FE Gates Co. v. Hydro-Technologies, Inc.
| Decision Date | 28 January 2000 |
| Docket Number | No. 02A03-9812-CV-505.,02A03-9812-CV-505. |
| Citation | 722 N.E.2d 898 |
| Parties | F.E. GATES COMPANY, DIVISION OF the BLAKLEY CORPORATION, Appellant-Defendant/Counterclaim Plaintiff, v. HYDRO-TECHNOLOGIES, INC., Appellee-Plaintiff/Counterclaim Defendant. |
| Court | Indiana Appellate Court |
Sydney L. Steele, Christina D. Arvin, Lowe Gray Steele & Darko, LLP, Jon D. Krahulik, Yosha Krahulik & Levy, Indianapolis, Indiana, Attorneys for Appellant.
Andrew C. Charnstrom, Wooden & McLaughlin, LLP, Indianapolis, Indiana, Attorney for Appellee.
F.E. Gates Company, a division of the Blakley Corporation ("Gates"), appeals from a jury verdict in favor of Hydro-Technologies, Inc. ("Hydro-Tech") on Hydro-Tech's claim for wrongful termination of a subcontract.
We affirm.
Gates raises three issues for our review, which we consolidate and restate as:
(1) whether the trial court erred when it denied Gates' motions for judgment on the evidence; and
(2) whether the trial court properly instructed the jury.
Hydro-Tech is a specialty contractor in the field of hydrodemolition, a process by which concrete is removed using high pressure water. Hydrodemolition is accomplished through the use of a robot, a wheeled vehicle hydraulically driven and capable of delivering 13,000 to 14,000 pounds of water pressure per square inch. The robot must be calibrated with fixed pressure and flow rates such that the desired depth of sound concrete can be removed. Once the robot's calibrations are set, however, all structurally unsound concrete will be removed automatically regardless of depth.
On July 16, 1996, Gates contacted Hydro-Tech concerning renovations at a parking garage located in Fort Wayne, Indiana and owned by NBD Bank, NA ("NBD"). At that time, Gates was in the process of negotiating a contract ("Prime Contract") with NBD to act as general contractor to the renovation project, which included removing approximately 40,000 square feet of concrete and resurfacing the badly deteriorated garage floor decks. The Prime Contract was signed on August 30, 1996.
On September 10, 1996, Gates and Hydro-Tech executed a subcontract ("Subcontract") providing for the hydrodemolition of the garage floor decks. The Subcontract between Gates as general contractor and Hydro-Tech as subcontractor consists of three parts: (1) an American Institute of Architects Standard Form of Agreement Between Contractor and Subcontractor ("Agreement"); (2) a Special Agreement Between Contractor and Subcontractor entitled Exhibit A ("Exhibit A"); and (3) a Hydrodemolition Agreement and Operational Plan entitled Exhibit B ("Exhibit B"). The preamble to Exhibit B sets forth the following:
Exhibit B further provides that the basic unit price for removal of up to three inches of concrete is $4.75 per square foot, and identifies an additional unit price of $1.58 to be paid "as applicable" for each inch or fraction of an inch of removal that exceeds three inches.
In addition, Article 1.1 of the Agreement reads as follows:
The Subcontract Documents consist of (1) this Agreement; (2) the Prime Contract, consisting of the Agreement between the Owner and Contractor and the other Contract Documents enumerated therein, including conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Agreement between the Owner and Contractor and Modifications issued subsequent to the execution of the Agreement between the Owner and Contractor, whether before or after the execution of this Agreement, and other Contract Documents, if any, listed in the Owner-Contractor Agreement; (3) other documents listed in Article 16 of this Agreement; and (4) Modifications to this Subcontract issued after execution of this Agreement. These form the Subcontract, and are as fully a part of the Subcontract as if attached in this Agreement or repeated herein. The Subcontract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Subcontract Documents, other than Modifications issued subsequent to the execution of this Agreement, appears in Article 16.
(Emphasis added). The Prime Contract, in turn, incorporates documents containing the technical specifications by which renovations are to be performed, including Document 02630 ("Hydrodemolition Surface Preparation"), which provides:
1.6 CALIBRATION AND TESTING OF HYDRODEMOLITION EQUIPMENT
A. Trial area will be designated by Engineer to demonstrate that equipment, personnel and methods of operation are capable of producing results satisfactory to Engineer. Trial area shall consist of 2 sections, approximately 200 sq. ft. each, one section deteriorated concrete and one section sound concrete.
B. In sound concrete area, adjust equipment to remove 2 in. to 3 in. of concrete. Two passes may be required.
C. After completion of the above test section, equipment shall be located over deteriorated concrete and using same parameters for sound concrete removal, used to remove all deteriorated concrete. If sufficient result is obtained, parameters shall be used for production removal.
1.7 OPERATION OF HYDRODEMOLITION EQUIPMENT
A. Once operating parameters of hydrodemolition equipment are defined and calibrated, they shall not be changed as machine progresses across parking deck, in order to prevent unnecessary removal of sound concrete below required minimum removal depth. Contractor shall exercise care to avoid removal of sound concrete below required depth....
1.8 CONCRETE REMOVAL
A. All concrete within marked boundaries shall be removed to minimum depth shown on Drawings using hydrodemolition techniques. Concrete shall be removed to depth of 3/4 in. below lowest top reinforcement. Removals shall be performed in a manner that avoids excessive concrete removals between reinforcement....
C. If floor delaminations exist beyond minimum removal depth, removals shall continue until all unsound and delaminated concrete has been removed from cavity.
Hydro-Tech commenced its first shift of operations the evening the Subcontract was executed. At no time did Hydro-Tech remove more than three inches of sound concrete; all removal depths greater than three inches occurred within corroded and deteriorated areas. Gates found the depths of removal unacceptable, however, and insisted that only three inches of concrete, whether sound or unsound, be removed. It advised Hydro-Tech that unless Hydro-Tech could obtain removals "not to exceed 3 inches," the Subcontract would be terminated. Hydro-Tech responded that it was impossible for the hydrodemolition equipment to remove only three inches of deteriorated concrete and that to continually recalibrate the robot would be in violation of both the Subcontract and standard trade practices. As a result of this dispute, Hydro-Tech was prohibited from carrying out further demolition of the garage floor decks and removed its equipment from the job site on September 17, 1996.
On January 24, 1997, Hydro-Tech filed a complaint against Gates alleging the general contractor's wrongful termination of the Subcontract. In response, Gates filed a counterclaim against Hydro-Tech for breach of contract. At the jury trial, Gates maintained that the maximum depth of removal dictated by the Subcontract was three inches; that this provision was clear and unambiguous; and that as a matter of law Hydro-Tech breached the Subcontract by removing more than three inches of concrete in many areas of the garage. Hydro-Tech maintained that the Subcontract clearly and unambiguously required it to remove all unsound concrete regardless of depth, and to remove only sound concrete to a maximum depth of three inches.
Following the presentation of Hydro-Tech's case-in-chief, Gates moved for judgment on the evidence. The trial court denied Gates' motion, and Gates proceeded with its case. The jury rendered a verdict in favor of Hydro-Tech in the amount of $220,000 and further found in favor of Hydro-Tech on Gates' breach-of-contract counterclaim. The trial court entered judgment on the jury's verdict. Thereafter, Gates filed a motion to correct error and renewed its motion for judgment on the evidence, both of which the court denied. Gates now appeals.
Gates initially contends that the trial court erred when it denied its motion for judgment on the evidence at the close of Hydro-Tech's case-in-chief and again following the jury's verdict. When reviewing a trial court's denial of a motion for judgment on the evidence, this Court will consider only the evidence most favorable to the nonmovant along with all reasonable inferences to be drawn therefrom. TRW, Inc. v. Fox Development Corp., 604 N.E.2d 626, 629 (Ind.Ct.App.1992),trans. denied. Thus, our role on appellate review is no different from that of the trial court. Id. Judgment on the evidence is available only where the evidence is unconflicting and susceptible to but one inference supporting a judgment for the movant. Fricke v. Gray, 705 N.E.2d 1027, 1032 (Ind.Ct.App. 1999),trans. denied. If there is evidence on each element of the claim, the issue shall be tendered to the jury, and a motion for judgment on the evidence is properly denied. Id.
Here, the trial court determined as a matter of law that the Subcontract contained several ambiguities to be resolved by the trier of fact. The court instructed the jury that a reasonable person could find the Subcontract subject to more than one interpretation in that:
1. The contract document provides in paragraph 1.01 of...
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