Flippo Const. v. Mike Parks Diving Corp., 86-363.

• Decision Date: 17 September 1987
• Docket Number: No. 86-363.,86-363.
• Citation: 531 A.2d 263
• Parties: FLIPPO CONSTRUCTION COMPANY, INC., Appellant, v. MIKE PARKS DIVING CORPORATION, Appellee.
• Court: D.C. Court of Appeals

531 A.2d 263

FLIPPO CONSTRUCTION COMPANY, INC., Appellant, v. MIKE PARKS DIVING CORPORATION, Appellee.

No. 86-363.

District of Columbia Court of Appeals.

Argued January 8, 1987.

Decided September 17, 1987.

Robert F. Leibner, Washington, D.C., for appellee.

Alan S. Anderson, Washington, D.C., for appellant.

Before PRYOR, Chief Judge, and FERREN and ROGERS, Associate Judges.

FERREN, Associate Judge:

Appellant Flippo Construction Company, Inc. ("Flippo"), the plaintiff general contractor, challenges the trial court's entry of judgment, after a bench trial, in favor of the defendant subcontractor, appellee Mike Parks Diving Corporation ("Parks"), on Flippo's $56,920 claim for breach of a contract to perform certain repairs on the East Basin Drive Bridge.¹ Flippo contends the trial court erred: (1) in allowing Parks to present defenses of mistake and misrepresentation, which Parks had failed to plead before trial; (2) in admitting certain parol evidence, offered by Parks, as to the parties' intentions under the contract; and (3) in concluding no contract existed because there had not been a "meeting of the minds" on a material term.² Although we reject Flippo's first two assertions of error, we agree with the third. We therefore reverse and, under the circumstances, must remand for a new trial.

I.

In September 1982, Flippo contracted with the Federal Highway Administration (FHA) to repair the East Basin Drive Bridge. This prime contract included concrete repairs to the abutments and pier walls of the bridge, as well as repairs to an ice fence. The first item required underwater application of concrete, and the contract called for the use of a particular fast-setting high strength concrete patching compound: "Speedcrete Blue Line (Special Underwater Formula) or approved equal."

Flippo requested bids from subcontractors for the labor portions of these two items (Flippo was to provide all the materials and supplies). Flippo required bids with a fixed total labor cost rather than bids based simply on an hourly rate. According to Flippo's project manager, Paul Altman, Jr., Parks' bid was the only one responsive to this fixed sum requirement. Specifically, Parks' initial bid on March 4, 1983 was for a sum not to exceed $18,680 for the repairs to the abutments and pier walls.³ Parks' bid anticipated twenty days of labor and provided a detailed estimate of the cost of using fiberglass forms as the method of repair. The bid did not mention Speedcrete.

During further negotiations in March 1983, Parks requested three modifications of the original specifications. First, it asked to use a waterblaster instead of a chipping hammer to remove damaged concrete. Second, Parks proposed to use 4,000 p.s.i. concrete instead of Speedcrete to repair the ice fence. Third, and most important, Parks asked to substitute fiberglass forms for Speedcrete to repair the abutments and pier walls. Flippo agreed to present these requests to FHA.

It is unclear how hard Flippo actually pressed FHA for Parks' third requested modification. Flippo's project manager, Altman, testified that he had orally discussed with FHA the substitution of fiberglass forms for Speedcrete.⁴ He added, however, that because FHA had insisted on Speedcrete, he did not pursue the matter further when he wrote to FHA on March 9, 1983 requesting the other two modifications for Parks. Indeed, in that letter Altman stated the repairs to the abutments and walls would be done "using the Speedcrete formulae as previously submitted and approved." In its reply of March 28, FHA agreed to the two modifications, permitting use of a waterblaster and 4,000 p.s.i. concrete for the ice fence. This March 28 letter, which was later attached to the subcontract signed by Flippo and Parks on April 25, 1983, contained no reference to the use of Speedcrete for the repair of the abutments and walls. The trial court did not clearly resolve the factual dispute over Flippo's pursuit of this requested modification, but the court did find "there is not a clear showing that Flippo fully presented to the FHA the alternative method of fiberglass forms."⁵

There was also a factual dispute over what Flippo had told Parks about the use of Speedcrete for the major portion of the subcontract. Altman testified that he had informed Parks of the need for Speedcrete at a March 9 meeting, before sending the letter to FHA:

Q. [By Flippo's counsel] What was the substance of that meeting?

A. It was that the—it appeared that Federal Highway [FHA] would not accept any alternates to the Speedcrete solution and that we would be willing to discuss, you know, his prices for doing the Speedcrete in accordance with the contract specifications, which we did. As a result, the subcontract was formulated from that.

* * * * * * *

Q. [By Parks' counsel] So wasn't it your intention to mislead Mr. Parks into believing that his request as communicated to you had been presented to the FHA and approved?

* * * * * * * A. Absolutely not. At the subsequent meeting we had between the 2nd of March and the date this letter was written [March 28], it was expressed to Mr. Parks that anything other than Speedcrete would be wholly unacceptable to the Federal Highway [Administration] due to its usage as an experimental project on this project.

Altman further testified that, at this point, Parks did not request any modification of its original bid to perform the work.

To the contrary, Mike Parks, the owner of Mike Parks Diving Corporation, testified that Altman never had told him Flippo had informed FHA that Speedcrete was going to be used. Parks added that he did not see Flippo's March 9 letter to FHA confirming the use of Speedcrete until after the lawsuit had been filed. He stated his "understanding was that we were going to try for the approved equal and not use the Speedcrete." Indeed, Parks also testified that even after receipt of the March 28 letter from FHA, Flippo had informed him it was still making efforts to gain approval for an alternative to Speedcrete. He further stated that Altman did not inform him that FHA had indicated that it would not allow a substitute for Speedcrete.

The evidence admitted at trial did not make clear what Mike Parks' understanding ultimately was with respect to using Speedcrete for the major repair work.⁶ In its brief, Parks initially claims its "lump-sum bid of $23,000 for twenty days of labor was dependent upon using all three of the aforementioned modifications to the prime contract specifications. Parks never contemplated the use of Speedcrete, and never submitted a bid which included the term." The record does confirm that Parks' original bid for the job did not mention Speedcrete and was based on twenty days of labor using the fiberglass forms alternative. Furthermore, in a portion of his deposition admitted into evidence at trial, Mike Parks stated that he had made his bid "based on an alternate method of repair." In a May 27 letter to Altman, moreover, Parks stated his version of an April meeting with Altman when they discussed FHA's March 28 response to the earlier requested modifications: "I also told you in our meeting in your office when we discussed John D'Angelo's letter of March 28, 1983 that if the Fed. Highway Admin. held us to the original contract requirements 'we would have to do something different with respect to the original contract requirements.' Unfortunately, I did not feel it necessary to include this as part of the existing contract." Parks also testified that at this meeting he "asked [Altman] about the approved equal, my fiberglass forms." All this evidence suggests Parks understood that if an alternative to Speedcrete were not approved, he would not have to complete the job as originally bid.

On the other hand, Parks states a different position in a later part of its brief as follows: "Parks never assumed approval would be forthcoming; Parks assumed presentation of his modifications would be forthcoming." (Emphasis added.) At oral argument, moreover, Parks' counsel acknowledged that if Flippo had made every effort to gain approval of the fiberglass forms but FHA had still insisted upon Speedcrete, then Parks would have been obliged to complete the work using Speedcrete. These remarks imply that Parks was aware Speedcrete was required unless approval for an alternative could be obtained, but that it believed Flippo would make every effort to obtain the modifications from FHA. Taken as a whole, Parks' evidence and argument may suggest that Mike Parks recognized Flippo only had a contract obligation to press FHA for permission to use an alternative to Speedcrete, but that he believed Flippo would have little difficulty in obtaining approval and accordingly, took the modifications for granted.

In any event, Parks and Flippo executed the subcontract on April 25, 1983, incorporating the two modifications approved by FHA, as evidenced by the March 28 letter. The original requirement that Parks use "Speedcrete . . . or approved equal" to repair the abutments and pier walls remained in the subcontract, unaltered. Parks began work on the same day. On May 6, however, Parks discontinued work on the concrete repairs. Mike Parks testified that he did so because he was told that day, for the first time, that Speedcrete would be required for all the concrete repair portions of the job. According to Flippo, however, Parks knew in early March that Speedcrete was required and stopped work after complaining about problems it had experienced in applying Speedcrete. Parks then requested a change in the subcontract payment terms from a fixed sum to a payment based on "time and materials." Flippo said no.

Parks performed no work on the project between May 7 and May 16. After May 16, Parks worked on the ice fence repairs but did no more work on the abutments or pier walls. On June 28, 1983 Parks left the project permanently. Flippo completed work on the concrete repairs at its...