Constr. Labor Contractors Inc. v. Masiongale Elec.- Mech.Al Inc.
| Decision Date | 29 April 2011 |
| Docket Number | No. 18A02-1008-CC-881,18A02-1008-CC-881 |
| Parties | CONSTRUCTION LABOR CONTRACTORS, INC., Appellant-Plaintiff, v. MASIONGALE ELECTRICAL- MECHANICAL, INC., Appellee-Defendant. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
E. PHILLIP GREGG, JR.
Welch & Company
Muncie, Indiana
ATTORNEY FOR APPELLEE:
GREGORY B. SMITH
Smith Law Office, P.C.
Muncie, Indiana
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Marianne L. Vorhees, Judge
The Honorable Darrel K. Peckinpaugh, Master Commissioner
Appellant-Plaintiff Construction Labor Contractors, Inc. ("CLC") appeals from the denial of its Motion to Correct Error seeking additur following a judgment in its favor against Appellee-Defendant Masiongale Electrical-Mechanical, Inc. ("Masiongale"). We reverse and remand with instructions.
CLC raises three issues on appeal which we consolidate and restate as the following single issue: whether the trial court abused its discretion by denying CLC's Motion to Correct Error following a judgment in CLC's favor for $2,438.39 in damages.
CLC is in the business of providing temporary manual labor to construction projects. It pays its workers' salaries and handles all their associated payroll functions, such as withholding income taxes, paying Social Security taxes, and maintaining unemployment and workers' compensation insurance. CLC then charges its customers a single rate for the labor it provides based on each employee's trade and skill level. When CLC provides workers to a job with prevailing wage requirements, CLC increases its rates to clients to reflect the increased cost of labor.
In August 2007, CLC Field Representative Dave Szarf ("Szarf") approached Masiongale President Ken Masiongale regarding the possibility of CLC providing labor to Masiongale for its work as a subcontractor to a construction job at Indiana University-Southeast ("I.U.-Southeast project"). Masiongale signed a Client Services Agreement ("theAgreement") with CLC on October 11, 2007 that provided that CLC would supply Masiongale with workers that "will be of the quality, and have the knowledge the Client requested," but was silent as to the specific skill level or number of employees Masiongale needed, or the specific rates that CLC would charge. Plaintiff's Ex. 3. The contract also included a clause in section 2(d) which stated:
Ken Masiongale requested two electricians from CLC, and testified that he requested these electricians be unskilled. CLC sent two workers, but Masiongale eventually dismissed them both. When Masiongale dismissed a worker, CLC sent a replacement, and in total sent nine workers, of which Masiongale rejected seven. Masiongale explained that he had to turn some of CLC's workers away, "mainly because they weren't punctual." Tr. 171.
CLC did not pay any of its workers on the IU-Southeast project pursuant to a prevailing wage scale, because, according to CLC general manager Bob Beckwith ("Beckwith"), Masiongale did not provide CLC with a wage scale for the project. Masiongale maintained that the I.U.-Southeast project was not subject to a prevailing wage. However, a few of CLC's workers thought otherwise after being on the work site, and informed CLC management of their concerns. CLC investigated, and asked Masiongale"several times" whether the I.U.-Southeast job was subject to a prevailing wage requirement; each time he replied that it was not. Tr. 42.
Eventually, one of the workers contacted the Indiana Department of Labor ("DOL") regarding the I.U.-Southeast project. The DOL investigated and determined that CLC underpaid its workers because the I.U.-Southeast project was subject to the Indiana Common Construction Wage Scale. The DOL audit report formally classified CLC's assigned workers in "unskilled" and "skilled" categories, and, based on those classifications, determined that CLC had underpaid them by $19,198.02. CLC has since paid its workers in compliance with the DOL audit.
Relying on section 2(d) of the Agreement, CLC issued a revised invoice to Masiongale requesting additional payment for the labor CLC had provided, and, when Masiongale refused to pay, CLC sued for breach of contract seeking $30,812.26 in damages. After CLC failed on summary judgment, the court held a bench trial over three separate days (December 16, 2009, January 20, 2010, and March 10, 2010), and on June 3, 2010, it entered judgment in favor of CLC for $2,438.39 plus costs of the action. CLC filed a Motion to Correct Error pursuant to Indiana Trial Rule 59 on July 3, 2010, which the trial court denied on July 12, 2010. CLC now appeals.
A trial court has broad discretion when granting or denying a Motion to Correct Error, and we will reverse its decision only when it abuses that discretion. White v. White, 796N.E.2d 377, 379 (Ind. Ct. App. 2003). A trial court abuses its discretion when its decision is against the logic and effect of the facts and circumstances before the court or the reasonable inferences that may be drawn therefrom, or if the trial court has misinterpreted the law. Hawkins v. Cannon, 826 N.E.2d 658, 662 (Ind. Ct. App. 2005), trans. denied.
We also consider the standard of review for the underlying ruling. Shane v. Home Depot USA, Inc., 869 N.E.2d 1232, 1234 (Ind. Ct. App. 2007). In this case, the underlying ruling is a general judgment for damages in favor of CLC for $2,438.39 plus costs of the action. The trial court's memorandum decision does not constitute special findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52. Gallant Ins. Co. v. Wilkerson, 720 N.E.2d 1223, 1226 (Ind. Ct. App. 1999). However, we may examine the memorandum to determine the meaning and effect of the order. Smithers v. Mettert, 513 N.E.2d 660, 662 (Ind. Ct. App. 1987), trans. denied. When the trial court does not make special findings, we review its decision as a general judgment and, without reweighing the evidence or considering witness credibility, affirm that judgment if sustainable by any theory consistent with the evidence. Walker v. Nelson, 911 N.E.2d 124, 127 (Ind. Ct. App. 2009).
As an initial matter, we address Masiongale's argument that it did not breach the Agreement because section 2(d) is inapplicable in this case, and, therefore it was not required to provide wage rate and job classification information to CLC. Masiongale maintains that the I.U.-Southeast project was not a "prevailing wage" project because the term "prevailing wage" in the contract refers only to federally funded projects governed by the Davis-BaconAct, 1 whereas the Indiana Common Construction Wage Law governs projects funded with state money, which was the case with the I.U.-Southeast project. We disagree.
Unless the terms of a contract are ambiguous, we will give them their plain, ordinary meaning. Kiltz v. Kiltz, 708 N.E.2d 600, 602 (Ind. Ct. App. 1999), trans. denied. Clear and unambiguous terms are conclusive, and we will not construe the contract or look to extrinsic evidence, but will merely apply the contractual provisions. Id. The terms of a contract are not ambiguous merely because controversy exists between the parties concerning the proper interpretation of terms. Id. A contract is ambiguous only where a reasonable person could find its terms susceptible to more than one interpretation, and reasonably intelligent persons would honestly differ as to the term's meaning. Cummins v. McIntosh, 845 N.E.2d 1097, 1104 (Ind. Ct. App. 2006), trans. denied; Four Seasons Mfg., Inc v. 1001 Coliseum, LLC, 870 N.E.2d 494, 501 (Ind. Ct. App. 2007).
The Common Construction Wage Act, codified in I.C. § 5-16-7-1, is Indiana's prevailing wage law. See City of Jasper v. Collignon, 789 N.E.2d 80, 95 (Ind. Ct. App. 2003) (), trans. denied; also E.L.C. Elec., Inc. v. Indiana Dept. of Labor, 825 N.E.2d 16, n.1 (Ind. Ct. App. 2005) (); Bayh v. Indiana State Bldg. and Const. Trades Council, 674 N.E.2d 176 (Ind. 1996) (). WhileMasiongale is correct that the Davis-Bacon Act is a federal prevailing wage law, both the Davis-Bacon Act and the Indiana Common Construction Wage Act are specific names of laws that fall within the general umbrella of prevailing wage laws. Stampco Constr. Co. v. Guffey, 572 N.E.2d 510, 513 (Ind. Ct. App. 1991) (). Consequently, we do not find the phrase "prevailing wage law" in section 2(d) ambiguous, even though the parties disagreed as to its meaning. Kiltz, 708 N.E.2d at 602. Thus, because the I.U.-Southeast project was subject to the Indiana Common Construction Wage Act, a prevailing wage law, Masiongale was contractually obligated to provide CLC with the applicable...
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