowners were not entitled to collect damages from him to pay off the liens until the validity of those liens was resolved in another action. The trial court did not, however, award the amount of the liens to the homeowners as damages outright but instead awarded them “to be held in trust, ... until such time as there was a final determination of the validity and amount of the lien claims in litigation pending____” Amended Judgment, R., p. 95. The trial court thus merely sought to assure that the homeowners would be protected from having to pay the lien claims without resort to further litigation in the event that the lien claims were later held to be valid and enforceable by foreclosure. We do not find error in the trial court’s resolution of this problem or in the court’s decision to resolve this litigation as expeditiously as possible without the necessity of a third action being brought to further burden the judicial docket.²

Hunt’s final assignment of error is that the trial court erred in awarding attorney’s fee to the homeowners. The judgment in this case was rendered on April 2, 1982; thus the trial court’s award of attorney’s fees was made in accordance with the provisions of I.R.C.P. 54(e)(1) which provides that attorney’s fees may be awarded to the prevailing party or parties when the court finds that the case “was brought, pursued or defended frivolously, unreasonably or without foundation ....”■

Hunt argues that if this Court determines that damages were improperly awarded, he, rather than the homeowners, would have been the prevailing party and thus attorney’s fees could not have been properly awarded to the homeowners.³ He also argues that there is no basis in the record for the district court’s determination that Hunt’s claim was pursued unreasonably and without foundation. The trial court found that:

“[T]he [homeowners] are the prevailing part[ies] to the degree that many of their claimed defects were conceded to exist, but that notwithstanding the fact the plaintiff knew or should have known of the defects, he did nothing about them and furthermore brought suit against defendants ... alleging substantial monetary damages for loss of business and loss of business reputation though such claims were without foundation. Therefore the Court awards attorneys fees ... for the reason [the contractor’s] claim was pursued unreasonably and without foundation.”

R., p. 81.

There is substantial support in the record for the trial court’s findings supporting its determination that the homeowners were the prevailing parties and that Hunt’s claim was pursued unreasonably and without foundation; hence, it will not be set aside.

Hunt additionally argues that the trial court’s award of a total of $10,000 in attorney’s fees is clearly excessive, it being in excess of the amount submitted in the homeowners’ affidavit of costs. The affidavit of costs not being part of the record before this Court on appeal, we are unable to review Hunt’s contentions in this regard and the award will be presumed to have been properly entered. Rutter v. McLaughlin, 101 Idaho 292, 612 P.2d 135 (1980); Dawson v. Mead, 98 Idaho 1, 557 P.2d 595 (1976).

The trial court decision is affirmed in part, reversed in part, and remanded for entry of an order modifying the judgment in accordance with this opinion. Each party to bear their own costs and attorney’s fees.

DONALDSON, C.J., and SHEPARD, J., concur. BAKES, J., concurs in result.

Footnotes

1

. The district court entered a partial summary judgment order dismissing Hunt’s claim for special damages after motion for summary judgment made by the homeowners was uncontested by Hunt.

2

. It must be remembered that if this litigation were brought precipitately, such was done by the complaining party herein. Hunt, not by the homeowners.

3

. I.R.C.P. 54(d)(1)(B) establishes the guidelines pursuant to which the trial court must determine whether a party is the “prevailing party”:

"In determining which party to an action is a prevailing party and entitled to costs, the trial court shall in its sound discretion consider the final judgment or result of the action in relation to the relief sought by the respective parties,____"