Anderson v. Golden
| Decision Date | 28 December 1982 |
| Docket Number | CV481-237. |
| Citation | 569 F. Supp. 122 |
| Parties | M.C. ANDERSON, d/b/a M.C. Anderson Construction Company, Plaintiff, v. Donald GOLDEN, Defendant. |
| Court | U.S. District Court — Southern District of Georgia |
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Stanley E. Harris, Jr., Savannah, Ga., for plaintiff.
Robert J. Campbell, Kansas City, Mo., and Aaron L. Buchsbaum, Savannah, Ga., for defendant.
The above-captioned case came on for bench trial before this Court on August 24, 1982. After hearing three days of testimony and reviewing numerous exhibits and depositions, the Court now makes the following Findings of Fact and Conclusions of Law.
This suit involves a classic confrontation between the developer of a project, McAlpin Square Shopping Center, and his contractor, in this case, the rough-grading and storm drainage system contractor. The conflict which arose during the course of the work was exacerbated by the weather and other adverse conditions at the site of the development. Each party accused the other of various breaches of the contract. The contractor, M.C. Anderson, doing business as M.C. Anderson Construction Company, filed a materialmen's lien against the McAlpin Square property. He subsequently brought this action, which was removed to this Court on the basis of diversity jurisdiction, against Donald Golden, the developer of McAlpin Square. He seeks monies allegedly due under the contract, remuneration in quantum meruit, reimbursement of certain funds expended during the course of the job, and attorney's fees. Golden, in turn, asserted a counterclaim for delay damages, for the cost of correcting or completing work under Anderson's contract, for expenses incurred, and for slander of title.
1. Plaintiff, an earthwork contractor, entered a lump sum contract to perform site work at the proposed McAlpin Square Shopping Center, with Donald Golden, a real estate developer with a leasehold in the property. The site is located in Chatham County, Georgia, northwest of the intersection of Victory Drive and Wallin Street.
2. Anderson received an invitation to bid on the development in late May, 1979. In order to prepare bids on the site grading and storm sewer construction work, prospective bidders were provided with a package of information prepared by Golden's architect, John Carey. The package included a bound book entitled "Specifications for Site Grading and Storm Sewer Work for the McAlpin Square Shopping Center" which contained detailed bidding and soil boring information and a site grading plan dated May 23, 1979. The scope of the site work initially included clearing the site, raising it to the required elevation, rough-grading, and general preparation of building pad and parking area sites. Bidders were instructed to carefully examine the site, the drawings, and other bid documents and to verify conditions and locations in the field.
3. Anderson, the only earthwork contractor to bid the job, submitted a bid of $575,695.00 on June 12, 1979. In order to achieve a reduction in this price, John Carey engaged in discussions with Steve Chavis, Anderson's employee in charge of the McAlpin Square bid. After the elimination of a soil stabilization mat and the addition of a provision requiring the excavation of fill from retention areas adjacent to the site, Anderson submitted a revised bid of $425,000.00 on June 21, 1979. After further discussions and negotiation, Anderson submitted a final proposal on August 15, 1979, for $425,000.00, which was substantially similar to the June 21, 1979 bid. Golden accepted this bid and after adding $4,250.00 for the bond premium, the contract price was $429,500.00.
4. Prior to the execution of the contract, Carey issued a revised grading plan dated August 23, 1979, which superceded the May 23rd plan. In addition to other minor configuration changes, the dimensions of easements in the retention pond area, which had been inadvertently omitted on the May 23rd drawings, were shown.
5. Anderson and Golden executed the standard AIA contract on September 12, 1979. The contract documents included the Owner-Contractor Agreement, the August 23rd drawings, the Specifications, the Instructions to Bidders, the Uniform Proposals, Addendum No. 1 (Post-Bid), and the General and Supplemental General Conditions. The contract contained a merger clause. Pertinent portions or paraphrases of portions of the contract documents are set out below.
Art. 2. The Contractor shall furnish all supervision, labor, materials, equipment, transportation and supplies necessary to perform the site grading work and storm sewer work for the Project.
Notwithstanding anything set forth in the contract documents to the contrary, Contractor acknowledges and agrees that Contractor has investigated soil and subsoil conditions of the site to its full and complete satisfaction.
Art. 3. Work to be commenced as soon as possible and substantial completion to be achieved according to terms of Schedule A.
Art. 6. Final payment when work completed, contract performed and final Certification for Payment issued by architect.
(1) Building pads for Units A & C to be completed by November 1, 1979. The remainder of the building pad areas by December 1, 1979. All remaining work by February 1, 1980.
Time is of the essence of this Agreement.
Without limiting the provisions of the preceding sentence, Contractor also agrees to complete the work as rapidly as field conditions permit ... so as to enable the Contractor to complete the work within the time limits specified above.
Art. 1.2.2. By executing the Contract, the Contractor represents that he has visited the site, familiarized himself with the local conditions under which the work is to be performed, and correlated his observations with the requirements of the Contract documents.
1.2.3. The Contract documents are complementary, and what is required by anyone shall be as binding as if required by all.
2.2.2. Architect shall have no authority to execute Change Orders.
2.2.3. The architect will visit the site at intervals appropriate to the stage of construction to familiarize himself generally with the progress and quality of the work....
2.2.17. If the owner and architect agree, the architect will provide one or more Project Representatives.
4.2.1. The Contractor shall carefully study and compare the Contract Documents and shall at once report in writing to the architect any error, inconsistency or omission he may discover.
4.3.1. Contractor ... shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the Contract. If Contractor shall have knowledge of same, he shall notify owner and architect of any actual impending or probable shortages of labor or material or of other factors which may affect adherence to the progress schedule.
6.1.3. The owner will provide for the coordination of the work of his own force and of each contractor with the work of the Contractor, who shall cooperate therewith as provided in Paragraph 6.2.
8.1.3. The date of substantial completion of the work or designated portion thereof is the date certified by the architect when construction is sufficiently complete, in accordance with the contract documents, so the owner can occupy or utilize the work or designated portion thereof for the use for which it is intended.
8.2.2. Three-day notice of delay from act, neglect or default of architect, owner, contractors, fire, stopping of work. If no claim for extension made within three days of occurrence, no claim for extension may be made.
12.3.1. If the Contractor wishes to make a claim for an increase in the Contract sum, he shall give the architect written notice thereof within 20 days after the occurrence of the event giving rise to such claim ... before proceeding to execute work.
Scope of work. "Bidder" ... has become familiar with the general requirements and local conditions affecting the costs relating to this proposed project.
UP-4. No change in the work which affects the Contract price shall be implemented by the Contractor.
Art. 10.9. Bidders are advised that the time element for the completion of the job will be one of the major considerations in awarding the contract. The Contractor, however, should estimate his time accurately as he will be required to meet his time schedule.
0201b. Before submitting a proposal, bidders, general contractor and all subcontractors shall carefully examine the drawings and specifications, and fully inform themselves as to all existing conditions.
a. Site Inspection: The site where the work is to be constructed shall be carefully examined, the drawings and specifications read, and the Contractor shall thoroughly understand all requirements before work is begun. All existing ground elevations, utilities, soil conditions, etc., as shown on the drawings are as reported to the architect by others and are therefore not guaranteed correct. The Contractor shall verify all conditions and locations in the field and accept same unless he shall report any discrepancy to the architect prior to submitting his bid.
After the first monthly pay request each subsequent request shall be accompanied by a waiver of lien, signed by the General Contractor, covering the full amount of all payments received as of that date.
0304d. The fill shall consist of sandy clay, or other granular nonexpandable material of law plasticity, hauled in if necessary.
As long as Contractor excavates the retention areas to the elevations noted on the plan, he may acquire...
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