Beaufort Concrete Co. v. Atlantic States Construction Co.
| Decision Date | 01 February 1966 |
| Docket Number | No. 21701.,21701. |
| Citation | 352 F.2d 460 |
| Parties | BEAUFORT CONCRETE COMPANY, Appellant, v. ATLANTIC STATES CONSTRUCTION COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. Brantley Harvey, Jr., Harvey, Harvey & Battey, Beaufort, S. C., for appellant.
Irvine F. Belser, Jr., Belser, Belser & Baker, Columbia, S. C., James C. Grizzard, Grizzard & Simons, Atlanta, Ga., for appellee.
Before TUTTLE, Chief Judge, and PHILLIPS* and WISDOM, Circuit Judges.
The plaintiff, Beaufort Concrete Company, appeals from an order granting summary judgment in favor of the defendant, Atlantic States Refining Company. The issues are (1) whether the district court abused its discretion in refusing to consider Beaufort's affidavits, submitted on the day of the hearing, opposing the motion for summary judgment and (2) whether the case presents a "genuine issue as to any material fact" within the meaning of Rule 56(c) of the Federal Rules of Civil Procedure. Affirming, we hold that the district court did not abuse its discretion in excluding the affidavits, and that, without the disputed affidavits, the case was a proper one for summary judgment.
September 1960, Atlantic States, a Georgia corporation, entered into a general contract with the Georgia Ports Committee for the construction of docks and warehouses at the Garden City Terminal near Savannah, Georgia. Beaufort, a South Carolina corporation, was Atlantic States's subcontractor for the supply of ready-mixed concrete. June 13, 1961, Atlantic States issued to Beaufort a purchase order for certain concrete required for the performance of the contract between Atlantic States and the Georgia Ports Committee. Beaufort's complaint alleges that Beaufort supplied concrete, meeting the contract specifications, worth $291,813.07, contract price, but was paid only $204,299.98. In this suit Beaufort seeks to recover the balance of $87,513.09.1
In its answer Atlantic States asserts that six of the concrete "pours" so-called — those of June 23 and of July 1, 5, 7, 12, and 14 — were found to be substandard by the project engineer, and had to be removed and replaced. The purchase order required that Beaufort's materials comply with the plans and specifications of the general contract between Atlantic States and the Georgia Ports Committee. That contract provided that the "decisions of the Engineer shall, within the terms of the Contract Documents, be final". Appended to Atlantic States's answer are letters from Robert Company and Associates, the architect-engineer employed by the Georgia Ports Committee, condemning the six allegedly defective slabs, and assigning as reasons for the deficiencies inadequate cement content and improper batching and mixing by Beaufort.
The answer also asserts and the district court found, that Atlantic States, after being advised by Robert Company and Associates that the defective concrete would have to be removed and replaced, made an agreement with Beaufort whereby Atlantic States was to make a good faith effort on behalf of Beaufort to persuade the project engineers to accept the defective concrete. In return, the answer alleges, Beaufort agreed (1) that it would abide by the ultimate decision of the architects and engineers, and (2) that if it became necessary to remove and replace the concrete, all costs, including those for tests and attorneys' fees, would be for Beaufort's account. October 30, 1961, relying on this agreement, Atlantic States wrote a letter to Robert Company and Associates asserting that four of the six allegedly defective pours were in fact within the specifications of the general contract, and that all six pours were adequate for the purpose for which they were intended. Atlantic States offered to make further tests and to furnish a ten-year structural bond guaranteeing the sufficiency of the condemned slabs.
Atlantic States's effort to persuade the engineers failed. December 5, 1961, Atlantic States wrote Beaufort that it had exhausted all feasible means of changing the engineers' decision, and was proceeding to remove and replace the condemned slabs, all costs to be charged to Beaufort's account. By a letter dated December 7, 1961, Henry C. Chambers, the president of Beaufort, acknowledged Atlantic States's letter of December 5, and remarked that his "only request regarding the demolition is that you can be completely honest and fair with us as to the charges and cost".
Because of the alleged agreement with Beaufort and Atlantic States's reliance on that agreement, Atlantic States urges that Beaufort is estopped to challenge the engineers' final decision, or to deny liability for the reasonable costs of removing and replacing the defective concrete. Items of offset and counterclaim urged by Atlantic States include $13,200, the price of the defective concrete; $95,621.04, the cost of removing and replacing the condemned slabs; and $100,000 for damage to Atlantic States's business reputation.
October 17, 1963, Atlantic States moved for summary judgment. In support of its motion Atlantic States submitted affidavits of Charles H. Girardeau III, vice-president of Atlantic States, and of Harry C. Robert, Jr. of Robert Company and Associates. The hearing was set for February 7, 1964. That day, just before the hearing was to begin, Beaufort's lawyer tried to serve counter-affidavits on Atlantic States's lawyer, who refused to accept service.2 The court ordered the affidavits incorporated into the record, but later held them inadmissible because not timely filed under Rule 56 of the Federal Rules of Civil Procedure. February 10, 1964, the court granted the defendant's motion for summary judgment.
Rule 56(c) of the Federal Rules of Civil Procedure, dealing with summary judgment, provides that "the adverse party prior...
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