Traco Steel Erectors, Inc. v. Comtrol, Inc.

2009 UT 81, 222 P.3d 1164, 645 Utah Adv. Rep. 30, 2009 Utah LEXIS 216, 2009 WL 4723193
CourtUtah Supreme Court
DecidedDecember 11, 2009
Docket20080074
StatusPublished
Cited by10 cases

This text of 2009 UT 81 (Traco Steel Erectors, Inc. v. Comtrol, Inc.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Traco Steel Erectors, Inc. v. Comtrol, Inc., 2009 UT 81, 222 P.3d 1164, 645 Utah Adv. Rep. 30, 2009 Utah LEXIS 216, 2009 WL 4723193 (Utah 2009).

Opinion

INTRODUCTION

NEHRING, Justice:

T1 Petitioner Traco Steel Erectors, Inc. entered into two written subcontracts to provide steel erection work for Respondent Comtrol, Inc. on construction projects at Utah Valley State College and Weber State University. Disputes among the parties arose, and Traco eventually abandoned both projects prior to completion. Comtrol then invoked provisions of the subcontracts that allowed Comtrol to complete the steel erection work and charge Traco for costs incurred. Traco sued Comtrol for amounts it had not been paid under its subcontracts on both projects as well as amounts due on another project that is not at issue in this appeal. Comtrol counterclaimed for damages incurred in completing both projects as well as other damages not at issue in this appeal.

T2 Several issues were resolved when the district court granted Comtrol's motion for partial summary judgment. The remaining issues were tested in a five-day bench trial. The district court judge issued forty-three pages of findings of fact and conclusions of law. The trial court awarded Comtrol net damages of $1,450.27 and $8,270.11 for the two projects.

T3 Traco appealed. It claimed that the trial court erred in basing its damages award on the evidence presented by Comtrol to prove the actual costs incurred in completing Traco's work. Specifically, Traco appealed what it claimed was the trial court's implicit use of a published national average wage rate index titled the RS. Means Building Construction Cost Data and testimony on average hourly rates from Comtrol employees as a baseline for calculating damages. The court of appeals held that the appeal was from a fact-bound issue and that Traco therefore had a duty to marshal the evidence surrounding the damages award. Traco did not marshal the evidence relating to the trial court's findings of fact on the issue of damages. The court of appeals therefore declined to reach the merits of the issue. Judge McHugh dissented.

1 4 Traco petitioned this court for certiora-ri review. We granted the petition to decide (1) whether the court of appeals erred in declining to address the merits of Traco's challenge to the trial court's determination of the measure of damages and (2) whether the court of appeals erred in affirming the district court's method of ascertaining the measure of damages. We hold that Traco had a duty to marshal the evidence surrounding the district court's calculation of the total damages sought because Traco's appeal challenges the strength of the evidence supporting the trial court's findings of fact. Traco failed to marshal the evidence surrounding the damages award and therefore the court of appeals did not err in declining to reach the merits of Traco's appeal to the damages award.

BACKGROUND

115 Comtrol is a general contractor. Traco is a steel erection subcontractor. Comtrol and Traco entered into two written subcontracts pursuant to which Traco agreed to provide steel erection work for construction projects at Weber State University and Utah Valley State College. 1 Each of the subcon *1167 tract agreements contained the following provisions:

Contractor's Right to do Subcontractor's Work: If Subcontractor fails to supply sufficient forces, equipment or materials to advance the work according to Contractor's schedule, then Contractor may use its own forces, equipment, or materials to supply such portions of the work as are necessary to increase the rate of progress, and Contractor shall deduct the expense, with reasonable overhead and profit, from the Subcontractor price.
Defoult: In the event that Subcontractor appears likely to be unable to complete its work according to Contractor's project schedule, or if Subcontractor fails to fully perform its duties under this Subcontract, or if Subcontractor becomes insolvent, or fails to supply sufficient forces to maintain this schedule, or is guilty of any other default under this Subcontract, then Contractor may (a) withhold payment for work performed under the Subcontract and withhold payment of any other obligation of Contractor to Subcontractor; (b) after giving 48 hours written notice to Subcontractor, eject Subcontractor and take over Subcontractor's work and terminate Subcontractor's right to perform under the Subcontract. If Contractor takes over Bubcontractor's work, then Contractor will charge Subcontractor for all costs incurred as a result, including reasonable overhead and profit and including attorney's fees and other expenses. If the total amount exeeeds the unpaid balance of the Subcontract, then Subcontractor shall pay the difference to Contractor. If the amount is less than the unpaid balance of the Subcontract, the excess shall be paid by Contractor to Subcontractor.

T6 Following a payment dispute between Traco and Comtrol, Traco abandoned both the UVSC project and the Weber State project before completing either. Comtrol gave Traco a written forty-eight hour notice to return to work on the UVSC project and to perform its contract obligations. Comtrol advised Traco that if it did not return, Com-trol would charge Traco for the cost of completing Traco's work. Traco did not return to the UVSC project. Traco later abandoned the Weber State project because of contract disputes. Comtrol notified Traco it would invoke its rights under the subcontracts to perform the agreed upon work on both projects and back charge Traco for the costs incurred. Traco sent Coratrol written notice that it was abandoning the projects.

T7 Comtrol completed the projects by using its own labor foree and subcontracting with a skilled welder instead of hiring another steel erection company. Comtrol invoked the subcontract provisions that allowed Com-trol to charge Traco the actual costs and overhead for this work. Traco sued Comtrol for the amounts unpaid under the contracts on both projects, and Comtrol counterclaimed to recover the costs it incurred in completing the two projects.

18 At trial, Comtrol successfully introduced into evidence the R.S. Means Building Construction Cost Data: 2001 Western Edition (Phillip R. Wailer ed., 14th ed.2001). This document is an index of average wages and costs for skilled structural steelworkers and equipment in the western United States. The RS. Means averages contractors' percentage mark-ups applied to base labor rates to arrive at typical billing rates for skilled and unskilled labor as well as the cost of equipment. The average also combines the base labor rates based on union wages averaged over twenty major western U.S. cities, the average worker's compensation rates for thirteen western U.S. states, and the fixed averages for all trades.

T9 Comtrol submitted the hourly rate of $50.68 found in the R.S. Means average as the rate that the employees hired by Comtrol to complete Traco's work were actually paid. Comtrol applied this average rate to all hours worked by Comtrol employees in completing Traco's work on the two projects. Comtrol also added ten percent overhead and ten percent profit for a total hourly labor rate of $60.82. Comtrol argued at trial that the cost of completing Traco's work for both projects was much higher than the hourly wages paid to the workers because the cost included the equipment and fuel expenses as well as additional burden costs, such as workers' compensation insurance, general liability

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Bluebook (online)
2009 UT 81, 222 P.3d 1164, 645 Utah Adv. Rep. 30, 2009 Utah LEXIS 216, 2009 WL 4723193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/traco-steel-erectors-inc-v-comtrol-inc-utah-2009.