John McShain, Inc. v. L'Enfant Plaza Prop.

• Decision Date: 05 June 1979
• Docket Number: No. 12642.,No. 12462.,12462.,12642.
• Citation: 402 A.2d 1222
• Parties: JOHN McSHAIN, INC., Appellant, v. L'ENFANT PLAZA PROPERTIES, INC., Appellee. L'ENFANT PLAZA PROPERTIES, INC., Appellant, v. JOHN McSHAIN, INC., Appellee.
• Court: D.C. Court of Appeals

402 A.2d 1222

JOHN McSHAIN, INC., Appellant, v. L'ENFANT PLAZA PROPERTIES, INC., Appellee.

L'ENFANT PLAZA PROPERTIES, INC., Appellant, v. JOHN McSHAIN, INC., Appellee.

No. 12462.

No. 12642.

District of Columbia Court of Appeals.

Argued June 14, 1978.

Decided June 5, 1979.

John F. Mahoney, Jr., Washington, D. C., for appellant in No. 12462 and appellee in No. 12642.

Warren K. Kaplan, Washington, D. C., with whom Stephen G. Burns, Washington, D. C., was on the brief, for appellee in No. 12462 and appellant in No. 12642.

Before KELLY, KERN and GALLAGHER, Associate Judges.

GALLAGHER, Associate Judge:

L'Enfant Plaza Properties, Inc. (L'Enfant) sued John McShain, Inc. (McShain) for damages due to the delay in a construction project occasioned by the defendant's trespass. The trial court entered judgment for L'Enfant in the amount of $291,276.31, plus costs. McShain appeals and L'Enfant cross-appeals.

L'Enfant is a real estate developing company responsible for the construction of the East building of L'Enfant Plaza. The East building was part of Stage II of the construction process for the entire L'Enfant Plaza hotel and office complex.¹ On May 11, 1971, construction began on Stage II.² The construction contract for Stage II called for the building to be completed within twenty months of commencement of work; thus, the building was required to be finished by January 11, 1973.

On June 11, 1971, L'Enfant's contractor, the George Hyman Construction Company (Hyman), discovered an encroachment upon L'Enfant's land. This encroachment was made of concrete reinforced with steel bars and extended from the footings of the building on the adjacent property — owned by the Department of Housing and Urban Development (HUD) constructed by McShain. It varied in thickness from eighteen to forty-two inches, was located about twenty-three feet below grade, and ran along the common boundary for approximately 240 feet.

On June 23, McShain, having agreed to assume responsibility for the removal of the encroachment, hired a subcontractor to do the work. This work lasted from June 28 until July 16 — including removal of the debris.

The building was finally completed on June 25, 1973. L'Enfant filed this complaint almost a year later, on June 21, 1974. The trial court granted McShain's motion for summary judgment on the ground that suit was barred by the applicable statute of limitations — which provides a three-year limits.³ On appeal, we reversed, holding that the encroachment constituted a continuing trespass, which accordingly gave rise to successive causes of action until its removal. L'Enfant Plaza East, Inc. v. John McShain, Inc., D.C.App., 359 A.2d 5, 7 (1976). We remanded for trial to determine the amount of damages incurred on or after June 21, 1971. Id.

After remand, the trial court granted L'Enfant's motion for partial summary judgment on the issue of liability. The parties then proceeded to trial on the proper measure of damages. The trial court, sitting without a jury, entered judgment for L'Enfant — concluding that McShain had been responsible for a thirty-one day delay, but that recovery for six of those days was barred by the statute of limitations. Its calculations of damages included: the added field supervision, overhead and equipment; the escalation of labor and material costs; the extra cost of concrete; and lost profits.

On appeal, McShain concedes that the evidence supports a finding of a net delay of fourteen days and that the appropriate measure of damages is $2,839.84 per day.⁴ McShain attacks eighteen separate findings of fact, however, as clearly erroneous. It also attacks, as unsupported, the trial court's conclusion that the delay caused by defendant carried over — undiminished — to the time of the building's completion.

On cross-appeal, L'Enfant argues that the statute of limitations does not bar its claim for "lost profits which were partially attributable to pre-June 21, 1971 delay since those damages were not ascertainable with reasonable certainty until after June 21, 1971."

The specific findings attacked by McShain all relate to either one or the other of its essential arguments: (1) that the evidence does not support the court's conclusion that defendant was responsible for a net delay of thirty-one days; and (2) that there is no evidence to show that the encroachment-caused delay, however long it was, was carried over undiminished for about two years to delay the final completion date by the same number of days.

When reviewing the decision of a trial court, which has sat without a jury, we may not set aside its judgment "except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it." D.C.Code 1973, § 17-305(a); Max Holtzman, Inc. v. K&T Co., D.C.App., 375 A.2d 510, 512 (1977); Parking Management, Inc. v. Gilder, D.C.App., 343 A.2d 51, 54 (1975). Consequently, we must determine whether the findings challenged by McShain have support in the record.

Finding Number 14:

During removal of the encroachment, Hyman's intended north-to-south progress along the east side was effectively foreclosed. . . . Although Hyman was able to continue pouring concrete on the west side and on the east side north of Column Line 11, it was unable to pour any concrete on the east side south of Column Line 11 (except underpinning work, discussed below) until July 14.

McShain asserts that certain evidence is contrary to this finding. First, it points to testimony indicating that the construction and pouring of footings was proceeding north to south from column sixteen through twelve on June 18. This evidence does not, however, negate the finding, but in fact supports it, because the court specifically noted that Hyman was able to continue pouring concrete "on the east side north of Column Line 11." Second, McShain refers to testimony that on July 6 Hyman poured concrete for underpinning pits numbers six and nine on the east wall. Again, this evidence is not inconsistent with the court's finding but supports it. The court's finding specifically excepts underpinning work. Third, McShain refers to testimony purportedly showing that concrete was poured on July 10 for a service slab at columns ten and eleven — in the encroachment area. McShain, however, mistakenly views the evidence; its reference to the testimony indicates that on July 12, only the placement of reinforcing bars occurred at the "strap beam and footings at Lines 10 and 11," whereas concrete for the service slab was poured north of the main encroachment area at lines fifteen and sixteen. The court expressly noted that "some preliminary form construction and rebar placement took place in the encroachment area during the two or three work days prior to July 14, [and] had there been no encroachment this work would have been done during the period June 11 through 14. . . ." Fourth, McShain contends that a photograph shows five footings were constructed between June 2 and July 6 on the east side of the encroachment to support five concrete columns. Examining this photograph in light of the testimony explaining the position of those footings and columns, we observe that McShain is inaccurate. The footings and columns in the photograph are north of the principal encroachment area. Of the two sets of footings and columns depicted, the ones McShain refers to are closest to the east wall, but the southernmost is column number twelve — just north of the encroachment area. The fifth item relied upon by McShain to undermine the court's finding is testimony concerning the sequencing of construction operations. The testimony shows that the encroachment interrupted the previously planned sequencing, but that the desired sequencing was again achieved on July 11. This sequencing refers, however, only to the performance of the underpinning work and not to the sequential pouring of footings, which the court found did not begin until July 14. It is apparent that McShain's assertions do not serve to undermine the court's finding.

Finding Number 18, in pertinent part, is as follows:

From June 15 until July 14 no concrete whatsoever was poured south of Column Line 11, with the sole exception of the eleven yards of concrete used for the underpinning. . . . [However] some preliminary form construction and rebar placement took place in the encroachment area during the two or three work days prior to July 14. . . .

McShain refers to evidence that on July 13 footings were constructed at columns nine, ten, and eleven. The testimony it relies on, however, indicates only that the construction there consisted of "[r]ebar placement at strap line and footings. . . ." There is nothing to demonstrate that any concrete was poured in those footings. Again the evidence relied upon by McShain does not support its contention.

In Finding Number 19, the court states:

The effective delay due to the main encroachment should, accordingly, be measured from the time the pouring of the concrete footings would have begun in the encroachment area (June 15) to the time said work was actually commenced (July 14), which period amounts to twenty-nine calendar days.

Four of the five references to the evidence by McShain here are unrelated to the work in the encroachment area. The encroachment area where work was delayed extended from column number eleven south to column three. Each of the four references concerns work in the area from columns twelve through sixteen. The fifth reference is again to the construction of footings for columns nine through eleven on July 13 — which we have already addressed in our discussion of Findings Number 14 and 18.⁵ Thus, McShain's argument here is misdirected.

In Finding Number 20, the court addressed the effects of this delay on the work force.

The impact of the encroachment persisted beyond the resumption of the pouring of concrete on July 14. This further delay was chiefly the result of disruption of the...