Opinion
C051004
5-10-2007
DAVID CAVAGNARO, Plaintiff, Cross-defendant and Respondent, v. DOLAN CONSTRUCTION CO., INC., Defendant, Cross-complainant and Appellant.
NOT TO BE PUBLISHED
This litigation arose between a general contractor and the electrical subcontractor after they built a service station and restaurant in Ripon. By special verdict, the jury found the general contractor liable to the electrical subcontractor under both contract and rescission theories. On appeal, the general contractor asserts, mainly, that the evidence does not support the contract remedies. It does not likewise assert the restitutionary relief available under the rescission theory was flawed. We conclude the general contractor has failed to show prejudicial error and, therefore, affirm.
FACTS
Defendant and cross-complainant Dolan Construction Company, Inc. (Dolan), a general contractor, successfully bid to build a combination Chevron service station and Jack in the Box restaurant in Ripon. Plaintiff and cross-defendant David Cavagnaro, doing business as David Cavagnaros Electric (Cavagnaro), agreed with Dolan to perform the electrical subcontracting for $109,000. While Cavagnaro was on the job, Dolan hired an additional electrical contractor, JT Electric, to perform some of the work contracted to Cavagnaro. When a dispute arose between Dolan and Cavagnaro concerning who would pay for lighting fixtures, Dolan stopped making payments under the contract.
Three of the issues litigated at trial are material to this appeal. First, the parties disputed whether Cavagnaro was required to pay for the "lighting package" pursuant to its subcontract with Dolan. Second, the parties disputed whether Cavagnaro was required to install the secondary power lines. And third, the parties disputed who was responsible for added costs resulting from delays, disruptions, and scheduling problems.
A. Lighting Package
According to an original set of plans (the bid set), Chevron was to supply a "lighting package," which the electrical subcontractor would be responsible for installing. Later, however, a new set of plans (the construction set) provided that the electrical subcontractor would both provide and install the "lighting package." Each set bore the same revision date, with the last revision shown as "6/24/02."
When Cavagnaro agreed to do the work for Dolan, he did so based on the bid set of plans, which stated that the lighting fixtures would be provided by the owner. Cavagnaro went over the bid set of plans with Matt Lanza, Dolans on-site job superintendent, at the time Cavagnaro was deciding whether to do the work for $109,000. Later, well into the project, Lanza discovered that he had gone over the wrong set of plans with Cavagnaro and brought it to Cavagnaros attention. Cavagnaro contacted a supplier for the light fixtures, but Dolan refused to pay the supplier. Eventually, the lighting fixtures were obtained through JT Electric.
In presenting its statement of facts, Dolan states that Lanza gave Cavagnaro the construction set of plans and cites Lanzas testimony on that point as support. On appeal after a jury verdict, however, we construe the evidence in the light most favorable to the judgment. (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 906-907.) Therefore, we must credit Cavagnaros testimony, which was that Lanza gave Cavagnaro the bid set of plans.
B. Secondary Power Conductors
Another issue involved whether Cavagnaro was to install the secondary electrical conductor cable inside the secondary conduits. Although Chevron clarified to Dolan in writing that the electrical work included installing the secondary conduit (from the power companys transformer to the property owners utility meter) and the conductor cables within the conduit, Dolan did not relay to Cavagnaro the information from Chevron that Cavagnaro was required under the contract to install the conductor cables. Cavagnaro installed the conduits with a pull rope to install the conductor cable, but he did not install the conductor cables.
C. Delay, Disruption, and Scheduling Problems
The entire project was to be completed in 110 days, with a total of 33 identifiable aspects of the project to take place during that time. The timing of the different aspects, however, did not go as planned, and the worksite became crowded with the different subcontractors trying to do their work at the same time in the same spaces. For example, the delay in framing caused a two- to three-week delay in Cavagnaros ability to do the electrical work. Also, because other subcontractors were in the way of Cavagnaros work, Cavagnaros productivity suffered. To accelerate the electrical work, Dolan brought in JT Electric and contracted with that company to work alongside Cavagnaro. Dolan, by its cross-complaint, sought to charge Cavagnaro for the work done by JT Electric.
PROCEDURE
Cavagnaro filed a complaint against Dolan, alleging causes of action to obtain contract damages and the reasonable value of goods and services provided to Dolan. Cavagnaro also alleged fraud and negligence. Dolan cross-complained, alleging breach of contract and negligence.
In special verdicts, the jury found that neither Cavagnaro nor Dolan was negligent. Dolan and Cavagnaro entered into a contract. While Dolan did not do all that was required of it under the contract, Cavagnaro did not "fail to do something that the contract required him to do." Cavagnaro furnished and installed electrical materials for which Dolan did not pay. The reasonable value of goods and services provided by Cavagnaro under the contract was $105,945.13, of which Dolan already paid Cavagnaro $35,804, leaving a balance owed to Cavagnaro of $70,141.13. Cavagnaro was entitled to rescission of the contract based on Dolans improper conduct in obtaining Cavagnaros consent, Dolans breach of the contract, mutual mistake, and Cavagnaros unilateral mistake improperly induced by Dolan. Cavagnaro, therefore, was entitled to recover the reasonable value of his services, which the jury found was the same as the balance owed under the contract. Cavagnaro fully performed his duties under the contract, except to the extent Dolan prevented him from doing so. And Dolan breached the contract and harmed Cavagnaro, with damages of $70,141.13. Although Dolan misrepresented or failed to disclose important facts to Cavagnaro, Dolan did not do so with intent to cause Cavagnaro to enter into the contract.
DISCUSSION
I
Contract Interpretation
Dolan moved to bifurcate the trial, requesting "a bifurcation of the rescission cause of action from the remaining causes of action and [requesting] the Court [to] determine the contract legal issues prior to the empaneling of the jury." Dolan claims that the court deferred ruling on this motion until after the jury trial and further claims that the court told the parties it would consider the jurys verdict advisory only; however, as is common in Dolans briefs, the citation to the record does not support these claims about what is in the record on appeal. The portion of the record cited includes only the courts ruling on Dolans motions for new trial and judgment notwithstanding the verdict and the notice of appeal.
"An appellate court is not required to search the record to determine whether or not [it] supports [the appellants] claim of error. It is the duty of counsel to refer the reviewing court to the portions of the record which support [the appellants] position." (Green v. City of Los Angeles (1974) 40 Cal.App.3d 819, 835.) The appellant must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record." (Cal. Rules of Court, rule 8.204(a)(1)(C).) The failure to do so is an abandonment of the assertion. "It is not the task of the reviewing court to search the record for evidence that supports the partys statement; it is for the party to cite the court to those references. Upon the partys failure to do so, the appellate court need not consider or may disregard the matter. [Citations.]" (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 827, fn. 1.)
On appeal, Dolan "requests that [this] Court independently determine the controlling terms and conditions of the Dolan/[Cavagnaro] subcontract as well as the legal application of those terms and conditions to the facts before the court . . . ." Dolan then expounds on the many ways it asserts Cavagnaro either improperly modified the contract or breached the contract. Dolan does not explain, however, why any of this is relevant to the proper disposition of this case in light of the fact that the jury verdict concluded Cavagnaro was entitled to rescission of the contract based on Dolans improper conduct in obtaining Cavagnaros consent, Dolans breach of the contract, mutual mistake, and Cavagnaros unilateral mistake improperly induced by Dolan.
"A contract is extinguished by its rescission." (Civ. Code, § 1688.) "Rescission not only terminates further liability but restores the parties to their former position by requiring each to return whatever he or she received as consideration under the contract, or, where specific restoration cannot be had, its value. [Citations.]" (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 926, p. 1023; see also Runyan v. Pacific Air Industries, Inc. (1970) 2 Cal.3d 304, 309-317 [concerning availability of restitutionary relief when party entitled to rescission].)
The findings in the special verdict that (1) Dolan breached the contract, entitling Cavagnaro to contract damages, and (2) Cavagnaro was entitled to rescission of the contract, making restitutionary relief available (which the jury determined was equal to contract damages), were alternative findings in favor of Cavagnaro. Therefore, even if we were to find Dolan did not breach the contract and Cavagnaro was not entitled to contract damages, we would still affirm the judgment based on the special verdict concerning rescission and restitutionary relief. In his introduction, Dolan states that one of the bases for his appeal is the jurys finding that "[Cavagnaro] is entitled to the reasonable value of its services rather than damages based upon breach of contract." Yet Dolans brief does not discuss the law regarding rescission. Nor does it explain why rescission and restitutionary relief were unavailable. Dolan has failed to show reversible error. (See Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228 [claim meritless when reversible error not shown].)
Because we do not reverse a judgment unless there has been a miscarriage of justice — in other words, prejudicial error — (Cal. Const., art. VI, § 13) and Dolan does not argue that the special verdict finding Cavagnaro was entitled to rescission was in error, we need not determine now whether the findings with respect to breach of contract were in error. Hence, we need not consider Dolans assertions that Cavagnaro improperly modified the contract or that the evidence was insufficient to conclude Dolan breached the contract.
II
Amount of Damages
Dolan contends the amount the jury awarded to Cavagnaro as contract damages was excessive. He claims that Cavagnaro was entitled to $45,196.00, not $70,141.13. Again, Dolan fails to note that the jury not only awarded contract damages but also awarded restitutionary relief in the same amount. Since Dolan argues only that the contract damages were excessive, he fails to show prejudicial error.
Even considering the argument made by Dolan, it fails to establish that damages were excessive. The argument begins by recounting the calculations, including the contract amount and the credits for payments and back charges, and concludes that the jury awarded $70,141.13 in contract damages. For these facts, Dolan provides no citations to the record. We found the numbers independently in the special jury verdict.
Dolan then claims that the award is excessive as a matter of law because "[Cavagnaro] admittedly only performed 75% of its contract." (Bold text and italics in original.) What Cavagnaro admitted, however, on the page of the reporters transcript cited by Dolan is unclear, if he admitted anything at all. Counsel for Dolan asked Cavagnaro how many days his crew had worked at the job until Dolan brought in JT Electric to do work. Cavagnaro testified that it was "70, 75 percent." Counsel responded, "I think that was all the way through the end. Im talking about just up to the date your crews were supplemented . . . ." Thus, it was counsels statement, not Cavagnaros testimony, that Cavagnaro completed only 70 to 75 percent of the contract work ("all the way through the end").
Dolan also claims Shawn Munson of JT Electric testified that Cavagnaro "only completed 75% of its contract." In support of this, Dolan cites two pages of testimony in which Munson gave as his opinion that the mini-mart portion of the project was 60 to 65 percent complete and the Jack in the Box portion of the project was 60 percent complete and that, assuming the light fixtures were not Cavagnaros responsibility, the project was 75 percent complete, "maybe even higher," "when [Munson] got there." There is no indication on the pages cited by Cavagnaro concerning when Munson arrived at the project. It would be reasonable to infer that he arrived when Dolan hired JT Electric. After Dolan hired JT Electric, however, Cavagnaro continued to work on the project. Therefore, Dolans record citations completely fail to establish that Cavagnaro completed only 75 percent of the work under the contract.
An additional problem with Dolans argument that the damages were excessive is that he failed to provide legal authority for his assertion. He cites only Code of Civil Procedure section 657, which provides that a verdict may be vacated on a motion for new trial if the damages are excessive. This is not a motion for new trial; it is an appeal. Furthermore, Dolan provides no authority for the proposition that the damages awarded in the jury verdict were excessive. A party must support each point by citation to authority. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Failure to do so may be deemed an abandonment of the issue. (Troensegaard v. Silvercrest Industries, Inc., supra, 175 Cal.App.3d at p. 228.)
These problems with the brief are not limited to Dolans argument that the damages were excessive. Many parts of the brief suffer from these problems. We need not mention each and every deficiency, however, because it is not critical to our determination of the merit of Dolans appeal.
III
Sufficiency of Evidence of Contract Breach
Dolan contends the evidence was insufficient to support the jurys special finding that Cavagnaro fully performed under the contract and that Dolan failed to perform under the contract. As noted above, Dolans attack on the breach of contract portion of the special jury verdict fails to establish reversible error because the jury also found Cavagnaro was entitled to rescission of the contract and restitutionary relief.
IV
Dolans Purported Entitlement to Back Charges
Dolan asserts that it was entitled to charge Cavagnaro for materials Cavagnaro did not supply and work Dolan paid JT Electric to do. It reasons that, therefore, the jurys verdict awarding damages to Cavagnaro must be reduced by the amount of those back charges. Again, Dolan deals with this issue purely from a contract law point of view. When a party is entitled to rescission, he may recover restitutionary relief — here, the reasonable value of goods and services. (Runyan v. Pacific Air Industries, Inc., supra, 2 Cal.3d at pp. 309-317 [reasonable value of goods and services as restitutionary relief].) The jurys verdict reveals it based the amount of relief on "the reasonable value of the goods and services provided by David Cavagnaro to Dolan Construction Co., Inc." Regardless of whether Dolan can claim entitlement to the noted back charges under a contract theory, that claim does not call into question the verdict which determined the reasonable value of goods and services.
This contention also fails because Dolan cites no legal authority for the propositions stated or inferred in his argument. (Troensegaard v. Silvercrest Industries, Inc., supra, 175 Cal.App.3d at p. 228.)
V
Alleged Negligence
Dolan contends: "The jurys findings in regards to Dolans cross-complaint against [Cavagnaro] for negligence found that David Cavagnaro was not negligent. However, the evidence is simply insufficient to support such a finding and instead demonstrates clearly that [Cavagnaro] was negligent in regards to the bidding of this project, and the performance of his work under the contract." (Unnecessary capitalization omitted; bold text and italics in original.) In support of this assertion, Dolan claims that two construction experts testified Cavagnaros work fell below the standard of care with respect to the documents upon which Cavagnaro based his bid, failure to install conduit in the building slab, failure to purchase and install the lighting fixtures, and, in Dolans words, "conduct in regards to the secondary power lies [sic]. . . ." Citing Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, at page 313, Dolan asserts: "Uncontradicted expert testimony on a matter solely within the knowledge of experts is conclusive and cannot be disregarded." (Bold text and italics in original.)
We do not disagree with the cited case. Nonetheless, Dolans argument fails to establish that Cavagnaro was negligent. The elements of negligence are a defendants legal duty to the plaintiff as a result of a standard of care, breach of the duty, and damages proximately caused by the breach. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) Dolan, the cross-complainant, cannot assert he was entitled to prevail on his cross-complaint against Cavagnaro for negligence simply by asserting breach of the standard of care. He must also show what damages were caused by the breach of the standard of care and explain why Cavagnaro is responsible, citing legal authorities, for those damages. As a logical matter, although a defendant can show error in a finding of negligence by showing the absence of one element, a plaintiff (as is Dolan in relation to the cross-complaint) can only show error in a finding that there was no negligence by establishing that all elements of negligence were proven as a matter of law. Dolans argument therefore fails.
DISPOSITION
The judgment is affirmed.
We concur:
DAVIS, Acting P.J.
ROBIE, J.