R & S Const. Co., a Div. of Robbins & Stearns Co., Inc. v. BDL Enterprises, Inc.

• Court: Supreme Court of South Dakota
• Writing for the Court: SABERS; MILLER, C.J., and AMUNDSON; AMUNDSON
• Citation: 500 N.W.2d 628
• Decision Date: 01 July 1993
• Parties: R & S CONSTRUCTION COMPANY, A DIVISION OF ROBBINS & STEARNS COMPANY, INC., a South Dakota Corporation, Plaintiff, v. BDL ENTERPRISES, INC., a Corporation, Defendant and Appellant, and TSP Two, Inc., a Corporation, Defendant and Appellee. 17898.

Page 628

500 N.W.2d 628 R & S CONSTRUCTION COMPANY, A DIVISION OF ROBBINS & STEARNS
COMPANY, INC., a South Dakota Corporation,
Plaintiff,
v.
BDL ENTERPRISES, INC., a Corporation, Defendant and
Appellant,
and
TSP Two, Inc., a Corporation, Defendant and Appellee. 17898. Supreme Court of South Dakota. Argued Feb. 8, 1993.
Decided June 2, 1993.
Rehearing Denied July 1, 1993.

Ronald W. Banks, Banks, Johnson and Colbath, Rapid City, for defendant and appellant.

Edward C. Carpenter, Costello, Porter, Hill, Heisterkamp and Bushnell, Rapid City, for defendant and appellee.

SABERS, Justice.

Owner, who was determined liable to builder for additional costs of construction, claims architect should bear greater responsibility for those construction costs attributable to architect's negligence. We agree and reverse and remand.

FACTS

On October 24, 1985, BDL Enterprises, Inc. (BDL) contracted with TSP Two, Inc. (TSP), an architectural firm, for TSP to provide architectural services for the design and construction of the Twin City Mall (Mall or project) in Lead, S.D. The project was to be conducted under a "fast track/design build" approach. Although this term was not defined within the contract, according to expert testimony, a fast track project is where the design and construction periods overlap. A design build project is where the design and construction functions are done by one entity.

On TSP's recommendation, BDL contracted with general contractor, R & S Construction Co. (R & S), on November 21, 1985. This contract also referred to the "fast-track system" of construction with supervision by TSP as the representative of BDL. Under the terms of the contract, R & S was to be reimbursed for total project costs including material, labor, subcontractor costs, sales taxes and all other costs, plus 7 1/2% of the total project cost for overhead and 4 1/2% for profit. The project was estimated to cost "somewhere in the neighborhood of $2,500,000." An exhibit attached to the contract attempted to define the scope of the project. The trial court found that it did not.

During the next seven months, BDL encountered numerous problems in negotiating and securing financing, defining the scope and size of the project, and locating and securing potential tenants, including its anchor tenant, Nash-Finch. Several design and construction schedules were not met and TSP was forced to redraw plans due to the changes BDL was continually making. Because of these, and numerous other problems, BDL temporarily shut the project down in February, 1986.

On July 3, 1986, BDL and R & S entered into another construction contract. This contract purported to be a "stipulated sum" contract, but the trial court found it was not. Although this contract also attempted to define the scope of the project, it was based upon incomplete drawings and specifications. The trial court again found that the scope was not defined because it was not known at the time of contracting.

A budget was attached to the contract which provided for "internal line item adjustments." This phrase, however, and its applicability to the project, was not defined. BDL testified that it believed a maximum price of $2,414,363 was guaranteed. R & S testified that, according to its understanding, it was only liable for the unit prices it had bid. The contract also contained change order provisions. Written change orders were not issued until many of the changes were made and the work completed. This was after the project had exceeded its budget.

During the construction phase, problems developed and the scope of the project changed substantially. BDL's delays and revisions resulted in added costs which were termed "internal line item adjustments." TSP prepared over 31 separate site plans due to the changing requirements of BDL. The trial court found that due to BDL's delay, indecision, and revision of the project, TSP was always behind with

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the necessary plans, which were found deficient at times. The trial court found that the project was behind schedule even before it started, assigning fault to both BDL and TSP. This, in turn, delayed the construction by R & S and substantially increased the costs of completing the project. PROCEDURAL HISTORY

R & S sued BDL for breach of contract or recovery in quantum meruit, asking for damages of $438,809 and prejudgment interest. R & S also sued TSP for negligence in the design of the project and in preparation of the contract documents. R & S dismissed this claim against TSP following the trial.

TSP cross-claimed against BDL for indemnity, a balance due of $54,637.29, architectural fees of 4.565% of the cost of extra work by R & S, and prejudgment interest. TSP's indemnity claim against BDL became moot when R & S dismissed its action against TSP.

BDL denied the claims of R & S and counterclaimed for breach of contract, seeking $786,815.88 in damages against R & S. BDL also denied the cross-claim of TSP and counterclaimed for breach of contract for architectural services and negligence in the design and preparation of the project plans. BDL sought indemnification by TSP for the claims of R & S.

The trial court found R & S entitled to quantum meruit against BDL in the sum of $375,627.18, plus prejudgment interest. TSP recovered $25,572.11 for extra work, $13,519.22 for increased construction, and prejudgment interest against BDL. This award was reduced by TSP's share of the expenses of winter heat and snow and muck removal and TSP's pro rata share of overhead, excise taxes, and loss of profits. The trial court held for BDL on its cross-claim against TSP for breach of contract and awarded BDL $29,411.16 for damages, $17,819 for TSP's share of the repair work, and prejudgment interest. R & S and BDL reached a settlement after the filing of the Notice of Appeal.

BDL raises three issues on appeal:

1. Whether damages recovered by R & S for construction delays and extra work should be allocated between BDL and TSP.

2. Whether TSP is entitled to additional fees for increased construction costs attributable to its own negligence.

3. Whether TSP is liable to BDL for additional overhead, excise taxes and lost profits.

STANDARD OF REVIEW

The standard of review of a trial court's findings of fact is set forth in SDCL 15-6-52(a):

[T]his court shall not set aside findings of fact unless found to be clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.... In applying the clearly erroneous standard we must bear in mind that our function is not to decide factual issues de novo. The question for the appellate court is not whether it would have made the...