Seneca Valley, Inc. v. Village of Caldwell

• Citation: 808 NE 2d 422,156 Ohio App.3d 628
• Decision Date: 30 March 2004
• Docket Number: No. 304.,304.
• Parties: SENECA VALLEY, INC., Appellant, v. VILLAGE OF CALDWELL, Appellee.
• Court: United States Court of Appeals (Ohio)

156 Ohio App.3d 628

2004-Ohio-1730

808 NE 2d 422

2004-Ohio-1730

SENECA VALLEY, INC., Appellant, v. VILLAGE OF CALDWELL, Appellee.

No. 304.

Court of Appeals of Ohio, Seventh District, Noble County.

Decided March 30, 2004.

COPYRIGHT MATERIAL OMITTED

Roetzel & Andress, Eric S. Bravo and John A. Zervas, for appellant.

Thompson Hine LLP, Michael W. Currie and W. Blair Lewis, for appellee.

WAITE, Presiding Judge.

{¶ 1} This appeal arises from the Noble County Common Pleas Court's decision to grant appellee, village of Caldwell ("Village") summary judgment in a contract dispute filed against the Village by appellant, Seneca Valley, Inc. Appellant alleged that the Village failed to pay for certain work performed under a construction contract and that this amounted to a breach of contract or, in the alternative, that the Village was unjustly enriched by appellant's services. For the following reasons, we affirm the judgment of the trial court.

{¶ 2} The contract at issue here was entered into on July 25, 2000. The Village accepted appellant's bid for the excavation and installation of a waterline referred to as the Sharon Waterline ("the Project") located in Caldwell, Ohio. The Village purchased the Project from Pure Water Company ("Pure Water").

{¶ 3} The factual history leading to this dispute arose as follows: Originally, Pure Water intended to run this waterline Project. Jeffery Dean ("Dean"), an engineer, created the original plans and specifications for the Project on behalf of Pure Water. Dean's contract with Pure Water ended after he created the plans and specifications. Pure Water intended to recontract with Dean to complete the Project after its approval by the county commissioners. The original plans depicted the waterline off to the side of County Road 60.

{¶ 4} Robert McElfresh ("McElfresh"), the president of Pure Water, presented the Project plans to Noble County Engineer John Foreman ("Foreman") in the year 2000. Foreman became involved in the Project because Pure Water needed approval to move the waterline into the roadway right-of-way, as opposed to the original plan, which was to have the Project built entirely off to the side of the road and on private property via easements.

{¶ 5} McElfresh had advised Foreman that one private property owner "did not want it the Project off the road right-of-way." Therefore, it was decided that if the Project was to be built, it had to be in the County Road 60's right-ofway only. Thus, in order to install the waterline, a portion of the roadway must be excavated. Dean was not aware of the right-of-way problem when he created the original plan and specifications.

{¶ 6} The Project plans, entitled 1996 Water Line Extension, contain aerial photographs of the Project area and illustrate the Project. The plans are also referred to as the Project blueprints or drawings. The black lines drawn on the exhibit were not on the original plans. McElfresh added the black lines to depict the waterline's location in the roadway, since Pure Water was unable to secure the requisite easement to move it off to the side.

{¶ 7} On page one of the plans, McElfresh hand wrote: "NOTE: Some of the Water Line on C.R. 60 was moved off private property into the Roadway, due to the lack of Right of way." This note and the repositioned waterline shown by the additional black lines were on each set of plans.

{¶ 8} Thereafter, Foreman recommended the Project's approval to the County Commissioners in June 2000, once he confirmed that the plans corresponded with his discussions with McElfresh relative to the repositioning of the waterline.

{¶ 9} The Village subsequently purchased and took over the Project from Pure Water after McElfresh's modifications to the plans and after the plans were distributed to the bidding contractors. The Village apparently needed access to additional water.

{¶ 10} Thereafter, Pure Water provided the Village with all of the specifications, and it handed over all of the bids the day they were received. The Village hired Dean as its engineer for the Project.

{¶ 11} Stephen Hanson ("Hanson"), CEO of Seneca Valley, received the plans and specifications with the waterline clearly depicted in the roadway. The Project specified ten cubic yards of granular aggregate and ten square yards of asphalt for pavement restoration. Hanson contacted Dean before bidding relative to these amounts of materials. Dean advised Hanson to the effect that the contract would be taken care of via unit prices and that he should not be concerned. Subsequently, Dean sent the potential bidders a facsimile, which provided:

{¶ 12} "C. Road Crossing:

{¶ 13} "The road crossing is an open cut as indicated on the plans. Bid prices for the granular and asphalt replacement will be used to pay for this work. Quantities on the bid sheets are estimates. Bid prices for all items will be carefully evaluated."

{¶ 14} Hanson explained at his deposition that this facsimile, item C., referred to an area where the waterline crossed County Road 13. He also stated that the estimated quantities in question, based both on Hanson's conversation with Dean and item C., referred to the Project as a whole.

{¶ 15} Seneca Valley submitted the lowest bid and was awarded the Project contract on July 25, 2000. Thereafter, a preconstruction conference was held. Foreman, Village Mayor Allen Matthews, Dean, Hanson, and the highway superintendent, among others, were in attendance. Also attending was Stanley Michel ("Michel"), a Village water department employee, who was assigned by the Village to the Project. Michel was the water department's "observer" for this Project.

{¶ 16} As the observer, Michel kept a daily log of the materials used by the contractor and generally confirmed that the job was done to the Village's satisfaction. He observed this Project from beginning to end. Michel testified that appellant "laid everything according to the specs."

{¶ 17} Certain changes to the contract took place where appellant submitted and had approved written change orders to the contract. Problems arose, however, over the provision involving fill and asphalt replacement.

{¶ 18} Hanson testified that his company placed approximately 1,380 cubic yards of granular aggregate and replaced 1,422 square yards of pavement at the Project site, allegedly pursuant to the original project specifications. A written change order was not issued for the placement of these materials.

{¶ 19} Because earlier change orders had been submitted and approved as to other issues, Hanson was fully aware that a change order signed by the mayor was required prior to a change in the Project. However, he stated that he understood the granular aggregate and pavement restoration were to be paid for solely by utilizing unit prices specified in the bid.

{¶ 20} When appellant submitted its partial pay estimate number one, the estimate indicated that appellant had installed eight cubic yards of granular backfill material. Partial pay estimate number one covered only "a couple days' work." The "quantity unit" for granular material was listed as ten. Hanson testified that eight cubic yards was the amount required for a residential driveway.

{¶ 21} The dispute herein apparently came to light when appellant submitted its partial pay estimate number two. It indicated that 1,351 cubic yards of granular material and 1,422 square yards of pavement restoration had been completed.

{¶ 22} Appellant subsequently received a letter dated October 10, 2000, from Dean that stated: "Item 8—Granular Backfill—A quantity increase over the bid quantity of this magnitude needed a request for change order, which I do not have." The letter also stated that appellant would not be paid for the additional pavement restoration, since the pavement restoration material was not the same as the bid item and thus, also, required a written change order. Appellant provided gravel pavement replacement, whereas the contract specified asphalt pavement replacement.

{¶ 23} Appellant subsequently filed suit for the Village's refusal to pay any amount over the bid price on May 25, 2001. The Village filed its motion for summary judgment following discovery between the parties, and appellant filed a response. The trial court granted the Village summary judgment on September 9, 2002. Appellant filed a timely appeal.

{¶ 24} In order to grant a motion for summary judgment, a court must find that, construing the evidence most strongly in favor of the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C); Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. A genuine issue of material fact exists unless it is clear that reasonable minds can come to but one conclusion and that conclusion is against the opposing party. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 151, 66 O.O.2d 311, 309 N.E.2d 924.

{¶ 25} Civ.R. 56(C) provides:

{¶ 26} "* * * summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor. * * *"

{¶ 27} Both parties in the instant case rely on the same uncertified copy of the contract. The proper procedure for introducing evidentiary matter not specifically authorized by Civ.R. 56(C) is to incorporate it by reference in a properly framed affidavit pursuant to Civ.R. 56(E). State ex rel. Corrigan v. Seminatore (1981), 66 Ohio St.2d 459, 467, 20 O.O.3d 388, 423 N.E.2d 105. A court has discretion to consider documents other than those specified in Civ.R. 56(C) if there is no objection. Brown v. Ins. Co. (1978), 63 Ohio...