United States ex rel. Ragghianti Foundations III, LLC v. Peter R. Brown Constr., Inc.
| Decision Date | 19 September 2014 |
| Docket Number | Case No. 8:12–cv–942–T–33MAP. |
| Citation | 49 F.Supp.3d 1031 |
| Parties | UNITED STATES of America, for the use and benefit of RAGGHIANTI FOUNDATIONS III, LLC, Plaintiff, v. PETER R. BROWN CONSTRUCTION, INC., et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Rosemary Hanna Hayes, Hayes Law, PL, Orlando, FL, for Plaintiff.
Mark Kiser, John Sebastian Vento, Trenam Kemker, Tampa, FL, for Defendants.
This cause came before the Court for a non-jury trial commencing on February 24, 2014, and concluding on March 4, 2014. On April 23, 2014, the parties timely filed their proposed orders, which included the parties' proposed findings of fact and conclusions of law, (Doc. 161, 162, 163), as ordered by the Court at the conclusion of trial.
Also before the Court is Defendant Peter R. Brown Construction, Inc.'s (PRBC) Motion for Judgment on Partial Findings Pursuant to Fed.R.Civ.P. 52(c) (Doc. # 139), filed on March 4, 2014; PRBC's Motion to Conform the Pleadings to the Evidence (Doc. # 154), filed on April 3, 2014; and Plaintiff Ragghianti Foundations III, LLC's (Ragghianti) Motion for Judgment on Partial Findings Pursuant to Fed.R.Civ.P. 52(c) (Doc. # 155), filed on April 3, 2014.
Having considered the evidence, applicable law, and the parties' submissions, the Court (1) denies PRBC's Motion to Conform the Pleadings to the Evidence; (2) grants the parties' Motions for Judgment on Partial Findings as set forth herein; and (3) grants judgment in favor of PRBC and against Ragghianti.
The Court's findings of fact and conclusions of law are set forth below pursuant to Fed.R.Civ.P. 52(a).
The Court makes the following findings of fact. To the extent that any findings of fact might constitute conclusions of law, they are adopted as such.
PBS & J Constructors, Inc.—registered owner of the fictitious name Peter R. Brown Construction, Inc.1 —entered into a construction contract (Prime Contract) with the United States of America, contracting through the Army Corps of Engineers, on August 16, 2010. (JX–13). The Prime Contract was for the project known as the Joint Intelligence Technical Training Facility at Goodfellow Air Force Base in San Angelo, Texas (Project). (Id. ). Sureties Liberty Mutual Insurance Company and Safeco Insurance Company of America issued a Payment and Performance Bond (no. 6724282) on August 23, 2010, in accordance with the Miller Act, 40 U.S.C. § 3131, naming PRBC as principal. (JX–16).
On January 24, 2011, PRBC entered into a Subcontract with Ragghianti to provide the building foundation, slab on grade, miscellaneous concrete and site concrete to the Project for the original lump sum of $506,902. (JX–1). The Subcontract—drafted by PRBC—expressly incorporates all the terms of the Prime Contract. (Id. ).
The Subcontract incorporated a schedule for its work that called for Ragghianti to mobilize with labor and supervision beginning on March 5, 2011. (Ragghianti Dep. Doc. # 96–10 at 19–21). However, Ragghianti did not provide a bond—issued by American Safety Casualty Insurance Company—until March 23, 2011 (JX–4), and the Subcontract provided that Ragghianti could not begin work on the Project until a bond was provided (JX–1).
As PRBC was behind schedule on the Project, Ragghianti's commencement of performance of the Subcontract was delayed. (Doc. # 148 at 42–3; Ragghianti Dep. Doc. # 96–10 at 19–21). It was not until the first week in July of 2011, that PRBC was prepared for Ragghianti to begin performance. (Ragghianti Dep. Doc. # 96–10 at 20–21; PX–30; PX–33; PX–60).
However, during July and August of 2011, as a result of unforeseen soil conditions, drilling on the Project was delayed. (PX–60; PX–61). In August of 2011, the pier drilling operations got back on schedule, but Ragghianti was unable to provide a sufficient number of local workers. (DX–18; DX–19; DX–20). Ragghianti was informed that failure to provide sufficient workers was causing a delay to the Project. (DX–20). Therefore, Ragghianti entered into a contract with subcontractor Jack Daniels Construction, Inc. to provide the labor to excavate, backfill, form, and pour the grade beams and to pour the slab on grade. (James Barlow Dep. Doc. # 98–5 at 24; Ragghianti Dep. Doc. # 96–10 at 22; Baron Steve White Dep. Doc. # 99–1 at 66).
Jack Daniels worked on the Project from August 21, 2011, through September 21, 2011. (PX–68). However, after an inspection by the Corps discovered that several of the piers were slightly out of tolerance, the grade beam work on the Project was halted. (Id. ). Jack Daniels was told to demobilize, and at that time, Jack Daniels advised PRBC and Ragghianti that its crew was being moved to a different project and all of its equipment would be off the Project by September 23, 2011. (DX–21; DX–22).
During the pier shutdown, PRBC changed the sequence such that the assembly of the steel would now come before the concrete slab on grade activity. (Doc. # 162 at 6). Furthermore, PRBC developed a grade beam sequence change that would cause grade beams to be poured in quadrants instead of south to north as previously scheduled. (Doc. # 149 at 140). This change was made to accommodate PRBC's mechanical contractor who requested access. (Doc. # 151 at 23–25). In addition, the schedule was changed to double the duration of the grade beam work. (PX–50). As a result, PRBC provided Ragghianti twenty days to complete the grade beams. (Doc. # 151 at 30–31).
The pier tolerance issue was resolved by October 18, 2011, and PRBC directed Ragghianti to remobilize its forces to begin work on October 21, 2011. (DX–24; PX–72). However, because Jack Daniels' forces and equipment were on another project, Ragghianti was unable to return to the Project until October 23, 2011. (PX–70; DX–51; Doc. # 151 at 27). In an attempt to recover the schedule, PRBC offered to pay Ragghianti acceleration monies if it worked overtime and increased its forces on the Project. (Doc. # 151 at 25).
After the work recommenced, PRBC was issued an “interim unsatisfactory” from the Corps in draft form, and the record reflects that PRBC's superintendent found that the Corps' comments were accurate. (PX–76; Doc. # 151 at 185–86). Accordingly, PRBC was labeled unsatisfactory in every single aspect of its work in compiled ratings of federal government staff, including management of resources, coordination and control of subcontractors, and effectiveness of job site supervision. (JX–15).
In November of 2011, PRBC made a request to have Ragghianti increase its forces, but Jack Daniels informed Ragghianti that it had its workers on other projects and it would be unable to provide the number of workers required. (DX–21). Ragghianti did not seek to find additional workers, and as a consequence, PRBC hired Dalcan—a second subcontractor—to work on the grade beams in order to accelerate the Project schedule. (PX–113; Doc. # 147 at 105, 108).
Dalcan worked on the Project from November 17, 2011, to December 14, 2011. (PX–85). According to PRBC's superintendent, Dalcan made the situation worse, impeding Ragghianti's progress. (Dave Barkolz Dep. Doc. # 118–4 at 146). Upon review of the negative impact Jack Daniels claimed Dalcan was having on its productivity, PRBC removed Dalcan from the Project. (Doc. # 147 at 105, 108). By December 14, 2011, Jack Daniels agreed to provide additional workers, and PRBC terminated Dalcan's contract. (PX–85; PX–86).
Ragghianti, through Jack Daniels, completed the grade beams on or about January 5, 2012, and continued backfilling the interior and exterior of a building on the Project. (PX–31). In mid-January of 2012, however, Jack Daniels presented PRBC with a series of claims totaling roughly $85,000, which represented its alleged losses. (PX–15). By January 24, 2012, Jack Daniels threatened to leave the Project if its claims were not paid. (PX–110). When its claims were not paid, Jack Daniels terminated its contract on January 27, 2012. (PX114). After Jack Daniels left the Project, no further backfilling work was performed by Ragghianti. (Doc. # 163 at ¶ 43).
On February 14, 2012, Ragghianti was scheduled to place the first section of a building's 50,000 square foot concrete slab on grade. (Baron Steve White Dep. Doc. # 99–1 at 26; PX–31). Due to various changed considerations and other issues that arose on the day of the pour, Ragghianti's sub-subcontractor—at the time Ochoa-experienced difficulty in pouring the slab. (Ragghianti Dep. Doc. # 96–10 at 101–07; Joseph Williams Dep. Doc. # 99–5 at 23; PX–225). Specifically, on the morning of February 14, 2012, Ragghianti's superintendent changed the location of the pump truck, but because Ragghianti had performed no exterior backfill after Jack Daniels demobilized, the site for the pump truck had to be leveled by hand and the placement on the slab on grade was delayed. (Doc. # 150 at 16; PX–22; PX–32; PX–123). Further, only 6 concrete finishers from Ochoa showed up on February 14, 2012, when 13 were expected to be present. (Doc. # 150 at 32–33).
Also on the day of the pour, Ragghianti failed to execute the sequence of the concrete trucks in accordance with the workforce it had and to ensure that it was within the contract specifications. (Doc. # 162 at 11; Doc. # 150 at 33–34). The maximum time the concrete was permitted to turn prior to pour was 90 minutes, as a longer delay permits the concrete to set up and become unworkable. (Doc. # 162 at 11; PX–303; David Smith Dep. Doc. # 118–3 at 18). Ragghianti's inadequate workforce on the day of the pour was unable to keep up with the pour. (PX–225). An analysis of the concrete truck tickets showed that 8 out of the 14 trucks had concrete that exceeded the 90 minute time limit, and as a consequence, the concrete was too dry, too hot, and too hard to finish. (DX–64; Doc. # 150 at 34–35).
In all, 6,000 square feet of slab was poured on February 14, 2012, which was 13% of the slab concrete and 1–2% of...
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