Singer v. EtheringtonSinger v. Etherington
- Reporters:
- ,
- Before:
- Forrest
Ralph Singer (Singer), d/b/a Star Construction Company, Inc., appeals from the trial court's judgment in favor of Donn Etherington (Etherington), d/b/a D.E. Construction, Inc., and from the denial of his CR 60 motion to vacate the judgment.
Donn Etherington was the general contractor on a Seattle construction project. Etherington orally contracted with Ralph Singer to perform certain sewer and electrical installation work for $12,749. Etherington began work on the project in June 1984. He scheduled Singer to begin work on July 5, 1984, and confirmed this date with Singer. Singer failed to begin on the anticipated date. Etherington was unable to contact him or to find a replacement contractor, causing a 2-week delay.
Because the sewer work was performed out of schedule, the project was later delayed an additional 2 weeks. Upon completion of his work, Singer billed Etherington $13,743.96. By June 14, 1985, Etherington had paid $4,753.17. He withheld the balance, claiming Singer's delays had made completion of the project more costly. After Singer filed suit against Etherington, the matter was referred to mandatory arbitration. Etherington offered $2,500 in settlement pursuant to
After a trial de novo, the trial court held that Singer had breached his oral contract by causing delays which totaled 4 weeks. The court concluded the delays caused by Singer resulted in additional construction financing interest costs totaling $9,136.61. It relied upon the testimony of Donn Etherington and upon exhibit 9, which was admitted into evidence over the objection of plaintiff's counsel, to establish the interest to be paid by Singer. The court found that Etherington still owed Singer $9,115.70. The net amount awarded Etherington was $20.91. Based on Etherington's offer of settlement pursuant to
Singer subsequently obtained new legal counsel. In his motion to vacate, Singer noted that exhibit 9 had been prepared by Karen Freeman of Seattle Mortgage Company, whose deposition had recently been taken. He alleged fraud by Etherington in responses to questions about exhibit 9 as the basis for vacating the judgment. His motion was denied. This appeal followed.
Measure of Damage
The controlling issue on appeal is the appropriate measure of damages resulting from delays caused by Singer. The 4-week cumulative delay in completion found by the trial court (findings of fact 4, 5) is fully supported by the record. Finding of fact 6, 1 which concludes that the measure of damages resulting from such delay is 1 month's interest on the construction loan, is not. No evidence *545 establishes that if Singer had performed in a timely fashion, Etherington would have been able to pay off the total loan by the hypothetical completion date of December 31.
It was contemplated that the construction loan would be paid off with proceeds from the sale of the condominiums being built and that was exactly what was done. The fact that the "construction loan" was satisfied when converted by Etherington to a "permanent financing loan", which in turn was paid off as the condominiums were sold, is immaterial. If construction had been completed as scheduled, presumably the "construction loan" would have been satisfied a month earlier and the "financing loan" put in place a month earlier. Etherington would have continued to owe money and pay interest on the new loan. The designation on the bank's books of the money owed as the "construction loan" for an additional month caused no damages. Instead, damages were caused by the delay in securing funds from condominium sales, not from delay in substituting one loan for another.
Singer recognizes in his brief that his late performance may have caused delay in closing some sales, which would then cost Etherington additional interest. The findings do not establish the amount of delay in receiving funds from sales attributable to Singer's tardy performance. Without such findings, the interest expense cannot be computed properly. Upon remand, the trial court may take such testimony as it deems appropriate to calculate any additional interest that Etherington had to pay because of delay in closing sales caused by Singer's late performance. Such amount will be an offset to the $9,115.70 the court found owed to Singer on the contract.
The admission of exhibit 9 without proper foundation was error, but in view of the deposition testimony of Karen Freeman, it will clearly be admissible in further proceedings. Singer's CR 60 motion is now moot.
*546 Attorney Fees
Singer urges the court to hold that when an offer of settlement is made by a defendant prior to arbitration and the plaintiff prevails, the offer "lapses" for purposes of awarding attorney fees pursuant to
A trial de novo in superior court is actually an appeal, making
A mandatory arbitration proceeding is treated as the original trial when applying
Here, Singer prevailed in arbitration. He recovered nothing in superior court. Under
On remand, if Etherington fails to improve his position with respect to the arbitrator's decision, he must pay Singer's appellate attorney fees under MAR 7.3. If Ether-ington improves his position in any amount from the arbitration award, MAR 7.3 will not apply. If Etherington improves his position to the point that Singer recovers less than $2,500 (the amount Etherington offered in settlement), Etherington will be the prevailing party under
If, however, Etherington improves his position but Singer still recovers more than $2,500, Etherington will not be the prevailing party under
Singer did not offer to settle. He will not therefore, be the prevailing party under
Reversed and remanded for further proceedings not inconsistent with this opinion.
Coleman, C.J., and Webster, J., concur.
Notes
"Because of the delays attributable solely to Star, first because Star failed to arrive when scheduled in July, and second, because the disruption caused when sewer electrical work was performed out of sequence in October and November, 1984, D.E. incurred additional construction financing interest costs for a four week period, totaling $9,136.61."
"The defendant, or party resisting relief, shall be deemed the prevailing party within the meaning of
"If the case is appealed, the prevailing party on appeal shall be considered the prevailing party for the purpose of applying the provisions of
"In addition, if the prevailing party on appeal would be entitled to attorneys' fees under the provisions of
See also Harold Meyer Drug v. Hurd,
American Fed. Sav. & Loan Ass'n v. McCaffrey,
Richter v. Trimberaer,
Klebs, at 48-49.
See Kingston Lumber Supply Co. v. High Tech Dev. Inc.,
Under