Brookhaven Landscape & Grading Co., Inc. v. J. F. Barton Contracting Co.
| Decision Date | 17 May 1982 |
| Docket Number | No. 81-7059,81-7059 |
| Citation | 676 F.2d 516 |
| Parties | 10 Fed. R. Evid. Serv. 1529 BROOKHAVEN LANDSCAPE & GRADING CO., INC., Plaintiff-Appellee, v. J. F. BARTON CONTRACTING COMPANY and United States Fidelity and Guaranty Co., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Warren O. Wheeler, Mary J. Workman, Atlanta, Ga., for defendants-appellants.
Stokes & Shapiro, J. Ben Shapiro, Jr., Sidney Haskins, Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before MORGAN, TJOFLAT and JOHNSON, Circuit Judges.
The defendants J. F. Barton Contracting Company and United States Fidelity and Guaranty Company appeal from a jury verdict and award in favor of the plaintiff Brookhaven Landscaping & Grading Company, Inc., in the amount of $39,045.50. The substance of Brookhaven's diversity claim now on appeal is that Barton breached an oral agreement to pay for excavating work in excess of work Brookhaven had already agreed to perform under the terms of a subcontract. 1 With one minor exception we affirm the judgment entered by the district court.
On February 16, 1978, Barton entered a contract with the City of Atlanta for the construction of a portion of a road at the William B. Hartsfield Atlanta International Airport. On March 22, Barton entered a subcontract with Brookhaven for three items of work required under the prime contract. The primary portion of the subcontract consisted of excavation, embankment, and grading work to prepare the road segment for pavement. The subcontract, like the prime contract, incorporated the plans and specifications of the project. 2 Brookhaven was responsible for removing rocks and boulders from the planned roadbed. The engineers' plans for the project state at one point that: "The Contractor is cautioned that the Loop Road shall be constructed on an existing boulder fill from Station 36 k 00 to 40 k 50." 3 Brookhaven contended at trial that the drawings accompanying this cautionary instruction indicate that the boulder area began at 36 k 50 and ended at 40 k 00, a distance of 350 feet along the planned roadway instead of 450 feet. An explanatory note on the drawings states that: "2' Max. Backfill shall have neat line measurement and will be paid for as In Place Embankment in all areas where boulders are encountered in subgrade." Both parties clearly understood that it was Brookhaven's duty to remove the boulders and then backfill the area with up to two feet of earth, as opposed to one foot in all other areas. The parties also understood that Brookhaven would not be paid for the removal of these boulders as such but would be paid on the basis of the amount of "in place embankment," or dirt required to fill the roadbed to a depth of two feet in the area where the boulders were excavated. In other words, although Brookhaven was responsible for removing the boulders, it would be paid only on the basis of the unit price for the backfill. Brookhaven's foreman testified that the company factored the price of boulder excavation into the amount it bid for the backfill.
In the course of performing its work Brookhaven encountered boulders over a substantially greater distance of the roadway than was indicated in the engineers' plans. Don Lawson, the plaintiff's foreman, testified that once he became aware of boulders in areas other than those indicated on the plans, he stopped work and met with Barton's vice-president, David L. Barton. Lawson testified that on at least two occasions he told David Barton that Brookhaven had encountered unexpected boulders and that the company would have to be paid extra for removing those boulders. Lawson testified that David Barton authorized the removal of the extra boulders and agreed that the defendant would pay for the removal at the rate of $3.25 per cubic yard of boulders. Alan Batson, another of plaintiff's employees, testified that he was present when David Barton agreed to pay Brookhaven for removing the extra boulders. Barton, however, testified that he considered the boulder excavation part of Brookhaven's original contract obligation and never consented to extra payment.
After completing its job Brookhaven submitted a bill for the total work done, including the extra boulder excavation. Barton paid for the written subcontract items but refused to pay for the boulder removal. The plaintiff brought this lawsuit.
At trial the plaintiff proceeded on the theory that the boulder excavation was not covered under the original contract obligation and that plaintiff had secured an oral contract for the extra work. The plaintiff also argued that even if the jury did not find an oral contract Brookhaven was entitled to recover under the theory of quantum meruit. The defendants contended, however, that the work was required as part of the original obligation and that Barton had not entered a separate oral contract for the boulder excavation. In their motion for directed verdict the defendants argued that the contract clearly provided for the removal of all the boulders, that even if there was evidence of an oral agreement the plaintiff was under a preexisting duty to remove the boulders, and that therefore there could have been no consideration for the new contract. The defendants also contended that the contract required written notice and modification in the event that extra work was required. The court denied the motion for directed verdict as well as the defendants' later motion for j. n. o. v.
The judge instructed the jury that, if it found that the boulder removal was not part of the original obligation, it could then consider whether the evidence supported an oral contract covering the boulder excavation. The judge also instructed the jury on quantum meruit. The jury later returned a general verdict in the exact amount the plaintiff requested for the boulder excavation.
The defendants contend on appeal that the court erroneously denied their motions for verdict n. o. v. and new trial.
At oral argument before this Court counsel for both parties demonstrated a basic lack of familiarity with essential portions of the record. When questioned from the bench, neither counsel was able to state whether the district court had ever specifically construed the contract or how the court had instructed the jury on the contract claims. In addition, although counsel for the appellants steadfastly maintained that the defendants had objected to the jury instructions on quantum meruit, the record reveals that the charging conference was not recorded and that the defendants did not enter their objections on the record after the jury had been charged and before it had retired. See Fed.R.Civ.P. 51.
The rules and practice of appellate litigation presuppose a high degree of familiarity with the district court record. Rule 22(f)(7) of this Court's Rules requires that the briefs of the parties contain an accurate statement of the course of proceedings and disposition in the court below, supported by reference to the volume and page number of the record. Eleventh Cir.R. 22(f) (7); see Fed.R.App.P. 28(a)(3). Rule 22(a) requires that portions of the record be reproduced in an appendix captioned "Record Excerpts." Eleventh Cir.R. 22(a). Of necessity, each attorney must be very familiar with the record in order to comply with these rules and answer questions from the bench concerning the record.
It is the responsibility of counsel representing both appellant and appellee to discuss intelligently any portion of the record which may be relevant to a disposition of the issues on appeal. It is not an adequate response that attorneys for the parties on appeal did not participate in the trial of the case. All counsel participating in oral argument before this Court are fully responsible for the record of the case. The arguing attorney must be able to answer all relevant questions or, at the very least, have present at counsel table an attorney who is able to answer questions concerning the proceedings in the district court.
On this appeal the defendants first argue that the boulder excavation was clearly covered by the provisions of the written subcontract. Because the plaintiff was under a preexisting duty to remove the boulders, the defendants argue, the oral contract failed for lack of consideration. The plaintiff contends that the contract plans designated a very limited area in which boulders were to be encountered. The plans called for the removal of approximately 1,000 cubic yards of boulders over a distance of 450 feet. What the plaintiff encountered, however, was approximately 12,000 additional cubic yards of boulders over an additional distance of 1100 feet. Georgia law recognizes the subsequent oral modification and addition to a written contract as long as the additional terms are supported by separate consideration. J.E.M. Enterprises, Inc. v. Taco Pronto, Inc., 145 Ga.App. 573, 244 S.E.2d 253, 255 (1978). The key question in this case, then, is whether the jury was entitled to find that the removal of the additional boulders was extra work and therefore constituted separate consideration for the oral contract.
Section 101.26 of the Georgia Department of Transportation Standard Specifications, incorporated as part of the prime and subcontracts, defines extra work as: "An item of work not provided for in the Contract as awarded but found essential to the satisfactory completion of the Contract within its intended scope." Section 104.04 provides that:
The Contractor shall perform unforeseen work, for which there is no price included in the Contract, whenever it is necessary or desirable in order to complete fully the work as contemplated. Such work shall be performed in accordance with the Specifications and as directed, and will be paid for as provided in 109.05.
Section 109.05 provides that:
Extra work, as defined in 101.26 when...
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