Damon Pursell Const. v. MHTC

• Decision Date: 28 March 2006
• Docket Number: No. WD 64232.,WD 64232.
• Citation: 192 S.W.3d 461
• Parties: DAMON PURSELL CONSTRUCTION COMPANY, Respondent, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant.
• Court: Missouri Court of Appeals

192 S.W.3d 461

DAMON PURSELL CONSTRUCTION COMPANY, Respondent, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant.

No. WD 64232.

Missouri Court of Appeals, Western District.

March 28, 2006.

Motion for Rehearing and/or Transfer Denied May 30, 2006.

As Modified May 30, 2006.

Zachary T. Cartwright, Jr., Jefferson City, MO, for appellant.

Richard W. Miller, Kansas City, MO, for respondent.

Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 30, 2006.

PATRICIA BRECKENRIDGE, Judge.

The Missouri Highway and Transportation Commission (MHTC) appeals the decision of the trial court granting Damon Pursell Construction Company a new trial based on newly discovered evidence. On appeal, MHTC claims the trial court erred in granting Damon Pursell's request for a new trial because the evidence was not newly discovered, Damon Pursell failed to demonstrate it had exercised due diligence, and it was not clear that the evidence would have altered the outcome of the trial. Additionally, MHTC claims the trial court erred in denying its motion for directed verdict because Damon Pursell's claim for additional compensation was settled and Damon Pursell failed to state a claim upon which relief could be granted for breach of warranty ex contractu. Because this court finds the trial court correctly determined that Damon Pursell was prejudiced by the fact that certain evidence was not presented to the jury, the trial court did not abuse its discretion in granting Damon Pursell's motion for a new trial. In addition, because there were disputed facts regarding MHTC's affirmative defense of accord and satisfaction, the trial court did not err in denying MHTC's motion for a directed verdict. Moreover, because Damon Pursell pled and presented sufficient evidence on its claim for breach of warranty ex contractu, the trial court also did not err in denying MHTC's motion for a directed verdict on that basis. Accordingly, the judgment of the trial court is affirmed.

Factual and Procedural Background

This case arises from a dispute regarding a highway construction project (the "Project") on a section of Route 71 in Kansas City, known as Bruce Watkins Expressway. The Project involved two separate work areas, a north section and a south section. One of the primary tasks required to complete the Project was to excavate the south section and haul the excavated material to the north section for use in construction. The Project also required that "Class A Excavation" (dirt) and "Class C Excavation" (rock), be used in certain areas. MHTC sought bids from contractors to perform the tasks required to complete the Project. Contractors wishing to bid on the Project were provided with plans, specifications, and other documents upon which to base their bids. These documents represented that the Project would be "balanced," meaning adequate quantities of dirt and rock existed at the Project site, without the need to haul materials to off-site locations or haul materials to the Project site. Because Damon Pursell submitted the lowest bid, it was awarded the contract.

Prior to the completion of the Project, Damon Pursell claimed that it encountered more rock than was represented in the documents on which Damon Pursell based its bid. Additionally, Damon Pursell claimed that there was less "clean dirt" than MHTC's documents represented. Rather, Damon Pursell claimed that it encountered "transitional material," which Damon Pursell claimed was a rock and dirt mixture that MHTC would not permit Damon Pursell to use in areas that required "clean dirt." As a result, Damon Pursell was left with substantial amounts of transitional material that had to be hauled away from the Project site and it had to bring in "clean dirt" to complete the Project. Damon Pursell made MHTC aware of the unexpected conditions and requested additional compensation. In Change Order Number 7, Mark Montgomery, an engineer for Damon Pursell, made an adjustment to the quantities of "Class A" and "Class C" excavation. This Change Order, however, did not expressly address additional costs for hauling materials to an off-site location or hauling "clean dirt" in. MHTC claimed the conditions that resulted in the Project not being "balanced" were the result of mismanagement on Damon Pursell's part and, therefore, MHTC declined to pay Damon Pursell additional compensation.

Damon Pursell filed suit, claiming that it was entitled to additional compensation of approximately 2.2 million dollars for the expense of hauling the transitional material away and hauling dirt in. MHTC denied Damon Pursell's claim and alleged that Damon Pursell failed to properly manage the Project. During discovery, Damon Pursell made several requests for production, seeking all videotapes of the Project. MHTC produced one videotape in response to Damon Pursell's request for production. This videotape showed workers driving around Kansas City checking hauling routes. Thus, the videotape was not relevant to the issues being litigated. Based on MHTC's production of only this one videotape, Damon Pursell concluded that this was the only videotape that existed relating to the Project.

In fact, however, MHTC created another videotape of the Project worksite and Damon Pursell's off-site waste disposal area. This videotape was of a higher quality and panned a much greater area of the Project worksite than the other video. This videotape also contained a more complete and comprehensive view of the soil conditions at the Project site, including roughly forty-five minutes of detailed images of much of the south portion of the Project where the majority of rock over-run and dirt under-run occurred. MHTC did not provide a copy of this videotape to Damon Pursell prior to trial.

The trial, which lasted from November 18, 2003, to December 3, 2003, focused on whether the cause of the Project not being balanced was Damon Pursell's mismanagement or by miscalculations made by MHTC. Mr. Montgomery testified on the last day the parties presented evidence. Damon Pursell's trial counsel cross-examined Mr. Montgomery with entries from the project's "grading diary." The following exchange occurred in regard to one of the entries:

[Counsel for Damon Pursell:] And this is the part that I want to ask you about: "I directed Mark M."—that would be you?

[Mr. Montgomery:] Yes, sir.

[Counsel for Damon Pursell:] "I directed Mark M. to video the entire job site and waste areas in view of this new information."

And he goes on, "My contention is a lot of contamination is the result of blasting under a dirt pad, hence the large amount of soil intermingled with the rock."

At that point in time Mr. Russ was making this contention that there was a dirt pad, correct?

[Mr. Montgomery:] Correct.

[Counsel for Damon Pursell:] And he was directing you to video the entire job site and waste areas to essentially prove or demonstrate his contention—

[Mr. Montgomery:] Correct.

[Counsel for Damon Pursell:] —correct? We haven't seen your videotape, have we?

[Mr. Montgomery:] No. Deciding what to show or not show is by order of my lawyer. Depending on what my lawyer decides to show is—

[Counsel for Damon Pursell:] And the reason we haven't seen your videotape is because there was nothing on that videotape that would support Mr. Russ's contention; isn't that true?

[Mr. Montgomery:] No [Counsel for MHTC:] Objection, your Honor, that question is argumentative. A copy of that videotape has been supplied to counsel for plaintiff. If he wants to show it—

[The Court:] You can go into that on redirect. This is cross-examination.

[Counsel for Damon Pursell:] I'll restate the question. Isn't it true that we haven't seen that videotape because there is nothing on that that would support Mr. Russ's contention?

[Mr. Montgomery:] No. If you want to show the video, you could. It does show—

[Counsel for Damon Pursell:] It's Mr. Russ's contention, sir.

[The Court:] Let him finish his answer.

[Counsel for Damon Pursell:] I'm sorry. Go ahead, Mr. Montgomery.

[Mr. Montgomery:] The video is right over there if you'd [like] to show it. It would be fine with me, but we're going to be here a lot longer.

[Counsel for Damon Pursell:] I've reviewed it, sir.

[Mr. Montgomery:] Okay.

[Counsel for Damon Pursell:] And you've reviewed it, too, haven't you?

[Mr. Montgomery:] Yeah. And I have an engineering degree.

[Counsel for Damon Pursell:] And isn't it true that there is nothing on that videotape that supports Mr. Russ's contention?

[Mr. Montgomery:] I don't know. I've not reviewed that video in probably at least the last year. But I think it showed that.

[Counsel for Damon Pursell:] I have no other questions.

[Mr. Montgomery:] Okay.

[Counsel for Damon Pursell:] Your witness.

[Counsel for MHTC:] Mr. Miller, do you wants [sic] to watch the videotape?

[Counsel for Damon Pursell:] If you believe it supports your contention, Mr. Cartwright, it is your tape, you can put it in. I have no objection to it.

Defendant's Exhibit No. 326 was then marked for identification by Mr. Cartwright. Following this exchange, Mr. Montgomery described Exhibit 326 as a videotape of the Project site filmed on September 9th, 10th, and 11th of 1998. Thereafter, MHTC offered Exhibit 326, which the trial court admitted without objection. At a point later in the proceedings, MHTC attempted to play Exhibit 326 for the jury. Because there was no VCR in the courtroom, however, the videotape was not played. It is apparent from its questions that Damon Pursell believed that Exhibit 326 was the same videotape that had been produced for them during discovery.

After the close of all the evidence, both sides moved for a directed verdict. The trial court denied both parties' motions. During closing argument, counsel for MHTC made reference to Exhibit 326, stating: "Counsel for plaintiff had a copy of the videotape. If there was anything on it that he thought...