Huber, Hunt & Nichols, Inc. v. Moore

• Citation: 67 Cal.App.3d 278,136 Cal.Rptr. 603
• Court: California Court of Appeals
• Decision Date: 27 January 1977
• Parties: HUBER, HUNT & NICHOLS, INC., Plaintiff and Appellant, v. Richard R. MOORE et al., Defendants and Respondents, and Cross-Complaints and Appellants, Brandow & Johnston Associates and McDougald & Leino, Cross-Defendants and Respondents. Civ. 2411.

Page 603

136 Cal.Rptr. 603

67 Cal.App.3d 278

HUBER, HUNT & NICHOLS, INC., Plaintiff and Appellant, v. Richard R. MOORE et al., Defendants and Respondents, and Cross-Complaints and Appellants Brandow & Johnston Associates and McDougald & Leino, Cross-Defendants and Respondents.

Civ. 2411.

Court of Appeal, Fifth District, California.

Jan. 27, 1977.

Conrad L. Rushing, San Jose, for plaintiff and appellant

George W. Coleman, Los Angeles, for defendants and respondents, and cross-complainants and appellants.

Stammer, McKnight, Barnum & Bailey, Fresno, for cross-defendants and respondents, McDougald & Leino.

Stanley H. Tibbs, Fresno, for cross-defendants and respondents, Brandow & Johnston Associates.

OPINION

LORING, Associate Justice. ^*

Huber, Hunt & Nichols, Inc., an Indiana Corporation ('Contractor') filed an action in Santa Clara County against The Fresno City-County Community and Convention Center Authority ('Owner'), the City of Fresno ('City') and County of Fresno ('County') and Richard R. Moore, Robert W. Stevens, Robert W. Stevens Associates and Robert Stevens Associates and Adrian Wilson Associates, a joint venture (collectively 'Architects') to recover damages allegedly sustained as the result of the construction of a convention center complex in the City of Fresno. Defendant's motion for change of venue to Fresno County was granted. The demurrer of Architects was sustained as to all causes of action except causes of action seven (Negligence) and ten (Indemnity). Owner filed a cross-complaint against Robert W. Stevens Associates to recover any moneys owner was obligated to pay Contractor.

Architects filed a first amended cross-complaint against Brandow & Johnston Associates, structural engineering consultants ('Structural Engineers') and McDougald & Leino, electrical engineering consultants ('Electrical Engineers') for indemnity.

At the outset of trial, the case was settled by Contractor as to Owner, City and County and the action as to said defendants was dismissed with their consent with prejudice. Owner then dismissed its cross-complaint against Stevens Associates with prejudice. The case proceeded against Architects, Structural and Electrical Engineers. By informal agreement of counsel a judgment of nonsuit was rendered against Architects on their cross-complaint against Electrical Engineers for indemnity at the conclusion of plaintiff's case. After 74 trial days the jury returned a verdict in favor of Architects and against Contractor. The court declared a judgment in favor of Structural Engineers on Architects' cross-complaint. On Architects' motion to tax costs, the trial court disallowed certain items of costs claimed by Architects.

Contractor appeals from the judgment on the jury verdict in favor of Architects, the Architects appeal from the order and modification of order disallowing certain costs and from the judgment of nonsuit and judgment on jury verdict on their cross-complaints against Electrical and Structural Engineers.

Before defining the issues on appeal, it is first appropriate to consider the factual context out of which these cases arise.

Prior to February, 1962, City decided to build a convention center complex consisting of three buildings connected by one roof--a convention center, a theatre and an ice rink--in the City of Fresno. City entered into a contract with Robert W. Stevens, dba Robert W. Stevens Associates, a licensed architect, to prepare the architectural plans and specifications. Later County joined City in the project and Fresno City-County Convention Center Authority was created by a joint powers agreement between City and County executed under authority of Government Code, chapter 5, article 1, section 6500, et seq.

The architectural contract was assigned by City to Owner. As the magnitude of the project increased, Robert W. Stevens Associates entered into a joint venture agreement with Adrian Wilson Associates, a firm of licensed architects. After nine months of work by the Architects, the plans and specifications were approved and accepted by the Owner, checked and approved by City Building Department, building permits issued and public bids on them requested by the Owner. The bids were opened December 15, 1964 and Contractor's bid of $6,398,000 was the low bid. ¹

The low bid was approximately one million dollars above the Architects' estimates. Owner was uncertain that it could finance the extra cost so it negotiated with Contractor on 50 or 60 possible modifications or alternatives which would reduce the overall costs of the project. The contract with the possible modifications or alternatives was awarded to Contractor and construction began January 25, 1965. The contract required completion within 500 days.

The contract contained a liquidated damages clause of $200.00 for each day's delay over 500. Owner took possession of the convention center in late September, 1965 before the project was entirely completed.

The request for bids included the proposed contract which contained various provisions, some of the more relevant portions of which are set forth in the margin. ²

Under the proposed contract terms as incorporated in the bid forms, the Contractor was required to carefully examine and familiarize itself with the plans and specifications and site and call the Architects' [67 Cal.App.3d 287] attention prior to bid to any discrepancies in or omissions from the drawings or specifications and if appropriate, amendments would be issued to all bidders prior to bid. The contract documents contemplated [67 Cal.App.3d 288] that the Architects' plans or specifications might contain errors or omissions and as interpreted by the parties it provided for a process which would enable the Contractor to obtain additional or supplemental information (information request 'I.R.') and propose changes including estimates of the cost and time for performance (change estimate 'C.E.') and the Owner to issue change orders ('C.O.') which would specify the work to be performed, the price to be paid and the time allowed for the additional or changed work. Each C.O. was approved by the City Council. The form of change orders used included a clause ³ in which the Contractor approved the change order and agreed that the sum specified was in complete payment of all work to be performed and materials to be supplied and which approved the time as extended. The Architects were designated in the contract as the sole arbiter regarding disputes which might arise between the Contractor and the Owner during the performance of the work. ⁴

During the course of the work Contractor submitted 103 I.R.s, 187 C.E.s and the parties agreed on 25 C.O.s. However, the 25 C.O.s encompassed 124 C.E.s. The record is not clear as to what happened to the remaining 63 C.E.s, but presumably they were rejected by the Owner. Eight of the C.O.s ⁵ reduced the scope of the work resulting in deductions aggregating $152,544.41. Seventeen of the C.O.s increased or changed the scope of the work which resulted in additional charges to Owner aggregating $472,652.91. Certain of Contractor's records indicate that as of November 30, 1972, its total costs in connection with the convention center were $6,965,518.00 with an additional $72,500 estimated to complete the work. ⁶ Contractor's records ⁷ also indicate that as of November 30, 1972, its cost overrun was $337,505.00 which included a revised fee of $271,365.00.

At trial Contractor claimed that Architects' plans and specifications were negligently prepared, contained errors and omissions, and that as a consequence, Contractor was damaged. At trial Contractor also claimed that the Architects were dilatory and negligent in approving change orders, in approving shop drawings and in the overall supervision of the work, and, as a consequence, the overall project was delayed resulting in damages to Contractor.

Contractor sought to recover from Architects the sum of $732,521.00 which it claimed was it total damage. ⁸

The issues to be tried by a jury had been framed by a pretrial order on August 1, 1972. By that pretrial order, the only cause of action asserted against Architects was a cause of action for simple negligence. ⁹ After A further amended pretrial order was signed on April 11, 1973 which did not include the requested causes of action for negligent misrepresentation and interference with contractual relations. The trial court's minute orders indicate that a jury panel had been originally called to try the case commencing on April 4, 1973, but this call was changed from time to time thereafter and the commencement of jury selection actually began on April 16, 1973.

                the case had been called for trial and before the jury was empanelled, the trial court conducted hearings extending over several days to revise the [67 Cal.App.3d 290] pretrial order primarily to encompass issues raised by various cross-complainants.  An amended pretrial order was signed on March 30, 1973.  On that date counsel for Contractor and for Owner orally advised the court and counsel that the case of Contractor against Owner had been settled and a few days later, the action of Contractor against Owner was dismissed with prejudice.  On April 6, 1973, during the course of further conferences, counsel for Contractor asserted that Contractor intended to make motions to include a cause of action against Architects for 'negligent [67 Cal.App.3d 291] misrepresentation' and 'intentional inference with contractual relationship'.  The court refused the request. 10  On April 10, 1973 counsel for Contractor made a formal motion to amend the pretrial order to include a cause of action against Architects for negligent misrepresentation and an additional cause of action for interference with contractual relations.  No proposed amended complaint was submitted.
                

ISSUES RAISED BY CONTRACTOR

A. The court erred in striking and excluding evidence of architectural errors and omissions.

B. The...