Opinion
NO. 2013-CA-001829-MR
12-24-2014
CALVIN HORNBACK APPELLANT v. LARUE COUNTY COOPERATIVE FAIR, INC., LARUE COUNTY COMMUNITY FAIR & LIVESTOCK EXPOSITION, INC., AND LARUE COUNTY FAIR BOARD APPELLEES
BRIEFS FOR APPELLANT: Dwight Preston Elizabethtown, Kentucky BRIEF FOR APPELLEES: Justin Edward Baird Munfordville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LARUE CIRCUIT COURT
HONORABLE CHARLES C. SIMMS III, JUDGE
ACTION NO. 12-CI-00061
OPINION
AFFIRMING
BEFORE: CAPERTON, KRAMER, AND STUMBO, JUDGES. KRAMER, JUDGE: Calvin Hornback appeals the findings of fact, conclusions of law, and judgment awarding him $3,674.00 for his breach of contract claim against appellees, Larue County Cooperative Fair, Inc., Larue County Community Fair & Livestock Exposition, Inc., and Larue County Fair Board (collectively, Larue County). Additionally, Hornback appeals the court's order denying his motions for a new trial, to alter, amend, or vacate its judgment, and for more specific findings. After careful review of the record, we affirm.
Judge Joy A. Kramer, formerly Joy A. Moore.
FACTUAL AND PROCEDURAL BACKGROUND
Larue County received a grant of $82,100 in May 2010 from the Kentucky Agriculture Commission to construct a building upon its premises. The amount of the grant was based upon a quote from Bill Slone to construct the building for $109,466. Shortly thereafter, Slone informed Larue County that he was not able to construct the building because he was too busy. Larue County then selected Calvin Hornback as the contractor for the construction project. Hornback had previously provided Larue County with a quote in September 2009 of $70,633 to construct the building; however, Larue County allowed Hornback to copy Slone's quote of $109,466.
When the parties attempted to obtain a construction permit, it was brought to their attention that the state requires all public buildings to have a design. As a result, architect, Thomas Jones, was contacted to design plans for the building. Jones prepared a design for an "assembly building," but then later prepared a revised design adding two storage rooms. The revised design was dated October 18, 2010.
Construction for the building began on November 22, 2010 when Hornback poured the footers. Jones was present and took photographs of the work.
Jones returned to the construction site on March 30, 2011, and at that time, he determined the project to be 95-98% complete. He composed an observation report in which he documented the building's progress and noted deficiencies in the work and items that needed to be changed or fixed. Jones and Hornback discussed what was still required to be done in order to complete construction of the building. The conversation was documented in Jones's observation report as well.
On April 6, 2011, Hornback and Ann Morrison, agent for Larue County, executed a written document which stated the following:
Larue County Fair Board gives Ward Electric Co LLC $5,475.00 for electric work at Larue County Fair Ground on new building. That is taken out of the $30,000 that we owe Calvin Hornback Building Contractor. That left is $24,525.00 that the Larue County Fair Board owes Hornback.
Both Morrison and Hornback signed this agreement. Hornback had already received $68,850 from Larue County for work on the building in the following installments: (1) $48,750 on June 21, 2010, (2) $100 on November 22, 2010, (3) $5,000 on December 6, 2010, and (4) $15,000 on February 17, 2011.
On June 27, 2011, Morrison and Hornback executed three additional agreements stating:
Larue County Fair Board has given Affordable Heating & Cooling $8,925.00. Has been paid in full. This money is to come out of Calvin Hornback [building contractor] money that we owe him.
Larue County Fair Board has given Ward Electricity $2,800.00. Has been paid in full. This money is to come out of Calvin Hornback [building contractor] money that we owe him.Additionally, on June 29, 2011, Morrison and Hornback executed another agreement:
Larue County Fair Board has given Donnie Hornback [Hornback Plumbing] $7,800.00 for work at the fair ground. Has been paid in full. This money is to come out of Calvin Hornback [building contractor] money that we owe him.
Larue County Fair Board has given Donnie Hornback [Hornback Plumbing] $1,326.00 for work at the fair ground. HAS been paid in full. This money is to come out of Calvin Hornback [building contractor] money that we owe him.
Ultimately, Hornback received $95,176 from Larue County for his work on the building. Hornback filed this action claiming breach of contract, express and implied, and unjust enrichment on April 16, 2012. He requested a judgment for $60,720. Larue County asserted a counterclaim of $10,426.82 for alleged construction defects.
A bench trial was held on July 10, 2013, wherein several witnesses testified. There was conflicting testimony at the trial about whether Hornback had been told he would be compensated for additional work not provided for in the $109,466 quote. Hornback claims he was told he would be compensated for any extra costs. Morrison testified that she told Hornback that they only had $109,466 to complete construction of the building. The trial court determined after assessing all of the evidence and the circumstances of the case that there was a meeting of the minds between the parties, and Hornback agreed to complete construction of the building, including the cost of the architect, for the quoted amount. Additionally, the court found that Hornback was entitled to a judgment of $3,674. This amount comes from the $30,000 referred to in the April 6, 2011 agreement less $26,326, which is the total amount that was paid to the subcontractors. The court also found that Hornback should not be responsible for the alleged construction defects claimed by Larue because Larue, not Hornback, had hired the person who completed the defective work.
On July 31, 2013, Hornback filed motions for a new trial, to alter, amend, or vacate, and to make specific findings of fact. Hornback complained that he should have been awarded at least $14,290, the difference between the amount he was paid by Larue, $95,176, and the original quoted amount, $109,466. However, the court referred to Hornback freely and voluntarily signing the April 6, 2011 written agreement in which he acknowledged being owed $30,000 subject to certain offsets. Hornback also requested the court to provide the exact date the meeting of the minds took place. The court declared that it considered all of the evidence and the circumstances of the case, including the April 6, 2011, agreement in its determination that a meeting of the minds occurred. The court denied all of the motions in an order dated September 30, 2013. Hornback now appeals.
STANDARD OF REVIEW
A trial court's interpretation and construction of a contract is a matter of law, and therefore, appellate review is de novo. Lynch v. Claims Management Corp., 306 S.W.3d 93, 96 (Ky. App. 2010). However, in an action tried without a jury, a trial court's "findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Kentucky Rules of Civil Procedure (CR) 52.01. "Findings of fact are only clearly erroneous when they are manifestly against the weight of the evidence." Burton v. Burton, 355 S.W.3d 489, 493 (Ky. App. 2011). We now address the alleged errors presented on appeal with these standards in mind.
ANALYSIS
Hornback contends on appeal that there was no meeting of the minds to form a binding contract between the parties and that there is no evidence in the record to support the resulting contract price from the judgment of $98,850.
Hornback first argues that there was no meeting of the minds because the building Hornback agreed to build for $109,466 was altered by the state's requirements of an architectural design for a public building. The architect's design added two additional storage rooms. Hornback claims he never agreed to construct a more expensive building for the quoted amount of $109,466. Despite conflicting testimony as to whether Mr. Hornback had been told he would be compensated for any additional costs to him, Hornback accepted payments for the project from Larue as early as June 2010 and began construction of the building in November 2010. Hornback argues further that there was no meeting of the minds regarding the April 6, 2011 document because he would have been agreeing to reduce his fee for the construction while he had previously indicated that he would need additional funds to complete the building.
The evidence disclosed to the court supports the conclusion that there was a meeting of the minds between the parties. A meeting of the minds is "the most essential factor" in determining the existence of a valid and enforceable contract. Utilities Electrical Machine Corp. v. Joseph E. Seagram & Sons, 300 Ky. 69, 187 S.W.2d 1015, 1018 (Ky. 1945).
[I]f the proven facts and circumstances are such as to fairly show that both the party rendering the services or furnishing the necessities and the one receiving them expected, understood and intended compensation should be paid, the court or the jury trying the case will be authorized to find an express contract for payment was entered into. This particular type of agreement is denominated a 'contract implied in fact,' it differs from an 'express contract' only in the mode of proof required; and it is implied only in that it is to be inferred from the circumstances, the conduct, and the acts or relations of the parties, rather than from their spoken words. In short, from the evidence disclosed the court may conclude the parties entered into an agreement, although there is no proof of an express offer and a definite acceptance.Victor's Executor v. Monson, 283 S.W.2d 175, 176-77 (Ky. 1955)
The circumstances of this case demonstrate a mutual intention to contract as well as clear evidence in the record to reflect that the parties were in agreement as to the amount Mr. Hornback was to receive upon completion of the building. The conduct of the parties, the quote provided by Mr. Hornback, the architect's designs, the various payments rendered to Mr. Hornback, the report prepared by the architect detailing changes that needed to be made to the building, and the agreements executed in April and June 2011 all support the trial court's finding that a meeting of the minds of the parties had occurred. Larue County had issued a payment to Hornback as early as June 2010, approximately five months before Hornback poured the footers for the building. The parties entered into the April 6, 2011 agreement when the construction project was 95-98% complete and Hornback had been recently advised as to necessary changes that were required in order to finish the building in a March 30, 2011 report from the architect. At the time of the April 6, 2011 agreement, Hornback had received $68,850 through several payments from Larue County for construction of the building and his signature appears on the April 6, 2011 agreement stating that he was owed $30,000. Additionally, Hornback and Morrison executed four additional agreements in June 2011 which also referred back to the amount owed with no objection from Hornback.
Hornback next asserts that the April 6, 2011 agreement is a modification of the contract price of $109,466 that is not supported by new consideration, and therefore, he claims there is not a valid contract between the parties. He claims there is no evidence indicating that he agreed to anything other than a price of $109,466. We disagree.
If agreements be made between the same parties concerning the same matter, and the terms of the later are inconsistent with those of the former, so that they cannot subsist together, the later will be construed to discharge the former. ... A new contract with reference to the subject matter of a former one does not supersede the former and destroy its obligations, except in so far as the new one is inconsistent therewith, when it is evident from an inspection of the contract and from an examination of the circumstances that the parties did not intend the new contract to supersede the old, but intended it as supplementary thereto.Menefee v. Rankins, 158 Ky. 78, 164 S.W. 365, 367 (Ky. App. 1914). Hornback's signature on the April 6, 2011 agreement and the circumstances surrounding the construction of the building demonstrate a mutual intention that the new amount of $98,850 resulting from the agreement supersede the original quoted amount of $109,466. At this time, the trial court's judgment notes that Mr. Hornback had "already installed the drywall, constructed the handicapped accessible restrooms, and built the two storage rooms. In addition, Jones had already informed Hornback on March 30, 2011, of the necessary changes to complete the project." It appears that Hornback did not realize at the time he signed the agreement in April and the subsequent agreements in June how much he had received from Larue County for his work on the building. However, as the contractor for a project that was almost completely finished, it is not unreasonable to conclude that Hornback should have had an idea as to the cost to complete the remaining construction on the building. As the trial court stated in its judgment, "courts will not make a new contract for parties who have made a bad contract with their eyes open." O.P. Link Handle Company v. C.M. Wright, 429 S.W.2d 842, 846 (Ky. 1968).
The evidence of record demonstrates that the parties intended to create a valid and enforceable agreement for construction of the building for $98,850. Thus, the trial court's judgment awarding Mr. Hornback $3,674 and its subsequent order denying his motions to alter, amend, or vacate, for specific findings, and for a new trial are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Dwight Preston
Elizabethtown, Kentucky
BRIEF FOR APPELLEES: Justin Edward Baird
Munfordville, Kentucky