Indiana State Highway Commission v. Bates and Rogers Const. Corp.

• Decision Date: 30 June 1981
• Docket Number: No. 1-1080A299,1-1080A299
• Citation: 422 N.E.2d 400
• Parties: INDIANA STATE HIGHWAY COMMISSION, Appellant-Defendant, v. BATES AND ROGERS CONSTRUCTION CORP., Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 400

422 N.E.2d 400

INDIANA STATE HIGHWAY COMMISSION, Appellant-Defendant, v. BATES AND ROGERS CONSTRUCTION CORP., Appellee-Plaintiff.

No. 1-1080A299.

Court of Appeals of Indiana, Fourth District.

June 30, 1981.

Linley E. Pearson, Atty. Gen. of Indiana, Thomas Ralph Hamill, Deputy Atty. Gen., Indianapolis, for appellant-defendant.

Robert G. Weddle, John P. Price, Joseph E. DeGroff, Bingham Summers Welsh & Spilman, Indianapolis, for appellee-plaintiff.

CHIPMAN, Judge.

Bates and Rogers Construction Corp. (Bates) contracted with the Indiana State Highway Commission (Commission) to construct a 2 mile section of State Road 52. Upon completion of the project Bates sought payment from the Commission but it objected. After filing its two count complaint and moving for summary judgment Bates was granted a partial summary judgment on Count I. From this judgment the Commission appeals arguing the trial court should not have granted summary judgment due to its improper application of the law and due to the existence of genuine issues of material facts. We affirm.

FACTS

The parties entered into a $5.8 million contract for road construction. As the work progressed the Commission made partial payments to Bates retaining a percentage of the amount due as required by Ind.Code 8-13-5-7. ¹ Construction was completed on November 18, 1977 and the Commission accepted the work on January 10, 1978. In April of that year Bates requested payment of the retained percentages in the amount of approximately $290,000.00 accompanied by the consent of its surety. The Commission refused to make any payments and Bates filed a two count complaint against the Commission. In Count I, Bates sought $237,517.18 ² in retained percentages and alleged in paragraph 4 it had "wholly performed and completed all the work and conditions under the terms of the contract in a good and satisfactory manner, and the Commission has accepted Bates &amp In its answer the Commission raised four defenses. Its first defense was a general denial. ³ Its second defense attacked the court's jurisdiction, third defense raised the Tort Claims Act ⁴ as a defense, and its fourth defense alleged the parties had reached a satisfaction and accord prior to the filing of the complaint.

Rogers' performance in full." In Count II of the complaint, Bates sought.$1.4 million from the Commission due to increased costs it incurred allegedly due to delays caused by the Commission and its employees.

During discovery the Commission was served with the following interrogatory, "State the total sum which the Commission contends is due Bates & Rogers Construction Corporation for Contract No. R-9893 and the basis of such contention." The Commission responded, "For services rendered, Bates and Rogers is owed $200,757.18." Armed with this answer Bates moved for a partial summary judgment on Count I for the amount admitted. The trial court granted the motion and entered final judgment for $200,757.18 plus interest in favor of Bates. In its opinion, the court found the $200,757.18 amount was not in dispute and that Bates had fulfilled all of the conditions precedent to receiving that amount.

EXISTENCE OF A MATERIAL FACT

The Commission's first argument basically alleged Bates has not performed several precedent conditions called for by statute, by the contract and by some of the Commission's standard specifications incorporated into the contract by reference. Unfortunately for the Commission all of these defenses have been waived. As required by TR 9(C), ⁵ and TR 8(C) and (D) ⁶ a defendant must make a denial of performance specifically and with particularity in a responsive pleading. Failure to do so amounts to a waiver of that issue under TR 8(D). See also United Farm Bureau Mutual Insurance Company v. Wolfe, (1978) Ind.App., 382 N.E.2d 1018. In this case the Commission did not specifically and with particularity deny Bates' averment that it had performed all conditions precedent to payment. ⁷

INTERPRETATION OF IC 8-13-5-7

In its second argument, the Commission maintains the court improperly applied the second paragraph of IC 8-13-5-7 to this case. We disagree. That section provides

"that final payment shall not be so made as to any amount which is in dispute or the subject of a pending claim; and Provided further, that final payment shall be so made as to that portion of a contract or those amounts which are not in dispute or the subject of a pending claim, and such partial payment shall not constitute any bar, admission, estoppel or have any other effect as to those payments in dispute or the subject of a pending claim." (emphasis added)

The Commission argues the entire amount of the retained percentage due Bates is "in dispute" thus prohibiting final payment. This interpretation of "in dispute" ignores the plain wording of the statute. The Commission admitted it owed Bates $200,757.18. This amount is not in dispute. The dispute is over the amount that Bates believes it is additionally entitled to receive. This contingency is covered by the statute. It instructs the Commission to make final payment as to the amount not disputed and this payment shall in no way act as a bar or admission by either party when later litigating the remaining amount in dispute. The trial court properly applied this statute to the facts before it and therefore properly awarded Bates interest on the judgment as provided by the statute.

Affirmed.

YOUNG, P. J., and MILLER, J., concur.

1 "8-13-5-7 Partial payments to contractors Withdrawal of retained percentages Final payments Penalty. The commission may authorize partial payments to any contractor performing any work, under the provisions of this chapter (8-13-5-1 8-13-5-21), as the same progresses, under the general...