| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Chambers v. Scofield (3/4/2011) sp-6541
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
REGGIE I. CHAMBERS, )
) Supreme Court No. S-13571
Appellant, )
) Superior Court No. 3AN-07-08381 CI
v. )
)
DANA SCOFIELD as guardian of )
CURTIS N. CARLEY, ) O P I N I O N
)
Appellee. ) No. 6541 - March 4, 2011
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Morgan B. Christen, Judge.
Appearances: Daniel W. Hickey and Anne M. Preston,
Gruenstein & Hickey, Anchorage, for Appellant. Bryon E.
Collins, Bryon E. Collins & Associates, Anchorage, for
Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices. [Christen, Justice, not participating.]
STOWERS, Justice.
I. INTRODUCTION
A buyer bought a triplex from a seller. Two years later, the seller's
daughter (who had been appointed to serve as his guardian) entered into a settlement
agreement with the buyer to rescind the sale and compensate the buyer for the "fair
market cost" of the improvements he had made to the property. In ruling on a motion to
enforce the agreement, the superior court rejected the buyer's argument that the term
----------------------- Page 2-----------------------
"fair market cost" included compensation over and above the cost of labor and materials.
The superior court also denied the buyer's motion to be named the prevailing party for
purposes of Alaska Rules of Civil Procedure 79 and 82. Because the superior court's
interpretation of the settlement agreement was not erroneous and the superior court did
not abuse its discretion in declining to declare the buyer the prevailing party, we affirm.
II. FACTS AND PROCEEDINGS
Reggie Chambers purchased a triplex from Curtis Carley in 2006. Dana
Scofield and Noelle Covington, Carley's daughters, were appointed Carley's co-
guardians by court order in July 2007 due to Carley's mental condition. Several months
later Scofield sued Chambers, alleging in part that Chambers had fraudulently induced
Carley to sell the triplex for far less than its market value.
On October 3, 2008, the parties entered into a settlement agreement. The
agreement rescinded the sale and attempted to restore the parties to the positions they
would have been in had the sale not occurred. The agreement provided that Chambers
would quitclaim the triplex to Scofield and credit her with rents he received plus an
additional $2,000. It also provided that Scofield would pay Chambers: (1) the $20,000
Chambers had already paid for the triplex, (2) a property management fee calculated as
10% of the actual rents collected, (3) forthe utilities, taxes, and insurance actually paid,
and (4) the "fair market costs" of repairs and improvements Chambers made to the
interior and exterior of the triplex.
In order to determine the "fair market cost" of the repairs and
improvements, the parties agreed to share the cost of a "neutral third party remodel
appraiser." Scofield was to nominate the appraiser. If Chambers accepted Scofield's
nominee, then that individual would perform the appraisal. If Chambers did not accept
Scofield's nominee, then each party's nominations would be provided to the superior
court and the court would decide.
-2- 6541
----------------------- Page 3-----------------------
On October 14, 2008, Scofield's attorney informed Chambers's counsel of
Scofield's two nominations. Chambers accepted Keith Halsey, one of Scofield's
nominations, because his services were less expensive than the other candidate's.
Around the same time, Chambers's attorney also indicated to Scofield's attorney that he
would be out of town for a month on his honeymoon and would prefer not to be disturbed
with questions relating to the case. Scofield's attorney apparently asked Chambers's
attorney if he would like to help instruct Halsey regarding the inspection, but Chambers's
attorney declined, explaining that he was preparing to leave town and that the
instructions in the settlement agreement were fairly straightforward. Scofield's attorney
proceeded on her own to give Halsey instructions regarding the inspection. A week later
Halsey inspected the triplex. Pursuant to the settlement agreement, which provided that
each party had a right to attend the inspection, both Scofield and Chambers attended,
along with representatives selected by each party.
Following the inspection Halsey called Scofield's attorney with several
follow-up questions. Specifically, he wanted to know how to address various
deficiencies he had discovered in the repairs Chambers had made. Scofield's attorney
explained that because the parties had not expected these problems she could not offer
specific guidance, but did ask him to take note of the deficiencies. Halsey prepared a
two-page report. Halsey concluded that Chambers was entitled to a credit of $25,525 for
the work performed on the triplex. Halsey acknowledged that the triplex had been
substantially remodeled in recent years. But he observed that many repairs showed a
"lack of craftsmanship" and that many of the renovations did not "demonstrate industry
standards," which Halsey reflected in the estimates. He also asserted that the lack of
municipal permits and inspections made any plumbing, electrical, and structural repairs
obsolete. Halsey's report listed a number of specific deficiencies in the renovations,
-3- 6541
----------------------- Page 4-----------------------
including a basement bedroom that illegally lacked an egress, a wheelchair ramp that
lacked proper head-room, and a new roof that was not properly vented.
Halsey delivered the report to Scofield's attorney on November 7, 2008.
Scofield submitted the report as an exhibit attached to her motion for enforcement of the
settlement agreement on November 18, 2008. In response to Scofield's motion to
enforce, Chambers moved for an extension of time, arguing that Halsey had neither
written his report in good faith nor followed the settlement agreement's instructions.
Superior Court Judge Morgan B. Christen held an evidentiary hearing to review Halsey's
appraisal.
Halsey testified that prior to the inspection, Scofield's attorney had
instructed him to:
go into the property, review the property, review the repairs,
see if they were done to workmanship standards, see if they
were things done that Mr. Chambers said were done, to
evaluate them, and . . . write up a report on it.
He also testified that when he called Scofield's attorney to clarify what she meant by
"evaluate," she explained that his report should chronicle deficiencies in the property,
including elements that were not up to code and would require further repairs. Although
the settlement agreement clearly stated that the appraiser was to estimate the "fair market
costs" for the repairs and improvements that Chambers made, Halsey admits that his final
estimate took both cost and value into account.
Apparently as a result of the calculation approach Halsey used, which took
both cost and value into account, Halsey decided not to give Chambers any credit for a
number of repairs that were not up to code: electrical repairs, the new roof over the east
side of the triplex, improvements to the basement bedroom, and repairs to the basement
stairs. Halsey gave Chambers only partial credit for a wheelchair ramp, which Halsey
felt did not have sufficient head-room. It is not clear, however, that the error in Halsey's
-4- 6541
----------------------- Page 5-----------------------
methodology resulted directly from faulty instructions by Scofield's attorney. Halsey did
not testify that Scofield's attorney asked him to use a "fair market value" methodology
1
rather than the "fair market cost" methodology the settlement specified. Halsey testified
that the attorney did ask Halsey to take deficiencies into account, but as Halsey
explained, this observation could go to the amount of time Chambers had put into the
projects - a factor relevant to the cost determination.
Halsey also expressed his belief that Chambers had not actually made all
of the repairs and improvements he claimed. Halsey explained that he "gave [Chambers]
the benefit of the doubt, but there were numerous instances in which [he] simply did not
believe what [Chambers] was telling [him] because of what [he] could see with [his] own
eyes." Specifically, Halsey testified that Chambers claimed certain doors were new,
which in Halsey's eyes were "clearly not new." Halsey also testified that some of the
receipts Chambers offered did not match the items Chambers alleged they were for.
Halsey stated in his affidavit that Chambers's workman, whom Chambers had brought
to the inspection, openly disagreed with Chambers's characterization of what repairs had
been made. He described an instance in which Chambers claimed walls had been taken
down and replaced, but the workman corrected him and said that only the sheetrock had
been repaired and re-textured. Halsey never implied that his skepticism about
Chambers's claims was inspired by anything other than what occurred during the
inspection.
Halsey testified that Scofield's attorney had told him that his determinations
whether Chambers had actually made a given repair or improvement should be "backed
up with receipts." Halsey testified that Chambers's inability to produce receipts for the
1
Halsey stated that Scofield's attorney told him to assess the repairs' "value
as to time and materials."
-5- 6541
----------------------- Page 6-----------------------
dishwasher and refrigerator he claimed to have installed in one of the units led Halsey
to conclude that it was unnecessary to make note of the appliances in the other units.
Halsey explained that a lack of receipts and invoices was another reason he had not given
Chambers full credit for the wheelchair ramp.
After Halsey testified at some length, Chambers's attorney moved to strike
Halsey's report. He argued that the settlement agreement called for a neutral appraiser,
and "it's unequivocally the case that [Halsey] wasn't neutral" and that Halsey's
testimony showed that he had a "predisposition to disbelieve" Chambers. The superior
court responded that it did not agree that Halsey's testimony had shown that he was not
neutral, but that it would consider the possibility that Halsey's methodology was flawed.
Scofield's attorney urged the court to accept Halsey's report, acknowledging that no
appraisal is perfect but defending Halsey's work on the grounds that he had the
additional and unanticipated job of assessing Chambers's credibility as well as the
"challenging task" of appraising so-called improvements that were so deficient that they
would require substantially more work to render them serviceable. After hearing
argument from both sides, the court concluded that there were "unremediable infirmities"
in Halsey's methodology because he was not given "enough direction about what his job
was." The court determined that a new inspection and appraisal would be necessary.
Following the hearing, both parties met off the record with the court to draft
a "set of rules" for the new inspection, and the parties agreed that Judge Christen would
attend the next inspection. Following the off-record meeting, the court appointed
William Roberts as the new appraiser. Roberts conducted an inspection of the triplex on
February 16, 2009. After his inspection, Roberts issued a 47-page report and estimated
that without including the profit and overhead that would normally be included, the total
-6- 6541
----------------------- Page 7-----------------------
"fair market cost" of repairs and improvements made to the triplex was $86,692.29, less
$14,016.99 for work that he considered done to less-than-workmanlike standards.
The court held a second evidentiary hearing where both Roberts and
Chambers's expert, Robert Lutje, testified. Both testified that the "fair market costs" of
the remodeling project should include an additional factor over and above labor and
materials as an allowance for profit and overhead, including the time necessary for
managing, overseeing, and staging the project. They testified that general contractors
charge 20%, but that an unlicensed owner should be entitled to something less.
Chambers testified that he acted much like a general contractor in overseeing the project.
The court rejected Chambers's claim for profit and overhead, finding that
the settlement agreement did not "require payment of profit and overhead or any other
fee for supervising the work done on the triplex." The court also adopted many of
Roberts's conclusions as to which costs should be disallowed or reduced due to a lack
of workmanship, finding that the total "fair market cost" of the improvements was
$86,872.29 minus $5,693.73. The court also agreed with Roberts's assessment that at
least one of the doors Chambers claimed to have installed had actually been installed
before Chambers took possession of the property.
After the court entered its findings of fact and conclusions of law, Chambers
filed an objection to payment of Halsey's fees. The court rejected Chambers's argument,
stating:
The parties mutually selected Mr. Halsey. Mr. Halsey was
not given proper instructions and his work had to be repeated,
but both parties share responsibility for the failure to instruct
Mr. Halsey adequately and/or to otherwise agree upon ground
rules for his work, including his interaction with the parties
and their counsel.
-7- 6541
----------------------- Page 8-----------------------
Mr. Halsey doubted Mr. Chambers' credibility; that does not
equate to Mr. Halsey being unfairly biased against
Mr. Chambers. Rather, Mr. Halsey testified regarding what
he perceived to be inconsistencies in Mr. Chambers'
explanations and descriptions of the work done on the subject
premises.
Chambers also moved to designate him the prevailing party for purposes of Civil Rules
79 and 82. The court denied his motion, stating:
The bulk of the Court's adjustments to the reimbursement
total reflected in Mr. Roberts' report consisted of instances in
which the Court allowed some of the claimed credits by
Mr. Chambers (because the repairs improved the rental
property) but less than the requested amount because the
repairs were not performed to workmanlike standards.
Considering this, and considering the other orders entered
post-settlement [rejecting Chambers's arguments regarding
expert fees and security deposits], the Court finds that neither
party is fairly deemed the prevailing party in this case. Both
shall bear their own fees and costs.
Chambers moved for reconsideration of the order denying him prevailing
party status, arguing that Scofield bore responsibility for the errors in Halsey's report,
that Chambers rightly objected to the report's conclusions, and consequently that the
court's decision not to rely on the Halsey report necessitated a finding that Chambers was
the prevailing party on the main issue of the case. The court denied the motion, finding
that Chambers bore some of the responsibility for Halsey's flawed methodology because
he did not choose to exercise his right to "have input in the direction given to Mr.
Halsey." The court also noted that Chambers was present for the inspection, and if he
objected to the way Halsey had conducted the inspection, he could have made these
objections known informally via counsel or formally to the court. His failure to do so
rendered him partially responsible for the irreparable flaws in Halsey's report. The court
also rejected Chambers's assertion that Halsey was biased against him, finding that
-8- 6541
----------------------- Page 9-----------------------
Halsey adequately explained his reasons for doubting some of Chambers's claims.
The court entered its final judgment.
Chambers raises two points on appeal. First, he argues that the court erred
in ruling that the settlement agreement did not require that Chambers receive credit for
profit and overhead. Second, he argues that the court abused its discretion in deciding
that he was not the prevailing party for purposes of Rules 79 and 82.
III. STANDARD OF REVIEW
2
We review a trial court's findings of fact for clear error. We apply our
3
independent judgment to questions of contract interpretation.
We review a trial court's prevailing party determinations for abuse of
discretion, which exists if the determination was arbitrary, capricious, manifestly
4
unreasonable, or improperly motivated. A trial court's discretion under Rule 82 is broad
enough to warrant denial of attorney's fees altogether, so long as the trial court's reasons
5
for departing from the Rule's schedule of fees appear in the record. We have held that
a trial court does not abuse its discretion in refusing to award either party fees where
6
neither party is characterized as the prevailing party.
2
Hooper v. Hooper, 188 P.3d 681, 685 (Alaska 2008).
3
Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).
4
Fernandes v. Portwine, 56 P.3d 1, 4-5, 7-8 (Alaska 2002) (affirming trial
court's decision that neither litigant was the prevailing party for Rule 82 purposes).
5
Id. at 8 (quoting Haskins v. Shelden, 558 P.2d 487, 495-96 (Alaska 1976)).
6
Id. (quoting City of Valdez v. Valdez Dev. Co., 523 P.2d 177, 184 (Alaska
1974)).
-9- 6541
----------------------- Page 10-----------------------
IV. DISCUSSION
A. The Settlement Agreement Did Not Entitle Chambers To Credit For
Profit And Overhead.
Chambers argues that the settlement agreement entitles him to a credit for
the time he spent supervising the repairs and remodel, and that this time falls into the
category of "profit and overhead" typically charged by general contractors. He argues
that compensation for this time is included in the "plain and fair meaning" of "fair market
cost," and that both Roberts's and Lutje's testimony support his position.
The central question is whether the "fair market costs" of the repairs and
improvements that Chambers is entitled to under the settlement agreement include
compensation for profit and overhead. A settlement agreement forms a binding contract
when the agreement satisfies the four elements of contract formation: an offer
encompassing all essential terms, unequivocal acceptance by the offeree, consideration,
7
and an intent to be bound. Because the parties' settlement agreement satisfies these
requirements, it is a binding contract, and we interpret it according to the rules of contract
8
interpretation. We apply our independent judgment to questions of contract
9
interpretation. Our goal in interpreting contracts is to enforce the reasonable
7
Kazan v. Dough Boys, Inc., 201 P.3d 508, 513 (Alaska 2009) (quoting
Wyatt v. Wyatt, 65 P.3d 825, 828 (Alaska 2003)).
8
See Gaston v. Gaston, 954 P.2d 572, 574 (Alaska 1998) ("Settlement
agreements should be interpreted as contracts provided that they meet minimal
contractual requirements.") (citing Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska
1997)).
9
Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).
-10- 6541
----------------------- Page 11-----------------------
10
expectations of the parties. We analyze the parties' expectations by examining the
language used in the contract, case law interpreting similar language, and relevant
11
extrinsic evidence, including the subsequent conduct of the parties. We have held that
the terms of a contract are to be interpreted according to "the general and accepted usage
12
of the trade or business involved."
13
We have never before interpreted the phrase "fair market cost" and neither
party introduced extensive evidence on this point. Roberts and Lutje agreed that
contractors typically charge an additional percentage over and above the cost of labor and
materials as compensation for time spent managing, organizing, and supervising a
14
project. Both testified that a contractor would typically receive an additional 20% for
this profit and overhead. Lutje testified that even though Chambers was not a
professional, and therefore not entitled to the full 20%, Chambers did spend a good deal
of time supervising the project and deserved to be compensated. He recommended that
Chambers receive an additional 10% credit for profit and overhead; however, he went on
10
Smith v. Cleary, 24 P.3d 1245, 1249 (Alaska 2001) (quoting Municipality
of Anchorage v. Gentile, 922 P.2d 248, 255-56 (Alaska 1996)).
11
Id.
12
Dominic Wenzell, D.M.D. P.C. v. Ingrim, D.M.D., 228 P.3d 103, 108
(Alaska 2010) (quoting Stock & Grove, Inc. v. City of Juneau, 403 P.2d 171, 176 (Alaska
1965) (holding that contractual term "practice of dentistry" should be interpreted
according to common industry definition)).
13
Black's Law Dictionary defines "fair market value," but it does not define
"fair market cost" or "market cost." BLACK'S LAW DICTIONARY 634 (8th ed. 1999).
14
See also State ex rel. Allstate Ins. Co. v. Gaughan, 640 S.E.2d 176, 180 n.2
(W. Va. 2006) (stating that "fair market cost" includes compensation for a contractor's
profit and overhead).
-11- 6541
----------------------- Page 12-----------------------
to state that this 10% figure was based on Chambers's proposal, and he did not testify
that it represented any sort of industry standard.
Roberts's testimony on the matter is not entirely clear. He stated that where
a property owner did the work himself, "overhead and profit probably would not be
necessary or available." But looking at his words in context, he appeared to mean that
where a property owner does the work himself for his own benefit, he would neither
receive compensation for profit and overhead (because no one was paying him to do the
work) nor pay anyone profit and overhead (because he was not paying anyone else to do
the work). Roberts did not appear to be speaking to the peculiar situation here, where a
property owner did the work himself expecting it to be for his own benefit, but later
contracted to transfer the property and expected to be retroactively compensated for the
repairs and improvements he made. Roberts specifically declined to offer an opinion as
to what would be appropriate compensation for time spent supervising the project in this
context. On the whole, Roberts's testimony suggests that, given these unique
circumstances, there is no industry standard defining "fair market cost" in this context.
In the absence of an industry standard clearly indicating that "fair market
cost" includes an additional credit for profit and overhead in cases like this one, we hold
that Chambers is not entitled to additional compensation under the settlement agreement.
As the superior court emphasized, the settlement conference was conducted after
Chambers had completed work on the triplex. Therefore, by the time the parties
negotiated and agreed upon the terms of their settlement agreement, Chambers had full
knowledge of all that had gone into making the repairs and improvements - labor,
materials, and time spent overseeing the project. Yet Chambers did not make the issue
of profit and overhead explicit in the settlement agreement, and there is no evidence in
the record that he asked to be compensated for profit and overhead. Instead, he agreed
-12- 6541
----------------------- Page 13-----------------------
to be compensated for "fair market costs" - a term that, as discussed above, is
ambiguous in this context - and consented to a settlement agreement that made no
provision for profit, overhead, time spent overseeing the project, or an additional
percentage over and above labor and materials to represent Chambers's work supervising
the project. If Chambers had contemplated a credit for profit and overhead, he should
15
have made the agreement explicit to that effect.
B. The Superior Court Did Not Abuse Its Discretion In Declining To
Designate Chambers The Prevailing Party For Purposes Of Rules 79
and 82.
Alaska Rules of Civil Procedure 79 and 82 allow for the award of costs and
16
fees, respectively, to the prevailing party in a civil case. The superior court noted that
the final amount credited to Chambers for repairs and improvements made to the triplex
was less than the amount Chambers requested. It also found that Chambers was partially
responsible for the flaws in Halsey's report, and rejected Chambers's assertion that
Scofield had biased Halsey against him.
Chambers argues that the superior court erred in declining to designate him
the prevailing party. Echoing his arguments in the superior court, Chambers points to
a number of facts that he asserts collectively compel the conclusion that he was the
prevailing party.
15
We also note Roberts's testimony that where a property owner does the
work himself, as Chambers did here, time spent "lining up the materials is part of the
labor involved." This implies that Roberts may have included the time Chambers spent
supervising the project when he calculated the total cost of Chambers's labor - a cost
that is included in the "fair market cost" estimate here. Whether Roberts did or did not
include some supervisory work cost as an element in his calculation of labor costs is not
material to our holding that the settlement agreement did not entitle Chambers to
compensation for profit and overhead.
16
Alaska R. Civ. P. 79(a); Alaska R. Civ. P. 82(a).
-13- 6541
----------------------- Page 14-----------------------
As we previously explained, we review a trial court's prevailing party
determinations for abuse of discretion, which exists if an award is arbitrary, capricious,
17
manifestly unreasonable, or improperly motivated. A trial court's discretion under
Rule 82 is broad enough to warrant denial of attorney's fees altogether, so long as the
trial court's reasons for departing from the Rule's schedule of fees are clear in the
18
record. We have held that a trial court does not abuse its discretion in refusing to award
19
fees where neither party can be characterized as the prevailing party.
In this case, the superior court's conclusion that Chambers was not the
prevailing party is supported by the record. Taking the litigation as a whole, including
the parties' written pleadings and both evidentiary hearings, it was not an abuse of
discretion for the superior court to deny Chambers's motion to be named the prevailing
party for purposes of Rules 79 and 82.
At the first evidentiary hearing Scofield urged the court to rely on Halsey's
report despite its faults, while Chambers argued the report was irreparably flawed.
Because the superior court agreed with Chambers, concluding that there were
"unremediable infirmities" in Halsey's methodology, and ordering a new report on that
basis, Chambers prevailed on that discrete issue. But the superior court also found that
Chambers was partially at fault for not participating in giving Halsey proper direction.
This finding cuts against Chambers's argument that he was a prevailing party overall.
17
Fernandes v. Portwine, 56 P.3d 1, 4-5, 7-8 (Alaska 2002) (affirming trial
court's decision that neither litigant was the prevailing party for Rule 82 purposes).
18
Id. at 8 (quoting Haskins v. Shelden, 558 P.2d 487, 495-96 (Alaska 1976)).
19
Id. (quoting City of Valdez v. Valdez Dev. Co., 523 P.2d 177, 184 (Alaska
1974)).
-14- 6541
----------------------- Page 15-----------------------
At the second evidentiary hearing, each party prevailed to some extent.
Chambers argues that he was the prevailing party because the superior court rejected
Scofield's challenges to Roberts's appraisal. Although the court did reject most of
Scofield's challenges, it also rejected a number of Chambers's challenges to the same
report. First, Chambers argued that the "fair market" cost should include a percentage
for profit and overhead. The superior court disagreed with Chambers, holding that the
contract did not require payment of a percentage for profit and overhead - a holding that
we affirm in this opinion. Second, Chambers had his own expert, Robert Lutje, testify
at the second evidentiary hearing as to the "fair market cost" of the repairs and
improvements. Lutje testified that Chambers should be credited approximately $115,000
for the repairs and improvements he made to the triplex. Although the superior court
found Lutje's testimony helpful, it adopted a final value much closer to Roberts's
20
estimate, crediting Chambers some $35,000 less than Lutje proposed. The superior
court gave clear reasons for its decision not to declare Chambers the prevailing party.
On balance, we cannot say that the superior court abused its discretion in reaching this
conclusion.
Chambers also makes several factual assertions on appeal that are
inconsistent with the superior court's findings, implying that the superior court's decision
not to name him the prevailing party was based on erroneous factual premises. Because
Chambers's factual assertions do not find support in the record, we conclude that the
superior court's factual findings were not clearly erroneous.
20
Chambers also argues that he was the prevailing party because the final
value the court chose was closer to Lutje's estimate than Halsey's. By comparing the
appraisals in this way, Chambers implies that Halsey was Scofield's expert. Because
Halsey was not Scofield's expert, but rather was jointly selected by both parties, this
argument is unpersuasive.
-15- 6541
----------------------- Page 16-----------------------
First, Chambers contends that Scofield's attorney directed Halsey to use
"fair market value" methodology rather than "fair market cost methodology." The record
does not support this contention. Halsey testified that Scofield's attorney told him to
assess the repairs' "value as to time and materials." But while Scofield's attorney may
have used the word "value," the concept she communicated was market cost: she asked
Halsey to estimate the price of time and materials, as opposed to what the repairs added
to the value of the triplex. At most, this evidence shows an imprecise use of language
on the part of Scofield's attorney - not that Scofield instructed Halsey to use "fair
market value" methodology, as Chambers claims.
Second, Chambers asserts that Scofield biased Halsey against him, but the
record does not bear this out. It is true that Halsey questioned whether Chambers had
actually made some of the repairs he claimed. But this does not show that Halsey was
biased against Chambers; Halsey clearly explained his reasons for doubting some of
Chambers's claims when he testified that "there were numerous instances in which [he]
simply did not believe what [Chambers] was telling [him] because of what [he] could see
with [his] own eyes." Halsey testified that some of the receipts Chambers offered did not
match the items Chambers alleged they were for, and he stated in an affidavit that even
Chambers's workman openly disagreed with Chambers's characterization of what repairs
had been made.
Although it is true that Roberts did not share the same degree of skepticism
towards Chambers's claims, this fact does not prove that Halsey was biased. This and
the other differences between the two expert reports merely illustrate the fact that
individual appraisers will often come to different conclusions about a property they
appraise; it is for this reason that litigants often seek multiple opinions when trying to
value property. Also, Roberts was not wholly credulous in evaluating Chambers's
-16- 6541
----------------------- Page 17-----------------------
claims; he concluded that at least one of the doors Chambers claimed to have installed
had actually been installed some time before Chambers took possession of the property,
and the superior court adopted this conclusion, suggesting that at least some of Halsey's
doubts were well-founded. For these reasons, we hold that the superior court did not
clearly err in declining to draw the inference that Scofield biased Halsey against
Chambers.
V. CONCLUSION
Because there is no industry standard clearly indicating that "fair market
cost" includes additional profit and overhead in the context of this case, and because
Chambers failed to specifically contract for additional compensation over and above the
cost of labor and materials, we AFFIRM the superior court's decision not to award
Chambers any profit and overhead.
Because the record supports the superior court's findings that neither party
was the prevailing party, we AFFIRM the superior court's denial of Chambers's motion
to be named the prevailing party for purposes of Rules 79 and 82.
-17- 6541
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
