Border States Paving, Inc. v. State

• Decision Date: 13 January 1998
• Docket Number: No. 19997,19997
• Citation: 574 N.W.2d 898,1998 SD 21
• Parties: BORDER STATES PAVING, INC., a corporation with its principal place of business at Fargo, North Dakota, Plaintiff and Appellant, v. The STATE of South Dakota By and Through the SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION, a state agency located at Pierre, South Dakota, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 898

574 N.W.2d 898

1998 SD 21

BORDER STATES PAVING, INC., a corporation with its principal place of business at Fargo, North Dakota Plaintiff and Appellant, v. The STATE of South Dakota By and Through the SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION, a state agency located at Pierre, South Dakota Defendant and Appellee.

No. 19997.

Supreme Court of South Dakota.

Considered on Briefs Jan. 13, 1998.

Decided March 4, 1998.

Ronald G. Schmidt of Schmidt, Schroyer, Moreno & Dupris, Pierre, for plaintiff and appellant.

Barton R. Banks and Samuel D. Kerr of Banks, Johnson, Colbath & Kerr, Rapid City, for defendant and appellee.

GILBERTSON, Justice.

¶1 Border States Paving Corporation, a North Dakota paving construction company, appeals from the trial court's denial of its motion for judgment notwithstanding the verdict or, in the alternative, its motion for new trial after a jury verdict was returned in favor of the South Dakota Department of Transportation. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On June 13, 1993, the South Dakota Department of Transportation (DOT) accepted a bid from Border States Paving, Inc. (Border States) on a contract for asphalt resurfacing of a 12-mile portion of Highway 46 in Yankton County, South Dakota. The contract required Border States to mill off a portion of the old asphalt surface, place two layers or "lifts" of asphalt (one leveling course and one wearing course), and complete some painting and guardrail work. The bid and resulting contract specified the project to be completed on or before October 15, 1993, as this was the seasonal deadline established by DOT.

¶3 Border States was responsible for obtaining the aggregate materials needed for the paving project. Border States subcontracted with Weatherton Contracting (Weatherton), an aggregate crushing business, to provide the materials for the asphalt operation. DOT plans provided for the use of an optional materials pit, maintained by DOT, should Border States run into difficulty with its supply of materials. In the event the optional pit could not meet Border States' needs, Border States was required to find another source. Due to heavy rains in 1993, Weatherton's scale and the access road to the pit were flooded. Near the same time, the optional pit was also partially flooded which prevented Border States from receiving its materials from the optional pit. Weatherton later testified that the pit was not accessible until late August or early September 1993. As a result, Border States argued its completion of the project was delayed. However, DOT engineer Ron Peterson testified that both the scale and the pit were being utilized by Weatherton to haul gravel to another nearby project in which Weatherton was the prime contractor as early as August 11, 1993.

¶4 Border State's president, Dan Thompson, was present at a preconstruction conference held in Yankton on August 18, 1993. After the conference, Thompson had several conversations with Weatherton concerning the availability of materials for the Highway 46 project. Thompson believed the project could be completed in 19-20 days and meet the seasonal deadline as specified in the contract. Thompson testified that Weatherton subsequently informed him that the Highway 46 materials would not be available until mid-September. ¹ Shortly thereafter Border States elected to transfer its crew and equipment from the Highway 46 project to another project in Hill City, South Dakota. The Hill City project was completed on September 30, 1993.

¶5 Border States began its Highway 46 operations on October 6, 1993. Previously, on August 23, 1993, Border States requested a time extension from DOT. DOT did not respond. On October 12, 1993, Border States then requested a waiver of the October 15 deadline so they could finish the project before the end of the year and avoid the expense of bringing its crew and equipment back to Yankton the following spring. DOT denied the waiver and felt placement of the first lift would adequately sustain winter travel until Border States could return to complete the second lift. Based on prior experience, DOT did not want the top lift paved in the colder temperatures inherent to South Dakota after October 15. DOT was concerned with surface defects which could result from cold weather paving. The problems previously encountered with cold weather paving were addressed as early as 1990 in the South Dakota Department of Transportation Standard Specifications for Roads and Bridges § 320.3A which provided a seasonal limitation of October 15 for asphalt concrete operations.

¶6 Border States persisted in its request to finish the project before the end of the year. DOT eventually drafted a change order which allowed Border States to finish the project in 1993 and addressed DOT's concerns over surface defects. This change order is the subject of this litigation and stated in part:

The seasonal limit of October 15 for the Surface Course shall be waived, but the following conditions will apply:

1. Minimum air start up temperature is 45 degrees F.

2. Windchill shall not drop below 30 degrees F[.]

3. All trucks carrying asphalt ... will have the load tarped.

4. Mix temperature at the plant will be set at 290 degrees F.

5. Compaction rolling shall be completed before the temperature of the inplace mix drops below 185 degrees F.

6. In the Spring of 1994, an inspection of the top of the road will be made to determine if there is any raveling, or any surface defect due to cold weather asphalt concrete work.

If raveling or other surface defects are present, [Border States] will be required to provide a chip seal on that day's run which shows the defects....

7. The flush seal coat will be applied when the air and surface temperature are at least 50 degrees F. in the shade. The November 1 seasonal limit will not apply.

The above will be done at no additional cost to the State.

(Emphasis added).

¶7 During late October and November 1993, Border States' completion of the second layer was delayed due to temperatures below that required in the change order. The project was finally completed and Highway 46 was opened December 10, 1993. In the spring of 1994, DOT inspected Border State's paving work and observed intermittent surface defects throughout the project. The worst areas were located on the west end of the project which was paved last and when temperatures were coldest. The parties disagreed as to the cause of the defects. Border States agreed that the cold may have been a factor but maintained that the defects also could have been caused by a "mix" design problem. ² DOT believed the defects were caused by the effect of the cold weather on the paving process.

¶8 Border States brought suit against DOT seeking to recover the $6,600 in liquidated damages that DOT withheld as a result of the delay, the $94,256 Border States had expended in order to complete the work, interest, costs and attorney's fees. A jury trial began on December 2, 1996. The circuit court denied both parties' motions for a directed verdict submitted at the close of Border States' case and again after the close of all the evidence.

¶9 Border States essentially argued that it did comply with change order conditions 1-5 and therefore, condition 6 was inapplicable. DOT argued that condition 6 was specifically included to allow Border States to finish the project in 1993 while addressing DOT's concerns over raveling or surface defects due to cold weather or late season paving. A verdict in favor of DOT on all issues was returned. Border States made a motion for a judgment notwithstanding the verdict and/or for a new trial. The trial court denied both motions. Border States appeals raising the following issues for our review:

1. Whether the trial court's denial of Border States' motions for directed verdict and judgment NOV was proper?

2. Whether the trial court's denial of Border States' motion for new trial was proper?

STANDARD OF REVIEW

¶10 Our standard of review on motions for directed verdict and judgment NOV is well settled:

A motion for a directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court's decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.

A motion for judgment [notwithstanding the verdict] is based on and relates back to a directed verdict motion made at the close of all the evidence. [SDCL 15-6-50(b).] Thus, the grounds asserted in support of the directed verdict motion are brought before the trial court for a second review. We review the testimony and evidence in a light most favorable to the verdict or the nonmoving party, then without weighing the evidence we must decide if there is evidence which would have supported or did support a verdict.

Schuldies v. Millar, 1996 SD 120, p 8, 555 N.W.2d 90, 95 (quoting Junge v. Jerzak, 519 N.W.2d 29, 31 (S.D.1994) (citations omitted)); see also State v. DeNoyer, 541 N.W.2d 725, 733 (S.D.1995); Bridge v. Karl's, Inc., 538 N.W.2d 521, 523 (S.D.1995).

¶11 Border States argues that a new trial should have been granted because the evidence did not justify the verdict or that the verdict was against the law. We review a trial court's denial of motion for new trial under the following standard:

Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court's decision absent a clear showing of abuse of discretion. If the trial...