Glover Constr. Co. v. State

• Citation: 326 P.3d 547
• Decision Date: 12 May 2014
• Docket Number: No. 109913.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,109913.
• Parties: GLOVER CONSTRUCTION COMPANY, INC., Plaintiff/Appellant, v. STATE of Oklahoma ex rel., DEPARTMENT OF TRANSPORTATION, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

326 P.3d 547

GLOVER CONSTRUCTION COMPANY, INC., Plaintiff/Appellant,

v.STATE of Oklahoma ex rel., DEPARTMENT OF TRANSPORTATION, Defendant/Appellee.

No. 109913.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

Feb. 14, 2014.

Certiorari Denied May 12, 2014.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Daniel L. Owens, Trial Judge.

AFFIRMED.

D.D. Hayes, Hayes Law Office, Muskogee, Oklahoma, and Lou Ann R. Barnes, Bixby, Oklahoma, for Plaintiff/Appellant.

Christopher Allen Barrow, John E. Harper, Jr., Cori D. Powell, Gerald Stamper, Barrow & Grimm, P.C., Tulsa, Oklahoma, for Defendant/Appellee.

WM. C. HETHERINGTON, JR., Vice–Chief Judge.

¶ 1 In the second appeal in this underlying action for breach of a road construction contract,¹ Plaintiff Glover Construction Company, Inc. (GCC) seeks reversal of separate trial court orders. The first order granted the motion for partial summary adjudication filed by the Oklahoma Department of Transportation (ODOT) on the issue of GCC's claim for additional compensation due to ODOT's rejection of its proposed asphalt mix, but denied ODOT's motion on the issue of GCC's claim for additional compensation based on changed site conditions. Following a bench trial on the latter issue, the court entered judgment in favor of ODOT finding GCC failed to comply with the contract's notice requirements for filing such claims. The latter judgment is AFFIRMED. Although based on other grounds, the order granting partial summary adjudication is AFFIRMED.

HISTORY OF THE CASE

¶ 2 In September 2005, GCC and ODOT entered into a road construction contract (Contract). The Contract required GCC to perform grading, drainage and surface work on U.S. Hwy 59 in Sequoyah County, Oklahoma, and to construct two new lanes along 1.7 miles of the same highway (Project). The Contract incorporates by reference the requirements of the 1999 Standard Specifications for Highway Construction of ODOT's Standard Specifications.

¶ 3 ODOT subsequently issued a Notice to Proceed on the Project, and GCC commenced work on November 21, 2005, six days after the Governor of Oklahoma had issued a statewide burn ban as a result of extremely dry weather. GCC learned eight or nine days later that the burn ban might affect GCC's plan to burn the already—cleared brush and debris and asked the Resident Engineer to confirm its application to the Project. After GCC learned it was prohibited from burning the debris piles, undisputedly the most economical elimination method, it had to arrange for off-site borrow pits to which the debris piles were transported and buried.

¶ 4 Following verbal communications, GCC notified Mr. Bond, the Resident Engineer on the Project, by facsimile dated December 19, 2005, that GCC considered the dry conditions at the job site to be a differing site condition, for which extra work GCC would be seeking additional compensation. Mr. Bond responded by letter dated December 20, 2005, stating the dry conditions failed to meet the Contract's criteria for either “differing site condition” or “significant changes in the character of the work.” ²

¶ 5 GCC's proposed asphalt “mix design” for the Project was subsequently “reviewed” by ODOT's laboratory as required by the Contract, ³ which permitted the use of up to 25% reclaimed asphalt concrete pavement(“RAP”) in the mix design.⁴ On June 1, 2006, ODOT approved GCC's proposed mix design for the Project, which GCC admits in its Brief “included the US–64 RAP.” ⁵ By letter dated June 23, 2006, however, GCC was informed by ODOT official, Mr. Saliba, that its “records indicate that two (2) mix designs have already been approved ... both designs include RAP ... if any portion of the RAP is from the US–64 CIP project the designs are no longer approved.” As a result, GCC's plan to begin that part of the Project was delayed.

¶ 6 Due to the Burn Ban and rejection of its mix design with U.S. 64 RAP, GCC filed a certified claim on August 22, 2006, requesting additional compensation 1) for the hauling work resulting from the dry conditions (“Burn Ban Claim”) and 2) for ODOT's rejection of RAP from U.S. 64 (“US 64 RAP Claim”). After GCC's claims were separately denied by the Resident Engineer and ODOT's Director of Operations, the parties met for mediation pursuant to the Contract's Dispute Resolution Procedure. For unknown reasons, the mediation failed. On June 19, 2007, GCC then filed its petition in Oklahoma County District Court alleging breach of contract against ODOT.

¶ 7 Following GCC's only amendment to its petition and the filing of ODOT's answer, ODOT moved for partial summary adjudication. GCC filed a Response Brief, to which ODOT filed a Reply Brief. Almost two months later, a hearing on the motion was held. By order filed May 26, 2009, the trial court granted summary adjudication on GCC's request for additional compensation for the U.S. 64 RAP Claim, but denied the motion on the Burn Ban Claim. GCC's motion for new trial was overruled. After dismissal of GCC's subsequent appeal, a non-jury trial on the Burn Ban Claim was held. On August 31, 2011, the court filed its Final Journal Entry of Judgment in favor of ODOT, finding that GCC had failed to comply with the Contract's notice requirements for filing claims. GCC appeals both the May 26, 2009 Order and the August 31, 2011 Judgment.

ISSUES ON APPEAL

¶ 8 In two propositions, GCC argues the partial summary adjudication order should be reversed because 1) the court's decision is based on a new defense raised for the first time in ODOT's reply brief to which new evidentiary materials were attached, 2) the court abused its discretion by refusing to allow GCC to respond to the new argument and evidentiary materials at the motion hearing, and 3) disputed material facts exist concerning the U.S. 64 RAP Claim which preclude summary adjudication. In its third proposition, GCC alleges the trial court's judgment on the Burn Ban Claim is erroneously based on an affirmative defense ODOT raised for the first time ten days before trial, the facts of which had not been previously pleaded or argued, and which had been waived by ODOT.

STANDARD OF REVIEW

¶ 9 “Summary relief issues stand before us for de novo examination.” Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448. All facts and inferences must be viewed in the light most favorable to the non-moving party. Id. Like the trial court, “appellate tribunals must equally bear an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant.” Id. Only if the court should conclude that there is no substantial controversy over any material fact and the law favors the moving party's claim or liability-defeating defense is the moving party entitled to summary judgment in its favor. Id.

¶ 10 To prevail as the moving party on a motion for summary adjudication, one who defends against a claim by another must either (a) establish that there is no genuine issue of fact as to at least one essential component of the plaintiff's theory of recovery or (b) prove each essential element of an affirmative defense, showing in either case that, as a matter of law, the plaintiff has no viable cause of action. Akin v. Missouri Pacific R. Co., 1998 OK 102, ¶ 9, 977 P.2d 1040.

¶ 11 The meaning assigned to a contract by a trial judge is a legal question which is reviewed de novo. May v. Mid–Century Insurance Co., 2006 OK 100, ¶ 22, 151 P.3d 132. When a legal action, such as breach of a contract, is tried to the court after a jury trial has been waived, the court's findings are as binding on appeal as a jury verdict, and if there is any competent evidence to support the findings, they will not be disturbed on appeal. Dismuke v. Cseh, 1992 OK 50, ¶ 7, 830 P.2d 188.

ANALYSIS

Summary Adjudication Of The U.S. 64 RAP Claim

¶ 12 We address first GCC's abuse of discretion arguments relating to ODOT's Reply Brief and evidentiary materials. In pertinent part, the court expressly found:

[b]ased on the decision of the arbitrators, pursuant to the dispute resolution provisions of the contract, no material facts are in dispute with respect to Glover's claim that it is entitled to additional compensation due to ODOT's rejection of the use of recycled asphalt from U.S. Highway 64 in Muskogee County, Oklahoma. (Emphasis added.)

¶ 13 We note the lack of a transcript included in the appellate record for the hearing on ODOT's motion. In light of Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978, and the appellate record, we find no abuse of discretion.

¶ 14 The appellants in Hadnot v. Shaw similarly argued they were “never accorded an opportunity to respond” to the reply brief filed by the moving party for summary judgment and the brief raised issues “not tendered in the original motion.” Id., 1992 OK 21, ¶ 14, 826 P.2d 978. The Supreme Court declined to review the issue of the court's consideration of the reply brief because the appellants had never raised the issue to the court. Noting the reply brief had been filed “five days before the motion was reached ” and the appellants “had ample opportunity to seek additional time to prepare a written response and to use the issue now pressed as a reason for their request” (emphasis added), the Court stated, “[t]hey failed to do so and cannot complain here of error.” Id.

¶ 15 The Court in Hadnot v. Shaw, after explaining the court's “statement of uncontroverted facts only had one undisputed fact neither tendered in the original motion nor revealed by the evidentiary material ” and that fact “stood conceded by [the appellants'] attorney during the summary judgment argument,” held “the trial court's consideration of the [moving party's] reply, even if error, was at best harmless under these circumstances.” Id., 1992 OK 21, ¶ 16, 826 P.2d 978. As we interpret Hadnot v. Shaw, a reply...