HENSON CONST. CO. v. Davis

• Decision Date: 02 November 2001
• Docket Number: No. 95,377.,95,377.
• Citation: HENSON CONST. CO. v. Davis, 43 P.3d 417, 2002 OK CIV APP 18 (Okla. Civ. App. 2001)
• Parties: HENSON CONSTRUCTION COMPANY, Plaintiff/Appellant, v. David DAVIS, d/b/a Davis Heating and Air, Defendant/Appellee.
• Court: United States State Court of Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

43 P.3d 417

2002 OK CIV APP 18

HENSON CONSTRUCTION COMPANY, Plaintiff/Appellant, v.David DAVIS, d/b/a Davis Heating and Air, Defendant/Appellee.

No. 95,377.

Court of Civil Appeals of Oklahoma, Division No. 3.

November 2, 2001.

Certiorari Denied January 14, 2002.

Matthew Neill Davis, Enid, OK, for Plaintiff/Appellant.

Edward E. Sutter, Westline H. Ritter, Alva, OK, for Defendant/Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

OPINION

GARRETT, Judge:

¶ 1This case considers the question of whether the trial court erred in finding Appellant, Henson Construction Company, as contractor, breached its contract with Appellee, David Davis, d/b/a Davis Heating and Air, a heat and air sub-contractor, for the construction of Homestead Retirement Center in Alva, Oklahoma.Henson claims Davis failed to perform as promised.Henson terminated its sub-contract with Davis and hired another company to complete the job.As a result, Henson incurred out of pocket expenses and sued Davis to recover its costs.Davis filed a cross-claim against Henson for its failure to pay Davis the entire amount of the progress payment for which work was performed under the contract.Davis claimed it performed as promised under the contract, but that Henson breached the contract when it refused to pay for work already performed.The case was tried to the court without a jury.The trial court ruled in favor of Davis and ordered Henson to pay $28,576.00 for labor and services provided.This appeal followed.

¶ 2 Henson contends the court erred in finding fault only in Henson's performance of the contract, whereas the court should have found Davis substantially breached the contract.

¶ 3The trial court's order provides as follows:

1.That Plaintiff, Henson Construction Company, is awarded no judgment for his claim against the Defendant and Third-PartyPlaintiff, David Davis d/b/a Davis Heating and Air Conditioning.

2.That Defendant and Third-PartyPlaintiff, David Davis d/b/a Davis Heating and Air Conditioning is hereby awarded judgment in the sum of $28,576.00 for their claim against the Plaintiff, Henson Construction Company, for labor and services provided.

3.That the issues of costs, attorney fees, and interest are not being determined at this time.

¶ 4Michael Chase, the project architect, testified he made approximately thirty trips to the project site and prepared inspection reports each trip.Copies were sent to Henson and the Alva City Manager.He said he always visited the premises before reviewing an application for certificate of payment, which was prepared by Henson and mailed to him.Chase testified Henson signed the applications for payment of the sub-contractors, but that Chase would not have signed them if Henson had not signed.The monthly applications for payment contain a statement, which is signed by the general contractor and the architect, that all of the work described had been done for a particular time period.It also contained a statement that all prior bills which had been submitted had been paid.He stated that if he had known the payment for the previous month was not paid, he would not have signed the application for the period of April 23, 1998 to May 21, 1998, and the Alva Utility Board would not have paid the requested amount.

¶ 5 Chase said it rained a great deal during the project.The project went over the time estimate, and the City added 33-36 days for rain.Henson received 100 days worth of "rain days" for non-workable days which were added to the length of time for the project.He described some of the problems with the project.He said Henson and the City disagreed on whether it was too wet to send a crew out.Also, Carrier air-conditioning units were put in wings of the building which had no roof when it rained.The heat and air intakes were sheet rocked over.He said there were some good sub-contractors and some who were not so good.However, he said the majority of the problems were due to the inexperienced job superintendent, Dennis Meier.Chase described Meier as someone who was not in control and who could not read a set of plans.He said there was a lack of coordination by Meier as to the sub-contractors on the project.Chase stated the general contractor, Henson, is ultimately responsible to move the sub-contractors along and complete the project.Chase thought the quality of Davis' work was acceptable and that there was nothing wrong with the duct work.

¶ 6 During the time period in question, March 26, 1998 to April 22, 1998, he said approximately 70% of the project was completed.A sum of approximately $58,000.00 was requested by Davis, and Henson signed the application, stating he had paid all prior bills and that a certain percentage of the work had been completed.However, Henson paid Davis only $12,000.00, despite the $58,000.00 request, and despite Henson's signature that approximately 77% of the property was completed.He was not aware that Henson had withheld money from Davis.Chase said he did not think Henson drew down more money than he was supposed to get at any one time.However, he later said that if he had known Henson did not pay Davis the full amount requested and certified by Henson, he would not have signed the application which stated that all prior bills had been paid.He said Henson commented that Davis was behind on the project.He did not recall discussing whether Henson had paid Davis in full, and Henson did not provide Chase with documentation to show what plans or specifications Davis was not following.

¶ 7 The City of Alva Inspector, Gerald James Gindlesberger, echoed Chase's opinion about the inefficiency of the job superintendent, Meier.He testified it had problems and that he didn't think "it was a well run job".He also mentioned Meier's ordering the installation of the air-conditioning mechanical units in a wing that was not "dried in", or waterproofed.He stated it was necessary during this project to issue a Stop Work Order.He had advised Meier that the nailing of the structural panels was not done in accordance with code, and that it needed to be corrected.Approximately a week later, it was not corrected, and Gindlesberger issued the order, and the project shut down about six or seven days.He said this was an unusual occurrence in this type of project.

¶ 8Chris Hunt, Davis' project manager, stated he estimated and submitted a bid on the project to Henson for the heating and air-conditioning work.He testified its subcontract with Henson called for PVC pipe, through which copper refrigerant lines were to be run, to be placed in...