Opinion
No. 110767.
04-10-2015
Kevin W. NOLL, a Kansas resident, d/b/a A to Z Land Surveying, Plaintiff/Appellee, v. Jim F. BAILES, a Kansas Resident, d/b/a Frontier Kia; USA Auto, Inc., a Kansas corporation; and Bank of Western Oklahoma of Woodward County, Oklahoma, Appellants, and RSC Equipment Rental, Inc., an Arizona corporation registered in Kansas; Donald S. Gardner ; and Delmey E. Gardner, Defendants.
Glenn I. Kerbs, of Dodge City, for appellant Bank of Western Oklahoma. John M. Lindner and James R. Dummermuth, of Lindner, Marquez & Koksal, of Garden City, for appellants Jim F. Bailes and USA Auto, Inc. Wyatt A. Hoch, of Foulston Siefkin LLP, of Wichita, for appellee.
Glenn I. Kerbs, of Dodge City, for appellant Bank of Western Oklahoma.
John M. Lindner and James R. Dummermuth, of Lindner, Marquez & Koksal, of Garden City, for appellants Jim F. Bailes and USA Auto, Inc.
Wyatt A. Hoch, of Foulston Siefkin LLP, of Wichita, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
PER CURIAM.
Defendants-appellants, Jim Bailes, d/b/a Frontier Kia, and USA Auto (Bailes), appeal from the decision of the trial court granting judgment in favor of plaintiff-appellee, Kevin W. Noll, d/b/a A to Z Land Surveying (Noll), on Noll's claims for breach of contract and foreclosure on a mechanic's lien. In addition, defendantappellant Bank of Western Oklahoma of Woodward County, Oklahoma (Bank), appeals from the decision of the trial court granting Noll's mechanic's lien priority over the Bank's lien and granting judgment in favor of Noll. Finding no merit in these contentions, we affirm.
The construction project at the heart of this lawsuit involved the 2010–2011 building construction of a showroom addition to an existing concrete building. Bailes constructed this addition to house his Frontier Kia automobile dealership. Initially, Bailes hired Noll to prepare a topographic survey and drainage detention design for the Kia project. Bailes also hired Dean Chestnut as his project manager and hired Architecture Plus to develop architectural drawings for the Kia Project.
For the first 6 months of the project, Bailes funded the work from his business accounts. Bailes eventually sought financing from the Bank in late spring 2011. Bailes, his wife, Lori Bailes, USA Auto, Inc., and Bailes Investments, Inc., executed and delivered a mortgage to the Bank on April 29, 2011, to secure a $1,329,350 loan. The mortgage covers seven properties, including the Kia project. The Bank recorded the mortgage on May 5, 2011. Bailes used the loan to reimburse himself for $441,000 in expenses incurred and then used $520,000 to pay off loans on five other properties. This left only $368,350 available to fund the Kia project.
When construction started in February 2011, Bailes hired Noll under an oral contract to provide civil engineering and survey layout services. Under the oral contract, Bailes paid Noll an hourly rate for the survey crew, engineers, and technicians working under Noll. The hourly rate was $750 per day plus the cost of materials and expendables purchased by Noll for the Kia project. The parties refer to this oral contract as the $750/day contract. Noll first provided services under this $750/day contract before February 26, 2011.
Also in February, Bailes hired his son Carson Bailes and his cousin Brandon Bailes to begin constructing the structural steel for the Kia project. Bailes chose to make substantial changes to the initial drawings created by Architecture Plus such as changing the roof direction, eliminating the delivery bay, and adding parapet walls above the roof line.
By the end of February 2011, Chestnut had resigned as project manager because Bailes had failed to pay Architecture Plus for its services and because Bailes was unwilling to use Chestnut's suggestions to safely and successfully complete the project. Chestnut also wanted Bailes to hire properly licensed professionals to complete the project, which Bailes refused.
After Chestnut's resignation, Bailes moved forward with the construction and identified himself as the contractor on the building permit form. Throughout the Kia project, Bailes also served as his own designer, contractor, and project manager. Because of his lack of training or expertise, the project changed on the fly and lacked any sealed construction documents. As a result, the Kansas State Board of Technical Professions later determined that Bailes had engaged in the unauthorized practice of architecture on the Kia project.
In early March, Bailes expanded the scope of Noll's responsibilities under the $750/day contract to include the development of structural drawings for the showroom addition. Noll hired structural engineers to complete this task. The structural engineers were forced to complete multiple revisions because it was discovered that some of the steel was undersized and because Bailes' overall design continued to evolve.
On May 9, 2011, 4 days after the Bank's mortgage was filed, Noll and Bailes entered into a second written contract. The second written contract was for Noll to finish all the metal work on the showroom area. The total amount for this contract was $15,000, which Bailes paid in full on May 27, 2011.
Then on May 20, 2011, Bailes hired Noll on a fixed-price basis to “finish the metal roof” over the showroom addition. Under the metal roof contract, Bailes was required to pay half of the contract price up front and then the other half upon completion. Under the contract, the metal roof was to be completed within 7 working days and included a $500/day penalty for late completion. Noll timely completed the metal roof with the exception of the installation of special ordered sheet metal to form the funnels at the parapet wall, which was a last-minute design change by Bailes. When Noll demanded payment for the metal roof contract, Bailes refused to pay.
On July 25, 2011, Noll returned to the Kia project to install the special ordered metal funnels. This same day, Noll wrote to Bailes demanding payment and announcing his intent to file a mechanic's lien if he did not receive payment by August 4, 2011, for the balance of the metal roof contract and services provided under the $750/day contract.
When Bailes failed to pay, Noll filed his mechanic's lien on August 17, 2011. Noll later filed suit against Bailes on February 14, 2012, to recover damages for breach of contract and to foreclose his mechanic's lien.
Under the $750/day contract, Noll kept track of his time in his daily planner. On May 2, 2011, Bailes paid Noll $15,000 for the work that Noll had done under the $750/day contract. Upon receiving the check, Noll wrote “paid in full” and signed and dated a copy of the April 25, 2011, bill. Nevertheless, Noll's coordination work continued through the month of May and concluded on June 1, 2011, when the final structural drawings were completed. Noll also continued to purchase materials and supplies, pay for concrete and other labor, and provide construction equipment through the end of the Kia project.
At trial, both Bailes and the Bank argued that the $15,000 payment constituted the end of the $750/day contract. The trial court rejected this argument, finding that the $15,000 payment was merely a resolution of one invoice under the contract and did not finally settle or end the contract. The trial court determined that Noll's coordination work continued under the $750/day contract after the $15,000 payment had been made because Bailes made three additional payments to Noll on May 24, May 26, and July 28, 2011, in partial payment for labor, equipment, materials, and supplies provided under the $750/day oral contract.
The trial court further ruled that Bailes' failure to pay the balance of the metal roof contract was a material breach of the contract. Moreover, the trial court ruled that Bailes materially breached the $750/day contract by failing to pay Noll upon presentation of Noll's invoices.
Did the Trial Court Err in Finding That Noll's Lien Statement was Proper?
On appeal, the Bank argues that Noll's lien statement fails to satisfy the requirements set forth in K.S.A. 60–1102(a)(4). The Bank maintains that Noll's itemized statement fails to identify the $750/day oral contract, and therefore, Noll failed to provide a “reasonably itemized statement” as required by the statute.
Whether a mechanic's lien statement complies with the statutory requirements is a question of law over which an appellate court exercises unlimited review. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915, 157 P.3d 1109 (2007). Although courts liberally construe the mechanic's lien statute once a lien has attached, Kansas law requires strict compliance with the procedure required by the statute to perfect a mechanic's lien. Haz–Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, 170, 910 P.2d 839 (1996). “The lien statement's validity must be ascertained from its four comers.” Trane Co. v. Bakkalapulo, 234 Kan. 348, 352, 672 P.2d 586 (1983).
K.S.A. 60–1102(a) states that a contractor claiming a mechanic's lien on real property shall file a verified statement showing: (1) the name of the owner; (2) the name and address sufficient for service of process of the claimant; (3) the description of the real property; and (4) the amount of the claim and reasonably itemized statement.
The Bank asserts that Noll failed to file a reasonably itemized statement and, therefore, his mechanic's lien is void for failing to strictly comply with the statutory requirements. The Bank maintains that the “trial court did not address the statutory requirement of a ‘reasonably itemized statement’ in its Memorandum Order.”
When no objection is made to a trial court's inadequate findings of fact or conclusions of law, an appellate court can presume the trial court found all facts necessary to support its judgment. See O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012).
In the trial court's memorandum opinion, it held the following:
“The court concludes that Noll's mechanic's lien statement, 11 SL 9, contains a just and true statement of the account, a description of the Property, and the name of the owner of the Property and improvements, all verified by affidavit. Noll's mechanic's lien was prepared, timely filed, and served in accordance with Kansas law. Noll has complied with all of the requirements of K.S.A. § 60–1101 et seq. and is entitled to foreclose his mechanic's lien.”
Based on the trial court's finding that Noll had complied with “all of the requirements of K.S.A. § 60–1101 ” it is readily apparent that the trial court found that Noll had properly complied with the reasonably itemized statement requirement. Thus, the Bank's argument that the trial court did not even address this requirement lacks merit.
Under K.S.A. 60–1102(a)(4), a reasonably itemized statement means a statement that is neither excessive nor insufficient in detail; the statement must be fair and sufficient to inform the landowner of a claim and enable the landowner to ascertain whether the work was completed and therefore whether the charges are fair. See Kopp's Rug Co., Inc. v. Talbot, 5 Kan.App.2d 565, 620 P.2d 1167 (1980) ; Scott v. Strickland, 10 Kan.App.2d 14, 691 P.2d 45 (1984) ; Huber Co. v. DeSouza, 32 Kan.App.2d 614, 86 P.3d 1022 (1986).
In this case, the lien statement was reasonably itemized because it enabled both Bailes and the Bank to determine whether the work described was performed, whether the material was furnished, and whether the amount claimed was reasonable. Although Noll did not specifically note the $750/day contract in his statement, he included the expenses and invoices from those services in addition to the other contracts and invoices he included in his lien statement. Bailes was aware of all of the claims listed in Noll's lien statement and was provided sufficient notice from the statement. Thus, Noll properly complied with all of the statutory requirements under K.S.A. 60–1102(a).
Did the Trial Court Err in Finding That Noll's Mechanic's Lien Had Priority Over Bank of Western Oklahoma's Mortgage?
Both the Bank and Bailes argue that the trial court erred in finding that Noll's mechanic's lien had priority over the Bank's mortgage. Both parties argue that the earlier contracts had come to an end and that only the later roof contract was lienable. Moreover, they both contend that Noll's roof contract was junior to the Bank's mortgage.
Mechanics' liens are governed by K.S.A. 60–1101, which states:
“Any person furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property, under a contract with the owner or with the trustee, agent or spouse of the owner, shall have a lien upon the property for the labor, equipment, material or supplies furnished at the site of the property subject to the lien, and for the cost of transporting the same. The lien shall be preferred to all other liens or encumbrances which are subsequent to the commencement of the furnishing of such labor, equipment, material or supplies by such claimant at the site of the property subject to the lien. When two or more such contracts are entered into applicable to the same improvement, the liens of all claimants shall be similarly preferred to the date of the earliest unsatisfied lien of any of them. If an earlier unsatisfied lien is paid in full or otherwise discharged, the commencement date for all claimants shall be the date of the next earliest unsatisfied lien.”
The mechanic's lien statute is remedial and is designed to protect lienholders. Thus, once it has been established that a lien has attached, courts should liberally construe the law in favor of the lienholders. Haz–Mat Response, Inc., 259 Kan. at 170.
The relevant facts are that Bailes was building a Kia dealership. Bailes and Noll entered into two separate written contracts and one oral contract for work on the Kia project. The first written contract dated October 6, 2010, was for Noll to make a topographic survey of the Kia property and design a drainage detention area. The second contract between Bailes and Noll was an oral agreement for Noll to take on a coordination role to assist the structural engineers in drawing up the plans on the Kia project. The oral agreement was made in February 2011, and Bailes agreed to pay Noll $750/day for these onsite coordination services.
The parties disagree on when this oral agreement came to an end. On May 2, 2011, Bailes and Noll met to address Noll's outstanding bills which totaled $16,229.92, as shown on the April 25, 2011, billing statement. Bailes and Noll agreed on a compromise amount of $15,000 to settle the statement. Noll wrote “paid in full” and signed and dated a copy of the April 25 bill. According to Bailes and the Bank, this payment completed the oral contract. On the other hand, Noll maintains that he continued to do coordination work under the oral contract after May 2, 2011.
The trial court agreed with Noll. The trial court determined that the May 2, 2011, payment did not end the oral contract, it merely reflected the resolution of one invoice under that contract. The court grounded this determination on the fact that Bailes had later paid Noll on three separate occasions for labor, equipment, materials, and supplies provided under the $750/day oral contract.
The issue on appeal is whether the $15,000 payment ended the oral contract between Bailes and Noll. If it did, the trial court erred in finding that Noll's mechanic's lien had priority over the Bank's mortgage. If the payment did not end the oral contract, the trial court correctly ruled that Noll's mechanic's lien had priority over the Bank's lien.
In Kansas, where work is performed under a single, continuous contract a single lien attaches from the date work is first performed under the contract. Installment payments do not sever the contract or cause the lien to attach at a later date for unpaid work only. See Davis Electric, Inc. v. Showalter, 31 Kan.App.2d 318, 64 P.3d 456 (2003).
In Davis,Showalter contracted with Davis Electric to do electrical work on a bar and grill he was building. During construction, Showalter paid Davis for all the work and materials Davis had supplied as of that date. Davis continued to work on the property after this payment had been made. After Showalter defaulted on his financing, the Bank foreclosed on the project and asked that its mortgage have priority over the liens of the contractors and suppliers. The trial court held that the contractors had priority, and the Bank appealed. To determine who had priority, the court had to decide whether the date Davis initially began work, June 21, 2000, was the date to be used to measure the “earliest unsatisfied lien” under K.S.A. 60–1101. 31 Kan.App.2d at 319.
The Daviscourt held that because Davis had not been paid in full for its work after June 21, 2000, then the date Davis initially began work was still the date establishing priority for all the other subcontractors under K.S.A. 60–1101. 31 Kan.App.2d at 320–21.
In 2005, the Kansas Legislature amended K.S.A. 60–1101 by adding the last sentence to the statute: “If an earlier unsatisfied lien is paid in full or otherwise discharged, the commencement date for all claimants shall be the date of the next earliest unsatisfied lien.” This means that mechanics' lien claimants cannot relate back to the commencement date of another contractor if that contractor has been paid-regardless of when payment is made.
Bailes and the Bank rely on this language in the statute to argue that Noll had been paid in full under the oral contract and that the only other lienable contract between Bailes and Noll was entered into after the Bank filed its mortgage.
The trial court rejected both Bailes' and the Bank's argument that Noll had been paid in full and that the payment had ended the oral contract between Bailes and Noll. The record supports the trial court's finding. First, the record shows that Noll began work under the oral contract on February 26, 2011. Thus, that is the date that his lien attached. Moreover, because this was an ongoing contract, all work performed under that contract can be claimed under one single lien, regardless of whether any installment payments have been made.
Bailes testified that once the $750/day oral contract had ended with a payment in full on May 2, 2011, that Bailes was responsible for coordinating all the work that was being done on the project. Bailes testified that he was responsible for coordinating the work until Noll began the work under the steel contract on May 9, 2011. Bailes' testimony went as follows:
“Q. So what is your testimony about Kevin Noll's responsibility prior to the end of April for this project? You were the general contractor. We established that yesterday.
“A. He was basically project manager. He went around and told everybody what to do.
“Q. And so as of the end of April, he was no longer the project manager. The $750 a day deal was over?
“A. That's right.
“Q. So who was project manager after that?
“A. Well, at that point, we were working on interior stuff like remodeling, painting the service department, sheetrocking, the easy stuff that I can do.
“Q. So you were the project manager?
“A. Yeah, I suppose.
“Q. You were responsible for coordinating all the work that was done after the end of April?
“A. The light work.
“Q. Who had the responsibility for the heavy work?
“A. Well, after we did the contract with Kevin, then he took it over as the contract.”
From Bailes' testimony, it is unclear what responsibilities Noll had between the end of April and the beginning of the steel contract which was entered into on May 9. It was also pointed out that the steel contract that Bailes and Noll entered into on May 9, 2011, did not mention anything about Noll's coordination services.
Bailes' general manager, Stephen Bills, assisted Bailes throughout the Kia project. His testimony also sheds light on the fact that it was unclear what responsibilities Noll had between the end of April and the beginning of the steel contract. Bills testified that Noll was responsible for coordinating with the structural engineers and the structural steel workers so they could make sure the structural steel drawings were done correctly and that the building was safe. Bills further admitted that changes were constantly being made to the steel structure and that Noll continued to do coordination work under the later steel contract. Bills' testimony went as follows:
“Q.... If it was no longer Mr. Noll's responsibility, who, for the owner, had the responsibility of coordinating the remaining steel work, the concrete work, the sheetrocker, the carpet layer, the roofer, the electrician, the heating air conditioning contractor, who was doing that in the month of May?
“A. Okay. Had Mr. Noll not came back with us or not continued working for us, that would have been Jim Bailes. But that was not the case and it was never intended to be the case.
“Q. What wasn't intended to be the case?
“A. We ended the $750 a day deal and was proceeding to something else. We had plans that was still being worked on by the engineers and things like that, it was still ongoing, and, you know, and what workers was out there working was still working on the same thing so it was worked on.
“Q. So I go back to my question. Who was responsible, if the Noll $750 a day deal ended in late April as Mr. Bailes testified, who was responsible after that for coordinating all those trades? Was it you or was it Jim Bailes?
“A. Part of the time it would have been Jim.
“Q. And the other part of the time it would have been who?
“A. Kevin [Noll].
“Q. Doing it for free?
“A. No, operating under the steel contract.
“Q. You will agree with me that nowhere in the steel contract does it say Kevin will coordinate all the other trade work that has to be done?
“A. No, sir, I apologize. The trade work Jim [Bailes] took care of.”
The testimony from both Bailes and Bills does not help us understand what coordination responsibilities Noll had after being paid the $15,000 payment. The parties disagree on what responsibilities they intendedfor Noll to have and what was actually covered by the oral agreement.
Noll, on the other hand, testified that he continued to provide coordination services under the $750/day contract through June 1, 2011. Noll explained that his coordination services continued until the final structural drawings were completed. Noll further testified that although he did work for Bailes under the steel contract, he also continued to provide his coordination services and continued to bill Bailes the $750/day rate that was originally agreed upon. To show the ongoing nature of the $750/day contract, Noll presented Exhibit 35, which the trial court relied on in its memorandum decision. The following exchange occurred between Noll and his attorney regarding Exhibit 35:
“Q: Kevin, I want to ask you about this just briefly. Does Exhibit 35 on the first page and a half contain a summary that your wife, Gena, prepared of the checks that had been written on your bank account for folks that you contend did labor—did labor or provide work on the Kia dealership project?
“A: Yes.
“Q: And do the pages that follow include copies of the checks on your bank account paying the folks that are listed on the first page and a half?
“A: Yes.
“Q: And is this work within the scope of either of the two written contracts that you had for doing either the structural steel work or the metal roof work?
“A: No.
Exhibit 35 supports the trial court's determination that the oral contract was still ongoing after the $15,000 payment. Exhibit 35 shows that Noll was still paying workers for work that was outside of both of the written contracts with Bailes. This means that if Noll was not doing this work under the written contracts, he was performing this work under the oral contract.
As stated earlier, once it has been established that a lien has attached, courts should liberally construe the law in favor of the lienholder. Haz–Mat Response, Inc., 259 Kan. at 170. As a result, we are to construe the law and facts in favor of Noll. Here, Noll presented testimony and invoices to show that he had an ongoing oral contract with Bailes to perform coordination services that continued from February 2011 through June 1, 2011. Bailes failed to show that his payment to Noll for $15,000 ended the oral contract. Thus, the trial court properly determined that the facts showed that the contract was ongoing and, therefore, that Noll's mechanic's lien attached and had priority over the Bank's mortgage. Moreover, if the Bank had wanted to make sure that it had priority over other lienholders it could have asked for lien waivers or made sure that all previous lienholders had been paid in full.
Was There Substantial Competent Evidence to Support the Trial Court's Findings of Fact?
Bailes next challenges all of the trial court's findings of fact contending that they are not supported by substantial competent evidence. To support this argument, Bailes points to the fact that the trial court simply adopted verbatim Noll's proposed findings of fact and conclusions of law. In doing so, Bailes maintains that the trial court failed to independently evaluate the evidence. Bailes also argues that the trial court erred in ignoring credible testimony and instead relied on Noll's testimony to support its findings.
In this case, the trial court held a bench trial and issued findings of fact and conclusions of law. Generally, on review an appellate court applies a bifurcated standard of review. The trial court's factual findings are reviewed under a substantial competent evidence standard and its conclusions of law are subject to unlimited review. See City of Wichita v. Denton, 296 Kan. 244, 255, 294 P.3d 207 (2013).
Our Supreme Court rejected Bailes' argument about the trial court using a party's proposed findings of fact in Stone v. City of Kiowa, 263 Kan. 502, 506, 950 P.2d 1305 (1997), when it stated:
“There is nothing inherently wrong with a trial court's adopting a party's findings and conclusions in their entirety as long as they had been individually considered, but it is the sort of shorthand that would be susceptible to abuse. Thus, although not a practice to be encouraged, it is not, standing alone, a violation of Supreme Court Rule 165 or K.S.A.
60–252.”
Thus, the trial court's action of adopting Noll's findings of fact and conclusions of law was acceptable and does not show that the trial court failed to independently evaluate the evidence.
Bailes generally argues that each of the trial court's findings of fact was not supported by substantial competent evidence. For support, Bailes stresses the evidence he presented at trial in an attempt to undermine the evidence that the trial court relied on to make its findings. The problem with this type of argument is that the trial court was presented with all of the evidence and clearly found Noll's testimony and evidence to be more credible than Bailes'. For example, the trial court clearly found that the $750/day contract was an ongoing agreement that continued until June 1, 2011. To support this finding, the trial court noted the continued payments under the oral agreement and continued services provided by Noll. Although Bailes contends that his testimony showed that the oral contract had ended, the trial court clearly found that the evidence showed otherwise. Bailes essentially wants to relitigate each issue because the trial court found in favor of Noll. Nevertheless, when a verdict is challenged for insufficiency of evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable as to the prevailing party, supports the verdict, the verdict will not be disturbed on appeal. See Gannon v. State, 298 Kan. 1107, 1175–76, 319 P.3d 1196 (2014) (bench trial).
Because there is substantial competent evidence to support the trial court's findings of fact, Bailes' argument fails.
Did the Trial Court Err in Finding That Bailes Failed to Mitigate His Damages?
Next, Bailes argues that the trial court erred in finding that he was not entitled to damages for his leaky roof because he had failed to mitigate the damages. Bailes maintains that the failure to mitigate is an affirmative defense that Noll should have raised but failed to.
“Mitigation of damages is an affirmative defense and the burden of proving a failure to mitigate losses devolves upon the party who asserts it.” Leavenworth Plaza Assocs., L.P. v. L.A.G. Enterprises, 28 Kan.App.2d 269, Syl. ¶ 4, 16 P.3d 314 (2000) ; see Rockey v. Bacon, 205 Kan. 578, 583, 470 P.2d 804 (1970).
In this case, the trial court held that Bailes was not entitled to damages for the roof because it would give him a “betterment” that he was not entitled to. “The basic principle of damages is to make a party whole by putting it back in the same position, not to grant a windfall.” Service Iron Foundry, Inc. v. MA. Bell Co., 2 Kan.App.2d 662, 679, 588 P.2d 463 (1978).
Bailes was warned by Noll and Chestnut that he should design the roof in a certain way. Nevertheless, Bailes chose to cut corners and ignore the professionals' advice which ultimately led to a leaky roof. Thus, because Bailes chose to ignore the recommendations from the professionals, he is not entitled to now recover for the damages that were caused by his poor choices. It would be unfair to allow Bailes to recover damages for a more expensive roof than he chose to design or to construct. As a result, Bailes is not entitled to recover damages for a bad decision that he made.
Moreover, the trial court made a specific negative finding that Bailes did not meet his burden of proof that the interior finish damages were caused by Noll. The evidence presented showed conflicting causes or sources of the water damage. Thus, Bailes failed to show that the water damage was caused by the work Noll did. This is a negative finding. For example, a finding that a party did not meet its burden of proof is a negative factual finding. In reviewing a negative factual finding, an appellate court must consider whether the trial court arbitrarily disregarded undisputed evidence or relied upon some extrinsic consideration such as bias, passion, or prejudice to reach its decision. Hamel v. Hamel, 296 Kan. 1060, 1078, 299 P.3d 278 (2013). Here, Bailes has failed to show that the trial court arbitrarily disregarded undisputed evidence or relied on some extrinsic consideration such as bias, passion, or prejudice in arriving at its decision.
Additionally, it is extremely telling that Bailes never contacted Noll about the leaky roof and never tried to have him come repair it. Bailes did not blame Noll for the leaky roof until this litigation began. Yet, Bailes testified that the roof started leaking within a month of it being installed. Bailes failed to explain why he had not previously contacted Noll to discuss the water damage and repairs. Also, as of the date of the trial, Bailes still had not waterproofed the metal roof. Therefore, because Bailes failed to show that the damages to the interior finishes were caused by Noll, the trial court properly determined that Bailes was not entitled to recover damages from Noll.
Did the Trial Court Err in Awarding Prejudgment Interest?
Finally, Bailes maintains that Noll was not entitled to prejudgment interest because it was not a liquidated claim. Bailes contends that the trial court erred in awarding Noll prejudgment interest because Noll's damages were not an exact amount and Noll's damages were not reasonably capable of being calculated.
An award of interest is reviewed under an abuse of discretion standard. See Owen Lumber Co. v. Chartrand, 283 Kan. 911, 925, 157 P.3d 1109 (2007). An abuse of discretion may be found if the trial court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. City of Mulvane v. Henderson, 46 Kan.App.2d 113, 118, 257 P.3d 1272 (2011) (citing State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 [2009] ).
In Blair Constr., Inc. v. McBeth, 273 Kan. 679, 689, 44 P.3d 1244 (2002), our Supreme Court explained the rule in Kansas relating to prejudgment interest:
“In Kansas, the general rule is that prejudgment interest is allowable on liquidated claims. [Citation omitted.] ‘A claim becomes liquidated when both the amount due and the date on which such amount is due are fixed and certain or when the same become definitely ascertainable by mathematical calculation.’ [Citations omitted.]
However, the fact that a good-faith controversy exists as to whether the party is liable for the money does not preclude a grant of prejudgment interest. [Citations omitted.]”
Bailes contends that even Noll did not know the exact amount of his claim and that many of his expenses were not supported by receipts. On the other hand, Noll maintains that his damages were reasonably capable of being calculated and thus he was entitled to prejudgment interest.
In this case, the trial court held that Noll presented Bailes with invoices for work and services that he had provided and that Bailes refused to pay those invoices. Although the trial court did not award Noll the exact amount that he had requested, this does not mean that this was not a liquidated claim. As explained earlier, as long as the amount due and the date it was due become ascertainable by mathematical calculation, it can still be considered a liquidated claim. Here, the trial court did not abuse its discretion in finding that Noll had invoices that were sufficient to support his liquidated claim for damages. The invoices stated the date the work was completed and for how much. “ ‘[I]f a claim is liquidated, prejudgment interest must be awarded.’ “ Federal Land Bank of Wichita v. Vann, 20 Kan.App.2d 635, 641–42, 890 P.2d 1242 (1995). As a result, the trial court did not abuse its discretion in awarding prejudgment interest.
Affirmed.
MEMORANDUM OPINION
Appeal from Ford District Court; Daniel L. Love, Judge.