Shetka v. Epp Contracting, Inc.

2003 WY 158, 80 P.3d 637, 2003 Wyo. LEXIS 188, 2003 WL 22880835
CourtWyoming Supreme Court
DecidedDecember 8, 2003
DocketNo. 03-5
StatusPublished

This text of 2003 WY 158 (Shetka v. Epp Contracting, Inc.) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shetka v. Epp Contracting, Inc., 2003 WY 158, 80 P.3d 637, 2003 Wyo. LEXIS 188, 2003 WL 22880835 (Wyo. 2003).

Opinion

LEHMAN, Justice.

[¶ 1] Appellants George E. and Rose Marie Shetka, appeal the judgment entered by the district court in favor of appellee Epp Contracting, Inc. (ECI) concerning construction and other repair work performed on the Shetkas’ property. The Shetkas argue that the findings made by the’district court are clearly erroneous and are not supported by sufficient evidence. We affirm.

ISSUES

[¶2] The Shetkas phrase the issues on appeal as:

1. Whether the district court’s findings of fact were clearly erroneous and not supported by the evidence?
2. Whether the district court’s conclusion that plaintiff performed [its] duties in a good and workmanlike fashion was clearly erroneous?
3. Whether the district court’s conclusion that defendants failed to prove their counterclaim was clearly erroneous?

FACTS

[¶ 3] The Shetkas purchased a home in Dubois, Wyoming in 1999. They hired ECI to replace the existing shingle roof on the home with a metal roof, do leveling of the floor within the home, construct a new pole barn, and perform other “odds and ends” repairs.

[¶ 4] The work on the roof, the floor-leveling job, and the construction of the pole barn were performed pursuant to three separate written contracts. The other work was performed by ECI on an agreed upon “cost plus” basis. Detailed monthly statements from ECI were sent to the Shetkas for the work performed. The Shetkas paid these monthly statements. However, after the work was completed, the Shetkas failed to pay the final invoice in the sum of $12,888.00.

[¶ 5] On January 12, 2001, ECI filed a complaint with the district court for breach of contract, open account, unjust enrichment, and foreclosure of lien. The Shetkas answered the complaint and also filed a counterclaim for damages. After a bench trial, the district court entered its Judgment and Order ruling in favor of ECI and awarding ECI $12,888.00. The district court further found that the Shetkas had failed to prove theu counterclaim.1 This appeal followed.

STANDARD OF REVIEW

[¶ 6] In Ekberg v. Sharp, 2003 WY 123, ¶ 10, 76 P.3d 1250, ¶ 10 (Wyo.2003), we set forth:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence. Findings of fact will not be set aside unless the findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. We review a district court’s conclusions of law de novo on appeal.

DISCUSSION

[¶ 7] The Shetkas assert that the determinations made by the district court regarding the work performed by ECI, as well as the decision that the Shetkas’ failed to meet their burden of proof concerning their assert[639]*639ed counterclaim, are not supported by substantial evidence. In making their argument that there is insufficient evidence to support the district court’s ultimate decision, the Shetkas provide little analysis of the evidence but rather complain that the documentation and testimony were inconsistent, deficient, or not credible. In response, ECI argues that sufficient evidence exists to support the district court’s ruling but fails in its effort to provide this court with independent citation to the record to support its conclusion. Upon our review of the entire record, we conclude that sufficient evidence was presented to support the district court’s determination.2

Metal Roof

[¶ 8] The Shetkas complain that the district court should not have characterized the contract concerning the metal roof as a “bid” as opposed to an “estimate.” The Shetkas also argue that the district court improperly ruled that the Shetkas accepted the metal roof contract on January 7, 2000. However, the manner in which the district court characterizes the contract and the actual date it was accepted by the Shetkas are of little significance.

[¶ 9] The metal roof contract included specific line items that enumerated the work to be performed and the dollar figure attached to each line item. Mr. Gari Epp, owner of ECI, testified that he understood that ECI was to keep costs as close as possible to the total $19,200.00 figure indicated in the contract. Mr. Epp further stated that the Shetkas specifically informed, him that they wanted the work performed as cheaply as possible because they did not want to spend a lot of money on the home considering it was simply their “hunting cabin.”

[¶ 10] The evidence presented showed that the Shetkas ultimately ordered the work concerning the metal roof to proceed. Mr. Shetka testified that when he received the billing for the metal roof, he called Mr. Epp to ask about the term “bid” and was told “bid” was just the word the computer used for billing. Apparently satisfied with this explanation and the' work performed, the Shetkas paid both invoices in full.

[¶ 11] The Shetkas also assert that the district court erred in concluding that ECI was not responsible under the contract to replace all of the substrate of the roof. In support of his claim, Mr. Shetka references his own testimony wherein he informed Mr. Epp that if anything was wrong with the substrate, he wanted it repaired. Upon review, however, Mr. Shetka testified only that he wanted “rotten lumber” repaired and that when ECI found a truss that had decayed somewhat and advised him of this find, the truss was replaced by ECI as Mr. Shetka requested. Mr. Epp testified that he and Mr. Shetka never discussed the replacement of the substrate, that this was never included as a part of the metal'roof contract, and that the Shetkas never indicated they wanted the substrate replaced as part of the work to be performed. Additionally, Mr. Epp stated that when the old cedar shingles were stripped off of the roof, it was noticed that some of the substrate was not fastened properly and that some of the substrate undulated, did not lie flat on the roof, and was crooked. Accordingly, ECI properly fastened the loose substrate and replaced and straightened some of the fascia boards because this work was minimal in cost.

[¶ 12] When questioned about the hip ridges of the substrate, Mr. Epp admitted that the hip ridges did not lay perfectly straight because the trusses for the roof were not pre-manufactured but made out of uneven native lumber. Mr. Epp concluded that this problem was not significant in nature and that the ridge cap could be placed in a straight enough manner, especially considering the prohibitive cost to rebuild and fix the hip ridges and the Shetkas’ clear directive that they did not desire to spend a lot of money on the repairs. Accordingly, Mr. Epp did not further discuss the issue with the Shetkas.

[¶ 13] Ultimately, a review of the evidence shows that the district court could find [640]*640that complete repair or replacement of the substrate was not contemplated by the parties or included in the roof work required to be performed by ECI.

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Related

Matheson Drilling, Inc. v. Padova
5 P.3d 810 (Wyoming Supreme Court, 2000)
Ekberg v. Sharp
2003 WY 123 (Wyoming Supreme Court, 2003)
Masinter v. Markstein
2002 WY 64 (Wyoming Supreme Court, 2002)

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Bluebook (online)
2003 WY 158, 80 P.3d 637, 2003 Wyo. LEXIS 188, 2003 WL 22880835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shetka-v-epp-contracting-inc-wyo-2003.