Opinion
Case No. 2:98-CV-00233PGC
May 19, 2003
ORDER GRANTING SUMMARY JUDGMENT FOR THIRD PARTY DEFENDANT WEBBER BROS., INC.
This action arises out of an agreement (the "Contract") between Badham Associates Construction, Inc. ("Badham") and Rollins Leasing Corp. ("Rollins"). Pursuant to the Contract, Badham agreed to build a Salt Lake City area facility (the "project") for Rollins. Rollins has alleged that Badham breached the Contract in several respects. As general contractor for the project, Badham had agreements with several subcontractors. Webber Bros., Inc. ("Webber") is one of those subcontractors. Webber submitted at least two bids to Badham and ultimately "entered into a subcontract for the stucco work on the Project with an effective date of June 9, 1995." Webber is not party to the Contract between Badham and Rollins.
See Memorandum in Support of Third Party Defendant Webber Brothers Incorporated's Motion for Summary Judgment ("Supporting Memo") at 5.
On May 15, 2003, this court denied five motions for summary judgment, including Badham's motion for summary judgment against Webber. At that time, the court took under advisement Webber's cross-motion for summary judgment against Badham, denied Badham's motion to strike exhibits from Webber's supporting memorandum, and heard oral argument from counsel for Webber and Badham. Having reviewed the parties' memoranda and the relevant law, the court now GRANTS Webber's motion for summary judgment.
Summary judgment is appropriate where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." All material facts will be deemed admitted for the purpose of summary judgment, unless the opposing party specifically controverts these facts with material facts of record. In this case, Webber has set forth sufficient material facts, not specifically controverted by Badham, which entitle Webber to judgment as a matter of law.
See Fed.R.Civ.P. 56(e).
Webber admits that "the original plans and specifications for the project called for the installation of a `Dryvit' brand stucco system on the exterior walls of the office and other areas of the building included in the Project," but that Webber installed the "Pleko" brand system on the "office area" of the project instead. Badham attempted to use this admission to obtain summary judgment against Webber for breach of the subcontract between Badham and Webber. Badham argued that the subcontract is an integrated contract which incorporates the stucco requirements as listed in the Contract's plans and specifications, including the requirement that a "Dryvit" brand system be installed. However, the undisputed facts set forth by Webber indicate that as between Webber and Badham, both parties intended that a Pleko system would be installed.
See Supporting Memo at 4-5.
See Id.
It is undisputed that "at the request of Badham, Webber Brothers submitted a second bid to stucco the office area of the Project only, rather than other exterior portions of the building as shown in the original plans and specifications. The second bid . . . was accepted by Badham on or about June 14, 1995." Badham "understood that Webber Brothers was bidding a Pleko system rather than a Dryvit system, and that Webber intended to install a Pleko system if it was awarded the work." Furthennore, "Badham has admitted that it reached agreement with Rollins to eliminate the Dryvit stucco system on the shop walls of the Project, and to substitute a Pleko brand stucco system for a Dryvit stucco system on other areas of the building where stucco was to be applied."
Id. at ¶ 3. (citations omitted).
Id. at ¶ 5. (citations omitted).
Id. at ¶ 9. (citations omitted).
Even if the court finds that the subcontract between Webber and Radium was integrated at the time it was signed by the padies, Badham and Webber were free to modify its terms thereafter. As the Utah Supreme Court has explained, "it is a well-established rule of law that parties to a written contract may modify, waive, or make new terms notwithstanding terms in the contract designed to hamper such freedom," and "[i]n Utah, parties to a written agreement may . . . modify a written agreement through verbal negotiations subsequent to entering into the initial written agreement, even if the agreement being modified unambiguously indicates that any modifications must be in writing." Here, the undisputed evidence demonstrates that regardless of the signed documents, both parties intended and agreed that the Pleko system would be installed on the office area of the Project. Webber accordingly installed the system. As of March of 1999, according to Rollins' expert, "there were no defects observed in the Pleko stucco finish installed by Webber Brothers on the Project, nor were any warranty claims submitted to Webber Brothers as of that date."
See Prince v. R.C. Tolman Construction Co., Inc. 610 P.2d 1267 (Utah 1980) (citations and internal quotations omitted).
R. T. Nielson Co. v. Cook, 40 P.3d 1119 (Utah 2002) (citation omitted).
Supporting Memo at ¶ 10. (citations omitted).
Based on the foregoing, Webber's motion for summary judgment is GRANTED. Article 15.4 of the subcontract provides for an award of reasonable attorneys fees to the prevailing party in any lawsuit brought to "protect its interests in any matter arising under this Agreement." Pursuant to this provision, the court grants reasonable attorney's fees and necessary costs against Badham and in favor of Webber. Webber will remain a party to the case until the amount of attorneys fees and costs is determined. Webber is directed to file an accounting together with supporting affidavits and the like by June 16, 2003. Any objection by Badham shall be filed thereafter by July 7, 2003.
SO ORDERED.