Bevan v. J.H. Construction Co.

¶1Defendants appeal the money judgment entered against them for breach of contract to construct a house. This Court denied plaintiffs’ motion to dismiss on procedural grounds, but summarily affirmed the judgment of the trial court on the issue of liability because the trial transcript was not designated as a part of the record on appeal. In the absence of a transcript, we assume that the proceedings at trial were regular and proper and that the judgment was supported by competent and sufficient evidence.1 As a necessary consequence, the only issue presented for determination bears upon the propriety of the award of damages measured by the difference in the increase in mortgage interest rates and the method used in the calculation thereof.

¶2Although the issue of liability has been resolved, a factual synopsis is necessary in order to address the damage issue. The following facts are gleaned from the findings made by the trial court, which appear in the court’s file, the only record before us.

¶3Defendants agreed to construct a house for plaintiffs in Kearns. The contract price was established at $42,000 and construction was to be completed by September 9, 1979. Plaintiffs obtained a construction loan of $33,600 from Valley Mortgage and gave defendants permission “to withdraw funds from [the] undisbursed account.’’ The difference between the $33,600 and the $42,000 purchase price was to be paid in cash and/or labor.2 The house was completed on time, but plaintiffs could not close on a loan because various materialmen’s liens were outstanding. Defendants had apparently used some of the $33,600 on other projects. In November, 1980, the house was sold to a secured party (Style Realty) at a trustee’s sale. Plaintiffs then purchased the house from Style Realty, with Valley Mortgage providing the financing at 13 percent interest. Had the purchase gone through as contracted on September 9, 1979, the financing would have been 10 percent.

¶4The trial court’s findings as they relate to the damage question read as follows:

8. The court finds that the delay in the plaintiffs’ purchase of their home was due solely to the breach of the contractual duties owed plaintiffs by Graham, Hale and J.H. J.H. lost its contracting license early in the construction of the home on *444May 9, 1979, but Graham and Hale continued to finish the home even though none of the three had valid contractor’s licenses. This supports the Court’s finding of their individual liability in addition to that of the corporation. As a result of the delay in closing, the court finds the plaintiffs suffered damages in the sum of $48,700 cost and interest differential for which defendants are liable. Plaintiffs should be given judgment for that sum discounted at 5½% over 30 years to its present value. To determine the present value, a sinking fund approach will have to be taken. Each month, plaintiffs pay out of hand $135.28 more than they would have paid had the original contract been timely performed. $9,771.36 now deposited at 5½% and compounded annually would total the $48,700 in 30 years. However, as plaintiffs cannot let this money sit in the bank for 30 years, but must pay it out at the rate of $135.28 per month, which would entirely deplete the $9,771.36 in 8 years, the court finds that $23,825.75 is appropriate. This sum deposited at 5V2% interest compounded annually will allow for a draw each month of $135.28 and will be at a zero balance in 30 years. [Emphasis added.]

¶5The rationale for the trial court’s decision is found in its conclusions of law, which read in pertinent part as follows:

While this appears to be a case of first impression in Utah, the court is persuaded by the rationale of cases such as Godwin v. Lindbert, [101 Mich.App.754] 300 N.W.2d 514 (1980), and Reis v. Sparks, 547 F.2d 236 (1976, CA 4, Md.), which find general support in Wagner v. Anderson, 122 U. 402 [403], 240 [250] P.2d 577, that where buyers are delayed in closing on a home due solely to seller’s breach of contract, and changing interest rates are known to be a factor in total cost to buyers, that sellers can be in a proper case responsible for that loss. This is such a case.

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¶6A perusal of the foregoing cases reveals solid support for the conclusion reached by the trial court that the loss of a favorable mortgage interest rate is a legitimate item of compensable damage. Both Godwin v. Lindbert and Reis v. Sparks, supra,expressly stand for that proposition and it is wholly consistent with the general rule of damages which arms the trial court with the discretion to place the litigants as nearly as possible in the position they would have enjoyed had the contract not been breached.3 Furthermore, the subject damages arose fairly and reasonably from the breach of contract, and they may reasonably be supposed to have been within the contemplation of the parties at the time they made the contract,4 and when adequately proven, said damages clearly fall within the purview of this Court’s decision in Wagner v. Anderson, supra, wherein it was stated:

Assuming that the respondent’s refusal to perform on time was wrongful, there arose in favor of the appellants a cause of action for specific performance and also any special damages occasioned by the delay which the appellants can prove. [Emphasis added.]

¶7Defendants contend that the trial court erred in utilizing a sinking fund method of calculating damages rather than discounting the 30-year interest differential to present value as was done in Godwinand Reis. However, in rejecting that contention, the trial court appropriately observed that the facts of this case presented a factual nuance not present in either Godwinor Reis, namely, that plaintiffs had an ongoing obligation to pay the sum of $135.28 per month more than they would have had to pay had the contract been timely performed. Over the period of the 30-year mortgage, plaintiffs would thus suffer interest differential damage in the amount of $48,700.

¶8As urged by defendants, a damage award of $9,771.36, if permanently placed on de*445posit bearing interest at 5½ percent5 compounded over 30 years, would afford plaintiffs the total interest differential of $48,-700. However, if plaintiffs are to be made whole, they should not be obliged to leave the money on deposit. Rather, they would be entitled to expend it at the rate of $135.28 per month, but should they do so, the entire sum would be depleted within an 8-year period.

¶9The apparent inequity of simply discounting the interest differential figure of $48,-700 to its present value prompted the trial court to adopt a sinking fund formula as a means of assuring just compensation to the plaintiffs.

¶10Under the facts of this case, the propriety of the sinking fund formula is borne out by the fact that by utilizing a damage award of $23,825.75 and placing it in a sinking fund bearing interest at the rate of 5½ percent compounded annually, it would accommodate the withdrawal of the required monthly excess interest payment of $135.28 and would reflect a zero balance at the end of the 30-year mortgage.

¶11We find no abuse of discretion on the part of the trial court in its award of damages, nor in its calculation of the measure thereof. Accordingly, its judgment is affirmed. Costs to plaintiffs.