Soil & Material Engineers, Inc. v. Folly Associates
| Decision Date | 12 October 1987 |
| Docket Number | No. 1035,1035 |
| Citation | 361 S.E.2d 779,293 S.C. 498 |
| Parties | SOIL & MATERIAL ENGINEERS, INC., Appellant, v. FOLLY ASSOCIATES, A South Carolina Limited Partnership, and Doug Allen Enterprises, Inc., General Partner of Folly Associates, Respondents. . Heard |
| Court | South Carolina Court of Appeals |
Thomas R. Goldstein, of Charles S. Bernstein, P.A., Charleston, for appellant.
William B. Regan, Charleston, for respondents.
The appellant Soil & Material Engineers, Inc. ("Soil & Material") instituted this action against the respondents Folly Associates, a South Carolina Limited Partnership, and Doug Allen Enterprises, Inc. ("Allen Enterprises"), Folly Associates' general partner, for payment of services rendered by it for Folly Associates in connection with a pile driving operation performed during the construction of a motel on Folly Beach. Folly Associates defended by asserting a setoff and a counterclaim in which it alleged a cost overrun caused by Soil & Material's failure to do "an adequate job in overseeing" the construction of the motel's foundation. The trial court dismissed both the complaint and the counterclaim, not finding in favor of either Soil & Material or Folly Associates. Soil & Material appeals. The question we address is whether the trial court committed reversible error in not allowing Soil & Material to amend its reply to conform to the evidence. We reverse and remand the case for a new trial.
Soil & Material admitted in its reply to allegations in Folly Associates' and Allen Enterprises' setoff and counterclaim that Folly Associates and Allen Enterprises had "requested [Soil & Material to] provide services to [Folly Associates and Allen Enterprises] by overseeing the construction of the foundation of the Holiday Inn...." Soil & Material affirmatively alleged in its reply to allegations in the setoff that it had "performed adequately pursuant to the parties' agreement in overseeing the construction of the foundation wall" and in its reply to allegations in the counterclaim that it had "performed its job as contemplated by the parties, which was soil and geologic analysis...."
At the beginning of the trial, Soil & Material introduced testimony through its first witness, William B. Wright, the branch manager of its Charleston office, that "[i]t was the company's job" under its oral contract with Folly Associates simply "to monitor the installation of the piles" for the purpose of determining that the pilings were driven to their proper depth. The trial judge, however, limited this evidence on his own motion, stating that "[y]our witness is testifying contrary to the pleadings, counsellor." Soil & Material's attorney then moved pursuant to Rule 15(b) to be allowed to amend its reply to reflect that Soil & Material's responsibility under the contract was not "to oversee" the pile driving operation but "to monitor" it. The trial judge refused to allow the amendment on the ground that motion to amend came too late and that the testimony "was not inconsistent with the pleadings."
The evidence showed that the pilings were not driven in a straight line.
In dismissing the complaint, the trial judge held that the contract between the parties required Soil & Material to "oversee[ ]" the construction of the motel's foundation, that "overseeing was different from monitoring," and "that overseeing required [Soil & Material] not only to make certain that the pilings were driven to a certain foundation [sic] but ... also in a straight position to be able to support the structure."
The trial judge placed great emphasis on the pleadings, which Soil & Material had sought to amend, in reaching his decision. He remarked just prior to dismissing the complaint, "Gentlemen, ... it was admitted in the pleadings that [Soil & Material] was hired by [Folly Associates] to provide services to [it] by overseeing the construction of the foundation of the Holiday Inn on Folly Beach."
Rule 15(b) of the new South Carolina Rules of Civil Procedure provides in part:
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court shall...
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