Purcell Enterprises, Inc. v. State

• Decision Date: 25 August 1981
• Docket Number: No. 80-207-II,80-207-II
• Citation: 631 S.W.2d 401
• Parties: PURCELL ENTERPRISES, INC., Plaintiff-Appellant-Appellee, v. STATE of Tennessee and Tennessee State Board of Claims, Defendants-Appellants-Appellees.
• Court: Tennessee Court of Appeals

Page 401

631 S.W.2d 401

PURCELL ENTERPRISES, INC., Plaintiff-Appellant-Appellee, v. STATE of Tennessee and Tennessee State Board of Claims Defendants-Appellants-Appellees.

No. 80-207-II

Court of Appeals of Tennessee, Middle Section.

Aug. 25, 1981 Permission to Appeal Denied by Supreme Court April 12, 1982.

John W. Nolan, III and Earl J. Porter, Jr., Nashville, Tenn., for plaintiff-appellant-appellee.

Donald W. Schwendimann, William C. Koch, Jr., Donald L. Corlew and Henry E. Hildebrand, III, Asst. Attys. Gen., Nashville, Tenn., for defendants-appellants-appellees.

Hugh T. Shelton, Jr., Columbia, Tenn., for third-party defendant.

OPINION

CONNER, Judge.

This case involves the application of legal principles of res judicata, election of remedies and judicial estoppel to pursuit of a claim against the state, administratively by contract, administratively by statute and concurrently in the court system.

A brief grasp of the complexity of the matter can be gathered from a realization that the relevant proceedings have spanned five years and several hundred pages of transcript. The dispute has been before the State Building Commission, the State Board of Claims, the Davidson County Chancery Court three times, this court twice previously and the Supreme Court of Tennessee once. In each of the three non-appellate court forums in which the claimant has sought relief against the state a different amount has been awarded to it.

THE FACTUAL BACKGROUND OF THE DISPUTE

Plaintiff-appellant, Purcell Enterprises, Inc., ¹ and the State of Tennessee entered into a contract on May 20, 1975, for site preparation and the construction of a National Guard armory in Columbia. The contract price was $913,972.00. The removal of rock, if encountered, was covered by unit price. Purcell had placed a high unit price in its bid which was accepted by the state because it was not anticipated that large amounts of rock would be encountered. As a general proposition in the construction industry the greater the amount of rock to be removed in site preparation the less the unit price to be charged therefor.

Less than one month later, a pre-construction conference was held. At that time, Jack Ham, vice president of the plaintiff's building division, received a document which dealt with the proper procedures for obtaining change orders. It provided:

All change orders must be approved by the state and national guard bureau prior to starting work on all change orders. All proposed change orders must reflect the total price or increase or decrease of completion dates.

That same day Captain Billy G. Weatherford, the state armory maintenance officer, instructed Purcell that for any work covered by a unit price, he did not want a change order submitted until the work was completed.

Shortly after construction began, plaintiff's workmen encountered large quantities of rock at the building site. The state's architect, Adrian Scovil, was notified of the unexpected rock formations. A surveyor was sent to cross-section the site. Thereafter, on July 17, 1975, Scovil sent Purcell a letter revising grades to reduce the amount of rock that would have to be excavated. On September 8, 1975, Scovil sent another letter to the plaintiff suggesting an equitable adjustment in the contract by reducing the unit prices for rock excavation. This was the first notice to the contractor that the state sought or intended to change the original unit prices called for in the contract. However, Purcell had already removed approximately 90% of the rock without submission of a change order pursuant to Captain Weatherford's instructions. Subsequently, on January 9, 1976, the plaintiff requested a change order for the amount of rock that had been previously excavated in accordance with the original unit prices for rock removal. The amount of that change order, pursuant to the original contract terms, was $392,198.00.

The state refused to pay the invoiced amount. In May, 1976, Major General Carl D. Wallace, contracting officer for the state, wrote Purcell that the amount due it according to the state architect's equitable adjustment formula for the rock removal was $85,446.25. Purcell refused to accept this amount and began to travel a long and circuitous road seeking administrative and judicial relief.

THE PROCEDURAL BACKGROUND

After the dispute arose over what was owed for rock removal, Purcell initially sought to appeal to the Governor, as contemplated under the disputes provisions of the contract documents. The Governor refused, but attempted to designate the building commission as his representative to hear the dispute. The building commission refused that designation but agreed to hear the matter as a request for a change order. After hearing several days of proof beginning in October, 1976, the building commission approved a change order amounting to $84,846.25 and caused that additional amount to be paid to Purcell.

Purcell filed its first suit in Davidson County Chancery Court on January 24, 1977, seeking review of the action of the building commission as a contested case under the Administrative Procedures Act, T.C.A. § 4-5-101, et seq. The chancellor dismissed the petition on the ground that the proceeding before the building commission was not a contested case, and that decision was affirmed by this court in an opinion rendered by Judge Todd and filed on June 30, 1978. The supreme court denied certiorari on November 20, 1978. In the meantime, on November 22, 1976, Purcell filed a petition before the board of claims pursuant to T.C.A. § 9-8-207, et seq. seeking the same relief previously sought before the building commission.

While Purcell's claim was pending before the board of claims, and its "first" appeal was pending before this court, but before adjudication, T.C.A. § 29-10-101 (formerly T.C.A. § 23-3601) ² was enacted into law effective May 16, 1977. That statute granted to the Circuit and Chancery Courts of Davidson County, jurisdiction to entertain suits and enter judgment against the state in disputes arising out of contract.

On November 30, 1977, plaintiff filed its "second" Davidson County Chancery Court action pursuant to this recently passed legislation, seeking the same relief requested before the building commission and the board of claims. Upon filing this suit Purcell did not withdraw its appeal in the building commission matter, nor did it abandon or stay its action before the board of claims.

On December 29, 1977, the state objecting strenuously to having to defend on so many fronts, seasonably filed a motion to dismiss the "second" chancery court action on several grounds. Two of those involved the pendency of the board of claims and court of appeals actions. On February 15, 1978, the chancellor denied the motion to dismiss, but stayed the T.C.A. § 29-10-101 contract action pending "termination of the actions of the Court of Appeals and the Board of Claims."

Thereafter the record made before the building commission was introduced as proof before the board of claims. The evidence was summarized by the assistant attorney general representing the board and submitted to the board for consideration. At its meeting on April 14, 1978, the board voted to award Purcell an additional $100,000.00, after motions to award different amounts failed for lack of a second, or lack of a majority.

Subsequent to the award of the board of claims, but prior to any disposition of the T.C.A. § 29-10-101 contract action, on April 21, 1978, plaintiff went back into chancery court on yet a third approach. It next sought a review of the action of the board of claims by certiorari pursuant to T.C.A. § 27-801 (now T.C.A. § 27-8-101) or T.C.A. § 27-901 (now T.C.A. § 27-9-101). On April 28, 1978, the chancellor entertained the petition pursuant to the authority of Norman v. Tennessee State Board of Claims, 533 S.W.2d 719 (Tenn.1975) and thereafter continued the stay of the T.C.A. § 29-10-101 theory pending a review by certiorari of the board of claims action.

On September 11, 1979, the chancellor upheld the decision of the board of claims. He found that the action of the board was not arbitrary or capricious. Thus, pursuant to the mandate of Norman, supra, it must be sustained. Thereafter, the state, continuing to complain of Purcell's multi-forum attack, filed a motion to dismiss the T.C.A. § 29-10-101 claim on the basis that the board of claims' decision, now reviewed by the chancellor, was res judicata with respect to additional litigation and constituted a binding election of remedies on the part of the plaintiff.

On December 27, 1979, the chancellor entered an order denying the state's motion to dismiss the T.C.A. § 29-10-101 complaint and on February 1, 1980, denied the state's request for an appeal of that order by permission.

The state then filed an application for an extra-ordinary appeal with this court, which was denied on February 29, 1980, two days after the actual trial of the T.C.A. § 29-10-101 claim had commenced.

On June 18, 1980, a decree was entered in chancery court awarding Purcell a judgment on its breach of contract action pursuant to T.C.A. § 29-10-101 against the state in the amount of $400,278.00. This included $7,000.00 in retainage pursuant to the contract sought first by plaintiff in a post-trial application. Credited to the state against the judgment was $51,057.00 under counterclaim by it for breach of contract by Purcell and the $84,846.25 previously paid under the building commission award. This left a net amount due to plaintiff thereunder of $264,374.75. Both parties have appealed.

THE DILEMMA OF THE COURT AND THE SCOPE OF REVIEW OF BOARD OF

CLAIMS DECISIONS

In this most complicated case we are faced with a dilemma. We have only touched upon the exhaustive proof in these various proceedings because our ruling makes detailed discussion thereof unnecessary. However, we are satisfied that as a matter of contract, Purcell was...