Business Law 11th Edition by Kenneth Clarkson,Roger LeRoy Miller,Gaylord Jentz,Frank Cross

تمرين 20

Gary Porter Construction v. Fox Construction, Inc.
Court of Appeals of Utah, 2004. 2004 UT App. 354, 101 P.3d 371.
www.utcourts.gov/opinions a
• Background and Facts The University of Utah contracted with Fox Construction, Inc., to build a women's gymnastics training facility on the university's campus. Fox subcontracted with Gary Porter Construction to do excavation and soil placement work, according to specific sections of the project's plans (the "Included Sections"), for $146,740. Later, Fox asked Porter to do additional work that had not been included in the subcontract (the "Excluded Sections"). Porter did all of the work, but Fox refused to pay more than the amount of the subcontract, claiming that the added work had been mistakenly excluded from it. Porter filed a suit in a Utah state court against Fox, alleging, among other things, breach of an implied-in-fact contract. The court granted Porter's motion for summary judgment. Fox appealed to a state intermediate appellate court.
a. In the "Court of Appeals" section, in the "By Date" row, click on "2004." In the list that opens, scroll to the name of the case and click on it to access the opinion. The Utah State Courts, through their Administrative Office of the Courts, maintain this Web site.
BILLINGS, Presiding Judge.
* * * *
Porter argues that Fox owes additional compensation for work it did under the Excluded Sections based upon a contract implied in fact. To succeed on this claim, Porter must show that (1) Fox requested Porter to perform the work under the Excluded Sections, (2) Porter expected additional compensation from Fox for the work, and (3) Fox knew or should have known that Porter expected additional compensation. The facts provided by Porter satisfy all of these elements and are not properly controverted [opposed] by Fox.
In its [motion for summary judgment] Porter set forth the following facts * * * : (1) Jeff Wood, Fox's project manager, drafted the subcontract which contains only the Included Sections; (2) Fox repeatedly asked Porter to perform work outside the subcontract under the Excluded Sections; (3) Porter performed all work identified in the subcontract as well as the requested work under the Excluded Sections; (4) for months, Fox reviewed and paid * * * bills from Porter which identified the work performed, the costs of the work, and the specific section under which the work was done; (5) at times, Fox acknowledged that Porter was performing work outside the subcontract; and (6) the total cost of the work performed by Porter was $296,750.00, and the amount Fox paid Porter was $135,441.62, leaving a balance of $161,309.08.
The additional facts submitted by Fox do not create a material dispute regarding any of the three elements required for Porter's implied-in-fact contract claim. Fox does not dispute that it requested Porter to perform work under the Excluded Sections; and Fox provides no facts to dispute Porter's claim that Porter expected additional compensation for the work under the Excluded Sections. However, Fox does attempt to dispute the third element [in the first paragraph above]-whether Fox knew or should have known that Porter expected additional compensation.
* * * *
* * * [Floyd Cox, Fox's vice president, testified] that one Excluded Section, "section 2300, had been left out of the subcontract"; and Wood [testified] "that there was a section of specifications that was left out of the subcontract by mistake." Neither statement creates a material dispute over whether the Excluded Sections are part of the subcontract because they do not explain how the mistakes occurred despite ordinary diligence on the part of Fox. Also, because Fox presents no evidence that Porter should have known about Fox's mistake either when it entered into the subcontract or after performing, billing for, and being paid for work under the Excluded Sections, as a matter of law, Fox should have known that Porter expected additional compensation for its work under the Excluded Provisions. [Emphasis added.]
The facts set forth [by Fox] do not create a material dispute regarding whether (1) Fox requested Porter to perform the work under the Excluded Sections,(2) Porter expected additional compensation from Fox for the work, and (3) Fox knew or should have known that Porter expected additional compensation. Also, Fox does not dispute the amounts provided by Porter regarding the value of the work for which it was uncompensated. Therefore, the trial court did not err when it granted Porter's motion for summary judgment against Fox for $161,309.08.
• Decision and Remedy The state intermediate appellate court affirmed the lower court's summary judgment in favor of Porter. The appellate court concluded that Porter had met all of the requirements for establishing an implied-in-fact contract: Porter provided its services at Fox's request, expecting to be paid, which Fox knew or should have known.
• The Ethical Dimension Should a court accept without proof a party's assertion that something was or was not done "by mistake" Explain.
• The E-Commerce Dimension Would the outcome of this case have been different if the parties had communicated via an e-mail system that limited the size of the documents that they could transmit to each other Why or why not