City of Gulf Shores v. Harbert Intern., 1901241

• Decision Date: 31 July 1992
• Docket Number: No. 1901241,1901241
• Citation: 608 So.2d 348
• Parties: CITY OF GULF SHORES and The Governmental Utility Services Corporation of the City of Gulf Shores v. HARBERT INTERNATIONAL, et al.
• Court: Alabama Supreme Court

Page 348

608 So.2d 348

CITY OF GULF SHORES and The Governmental Utility Services Corporation of the City of Gulf Shores v. HARBERT INTERNATIONAL, et al.

No. 1901241.

Supreme Court of Alabama.

July 31, 1992.

Rehearing Denied Nov. 20, 1992.

Larry B. Childs, William H. Pryor, Jr. of Walston, Stabler, Wells, Anderson & Bains, Birmingham, and Norborne C. Stone, Jr. of Stone, Granade, Crosby & Blackburn, Bay Minette, for appellants City of Gulf Shores and the Governmental Utility Services Corp. of the City of Gulf Shores.

L. Graves Stiff III, Thomas L. Selden and P. Perry Finney of Starnes & Atchison, Birmingham, and J. Connor Owens, Jr. of Owens, Benton & Simpson, Bay Minette, for appellee Harbert Intern., Inc.

J. Don Foster of Foster & Currenton, Montrose, and John B. DiChiara, Fort Lauderdale, Fla., for appellee Parkson Corp.

Richard A. Ball, Jr. and Richard E. Broughton of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellee Engineering Service Associates.

PER CURIAM.

The plaintiffs, the City of Gulf Shores and the Governmental Utility Services of the City of Gulf Shores (collectively referred to as "Gulf Shores") present 9 issues for our review: whether the trial court erred in (1) instructing the jury on the defense of impossibility; (2) allowing the defendants to present evidence of the City of Gulf Shores's wealth; (3) refusing to admit evidence of inconsistent admissions by defendant Harbert International ("Harbert") from a prior lawsuit arising from the same transaction; (4) excusing a juror for being a citizen of Gulf Shores (Gulf Shores claims this violated § 12-16-3, Ala.Code 1975); (5) submitting the applicability of the parol evidence rule to the jury; (6) admitting large quantities of evidence that allegedly served only to inflame the passion of the jury; (7) refusing to grant the plaintiffs a new trial based on the jury verdict's being against the great weight of the evidence; (8) giving jury instructions regarding assumption of the risk, equitable estoppel, and an engineer's ability to choose between two or more professionally recognized methods or procedures; and (9) refusing to enter a default judgment against defendant A.A. Wickliffe & Company ("Wickliffe").

Facts

This case involves the wastewater treatment system in Gulf Shores, Alabama. A few preliminary explanations are necessary for a full understanding of the case. First, the National Pollutant Discharge Elimination System ("NPDES") is a federal program or plan, administered by the Environmental Protection Agency ("EPA"), that limits or controls the quantity and quality of pollutant discharge that can be dumped into natural bodies of water. Second, the EPA delegates, to a great extent, although not completely, its enforcement authority under the NPDES to qualified state agencies. Alabama's qualified agency is the Alabama Department of Environmental Management ("ADEM"). Third, the NPDES plan calls for the state agencies to issue permits to any municipality, or other pollutant discharger, that wishes to dump effluent (treated waste) into a stream. In this case, the stream is the Intracoastal Waterway and the municipality is Gulf Shores.

In the 1960s, Gulf Shores built a "lagoon type, aerated" wastewater treatment system. This type of system has several lagoons into which wastewater is funneled and into which oxygen is added to help break down the waste. During the 1970s, Gulf Shores experienced enormous growth as a resort community. As a result of this rapid growth, Gulf Shores quickly outgrew its lagoon type system. ADEM cited Gulf Shores numerous times during the late 1970s and early 1980s for noncompliance with its effluent permit limits (i.e., its effluent levels and quality were not in keeping with allowed limits according to its NPDES permit). In the mid-1980s, Gulf Shores began to seek professional help in dealing with its wastewater management problems.

In May 1984, ADEM issued an administrative order that required Gulf Shores to meet specified interim and final limitations on wastewater effluent levels. Harbert and Engineering Service Associates ("ESA"), as a joint venture called Harbert/ESA, became Gulf Shores's wastewater treatment engineering team. The plan was for Harbert/ESA to plan, design and construct a new, modern wastewater treatment plant that would bring Gulf Shores into compliance with its NPDES permit standards. With the deadline for the interim limitations approaching, Gulf Shores officials asked Harbert/ESA to investigate the use of several filters that were scheduled to be placed into the new plant to lower Gulf Shores's effluent level on a short-term basis. Frank Lindstrom, president of ESA, agreed to, and did, contact several filter companies to see if their filters could be used as an interim measure to meet ADEM's effluent limitations. DynaSand filters made by Parkson Filter Company ("Parkson") were finally chosen. Parkson, Harbert, and ESA all stress in their briefs that the final contracts on this interim package contained provisions stating that Gulf Shores was to provide certain quantities and qualities of influent. ¹

The DynaSand filters were installed as part of the lagoon-type system sometime in June 1985. On August 30, 1985, the EPA imposed a sewer connection and hook-up moratorium on Gulf Shores because of its failure to comply with its NPDES permit effluent limitations and ADEM's administrative order.

Gulf Shores sued Harbert, ESA, Parkson, and Wickliffe, Parkson's sales agent. Harbert was sued for negligence, breach of contract, and breach of warranty; ESA was sued for negligence and fraud; and Parkson was sued for breach of contract, negligence, breach of warranty, and fraud.

The case was submitted to a jury. The jury returned a verdict for all the defendants and against Gulf Shores. The trial court entered a judgment consistent with the jury's verdict and denied Gulf Shores's subsequent motion for a new trial. Gulf Shores appeals.

As stated above, Gulf Shores submits nine issues for appellate review, and asserts that any one issue, standing alone, requires a reversal of the trial court's judgment. We examine each issue in turn, and conclude that the trial court's judgment is due to be affirmed.

The Impossibility Defense Issue

Gulf Shores argues that Alabama does not recognize the contractual defense of impossibility of performance. Thus, Gulf Shores argues, the trial court clearly erred in instructing the jury on this defense. ² Parkson argues that Gulf Shores misinterprets the type of impossibility that it seeks to invoke. The type of impossibility that Parkson seeks to invoke is existing impossibility or frustration as stated in § 266, Restatement (Second) of Contracts (1981). Parkson asserts that this Court has never squarely rejected the use of this doctrine, although Parkson admits that this Court has never endorsed the doctrine either.

We need not determine whether Parkson, in fact, invoked the frustration doctrine, nor whether the frustration doctrine should be adopted by this Court. Although we have repeatedly rejected the impossibility defense, Alabama Power Co. v. Harmon, 483 So.2d 386 (Ala.1986), Silverman v. Charmac, Inc., 414 So.2d 892 (Ala.1982), and Poughkeepsie Sav. Bank v. Highland Terrace Apts., 352 So.2d 1108 (Ala.1977), we conclude that Gulf Shores failed to properly preserve as error the trial court's giving of the impossibility instruction.

Rule 51, Ala.R.Civ.P., states, in pertinent part:

"No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection."

(Emphasis supplied.)

After the trial court's oral charge to the jury, Gulf Shores objected to the impossibility defense instruction by stating, "We object to the giving of Parkson's requested charges No. 1; No. 8; No. 11; and the one requested by Parkson on the impossibility of performance, No. 5, Parkson No. 5, Judge." (R. at 3554.) This objection failed to state the grounds upon which Gulf Shores objected to the instruction. Crigler v. Salac, 438 So.2d 1375 (Ala.1983). Thus, Rule 51 precludes Gulf Shores from raising the issue on appeal.

The Wealth Issue

Gulf Shores argues that testimony regarding how much money it raised through taxes and a bond issue to fund wastewater treatment improvements and/or a new wastewater treatment plant was inadmissible and highly prejudicial because it was evidence of Gulf Shores's wealth. Harbert, ESA, and Parkson argue that Gulf Shores "opened the door" to the admission of this evidence through testimony given by Larry Stejskal, the Government Utilities manager. Harbert, ESA, and Parkson assert that the evidence was proper as cross-examination, impeachment, or follow up, once Gulf Shores opened the door.

The record reveals the following testimony given by Larry Stejskal, the Government Utilities manager, while on direct examination by Gulf Shores's attorney:

"Q: Can you identify the documents that are in Plaintiff's Exhibit 460?

"....

"A: Yes, sir. This is a document pack related to Change Order Number 1 to the wastewater treatment plant contract.

"Q: Can you tell from those documents, or your recollection, what the amount of the increase in the cost of the new treatment plant was?

"A: Forty-eight thousand, one hundred thirty-nine dollars and no cents.

"Q: Did GUSC pay that amount?

"A: Yes, sir.

"Q: To whom was that money paid?

"A: Harbert.

"Q: What was the reason for Change Order Number 1 to the treatment plant contract?

"A: Change Order Number 1 was necessitated by additional costs requested by Harbert to reflect what was termed standby time demobilization to remobilization time. I can try to explain what that means, if you like.

"Q: Go ahead.

"A: After the moratorium was imposed and Gulf Shores was...