Ross v. Epic Engineering, PC , 307 P.3d 576 ( 2013 )

2013 UT App 136_________________________________________________________
THE UTAH COURT OF APPEALS
JASON ROSS,
Plaintiff and Appellant,
v.
EPIC ENGINEERING, PC,
Defendant and Appellee.
Opinion
No. 20110537‐CA
Filed June 20, 2013
Eighth District, Duchesne Department
The Honorable Edwin T. Peterson
No. 080800020
Aaron R. Harris and Stephen Quesenberry,
Attorneys for Appellant
Brent E. Johnson and Rebecca A. Ryon, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES CAROLYN B. MCHUGH and MICHELE M. CHRISTIANSEN
concurred.
ORME, Judge:
¶1 Jason Ross appeals the district court’s grant of Epic
Engineering’s motion in limine that excluded the testimony of
Ross’s expert. Ross also appeals the district court’s subsequent
grant of Epic’s motion for summary judgment on Ross’s breach of
contract claim and the resulting dismissal of Ross’s complaint with
prejudice. We affirm.
BACKGROUND
¶2 In reviewing the district court’s grant of summary judgment,
we recite the facts in the light most favorable to Ross. See Bowers v.
Ross v. Epic Engineering, PC
Call, 2011 UT App 143, ¶ 2, 257 P.3d 433 (per curiam). Ross retained
Epic’s services in 2006 for the design of a small commercial
building to be constructed in Roosevelt, Utah. The contract defined
the scope of Epic’s work to be “structural engineering and drafting
of [a] 70ʹ x 100ʹ office and warehouse building” for a fee of $8,250.1
The plans prepared by Epic included the instruction that “all
footings shall bear 12ʺ minimum into original undisturbed earth or
on engineered fill.” Ross hired his brother as the general contractor
for the building, and Ross’s father assisted in the excavation of the
site for the building’s foundation.
¶3 After the building was constructed, it began to settle as a
result of unconsolidated fill material underlying the site.
Approximately ten months after Ross moved into the building, he
notified Epic that the building was settling and that cracks had
appeared on the interior and exterior walls. Ross claimed that Epic
should have prepared a “soils report” as part of its engineering
plans for the building. Epic denied that the contract required it to
prepare a soils report and denied that the settling was the result of
any inadequacies in the structural engineering plans, as the plans
specifically required that “all footings shall bear 12ʺ minimum into
original undisturbed earth or on engineered fill.”
¶4 Ross filed suit against Epic for breach of contract and
negligence, arguing that Epic “breached the contract by failing to
properly engineer the plans.” Early in the litigation, the parties
agreed to jointly commission a geotechnical investigation to
determine the cause of the settling. The investigation determined
that “[n]umerous pieces of asphalt, concrete, and other debris were
1. Epic later contended that the contract contained a second page
of terms and conditions, including a limitation of liability and
standard of care provision that read: “Epic[’s] services shall be
rendered without any warranty except that Epic will perform in
accordance with a degree of care and skill generally exercised by
professionals performing similar work under similar conditions.”
Ross denied ever receiving page 2 of the contract. For purposes of
this appeal, we assume Ross is correct on this point.
20110537‐CA 2 2013 UT App 136Ross v. Epic Engineering, PC
observed in each of the test pits” and that the cause of the settling
was insufficient compaction. The investigation revealed that “the
footings for the . . . building were placed on undocumented, loosely
placed fill material. Moisture later infiltrated the subsurface soils
next to the structure, causing the fill soil to settle under foundation
loads.”
¶5 Ross and Epic each retained engineers to provide expert
testimony. Ross retained a geotechnical engineer, while Epic
secured a structural engineer who is also licensed as a
general contractor. In his deposition, Ross’s expert explained
that his company “provide[s] geotechnical consultation for
new construction of buildings [and] dams. . . . We also provide
construction materials testing to verify that earthwork and concrete
construction is conducted in accordance with the plans and
specifications.” He further explained that geotechnical engineers
evaluate subsurface soil conditions and the potential impacts of
new construction, “and from that provide recommendations for
design of whatever constructive facility we are evaluating.”
¶6 Ross’s expert conceded that geotechnical engineers do not
actually design buildings and that he did not have an opinion on
the standard of care applicable to Epic.2 Specifically, he stated:
2. Ross’s expert submitted a proposal to Ross estimating that the
cost for him to develop an opinion on the standard of care would
be $5,000. The proposal stated:
In order to provide our professional opinion on the
engineer’s standard of care, we recommend that the
standard of care prevailing at the time in question be
established through investigation. Investigation
would include the review of reports, records or
opinions of other professionals performing the same
or similar service at the time in question. With this in
mind, we would propose to visit Roosevelt City and
Vernal City building departments to review project
files.
(continued...)
20110537‐CA 3 2013 UT App 136Ross v. Epic Engineering, PC
The standard of care for this project is very important
to recognize what happened in that locale with the
local engineers at that time. That is not something
that we have investigated. Our entire business is
based on other engineers calling and asking for
guidance and help in the geotechnical area.
He also testified that his personal experience with excavation was
limited to operating a backhoe on two occasions: once to grade a
road on recreational property that he owns and once to install
window wells at his home.
¶7 Epic’s expert was a structural engineer and licensed general
contractor with “over 36 years of engineering experience in
consulting, planning, and designing municipal, commercial and
residential projects.” In his report, Epic’s expert stated that he was
retained to provide his professional opinion regarding the standard
of care expected of structural engineers on projects like the one in
this case. The expert opined:
Geotechnical Reports are very expensive and
typically never ordered for residential or light
commercial buildings. If the structural engineer is
familiar with the soils in a particular area it is
common to use the values listed in the International
Building Code. Essentially the International Building
Code has published minimum values that can be
used for construction in lieu of data obtained from a
geotechnical report. [Epic’s engineer that prepared
the plans] testified that he had designed similar
projects in Roosevelt using the same design
standards.
2. (...continued)
When asked at his deposition, the expert said that he did not
perform such an investigation because he “never received a notice
to proceed.”
20110537‐CA 4 2013 UT App 136Ross v. Epic Engineering, PC
Epic’s expert also concluded that “[t]he existing contours would
not necessarily indicate the site had been filled” and “[i]f it was
obvious the existing contours indicated the site had been filled I
would have expected the City building inspector to alert the
contractor/owner he needed to provide a soil report required by the
International Building Code[.]”
¶8 At the close of discovery concerning the experts’ opinions,
Epic moved for summary judgment on both Ross’s negligence
claim and his contract claim. Epic contended that the negligence
claim was barred by Utah’s economic loss doctrine and that the
breach of contract claim failed because Ross had not presented
expert evidence demonstrating that Epic “failed to properly
engineer the plans.” Epic asserted that Ross’s engineering expert
was unqualified to offer an opinion as to the applicable standard of
care. The court granted Epic’s motion in part, dismissing the
negligence claim but denying summary judgment on the breach of
contract claim.
¶9 After the matter was set for trial on the contract claim, Epic
filed a motion in limine, essentially rearguing the points made in
its earlier motion for summary judgment and seeking to preclude
Ross’s expert from testifying. As also argued in the earlier motion
for summary judgment, Epic contended that Ross’s expert, a
geotechnical engineer, “lacked the relevant knowledge, skill, or
experience” necessary to testify as to the standard of care expected
of structural engineers, contractors, or excavators. At the final pre‐
trial hearing, the district court heard argument on the motion in
limine. Ross objected because the deadline to respond to the
motion had not yet passed.3 After argument, the district court
granted Epic’s motion, stating, “This expert isn’t going to be able
to testify to the standard of care. I mean it’s very clear that he in his
3. The district court apparently believed, albeit mistakenly, that
there was a five‐day deadline for a party to file a response to a
motion in limine. See Utah R. Civ. P. 7(c)(1) (“Within ten days after
service of the motion and supporting memorandum, a party
opposing the motion shall file a memorandum in opposition.”).
20110537‐CA 5 2013 UT App 136Ross v. Epic Engineering, PC
deposition said he wasn’t asked to make that analysis. He would
be testifying to something that is not relevant to the case[.]” The
court also concluded that Ross’s expert’s opinion that “a machine
operator or contractor wouldn’t necessarily be able to determine if
the soil they were digging into was native or fill” was contrary to
Utah law. See Smith v. Frandsen, 2004 UT 55, ¶¶ 18–19, 94 P.3d 919(explaining that the law deems a contractor to have a high degree
of specialized knowledge, including “familiar[ity] with conditions
in the subsurface of the ground”).
¶10 The court then, sua sponte, reopened the motion for partial
summary judgment on the breach of contract claim. The court
clarified, “The reason the Court did not grant summary judgment
initially on the first issue was . . . the proffer that the expert[s]
would disagree on critical issues. They don’t.” The court then
granted the motion, effectively eliminating all of Ross’s claims, and
it dismissed Ross’s complaint with prejudice. Ross appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 Ross contends that the district court incorrectly granted
Epic’s motion in limine, which effectively precluded the
introduction of his expert’s testimony. “A decision to admit or
exclude expert testimony is left to the discretion of the trial court,
and that decision will not be reversed unless it constitutes an abuse
of discretion.” State v. Holm, 2006 UT 31, ¶ 89, 137 P.3d 726 (citation
omitted). “Our review of the district court’s exercise of its
discretion includes review to ensure that no mistakes of law
affected a lower court’s use of its discretion.” Eskelson ex rel.
Eskelson v. Davis Hosp. & Med. Ctr., 2010 UT 59, ¶ 5, 242 P.3d 762(citation and internal quotation marks omitted).
¶12 Ross also argues that the district court erred when it decided
Epic’s motion in limine before the expiration of the time allowed
for him to respond under the Utah Rules of Civil Procedure. “We
review the interpretation and application of a rule of procedure for
correctness.” Edwards v. Powder Mountain Water & Sewer, 2009 UT
App 185, ¶ 14, 214 P.3d 120. However, “‘[i]n order to justify
20110537‐CA 6 2013 UT App 136Ross v. Epic Engineering, PC
reversal[,] the appellant must show error that was substantial and
prejudicial in the sense there is at least a reasonable likelihood that
in the absence of the error the result would have been different.’”
Commonwealth Prop. Advocates, LLC v. Mortgage Elec. Registration
Sys., Inc., 2011 UT App 232, ¶ 6, 263 P.3d 397 (second alteration in
original) (quoting Ortega v. Thomas, 383 P.2d 406, 408 (Utah 1963)).
See Utah R. Civ. P. 61 (“The court at every stage of the proceeding
must disregard any error or defect in the proceeding which does
not affect the substantial rights of the parties.”). Epic does not
contend that the district court’s interpretation of the applicable rule
was correct, but it argues that the error was harmless because the
expert’s qualifications and all other relevant matters had been fully
briefed during the earlier summary judgment proceedings.
¶13 Finally, Ross contends that genuine issues of material fact
exist, precluding summary judgment as a matter of law. See Utah
R. Civ. P. 56(c). “An appellate court reviews a trial court’s legal
conclusions and ultimate grant or denial of summary judgment for
correctness and views the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”
Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal
quotation marks omitted). A defendant, as the party moving for
summary judgment on an issue on which the plaintiff will have the
burden of proof at trial,
may satisfy its burden on summary judgment by
showing, by reference to “the pleadings, depositions,
answers to interrogatories, and admissions on file,
together with the affidavits, if any,” that there is no
genuine issue of material fact. Upon such a showing,
. . . the burden then shifts to the nonmoving party,
who “may not rest upon the mere allegations or
denials of the pleadings,” but “must set forth specific
facts showing that there is a genuine issue for trial.”
Id. ¶ 18 (emphasis in original) (quoting Utah R. Civ. P. 56(c)).
20110537‐CA 7 2013 UT App 136Ross v. Epic Engineering, PC
ANALYSIS
I. The District Court Did Not Abuse Its Discretion When It
Excluded the Testimony of Ross’s Expert.
¶14 In his complaint, Ross alleged that Epic “breached the
contract by failing to properly engineer the plans.” Because the
contract was silent on the parties’ relevant expectations and
obligations, both Ross and Epic retained expert witnesses to
provide insight on the appropriate standard of care for a structural
engineer.4
Where the average person has little understanding of
the duties owed by particular trades or professions,
expert testimony must ordinarily be presented to
establish the standard of care. For instance, expert
testimony has been required to establish the standard
of care for medical doctors, architects, engineers,
insurance brokers, and professional estate executors.
4. As a point of clarification, while the term “standard of care” is
usually employed in a tort setting, the parties and the district court
used it in this contract dispute in reference to the possibility that
Epic had an implied obligation to have a soils report prepared as
part of its contractual duties in preparing building plans. While we
employ the terminology used in the arguments and analysis as
posed by the parties and the district court, we would be remiss if
we did not point out that this is really more a matter of whether
there was an implied contractual term rather than of establishing
a “standard of care” as the term is typically used.
A term is implied‐in‐law where the contract is silent.
An implied‐in‐law term will be imposed even though
the parties may not have intended it and binds the
parties to a legally enforceable duty. However, the
court can only supply reasonable terms to
supplement a contract which is silent.
Allstate Enters., Inc. v. Heriford, 772 P.2d 466, 468 (Utah Ct. App.
1989) (citations omitted).
20110537‐CA 8 2013 UT App 136Ross v. Epic Engineering, PC
Wycalis v. Guardian Title, 780 P.2d 821, 826 n.8 (Utah Ct. App. 1989)
(emphasis added) (citations omitted).
¶15 Ross argues that the district court abused its discretion in
excluding the testimony of his expert witness. Rule 702 of the Utah
Rules of Evidence specifies that
a witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if
the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue.
Utah R. Evid. 702(a). “The trial court is given discretion under Rule
702 of the Utah Rules of Evidence to determine the admissibility of
expert testimony, and to determine if the expert witness is qualified
to give an opinion on a particular matter.” Dikeou v. Osborn, 881
P.2d 943, 947 (Utah Ct. App. 1994) (brackets, citation, and internal
quotation marks omitted).
¶16 Ross argued that his expert was qualified to provide
testimony about the standard practices of structural engineers
because the expert was a licensed engineer. Utah law requires that
“the standard of care in a trade or profession generally must be
determined by testimony of witnesses in the same trade or
profession.” Ortiz v. Geneva Rock Prods., Inc., 939 P.2d 1213, 1217 n.2
(Utah Ct. App. 1997) (brackets, citation, and internal quotation
marks omitted). But not every engineer is qualified to opine about
the standard of care or the standard practices applicable to all other
engineers.
¶17 We recognize that “[a]n expert witness belonging to one
school may testify against a member of another school once the
expert provides sufficient foundation to show that the method of
treatment at issue is common to both schools or that the expert is
knowledgeable about the standard of care of the other school.”
Boice v. Marble, 1999 UT 71, ¶ 14, 982 P.2d 565. See also Arnold v.
20110537‐CA 9 2013 UT App 136Ross v. Epic Engineering, PC
Curtis, 846 P.2d 1307, 1310 (Utah 1993) (stating that a witness is
allowed to testify “when a witness is knowledgeable about the
standard of care of another specialty or when the standards of
different specialties on the issue in a particular case are the same”).
On the other hand, an expert may be excluded if unable to establish
a common standard of care. See, e.g., Burton v. Youngblood, 711 P.2d
245, 248 (Utah 1985) (“The trial court did not hold that a member
of one school cannot testify against a member of another school as
a matter of law. It only held that under the facts of this case, the
foundation necessary to allow a member of one medical specialty
to testify about the standard of care applicable to a member of
another medical specialty had not been established.”).
¶18 We disagree with Ross’s contention that his expert “opined
about a standard of care that applies to all engineers, regardless of
their specialty.” On the contrary, Ross’s expert admitted that he
was not asked to and did not prepare an opinion as to the standard
of care applicable to Epic. The expert acknowledged that
geotechnical engineers—of which he is one—do not design
buildings and that he would need to conduct an investigation
involving the “review of reports, records or opinions of other
professionals performing the same or similar service at the time in
question” in order to develop an opinion on the standard of
care applicable here. An opinion developed through such an
undertaking would not be the result of his “knowledge, skill,
experience, training, or education,” as required by the Utah Rules
of Evidence. See Utah R. Evid. 702(a). See also Dikeou, 881 P.2d at
947 (“By definition, an expert [in the context of a medical
malpractice claim] is one who possesses a significant depth and
breadth of knowledge on a given subject. To allow a doctor in one
specialty, retained as an expert witness, to become an ‘expert’ on
the standard of care in a different medical specialty by merely
reading and studying the documents in a given case invites
confusion, error, and a trial fraught with unreliable testimony.”).
Therefore, we agree that Ross’s expert was not qualified to opine
on the standard of care expected of Epic.
20110537‐CA 10 2013 UT App 136Ross v. Epic Engineering, PC
¶19 The remainder of Ross’s expert’s contentions related either
to evidence not in dispute or to matters in which he lacked relevant
experience or knowledge. For example, Ross’s expert stated in his
report that an engineer looking at the lot where the building was
to be constructed should have been immediately concerned with
the obvious fill and the slope on the lot.5 However, the expert could
not testify whether such an observation would then entail a related
obligation for Epic under the contract. The expert opined “that a
machine operator or contractor wouldn’t necessarily be able to
determine if the soil they were digging into was native or fill based
on personal experience in determining if a soil mass is fill or
naturally deposited.” But, he was not qualified to offer this opinion
because his personal experience in excavation was limited to two
small personal projects. His opinion is also contradictory to our
Supreme Court’s decision in Smith v. Frandsen, 2004 UT 55, 94 P.3d
919, which states that “builder‐contractors are expected to be
familiar with conditions in the subsurface of the ground.” Id. ¶ 19.
See id. ¶ 20 (“The facts indicate that [the employee of the general
contractor] supervising the excavation and placement of the . . .
foundation had ‘no prior construction experience.’ Nevertheless,
[the employee] is deemed to possess the knowledge of a reasonably
prudent builder‐contractor under similar circumstances, and, as a
matter of law, a builder of ordinary prudence would have
discovered the insufficient compaction on [the] lot[.]”).
¶20 While Frandsen involved tort claims, see id. ¶ 1, the
underlying logic is equally applicable here. Like Frandsen, this case
involves the determination of where liability should fall when no
contractual provision specifies which party has the duty to assess
whether a building site can support the planned structure. See id.
¶ 27 (“As a policy matter, we believe that our holding will
5. Epic’s limited contractual responsibility was to prepare building
plans. The contract terms do not include a requirement that Epic
inspect the building site. Ross’s expert did not testify—and was not
qualified to testify—about whether an agreement to prepare such
plans necessarily implied an obligation to walk the ground where
the building would be constructed.
20110537‐CA 11 2013 UT App 136Ross v. Epic Engineering, PC
encourage builders and contractors to exercise that level of care
consistent with the expertise legally imputed to them. In addition,
our decision preserves the contractual expectations of developers
and builder‐contractors.”). Likewise, we reject Ross’s argument
that the case “certainly does not stand for the proposition that
[Epic] was absolved of a contractual duty based upon a contractor’s
presence on the property” because Ross failed to provide any
admissible evidence or testimony indicating that such a duty was
imputed to Epic.6
¶21 The remainder of the expert testimony offered by Ross
related to undisputed matters concerning the cause of the
building’s settling, the extent of the settling, and the measures that
would be required to stabilize the building. The court was within
its discretion to conclude that the expert did not qualify under rule
702 to offer his opinions either because he was unqualified to so
opine or because the issue was not in dispute. Accordingly, the
district court properly granted Epic’s motion in limine that
excluded Ross’s expert’s testimony.
II. The District Court’s Error in Prematurely Ruling on Epic’s
Motion in Limine Does Not Warrant Reversal.
¶22 It is undisputed that the district court ruled on Epic’s motion
in limine prior to the deadline provided by rule 7(c) of the Utah
Rules of Civil Procedure. See Utah R. Civ. P. 7(c) (“Within ten days
6. In essence, Ross claims that Epic, as the structural engineer in
this case, was required to have a soils report prepared even though
structural engineers are unable to perform such analyses
themselves. Ross’s expert testified that performing a geotechnical
study of the site prior to construction would have cost between
$4,000 and $5,000, while Epic’s fees under the contract were $8,250.
If fully half (or more) of Epic’s fee were allocable to outsourcing a
soils study, surely the contract would have referred to this
important aspect of the contracted‐for work and would not have
described the scope of work as being limited to the preparation of
plans.
20110537‐CA 12 2013 UT App 136Ross v. Epic Engineering, PC
after service of the motion and supporting memorandum, a party
opposing the motion shall file a memorandum in opposition.”).
Such an error does not warrant reversal, however, if it is
“sufficiently inconsequential so no reasonable likelihood exists that
the error affected the outcome of the proceedings.” Jones v. Cyprus
Plateau Mining Corp., 944 P.2d 357, 360 (Utah 1997). Ross argues
that we are in no position to decide “whether or not [his expert]
was qualified to testify, because [Ross] had no chance even to
create a record of [the expert’s] specific qualifications.” We
disagree. In fact, it was the expert’s own testimony that provided
the district court with the foundation for its ruling. The expert
stated that he did not have an opinion on the relevant standard of
care and that he would need to perform an investigation to form
such an opinion.
¶23 Likewise, Ross was not prejudiced by the premature ruling
because the district court’s consideration of the motion in limine
involved essentially the same evidence submitted with the earlier
summary judgment motion. Ross seemed to acknowledge this fact
in arguing against the motion in limine, telling the court, “They
made the same argument in their summary judgment motion. The
exact same argument was there.” While additional time may have
allowed Ross to refine his arguments somewhat, he points to
nothing new that he would have added had he been permitted the
opportunity to submit a memorandum in opposition to the motion.
And from all that appears, the pivotal analysis by the district court
would have remained the same. See Utah R. Civ. P. 61 (stating that
an error is harmless and does not warrant disruption of a ruling or
order if it “does not affect the substantial rights of the parties”).
Therefore, Ross was not prejudiced by the district court’s error, and
we decline to overturn its ruling.
III. The District Court Correctly Granted Epic’s Motion for
Summary Judgment on the Breach of Contract Claim.
¶24 While the district court initially denied Epic’s motion for
summary judgment on Ross’s contract claim, a trial court has the
authority to revisit any prior ruling so long as a final judgment has
20110537‐CA 13 2013 UT App 136Ross v. Epic Engineering, PC
not been entered in the case. IHC Health Servs., Inc. v. D&K Mgmt.,
Inc., 2008 UT 73, ¶ 27, 196 P.3d 588. Summary judgment is proper
whenever there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. See Utah R. Civ. P.
56(c). When the district court revisited its ruling on the motion for
summary judgment on the breach of contract claim, it explained
that “[t]he reason the Court did not grant summary judgment
initially on the first issue was . . . the proffer that the expert[s]
would disagree on critical issues. They don’t.” Ross, however,
alleges that a standard of care analysis is not essential to his breach
of contract claim and granting summary judgment on that basis
was inappropriate. Ross seemingly claims that the jury must first
determine whether there was a page 2 to the contract, which the
parties dispute, and that only then does the standard of care
analysis become potentially relevant. In so arguing, Ross overlooks
that we must review the facts in a light most favorable to him,
including that there was no page 2.
¶25 Without the second page, which Epic claimed defined and
limited its liability under the contract, Ross is better positioned to
argue that Epic was expected, as an inherent requirement of
building plan preparation, to undertake a soil study of the property
and assess whether the soils on the building site complied with the
standard—“original undisturbed earth or . . . engineered
fill”—called for in the plans Epic prepared. But it would still be
necessary to determine whether investigation of the soil on the
building site was an implied term of the structural engineering
contract.7
¶26 The crux of the dispute, then, is whether it is generally
understood that a structural engineer owes a duty to determine the
7. Ross’s brother, who served as general contractor on the project
and who presumably was not named as a defendant by reason of
the family connection, admitted that he was not aware whether a
soils analysis had been performed by Epic, which we assume
means he never asked to see such a report and that he would not
necessarily be able to recognize non‐native soil.
20110537‐CA 14 2013 UT App 136Ross v. Epic Engineering, PC
type of soil on a building site, such that in a case where the contract
is silent on the issue and calls only for the preparation of plans, it
is nonetheless reasonable to assume the parties intended to impose
such a requirement. Because we have determined that the district
court correctly excluded the testimony of Ross’s expert witness, the
only admissible testimony bearing on the question was that of
Epic’s expert witness. Epic’s expert testified that soil reports are not
typically ordered for projects of this size and that it is proper for
the engineer preparing the plans to simply incorporate the values
listed in the International Building Code, as was done here.8 Epic’s
expert’s opinion dovetails with the decision in Smith v. Frandsen,
2004 UT 55, 94 P.3d 919, which held that “builder‐contractors are
expected to be familiar with conditions in the subsurface of the
ground.” Id. ¶ 19. Because Ross was unable to “set forth specific
facts showing that there is a genuine issue for trial” concerning this
issue, see Utah R. Civ. P. 56(e), the district court correctly granted
summary judgment to Epic.
CONCLUSION
¶27 We conclude that the district court did not abuse its
discretion under rule 702 of the Utah Rules of Evidence when it
granted Epic’s motion in limine excluding the testimony of Ross’s
expert witness. The district court’s procedural error in ruling on the
motion before allowing Ross the requisite time to reply under the
Utah Rules of Civil Procedure had no impact on the outcome and
therefore does not warrant reversal. Because there is no genuine
issue of material fact bearing on the pivotal contract issue, the
district court correctly granted summary judgment to Epic on the
breach of contract claim.
¶28 Affirmed.
8. Indeed, Epic’s expert testified that he had previously designed
similar projects in Roosevelt using exactly the same design
standards.
20110537‐CA 15 2013 UT App 136