Comptroller of Virginia ex rel. Virginia Military Institute v. King
| Decision Date | 04 March 1977 |
| Docket Number | No. 760138,760138 |
| Citation | 217 Va. 751,232 S.E.2d 895 |
| Parties | , 90 A.L.R.3d 496 COMPTROLLER OF VIRGINIA ex rel. VIRGINIA MILITARY INSTITUTE v. Edwin H. KING et al., etc. Record |
| Court | Virginia Supreme Court |
Robert P. Kyle, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., Walter H. Ryland, Asst. Atty. Gen., on briefs), for plaintiff in error.
James C. Roberts, Richmond (William Joe Hoppe, Mays, Valentine, Davenport & Moore, Richmond, on brief), for defendants in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
On January 10, 1974, David P. Ayres, Comptroller of Virginia, on behalf of Virginia Military Institute (V.M.I.) filed in the trial court a motion for judgment against Edwin H. King, Frank B. Poole, Jr., and Thomas C. White, partners doing business under the firm name of Lee, King Poole & White, for damages to a building allegedly caused by defendants in the performance of certain architectural services. Count I of the motion for judgment alleged negligent and improper design of the building, Count II alleged breach of warranties of the plans and specifications, and Count III alleged negligent and improper supervision and failure of inspection by the architects. The architects filed their grounds of defense, a demurrer, and a plea of the statute of limitations. The trial court overruled the demurrer, which alleged that the motion for judgment failed to state a cause of action and misjoined counts in tort and contract, but reserved judgment on the plea of the statute of limitations.
Trial by the court, sitting without a jury, was had on October 7th and 8th, 1975. At the conclusion of the plaintiff's evidence, the court sustained the defendants' motion to strike the evidence and entered summary judgment for them, holding that the statute of limitations barred the action for negligent design and that V.M.I. had failed to prove the portion of damages attributable to any negligence in supervision. Plaintiff has appealed the judgment order entered on October 8, 1975.
The contract, not under seal, between V.M.I. as owner, and the architects, dated September 20, 1965, provided that the architectural firm, then known as Lee, King, and Poole, was to perform the duties of architect, on terms and conditions specified, for a building which V.M.I., 'in the execution of a single project . . . an Alumni Building', contemplated for the purposes and to the extent set forth in the 'Project Criteria' attached. The contract was expressly made subject to and in accordance with all provisions applicable to architects in the current edition of a manual entitled 'Manual for Planning and Execution of Capital Outlays', as prepared by the Governor's Office.
Under the 'General Conditions of the Contract for Capital Outlay Projects' included in the Manual, it was provided that 'all work' was to be done under the supervision of the architects, who were required to determine the acceptability and fitness of all parts of the work, and who were authorized to stop the work if necessary to ensure the proper execution of the contract.
Under other provisions of the Manual, the architects during the preliminary design phase were to supply preliminary drawings, outline specifications, and general descriptions. During the working drawing phase the architects were to provide detailed drawings to show clearly the nature and extent of the work to be performed, the materials, equipment, and supplies required, and the methods of installation and construction. During the construction phase the architects were to perform the following services required by § 45.01:
'check construction schedules, keep Owner informed of progress of work, check and approve shop drawings, approve materials and equipment and tests thereof, maintain accounts for the work, including the issuing of change orders at the direction of the Owner, check Contractor's Applications for payment, and issue Certificates for payment in approved amounts, provide administration and supervision of construction, including inspections at the site as may be required to determine that contract documents are being followed . . . instruct Project Inspector, if employed for the work, determine date of substantial completion, make final inspection of the work, assemble required written guarantees, and issue Certificate of Completion and recommend the final Certificate for Payment.'
As part of their basic services the architects were also to 'advise the Owner concerning correction of difficulties occurring in the building . . . during the Contractor's one-year guarantee period' (§ 45.04). Two sets of 'as built' drawings and specifications showing the project as finally completed were also required of the architects. After an initial schematic phase was completed, 10% Of the total compensation to be paid to the architects was allowed, and progress payments for the balance of the services were due monthly proportionate to the value of the services rendered, with 75% Payable after completion of the 'Construction Documents Phase' of the contract, 95% Payable on or before completion of construction, and the remaining 5% Payable upon delivery of completion drawings.
The Manual, in § 62.04, delineated the duty of the architects to 'render supervision of project to see that construction is completed in accordance with plans and specifications'. The architects were required to make recommendations to the owner as to change orders and, upon such recommendation, the owner could authorize minor changes in the plans and specifications, but major changes required the approval also of the Governor.
The parties stipulated to the following chronology of events pertaining to the project:
Drawing and specifications
tendered to V.M.I. on or about January 2, 1968
Conditional approval by
the Governor on or about January 16, 1968
Condition having been
met, bids were received February 23,1968
Installation of all Indiana
limestone completed during June, 1969
Installation of all
other stone work
including the flagstone
terrace completed by or before September 23, 1969
Final inspection by architects November 14, 1969
Substantial completion
and occupancy as of December 1, 1969
"As built" drawings and
specifications submitted
to V.M.I. on or about March 17, 1970
Return by architects to
ascertain whether items noted
in November 14, 1969 inspection
had been corrected March 27, 1970
Final payment to architects on or about June 19, 1970
Architects furnished contractor
with directions and a drawing
for corrective repairs to
the terrace riser wall September 9, 1971
Architects furnished contractor
with directions and a drawing
for corrective repairs to the
top of the terrace stairs October 5, 1971
Contractor performed no
further work of any kind after March 23, 1972
Architects furnished contractor
with directions and a drawing
for corrective repairs to
outer terrace wall, north
riser wall, porch column
and edges of the slate May 25, 1972
Last visit to site by
architects before this action
brought September 13, 1972
Final payment from V.M.I
to contractor not made
V.M.I. introduced evidence as to the nature, cause, and amount of damages, and under familiar principles this evidence and all reasonable inferences therefrom must be regarded in the light most favorable to the plaintiff.
Evidence of deterioration of the building's stonework was first noticed by V.M.I. in December, 1969. By letter to the architects dated February 24, 1970, V.M.I. reported water 'leaching through the flagstone and down along the outside steps', causing disfiguration and the rusting of steel balusters and railings. Some 'pondage' of water was also reported. The deterioration of limestone and flagstone masonry on the terraces, stairs, building and perimeter walls, and piers of the building's arcade ensued. The limestone was damaged by exfoliation (flaking), discoloration, and spalling (chipping), caused by moisture seeping into it.
Despite various efforts made by the architects to take corrective action after the building was substantially completed, defendant architect Edwin H. King, called as a witness by V.M.I., admitted that the subject building showed 'extensive damage' due to 'water in the limestone' and 'thermal expansion and contraction', possibly made more serious by the water in the limestone, necessitating repairs by the owner. To establish the amount of damages, V.M.I. introduced evidence that it had contracted for repairs to the building in the amount of $179,494 and for architectural services at 10% Of that amount.
V.M.I. offered evidence to show that architectural design deficiencies caused the deterioration. It was demonstrated that the design was such that the limestone was in continual, unprotected contact with accumulated moisture, excessive amounts of which, bearing salts and foreign matter, were drawn by capillary action into the naturally porous stone, causing its disintegration, especially when extreme temperature changes occurred.
The building plans called for two largely uncovered, expansive slate flagstone decks, one above a part of the other. Underlying each flagstone deck with its limestone facings was constructed a concrete slab, on which was spread a cement-and-sand setting bed to support the slate laid as a floor upon it.
There was evidence that mortar joints between flagstones normally developed hairline cracks, and hence was not impervious to water falling on the uncovered decks. There was also evidence that the mere entry of water into the setting bed would not damage the...
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