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Eddy v. Thongvanh

California Court of Appeals, First District, Fourth Division
Jul 29, 2008
No. A119092 (Cal. Ct. App. Jul. 29, 2008)

Opinion


ROBERT L. EDDY, SR., Plaintiff and Appellant, v. JEFF THONGVANH et al., Defendants and Respondents. A119092 California Court of Appeal, First District, Fourth Division July 29, 2008

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. C05-01253

RIVERA, J.

Plaintiff Robert L. Eddy, Sr., appeals a judgment in favor of defendants Jeff Thongvanh and Hannah Pham for breach of contract. He contends the evidence does not support the judgment. We affirm.

I. BACKGROUND

Plaintiff operates Eddy’s Engineering and Construction Services (EECS). Defendants entered into a building contract with EECS, under which EECS would build a house for $383,283. Payments were to be made as follows:

Plaintiff does not contend that he was not responsible for EECS’s obligations under the contract.

“15%

$57,492.45

When foundation is in and 1st floor joists areset.

“15%

$57,492.45

When sub-flooring is in building rough enclosedand under roof.

“20%

$76,656.60

When under finished roof, rough plumbing andelectrical are completed.

“25%

$95,820.75

When house is insulated, exterior and interiorwalls are completed.

“25%

$95,820.75

When property is entirely complete per plans andspecifications.”

EECS began construction in April 2004. Over the next several months, EECS laid the foundation and worked on the house’s framing, roof, plumbing, and electrical system. Defendants made several payments, which according to Pham totaled $191,584.95.

Though Lee, plaintiff’s son, was not the general contractor, Pham testified she mainly dealt with him and she believed he was in charge of the crew at the jobsite.

Five thousand dollars of these payments reflected a change order upgrading the roof. Some of the payments were made to different members of the Eddy family, some to EECS, and some to governmental entities such as the county or the water district; but Pham testified that she believed the payments she was making were going toward construction on the house and were part of the total $383,283 contract price.

EECS stopped work on the house in August 2004. Plaintiff testified he stopped because EECS had not received its progress payment, and that the job was 90 percent complete. A letter by a bank appraiser and testimony by the contractor hired to complete the project indicated that the house was only 40 to 50 percent complete when EECS stopped working.

Defendants hired KTO Construction to finish the house. The new contractor agreed to finish the project for $290,000. Upon inspection of the construction, KTO found that the framing did not include shear walls, the electric wires were placed in an unsafe location, the plumbing was leaking, and in order for the house to pass inspection, much of the framing, electric wiring, and plumbing needed to be repaired.

Plaintiff brought this action against defendants, and defendants cross-complained. After a bench trial, the court below ruled in favor of defendants, finding that they had performed their obligations under the contract and that plaintiff had breached the contract by failing to complete the work in a timely manner and leaving major portions of the work incomplete; by overcharging defendants and taking an excessive advance; by refusing to return amounts that were overpaid; by abandoning his obligations when defendants refused to advance sums not due; and by failing to perform work in a good and workmanlike manner. The court awarded defendants $71,230.90 in damages, plus costs of suit.

The record on appeal contains neither the complaint nor the cross-complaint.

The court’s ruling is embodied in a document entitled “Statement of Decision,” and it does not appear that the trial court entered a separate judgment. However, the statement of decision was signed and filed, and it provides that judgment is “hereby rendered” in favor of defendants. In the circumstances, we will exercise our discretion to treat the statement of decision as an appealable order. (See Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.)

II. STANDARD OF REVIEW

Plaintiff contends the evidence does not support the finding that he breached the contract. We must determine, only, whether substantial evidence supports the trial court’s finding. As stated in Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632: “If the trial court’s resolution of the factual issue is supported by substantial evidence, it must be affirmed.” This has been described as a “ ‘daunting burden’ ” for appellants on appeal. (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678, quoting In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328.) When reviewing such cases, “the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support [its] determination . . . .” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) Under this standard, “[i]f such substantial evidence [is] found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Id. at p. 874.)

III. DISCUSSION

We must first comment on the state of the record on appeal. A judgment is presumed to be correct, and the burden is on the appellant to show reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (plur. opn. of Grodin, J.); see Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The record before us lacks the transcript of the final day of trial, a day that the register of actions indicates included further testimony by Pham and the contractor who was hired to finish the job after EECS stopped working. Without a complete record of the evidence before the court, we would be unable to conclude that it was insufficient to support the judgment. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 (plur. opn. of George, C.J.).) As stated in Estate of Fain (1999) 75 Cal.App.4th 973, 992, “[w]here no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.]”

Moreover, we are able to find within this partial record sufficient evidence to support the trial court’s finding that plaintiff breached the construction contract. Under the draw schedule, plaintiff was entitled to a total of $191,641.50 after various tasks were completed, including a foundation, an enclosed building, a finished roof, and rough plumbing and electrical. At the time plaintiff stopped working, defendants had paid $191,584.95 toward construction of the house. However, although plaintiff had worked on the framing, plumbing, electrical system, and roof, these portions of the house were not finished and much of plaintiff’s work had to be repaired in order to pass inspection. Furthermore, there is evidence that plaintiff had not reached the stage of completion that would have entitled him to his next draw.

At trial, plaintiff argued that part of the amount defendants had paid reflected preconstruction costs, including permit fees, sewage department fees, and architectural services; and that those amounts were not included in the $383,283 due under the contract. The contract, however, provided that EECS would pay for all permits, and Pham testified that plaintiff had told her the contract price of $383,283 would cover the entire cost of completing the house.

Plaintiff ignores most of this evidence in his briefing. In doing so, he ignores the rule that “ ‘[w]hen appellants challenge the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence. [Citation.] Failure to do so amounts to waiver of the alleged error and we may presume that the record contains evidence to sustain every finding of fact.’ ” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) In any case, we have concluded that the record supports the judgment.

In his reply brief, plaintiff argues for the first time that the damages awarded by the trial court were not clearly ascertainable in their nature and origin. We decline to consider this contention “in deference to the rule that ‘ “points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. . . .” ’ ” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.)

Accordingly, on this record we discern no error.

IV. DISPOSITION

The judgment is affirmed.

We concur: RUVOLO, P.J., SEPULVEDA, J.


Summaries of

Eddy v. Thongvanh

California Court of Appeals, First District, Fourth Division
Jul 29, 2008
No. A119092 (Cal. Ct. App. Jul. 29, 2008)
Case details for

Eddy v. Thongvanh

Case Details

Full title:ROBERT L. EDDY, SR., Plaintiff and Appellant, v. JEFF THONGVANH et al.…

Court:California Court of Appeals, First District, Fourth Division

Date published: Jul 29, 2008

Citations

No. A119092 (Cal. Ct. App. Jul. 29, 2008)