Envtl. Sols. Int'l v. J.C. Constr.

• Decision Date: 02 June 2008
• Docket Number: 2008-UP-282
• Parties: J.C. Construction, Inc., Wolfe Creek Construction, Inc., and Woolpert L.L.P., of whom: J.C. Construction, Inc. is Respondent. Environmental Solutions International, Inc., Appellant, v.
• Court: South Carolina Court of Appeals

Environmental Solutions International, Inc., Appellant, v. J.C. Construction, Inc., Wolfe Creek Construction, Inc., and Woolpert L.L.P., of whom: J.C. Construction, Inc. is Respondent.

No. 2008-UP-282

Court of Appeals of South Carolina

June 2, 2008

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Submitted June 1, 2008

Appeal from Colleton County Jackson V. Gregory, Circuit Court Judge

R Clenton Campbell and Grahame E. Holmes, both of Walterboro for Appellant.

Amanda A. Bailey and M. Mark McAdams, both of Myrtle Beach, for Respondent.

PER CURIAM

Environmental Solutions International, Inc. appeals the trial judge's grant of summary judgment, contending the trial judge committed error in finding no issue of material fact as to whether ESI was compensated for services rendered to J.C Construction, Inc., thus barring claims under quantum meruit and breach of contract. We affirm. ^[1]

FACTS

In May 2003, Respondent J.C. Construction, Inc. (JCC), a general construction company, successfully submitted a bid for a project to refurbish a waste water treatment facility for the Town of St. Matthews, South Carolina. One aspect of the workload required JCC to remove and dispose of sludge from the treatment facility's basins. To effectuate the sludge removal, JCC solicited bids for this portion of the work and subcontracted with Appellant Environmental Solutions International, Inc. (ESI) in November 2003. ESI agreed to payment of $108.00 per ton of sludge removed. The scope of the sludge removal was based on an estimate by Woolpert L.L.P. (Woolpert), an engineering consultant hired by the town, and was limited by the terms of the contract. Under the subcontract, ESI was required to:

Remove, solidify, transport and dispose of approximately 350 tons of waste treatment sludge. Payment to be determined by measure of sludge hauled to the landfill. The unit cost rate of $108.00 per ton hauled shall apply (as per the project bid form). Approximate total commitment for accounting purposes only is $37, 800.00.

After contracting with JCC, ESI hired Wolfe Creek Construction, Inc. (Wolfe Creek) to perform the actual removal. In December 2003, ESI and Wolfe Creek began the removal process. A number of delays plagued the project from the beginning resulting from leakage in sludge dewatering containers, inclement weather, and the lengthy process required to dry the sludge. Additionally, the total amount of sludge requiring removal greatly exceeded the scope originally estimated by Woolpert. In response to this discovery, ESI submitted a change order to JCC, increasing the scope of removal from 350 tons to 5, 000 tons to reflect Woolpert's error in the original estimate.

In April 2004, ESI quit work and left the jobsite, leaving behind a partially-filled dewatering bag of sludge, various equipment, and sawdust used in solidifying the sludge. In May 2004, ESI faxed JCC a new agreement demanding a price increase from $108.00 per ton to $220.00 per ton for the sludge removal. ESI alleged the price increase was in line with the increased costs associated with the larger workload which would require more personnel and different equipment in order to meet the project deadlines. JCC never accepted this agreement and solicited new bids in order to facilitate the removal. Wolfe Creek offered to complete the project, subcontracted with JCC, and completed all remaining sludge removal. Wolfe Creek compensated ESI for the materials left behind at the jobsite by giving ESI a $10, 350.00 credit. The credit memo sent to ESI by Wolfe Creek noted the credit was for time, materials, and labor exhausted in filling the remaining bag and for three loads of ESI's sawdust.

Thereafter, ESI filed suit against several parties including JCC over the subcontract for sludge removal. ESI alleged JCC was liable for breach of contract, quantum meruit, conversion, and intentional interference with contractual relations. JCC moved for summary judgment on all causes of action. At the hearing, ESI withdrew its claim of conversion. Subsequently, the trial judge granted JCC's Motion for Summary Judgment as to all of ESI's claims.

DISCUSSION

ESI alleges there are genuine issues of material fact as to whether it was paid under the contract for (1) the total amount of sludge hauled to the landfill and (2) for the sludge pumped into dewatering bags but left at the jobsite and therefore, the grant of summary judgment was inappropriate as to the claims for quantum meruit and breach of contract. We disagree.

In order for a motion of summary judgment to warrant denial, a triable issue must exist. Worsley Cos., Inc. v. Town of Mount Pleasant, 339 S.C. 51, 55, 528 S.E.2d 657, 660 (2000). A court considering summary judgment neither makes factual determinations nor considers the merits of competing testimony; however, summary judgment is completely appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner.” David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 250, 626 S.E.2d 1, 5 (2006).

In the case at bar, ESI has failed to raise a genuine issue of material fact it was not compensated for services provided to JCC. The record is barren of evidence to support this contention. Therefore, the trial judge's grant of summary judgment was appropriate.

ESI alleges it was not paid for the amount of sludge it disposed of according to the terms of the contract and for the amount of sludge it pumped into dewatering bags and left at the jobsite. However, ESI did not properly support these claims to the extent necessary to raise a genuine issue of material fact. As in this case, summary judgment is completely appropriate when facts are contested in a deficient manner. See David, 367 S.C. at 250, 626 S.E.2d at 5.

1. Sludge Removal Fully Performed under the Terms of the Contract

ESI alleges that it was not paid for the 350 tons of sludge removed, transported, and disposed of at the dump. Based on our review of the record, this issue is not preserved. Even if preserved, the issue fails on the merits.

This sludge removal was specifically covered by the terms of the contract. ESI performed under the contract by disposing of approximately 350 tons of sludge and would have a cause of action for breach of contract against JCC if JCC failed to pay for these services. However, sufficient evidence is not contained in the record to support this contention.

The cause of action for breach of contract requires the plaintiff to establish the following elements: (1) the existence of a contract, (2) a breach of the contract, and (3) damages to the plaintiff proximately resulting from the breach. Fuller v. Eastern Fire & Cas. Ins. Co., 240 S.C. 75, 89, 124 S.E.2d 602, 610 (1962). A breach occurs when a party to the contract fails to carry out a term, promise, or condition of the contract. See Freeman Dodge, Inc. v. Fin. Servs., Inc., 272 S.C. 164, 249 S.E.2d 897 (1978) (finding finance company's failure to offer car back to dealership as required by the terms of the contract was breach).

ESI has failed to produce evidence supporting the elements required for a breach of contract action. Looking to the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” in the record, ESI did not present sufficient evidence of a breach by JCC to create an issue for trial. See Rule 56(c), SCRCP.

It is undisputed JCC and ESI entered into a mutual contract. By the terms of the contract, ESI was required to [r]emove, solidify, transport and dispose of approximately 350 tons of waste treatment sludge.” After disposal of the sludge, JCC was required to pay ESI according to the measure of sludge hauled to the landfill.” To establish a breach, ESI was required to prove JCC did not pay for sludge removal complying with the terms of the agreement. However, there is no evidence in the record suggesting JCC failed to compensate ESI for the work it performed. The only evidence offering insight into JCC's payment for ESI's services is the deposition of Brian Larry Penfield, Jr. (Penfield), the president and owner of ESI. In his deposition, Penfield testified:

Q: Okay. And do you know how much money J.C. Construction paid you?

A: Without pulling it out I do not know, sir.

Q: So you have no idea as you sit here today whether they paid you the entire $38, 000, do you?

A: Not right this moment I do not.

Q: All right. As we sit here today can you tell me what services or materials that you provided to my client, J.C. Construction that you were not compensated for?

A: Well, the contract for the first 350 tons and first $37, 800 I would say that that there was falling in line with the $108 a ton and then due to circumstances either caused by delays, change orders and other nature like that, that the materials that was in the bag on the bottom of the hill and the prevention of moving further with the job since we were basically... when we put a work stoppage in to try and get things hashed out it prevented us from making up the rest of the money, particularly time, the cost of the bags. We had multitude of down days to where we drove up there and we couldn't do anything, some of which may have been in our error but some of which were not, so those are the things that I think that should be calculated in regard to that.

In the appellant's brief, ESI's counsel concedes this testimony confirms ESI was paid for the first 350 tons of sludge removal but argues that Penfield's testimony was erroneous and inaccurate. While counsel maintains that Penfield was mistaken and ESI was not paid for the sludge removal fully performed, no...