Sauer Inc. v. McLendon Enters.
| Decision Date | 31 August 2021 |
| Docket Number | CV420-157 |
| Parties | SAUER INCORPORATED, A Pennsylvania Corporation, Plaintiff v. MCLENDON ENTERPRISES, INC., A Georgia Corporation, Defendant. |
| Court | U.S. District Court — Southern District of Georgia |
Before the Court is DefendantMcLendon Enterprises, Inc.'s Motion for Summary Judgment.(Doc. 20.)For the following reasons, Defendant's motion (Doc. 20) is GRANTED.[1]
BACKGROUND[2]
PlaintiffSauer Incorporated brings this claim for breach of contract related to Defendant's construction work at the Fort Stewart Elementary School in Fort Stewart, Georgia.(Doc. 1 at ¶ 1.)On or about June 3, 2011, Plaintiff entered a contract with the United States Army Corps of Engineers ("USACE") to perform construction work at the Fort Stewart Elementary School (the "Project").(Doc. 22 at ¶ 1;Doc. 27 at ¶ 1.)On November 12, 2012Plaintiff entered a subcontract with Defendant, in which Defendant agreed to undertake certain civil sitework for the Project (the "Subcontract").(Doc. 22 at ¶ 2;Doc. 27 at ¶ 2.)Under the Subcontract, Defendant's scope of work included erosion control, site clearing, site demolition, earthwork, grading, utilities, roadways and parking lots.(Doc. 22 at ¶ 2;Doc. 27 at ¶ 2.)
Defendant's earthwork and grading scope of work included sub-grade preparation for pervious concrete sidewalks.(Doc. 1, Attach 1at 17.)Relevant to this case, Defendant agreed to provide compacted sub-grade and base course preparation for all areas to receive concrete and twenty-four inches of "sandy structural fill" for all areas to receive pervious concrete sidewalks.(Id. at 18.)Originally, Defendant did not agree under the Subcontract to install the actual sidewalks.(Id. at 23-24;Doc. 26 at ¶ 9;Doc. 27 at ¶ 3.)On July 22, 2013, Plaintiff and Defendant executed a change order which modified Defendant's scope of work to include placement of the pervious concrete sidewalks, #57 stone base and geotextile fabric beneath the sidewalks.(Doc. 26 at ¶ 14.)
The date on which Defendant installed the sidewalks is unclear, but Plaintiff began to receive complaints from the USACE regarding the sidewalks in 2016.[3] On January 5, 2016, Susan Smith, USACE project engineer, advised Plaintiff via email that problems had developed with the sidewalks at the Project.(Doc. 22 at ¶ 5;Doc. 27 at ¶ 5;Doc. 21, Attach. 1at 2.)Ms. Smith informed Plaintiff that the sidewalks had "heaved at the expansion joints in several places" and "[i]n other expansion joints the joint material ha[d] been squeezed out . . . ."(Doc. 21, Attach. 1at 2.)Ms. Smith also stated that the problems with the sidewalks were "definitely a site wide issue and not just an isolated occurrence."(Id.)On January 13, 2016, David Warren, USACE area engineer, sent Plaintiff an email describing similar problems with the sidewalks and inquiring about the "status of [Plaintiff's] fix."(Doc. 21, Attach. 2at 2.)
Plaintiff forwarded both emails to Defendant and requested that Defendant provide "immediate on-site review and response regarding this matter."(Doc. 21, Attach. 1at 2;Doc. 21, Attach. 3at 2.)On January 20, 2016, Plaintiff informed Defendant that Plaintiff would be inspecting the sidewalks and that Plaintiff intended to provide notice to Defendant's surety of the issue with the sidewalks "considering the possibility that [Defendant] may share responsibility in the matter."(Doc. 21, Attach. 3 at 2.)On April 22, 2016, Plaintiff advised Defendant that it had performed temporary remedial measures to alleviate the sidewalks' "heaving" and to remove the "ramps" in the sidewalks that the USACE had deemed unsafe.(Doc. 21, Attach. 4at 2.)Plaintiff further advised Defendant that two testing firms would be conducting tests and analysis on the sidewalks.(Id.)
On April 26, 2016, Whitaker Laboratory, Inc., a testing firm retained by Plaintiff, issued a report titled "Subgrade Evaluation" which detailed its inspection of "near surface soils beneath the pervious concrete sidewalk" and opined on the soils' compliance with the provisions of the Subcontract.(Doc. 21, Attach. 5at 2.)As part of the inspection, Whitaker Laboratory obtained soil samples up to a depth of twenty-four inches below the bottom of the pervious concrete and then "visually classified" the samples.(Id.)Based on the results of its test, Whitaker Laboratory concluded that two of the three soil samples did not meet the requirements of "sandy select material" per the conditions of the Subcontract.(Id.)Whitaker Laboratory also stated that the "geotextile fabric beneath the gravel" appeared to consist of a woven fabric which "may not allow a fast enough permeability rate into the underlying soils."(Id. at 2-3.)
On June 17, 2016, TEC Services, Plaintiff's second testing firm, issued its report regarding the pervious concrete sidewalks at the Project site.(Doc. 21, Attach. 6at 2;Doc. 22 at ¶ 13;Doc. 27 at ¶ 13.)TEC Services tested three core samples of the concrete from separate sections of the sidewalk, including a section that was exhibiting heaving, and evaluated the samples through "concrete petrography."(Doc. 21, Attach. 6at 2;Doc. 22 at ¶ 14;Doc. 27 at ¶ 14.)The focus of TEC Services's evaluation was to determine if the expansion of the concrete was a result of an alkali-silica reaction (ASR) and if the curling was a result of insufficient curing.(Doc. 21, Attach. 6at 2.)Based on its findings, TEC reported that the measured thickness of the concrete in all three samples was less than the four inches required in the project specifications.(Doc. 22 at ¶ 15;Doc. 27 at ¶ 15.)TEC concluded that "[t]he significantly heaved concrete sidewalk at the joints and expansion which displaced the curbs is not a result of curling or an expansive subgrade" and that "ASR did not cause the expansion."(Doc. 21, Attach. 6at 4.)TEC Services also found that the curling in the concrete may have been exacerbated by the thickness of the concrete being less than called for by the design specifications.(Id.)
On July 12, 2016, Whitaker Laboratory conducted further testing at the Project site, this time taking six core samples from various sections of the pervious concrete sidewalk.(Doc. 21, Attach. 8at 2;Doc. 22 at ¶ 20;Doc. 27 at ¶ 20.)For all six samples, Whitaker Laboratory measured the thickness of the concrete and the thickness of the stone directly below the concrete sidewalks.(Doc. 21, Attach. 8 at 2.)Whitaker Laboratory's findings revealed that two of the samples had a concrete thickness of less than the four inches required by the Subcontract.(Id.;Doc. 22 at ¶ 21;Doc. 27 at ¶ 21.)
On July 1, 2016, Plaintiff sent Defendant and Hartford Fire Insurance Company, Defendant's surety, a notice of default.(Doc. 21, Attach. 7at 2.)In the notice, Plaintiff states that, based on TEC Services's report, Defendant did not install the concrete sidewalks with the necessary thickness as required by the Subcontract.(Id. at 2-3.)Plaintiff also noted that TEC Services's report suggested that there may have been deficiencies in the curing process.(Id. at 3.)Plaintiff further informed Defendant that its failure to timely commence repairs on the sidewalks placed it in default of its contractual obligations.(Id.)On July 15, 2016, Plaintiff advised Defendant and Hartford that, due to the lack of response to its notice of default, Plaintiff would be beginning remediation on the sidewalk, at Defendant and Hartford's cost, on July 18, 2016.(Doc. 26, Attach. 5at 23.)
On September 15, 2016, Plaintiff sent Hartford another letter reiterating its position that Defendant had breached the Subcontract.(Doc. 26, Attach. 8at 2, 5-6.)Plaintiff stated that Defendant's failure to install concrete of sufficient thickness "alone was sufficient to trigger [Defendant's] contractual obligation to remove and replace the concrete."(Id. at 6.)Plaintiff also detailed the costs it had incurred repairing the defective concrete sidewalks and made a claim for $66, 439.01.(Id. at 8.)On February 3, 2017, Plaintiff sent Defendant and Hartford a final demand letter stating that "[Plaintiff] intend[ed] to initiate legal proceedings against both parties to recover the $66, 439.01 in damages caused plus interest, attorneys' fees and costs."(Doc. 26, Attach. 10at 2.)
On March 6, 2017, Plaintiff filed suit against Defendant and Hartford in the State Court of Toombs County(the "State Suit") .[4]In its complaint, Plaintiff alleged that "[Defendant] breached the terms of its Subcontract by failing to properly perform its scope of work at the Project, causing defects such as curling, expansion and heaving of the sidewalks in certain areas."(Doc. 21, Attach. 9 at ¶ 11;Doc. 22 at ¶ 23;Doc. 27 at ¶ 23.)Plaintiff further alleged that "[i]n addition, [Defendant] breached the terms of the Subcontract by failing to follow the Project design as to the required slab thickness for the sidewalks at the project."(Doc. 21, Attach. 9 at ¶ 12;Doc. 22 at ¶ '24;Doc. 27 at ¶ 24.)Plaintiff also alleged that "[Defendant] has materially breached the terms of the Subcontract by failing and refusing to properly perform its work at the Project, causing damages to [Plaintiff]."(Doc. 21, Attach. 9 at ¶ 14.)Based on Defendant's breach, Plaintiff sought an award of damages, costs and attorneys' fees.(Id.at ¶ 15.)
In August 2017, the Plaintiff, Defendant and Hartford finalized a settlement agreement (the "Settlement Agreement") by which Plaintiff agreed to release its claims against Defendant and Hartford in exchange for Defendant's payment of $46, 500.(Doc. 22 at ¶ 28;Doc. 27 at ¶ 28;Doc. 21, Attach. 10at 2-3.)The Settlement...
To continue reading
Request your trial