W & O Const. Co., Inc. v. City of Smithville

• Decision Date: 21 November 1977
• Citation: 557 S.W.2d 920
• Parties: W & O CONSTRUCTION CO., INC., Appellant-Plaintiff, v. CITY OF SMITHVILLE, Appellee-Defendant.
• Court: Tennessee Supreme Court

Page 920

557 S.W.2d 920

W & O CONSTRUCTION CO., INC., Appellant-Plaintiff, v. CITY OF SMITHVILLE, Appellee-Defendant.

Supreme Court of Tennessee.

Nov. 21, 1977.

T. Eugene Jared, Cookeville (Cameron & Jared, Cookeville, of counsel), for appellant-plaintiff.

McAllen Foutch, Smithville, for appellee-defendant.

OPINION

HARBISON, Justice.

This suit was brought by a contractor to recover extra costs for rock removal under a building contract with the City of Smithville for the erection of a waste water treatment plant. The Chancellor sustained a motion of the defendant to strike a number of documents exhibited to the complaint and also sustained a motion to dismiss for failure to state a claim upon which relief could be granted. Plaintiff has assigned error to these rulings.

After the case had been briefed and orally argued in this Court, plaintiff tendered a detailed amendment to its complaint, seeking to add a number of material factual allegations and to establish a claim of waiver or estoppel with respect to the controlling contract provisions. Neither waiver nor estoppel was plead in the original complaint, nor were facts alleged tending to establish either of these theories.

There is authority for amending pleadings in an appellate court in order to correct technical or formal errors, such as the proper capacity of a party or the designation of a pleading. See Royal Indemnity Company v. Schmid, 225 Tenn. 610, 474 S.W.2d 647 (1971); American National Ins. Co. v. Thompson, 44 Tenn.App. 627, 316 S.W.2d 52 (1957). Parties may not ordinarily amend pleadings in an appellate court, however, to set up new claims or defenses of a substantive nature, particularly where no application for amendment was made in the trial court. See McEwen v. Gillespie, 71 Tenn. 204 (1879); Fogg v. Union Bank, 63 Tenn. 539 (1874); Loftis v. Stuyvesant Ins. Co., 54 Tenn.App. 371, 390 S.W.2d 722 (1965).

The record in the present case shows that suit was filed on March 12, 1976. Motion of the defendant to strike certain exhibits and to dismiss was filed November 18, 1976. Final judgment on these motions was entered on March 29, 1977. At no time, either prior to or subsequent to the ruling of the trial judge on these motions, does it appear that any amendment to the complaint was offered, despite the fact that the sufficiency of its allegations was directly challenged. Accordingly, we are of the opinion that the motion to amend here, at this stage of the proceedings, to add material factual allegations and theories of recovery is not well taken and should be denied. In reviewing the action of the trial judge, we must consider the complaint as it was presented to him on motion to dismiss. So viewing it, we are of the opinion that his rulings were correct.

This case involved a public works contract, which was let on competitive bidding. On its face, the contract shows that the work was funded in part by grants from a number of federal agencies and from the state. It was bid by plaintiff on a lump-sum basis, not by unit prices or on a cost-plus arrangement. Plaintiff alleged that it was an experienced and well-qualified contractor, having built or enlarged a number of similar sewage treatment plants in the Middle Tennessee area. Exhibited to the complaint were the contract documents and the detailed specifications. Since these represented the foundation of the suit, their provisions were incorporated into and became part of the pleadings and could properly be relied upon by both parties. Rule 10.03 T.R.C.P.

The complaint alleged that in excavating the construction site plaintiff encountered a large quantity of rock which had been unanticipated, and which plaintiff had been led to believe did not exist because of some core drillings done by an engineering firm prior to the letting of bids. The project engineer called attention to these core drillings in the instructions to bidders, but it is clear from the plans and specifications that ultimate responsibility for subsurface conditions rested upon the contractor, not upon the owner or the project engineer.

In the original complaint, plaintiff claimed a breach of paragraph 21 of the General Conditions, which provided that if materially different subsurface conditions were found from those shown on the plans or specifications, the contractor should give notice to the project engineer before the conditions were disturbed. The contract provided that the engineer would investigate the conditions, and that if he found that these so warranted, he would make appropriate changes in the plans or specifications. Any increase or decrease in cost was to be adjusted as provided in paragraph 17 of the General Conditions. The latter paragraph set out methods of computing additional costs but expressly provided that changes in the work were not authorized without express written approval from the...