Unnerstall Contracting Co., Ltd. v. City of Salem
| Decision Date | 17 December 1997 |
| Docket Number | No. 21422,21422 |
| Citation | 962 S.W.2d 1 |
| Court | Missouri Court of Appeals |
| Parties | UNNERSTALL CONTRACTING CO., LTD., Respondent, v. CITY OF SALEM, Missouri, Appellant, and D.R. Felton & Associates, Inc., Respondent. |
Thomas M. Pavelko, St. Louis, for appellant.
Christopher J. Daus, Greensfelder, Hemker & Gale, P.C., St. Louis, for respondent Unnerstall Contracting Co., Ltd.
Michael R. Allen, Welsh & Hubble, P.C., St. Louis, for respondent D. R. Felton & Associates, Inc.
In this suit, Unnerstall Contracting Co., Ltd. ("UCCL") and D.R. Felton & Associates, Inc. ("DRF&A") asserted claims against the City of Salem ("Salem") for services performed during an improvement project at Salem's airport. Following a jury trial, the court entered judgment (a) awarding UCCL $188,671.31 on one count and $83,067.36 on another, and (b) awarding DRF&A $26,279.04.
Salem appeals. An account of the facts is a prerequisite to a discussion of Salem's four assignments of error.
Viewed favorably to the judgment, Seward v. Terminal Railroad Assn., 854 S.W.2d 426, 427-28 (Mo. banc 1993), the evidence established that DRF&A and Salem entered into a contract dated July 25, 1989, wherein DRF&A agreed to provide engineering services for the project. According to the contract, the project included reconstructing, widening, extending, marking and lighting a runway, and constructing, marking and lighting a taxiway.
Services to be performed by DRF&A included "preliminary studies." During that phase, a "geo-tech engineer" made "soil borings" to discover what lay beneath the surface of the earth at the project site. DRF&A needed that data "in order to make proper decisions in design."
DRF&A prepared "Contract Specifications" and plans. The plans included a 20-page document denominated "Runway Extension." The document was received in evidence as Exhibit 1.
Page 9 of Exhibit 1 is designated "Soil Boring Plan & Profile." It shows the results of the soil borings on a drawing. The drawing represents a side view of the earth, from the surface to a depth of approximately twenty feet, along the route of the proposed runway. We henceforth refer to the drawing as "the site profile."
Four lines appear on the site profile. One represents the surface of the earth at the time the borings were made. This line shows that the surface rises irregularly in elevation from north to south along the route of the proposed runway.
Another north-to-south line shows the elevation of the proposed runway. This line, a straight one, rises gradually and uniformly in elevation as it proceeds from north to south.
At the north end of the proposed runway, the elevation of the runway is above the earth's surface. As the proposed runway proceeds south, the distance between its elevation and the surface of the earth gradually diminishes until the elevations coincide. From that point on, proceeding south, the elevation of the proposed runway lies below the existing surface of the earth. As we understand the site profile, at one point the projected surface of the proposed runway is some 12 feet below the existing surface of the earth.
The third line on the site profile lies entirely beneath the surface of the earth as it existed when the soil borings were made. That line is designated "auger refusal line." Like the other two, it proceeds from north to south along the route of the proposed runway.
The fourth line on the site profile lies entirely beneath the third line. The fourth line is designated "roller bit refusal line." Like the other three, the fourth line proceeds from north to south along the route of the proposed runway.
Copies of the plans and specifications prepared by DRF&A were available to contractors interested in submitting bids to Salem to perform work on the project.
UCCL obtained a copy of the plans and specifications from DRF&A. Leonard B. Unnerstall ("Unnerstall"), president of UCCL, testified that UCCL contracts to perform work such as "sewers, excavation, grading, lift stations, and road work, airports."
Unnerstall explained that in the "construction business," the term "rippable material" refers to boulders, clay and other substances in the earth which can be penetrated and removed using a bulldozer "with a shank on the back of it."
Unnerstall and one of UCCL's engineers prepared a bid on the airport project, using the plans and specifications prepared by DRF&A, including the site profile.
Unnerstall recounted to the jury that an auger is "like a screw-type or an old type posthole digger ... it drills through the soil and brings up a sample." Unnerstall further explained that the auger refusal line on the site profile represents the depth "where the auger would not go any deeper." He added:
Dean R. Felton ("Felton"), a licensed civil engineer and president of DRF&A, told the jury that a roller bit is "a mechanical device that ... has a series of ... gears on the end and they grind the material up so that it can lift up material." A roller bit refusal line means "it's going to require a little bit of weight on it in order to help force it into the material."
The roller bit refusal line on the site profile, according to Unnerstall, represents "where they hit some real hard material that more than likely was solid rock." Anything beneath the roller bit refusal line would not be rippable, while anything above that line "would be material that you could estimate is rippable material."
Unnerstall did not expect to encounter any non-rippable material on the project, as the elevation of the proposed runway, although below the existing surface of the earth along part of the route, lay entirely above the roller bit refusal line.
Felton confirmed that the site profile showed that construction of the runway would not require "excavation of any nonrippable material," as all required excavation is "above [the] line of rippable material." Felton's testimony continued:
"Q. If you had known that there was nonrippable rock to be excavated on this job, would your design have been any different?
A. If our drillings had shown that there was rock, yes, we probably would have changed the grade level.
Q. You would have moved the runway up higher to avoid that rock, is that correct?
A. That's the normal procedure."
On April 2, 1990, a "pre-bid meeting" was held at city hall in Salem. Felton conducted the meeting. Asked its purpose, Felton answered, "Just to allow the contractor to ask questions for clarification of the documents, things of that nature."
During the meeting, Felton told the attendees that in his opinion, "all material to be excavated on the project would be rippable."
Unnerstall did not attend the meeting; however, he "contacted a couple other contractors" who were there. He understood from one of them that Felton had said "it would all be rippable material."
In preparing UCCL's bid, Unnerstall calculated "a single price for excavation work." The price included no cost for excavating non-rippable rock. Unnerstall avowed that had the site profile shown there was non-rippable rock to be excavated, UCCL's bid price for excavation would have been "[p]robably four or five times higher."
UCCL was "low bidder" on the project. Salem awarded UCCL the contract. It was signed May 24, 1990. The "contract price" was $728,193.
After "a month or so or less" on the project, UCCL "hit unrippable material ... that required drilling and blasting." Utilizing that method, UCCL excavated the material. In doing so, UCCL incurred "total additional costs" of $128,803.71.
Unnerstall testified that after UCCL completed the project, UCCL billed Salem for the $128,803.71 on July 13, 1991, but Salem paid none of that amount.
Unnerstall further testified that Salem withheld $60,375 as "retainage" under the contract and never paid UCCL any of that sum, even though UCCL fully performed the contract.
UCCL went to trial on three counts against Salem.
Count I was denominated "Breach of Warranty Ex Contractu." It prayed for the $128,803.71 additional costs allegedly incurred in excavating the non-rippable material, plus interest.
Count II was denominated "Breach of Contract," and sought payment of the $60,375 allegedly due under the contract but withheld by Salem as retainage, plus interest.
Count III was designated "Misrepresentation." It, like Count I, sought $128,803.71, plus interest, for excavating the non-rippable material.
DRF&A went to trial on two counts against Salem.
Count I pled that Salem owed DRF&A $17,922.30 for services performed by DRF&A under its contract with Salem--the contract mentioned in the third paragraph of this opinion. Count I prayed for judgment in that amount, plus interest.
Count II averred that the contract required Salem to "defend" DRF&A, but Salem refused. Count II further alleged that as of September 30, 1993, DRF&A had incurred legal fees and expenses totalling $7,839.21. 1 Count II prayed, inter alia, for that amount "plus whatever additional costs and fees are incurred until the conclusion of this litigation."
Upon completion of UCCL's evidence, Salem moved for a directed verdict in its favor on all three of UCCL's counts.
The trial court denied the motion. Salem then presented evidence.
Upon completion of Salem's evidence, UCCL moved for a directed verdict against Salem on UCCL's Count II, arguing that Salem had presented no explanation of its failure to pay UCCL the "contract balance" of $60,375. The trial court deferred ruling on UCCL's motion until all evidence was presented.
DRF&A then presented evidence, all of which pertained to its Count I.
Upon completion of all the evidence, the trial court granted UCCL's motion for a directed verdict in its favor on...
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