Owner can waive written construction
contract provision by actions

Utah law allows a contractor 180 days from the date of last work done on a project
in which to file a mechanic’s lien.

Donna K. W. Johnson

The Utah Court of Appeals decided in Uhrhahn v. Hopkins on February 22, that parties to a construction contract can agree orally on change orders even when their written contract requires those orders to be in writing. The appellate court held that the homeowner in Uhrhahn effectively waived the written-change-orders provision in the contract by acting counter to it.
Lamar Hopkins hired Uhrhahn Construction Design to do construction work on his home. Hopkins signed a proposal agreement with Roger Uhrhan stating that any change orders for extra work must be in writing. As work progressed, Hopkins made three requests for changes and/or additional work. The appellate court found that only one of these requests was in writing; the others were oral. Uhrhahn performed all three of the requests and billed Hopkins for the work. Hopkins paid all three bills for the additional work.
However, the parties fell out over the installation of Durisol blocks on the project. Hopkins requested the Durisol blocks in the initial bidding process. He told Uhrhahn that the blocks were easier to install than cinder blocks and took less time. Hopkins provided the blocks for Uhrhahn to install. Uhrhahn claimed that the blocks were deformed and that they required additional work before Uhrhahn could install them. When Uhrhahn billed Hopkins for the additional work on the blocks, Hopkins refused to pay. Uhrhahn filed a mechanic’s lien on Hopkins’ property.
Uhrhahn sued Hopkins in Third District Court, seeking to foreclose on the mechanic’s lien. Uhrhahn also claimed Hopkins breached the parties’ contract.
Hopkins filed a counter-claim and a third-party claim against Hopkins for breach of contract. In the counter-claim, Hopkins argued that Uhrhahn’s mechanic’s lien was not timely filed. Hopkins sought punitive damages, costs and attorney fees.
Judge Leslie Lewis held a bench trial and ruled in favor of Uhrhahn. The trial court ordered Hopkins to pay Uhrhahn $62,386.29 in damages for the extra work on the Durisol blocks, plus pre-judgment interest, costs and attorney fees. The total verdict was $119,991.06.
The Judge Lewis determined that Uhrhahn could recover under both the breach-of-contract and mechanic’s-lien actions. It awarded Uhrhahn his attorney fees under the mechanic’s lien statute. However, the trial court did not directly address the issue of whether the mechanic’s lien was timely filed. Hopkins appealed both the contractual and mechanic’s lien rulings.
On appeal, Hopkins argued that the written proposal agreement was not a contract, but an estimate of work to be done. The Court of Appeals disagreed. Judge Gregory Orme, author of the opinion, wrote that the agreement contained all of the essential elements of a contract: offer, acceptance and consideration.
Hopkins argued that even if the proposal agreement was a contract, he should not have to pay for work not mentioned in the proposal or specified in writing. But the Court of Appeals noted that Hopkins requested and paid for at least two changes not specified in writing or mentioned in the agreement. The appellate court held that his behavior created an implied contract and waived the changes-in-writing provision of the proposal agreement.
On his appeal of the mechanic’s-lien issue, Hopkins claimed Uhrhahn filed its lien 183 days after it last worked on Hopkins’ project. Utah law allows a contractor 180 days from the date of last work done on a project in which to file a mechanic’s lien. Therefore, Hopkins argued, Uhrhahn’s lien was untimely.
The appellate court ruled that the trial court did not make a specific finding regarding Uhrhahn’s last date of work on Hopkins’ project. On appeal, Hopkins cited from the record to bolster his claim regarding Uhrhahn’s last date of work. Uhrhahn did not cite anything in the record to refute Hopkins’ claim regarding the last date of work. Instead, Uhrhahn claimed in oral argument that facts in the record supported its claim that the mechanic’s lien was timely filed. Lacking specific citations to the contrary, the Court of Appeals held, it had no choice but to accept Hopkins’ claims regarding the last date of work.
The Court of Appeals found Uhrhahn’s filing of the mechanic’s lien to be untimely and therefore invalid. The appellate court further ruled that Uhrhahn did not have the right to order Hopkins’ property to be sold to satisfy the mechanic’s lien. The appellate court reversed the trial court’s award of attorney fees to Uhrhahn under the mechanic’s lien. The appellate court also held that Hopkins was not the prevailing party on any of the issues in the case except the mechanic’s-lien issue. Since attorney fees may only be awarded to the prevailing party in a suit, the Court of Appeals awarded Hopkins his attorney fees on the mechanic’s lien issue alone.
Uhrhan’s attorney, Nan Bassett, Kipp & Christian, said, “My client was thrilled with the decision. The contractual decision was a great win for us.”