Ross v. Epic Engineering, PC
2013 UT App 136
| Utah Ct. App. | 2013Background
- Ross hired Epic in 2006 to prepare structural engineering plans for a 70' x 100' office/warehouse; contract price $8,250 and plans stated footings must bear 12" into undisturbed earth or engineered fill.
- Building was constructed by Ross’s brother as general contractor; after occupancy the building settled due to loosely placed, undocumented fill under the footings and insufficient compaction.
- Ross sued Epic for breach of contract and negligence, alleging Epic should have prepared a soils (geotechnical) report; parties jointly commissioned a geotechnical investigation confirming fill and poor compaction.
- Ross retained a geotechnical engineer as an expert; the expert conceded geotechnical engineers do not design buildings, did not opine on the applicable standard of care, and said further investigation would be required to form that opinion.
- Epic’s expert (a structural engineer/general contractor) testified soil reports are not typically required for light commercial projects, IBC values may be used, and similar designs had been done in Roosevelt using those standards.
- District court excluded Ross’s expert under Utah R. Evid. 702, then granted Epic summary judgment on the breach of contract claim; Ross appealed.
Issues
| Issue | Ross's Argument | Epic's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion by excluding Ross’s expert under Rule 702 | Ross: Expert was a licensed engineer and qualified to testify about standard practices applicable to structural engineers | Epic: Ross’s geotechnical expert lacked the relevant experience and foundation to opine on structural-engineer standard of care | Court: No abuse; expert unqualified to opine on structural-engineer standard and some opinions concerned undisputed facts or lacked foundation |
| Whether ruling on the motion in limine before Ross’s response deadline prejudiced Ross | Ross: Premature ruling prevented him from creating a record of expert qualifications | Epic: Error was harmless; issues were previously briefed and expert’s deposition already showed lack of qualification | Court: Error harmless; no reasonable likelihood outcome would differ |
| Whether a soils report was an implied contractual term such that Epic breached the contract by not ordering one | Ross: Contract silence could imply obligation to investigate soils when preparing plans | Epic: Contract scope limited to preparing plans; soils reports are not customary for projects of this size; IBC values suffice | Court: With Ross’s expert excluded, only Epic’s expert testimony remained; no genuine issue of material fact that soils report was required; summary judgment for Epic affirmed |
| Whether summary judgment was proper after the court reopened the motion | Ross: Factual dispute (e.g., whether there was a second page limiting liability) precluded summary judgment | Epic: No admissible evidence to create genuine dispute on pivotal issue; expert support favors Epic | Court: Revisited ruling properly; no genuine issue of material fact; summary judgment correct |
Key Cases Cited
- State v. Holm, 137 P.3d 726 (Utah 2006) (standard of review: trial court’s admission/exclusion of expert testimony reviewed for abuse of discretion)
- Smith v. Frandsen, 94 P.3d 919 (Utah 2004) (builder‑contractors are imputed with knowledge of subsurface conditions for construction)
- Dikeou v. Osborn, 881 P.2d 943 (Utah Ct. App. 1994) (trial court has discretion under Rule 702 to determine expert qualifications)