Acquisition Corp. of America v. American Cast Iron Pipe Co.

• Decision Date: 31 May 1989
• Docket Number: 87-0501,Nos. 4-86-2517,s. 4-86-2517
• Citation: 543 So.2d 878,14 Fla. L. Weekly 1336
• Parties: 14 Fla. L. Weekly 1336 ACQUISITION CORP. OF AMERICA and Kenneth V. Hemmerle, Sr., d/b/a Hemmerle Construction Company, Appellants, v. AMERICAN CAST IRON PIPE COMPANY, Coffman Leasing, Inc., and Earl Coffman, Appellees.
• Court: Florida District Court of Appeals

Page 878

543 So.2d 878

14 Fla. L. Weekly 1336

ACQUISITION CORP. OF AMERICA and Kenneth V. Hemmerle, Sr., d/b/a Hemmerle Construction Company, Appellants, v. AMERICAN CAST IRON PIPE COMPANY, Coffman Leasing, Inc., and Earl Coffman, Appellees.

Nos. 4-86-2517, 87-0501.

District Court of Appeal of Florida,

Fourth District.

May 31, 1989.

Richard P. McCusker, Jr., and Lewis A. Berns, Fort Lauderdale, for appellants.

Dennis G. King of Dennis G. King, P.A., Miami, for appellee American Cast Iron Pipe Co.

Richard A. Rosenberg of Richard A. Rosenberg, P.A., Orange City, for appellees Coffman Leasing, Inc. and Earl Coffman.

ON REHEARING

WARNER, MARTHA C., Associate Judge.

We grant rehearing to correct factual errors in the issued opinion, and we substitute this opinion for the original. We have considered the other matters raised in the motion for rehearing and deny it in all other respects. For the most part, the motions are simply reargument of the issues presented.

The owner of a construction project and the general contractor appeal a final judgment in favor of the subcontractor and its supplier. We affirm in part and reverse in part.

The subcontractor, Coffman Leasing, Inc., entered into a contract with Hemmerle Construction, the general contractor, to construct water, sewer, and drainage facilities on a project in Boca Raton. The contract required the subcontractor to provide labor and materials in accordance with the plans and specifications prepared by the consulting engineers, and only as per the quantities of materials listed on the "summary of quantities" on the plans. Any additions to the quantities would "become an extra ... contract." Condition 15 of the contract provided that should the owner, architect, or general contractor desire additional work to be performed, the general contractor could direct such additional work. In no case would any claim for extra work be recognized unless authorized in writing by the general contractor. Coffman agreed to perform this contract for a lump sum price of $390,000.00.

Disputes arose as work was performed on the contract, and, shortly before job completion, Coffman walked off the job. One of Coffman's suppliers, American Cast Iron Pipe Company, filed a claim of lien against the project. When suit was filed to foreclose the claim of lien, the lien was transferred to a bond by Acquisition Corp., the owner of the property. Coffman, who was also sued by American Cast Iron, filed a cross-claim against Hemmerle Construction for breach of contract, alleging failure to pay for the contracted work plus substantial extras. Hemmerle filed its own cross-claim against Coffman for breach of contract, indemnity, and intentional misrepresentation. Acquisition also defended against American Cast Iron's assertion of a fraudulent lien. The case proceeded to trial, primarily on the issues raised in the cross-claims. After trial, the court ruled in favor of Coffman and its materialman as to all counts.

Hemmerle asserts that the extras claimed by Coffman were not authorized in writing and thus not recoverable according to the contract provisions. The trial court construed the contract as authorizing "extras" without requiring written authorization because the contract contemplated that extras would be possible. We disagree with such a construction. Although the typewritten portion of the contract stated that additions would be an extra contract, the contract also specified that the subcontractor was to perform the contract in strict accordance with its conditions, which included a requirement that extra work be authorized in writing. A contract should be construed so as to give effect to all of the provisions of the contract, if possible. Bituminous Casualty Corp. v. Lewis Crane Service, Inc., 173 So.2d 715 (Fla. 3d DCA 1965). The trial court's construction in this case would not give effect to the requirement that all additions to the contract be in writing.

However, if the trial court's ruling may be sustained on other grounds, this court should do so. See, e.g., In re: Estate of Yohn, 238 So.2d 290 (Fla.1970). Thus, the claims for additional compensation sought by Coffman must be separated to determine the basis for the additional charges and whether or not written authorization was required.

Coffman's claim may be broken down into four categories. First, Coffman claims additional compensation and extra expenses because the site was not properly prepared, requiring greater excavation than the plans called for. Second, it claims extras caused by a revision of the plans at the commencement of the job. Third, changes required by the Health Department in order to pass inspection were the third cause of claimed extra expenses. Finally, Coffman demands as a necessary extra to complete the job an increase in the tonnage of pipe fittings from what was called for in the summary of quantities.

As to the first category, where a default by the owner or its agent compels the contractor to perform additional work in order to conform to the contract plans, such work is not an alteration or addition to the contract which is required to be in writing as contemplated by the terms of the contract. City of Miami v. Nat Harrison Associates, Inc., 313 So.2d 99 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 15 (Fla.1976). In the instant case, the trial court found that the general contractor had improperly prepared the construction site. Therefore, the extra work caused by the improper site preparation is recoverable even absent written authorization.

Several increases in materials and labor were required by revisions in the plans and specifications. According to the evidence, these revisions were added to the plans in March of 1985, before construction commenced. The conditions of the contract require that no claim for extra work will be authorized unless in writing. There is no evidence of any such written authorization from the general contractor. Thus, the subcontractor cannot now make claim for the extras required by the revision. See Southern Roadbuilders, Inc. v. Lee County, 495 So.2d 189 (Fla. 2d DCA 1986), rev. denied, 504 So.2d 768 (Fla.1987). Using the plans and specifications in evidence, simple mathematics indicate that the additional charges due to the revision amount to $8,864.10, which should be disallowed from the subcontractor's recovery. ¹

The contract also called for all water lines to be Class 50 Ductile Iron pipe or Johns Manville C-900 Blue Brute pipe. At trial, Coffman claimed an extra expense of $16,543.00 because he was required by the Health Department to use the more expensive cast iron pipe. Other extra charges were also necessitated by Health Department requirements and inspections. Even without written authorization, the subcontractor is entitled to claim compensation for the pipe and other extras mandated by the Health Department. See Diana Stores Corp. v. M. & M. Electric Co., 108 So.2d 486 (Fla. 3d DCA 1959); William Zeigler & Son v. Chicago Northwestern Development Co., 71 Ill.App.3d 276, 27 Ill.Dec. 383, 389 N.E.2d 195 (1979). See also Annotation, Effect of Stipulation, In Private Building or Construction Contract, that Alterations or Extras Must be Ordered in Writing, 2 A.L.R.3d 620, at 643 (1965).

Coffman's final claim is for additional compensation for increased tonnage of pipe fittings in excess of what appears on the stated quantities on the plans and specifications. After termination of the job and during the lawsuit, Mr. Coffman reviewed the plans and specifications to determine how many fittings he used. According to his calculations, which the trial court accepted, he discovered that the summary of quantities understated the fittings required on the job by over two tons. The subcontractor bid the job and formed the contract based upon the plans and specifications, which were in error. Even though the contract is for a stipulated amount, the subcontractor may still recover for these extra materials necessitated through the act or omission of the owner or his agent in preparing the erroneous summary of quantities. See 13 Am.Jur.2d Building and Construction Contracts § 19 (1964); cf. City of Miami v. Nat Harrison Associates, Inc., 313 So.2d 99 (Fla. 3d DCA 1975).

Another issue raised by appellants involves the exclusion of their expert from testifying due to violation of the pretrial order. This particular expert was made known to the appellees the week before the trial with an offer to make him available for deposition, but the expert did not view the property until the day before the trial.

Exclusion of the testimony of a witness is a drastic remedy which should be utilized only under the most compelling circumstances. In re Estate of Lochhead, 443 So.2d 283 (Fla. 4th DCA 1983). However, it is within the broad discretion of the trial court to examine and deal with problems of witness disclosure involving prejudice in the preparation of trial. Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981). Under the facts of this case, we cannot say that the trial court abused its discretion in excluding the witness.

At the close of the case, the appellee Coffman moved to add Acquisition Corporation, the property owner, as a defendant to its cross-claim on the basis that it was the alter ego of Hemmerle, the equitable owner of the stock of Acquisition. Appellee American Cast Iron moved for a judgment against Kenneth V. Hemmerle, Sr. on the lien...