ROBERTS CONTRACTING INC. AND FIDELITY & DEPOSIT COMPANY OF MARYLAND APPELLANTS/ CROSS-APPELLEES
MERSINO DEWATERING INC. APPELLEE/ CROSS-APPELLANT
OF JUDGMENT: 05/11/2016
COUNTY CIRCUIT COURT HON. ROBERT P. CHAMBERLIN TRIAL JUDGE
ATTORNEYS FOR APPELLANTS: STEPHEN FRED LIBBY ADAM M. NAHMIAS
ATTORNEYS FOR APPELLEE: CHRISTOPHER DANIEL MEYER BRADLEY
This appeal concerns a construction-contract dispute between
Roberts Contracting Inc. (RCI) and Mersino Dewatering Inc.
(MDI). RCI appeals the DeSoto County Circuit Court's
holding that RCI's contractual breaches entitled MDI to
damages and prejudgment interest. MDI's cross-appeal
concerns the failure of the circuit court to delineate the
method for calculating prejudgment interest. Our review
reveals no error in the circuit court's determination of
the contractual dispute between the parties. The only
modification we find necessary is in the circuit court's
order regarding the type and amount of prejudgment interest
awarded by the judgment. Therefore, we affirm and, applying
longstanding tenets of contract law, modify the order with
our determination that the prejudgment interest applicable to
the judgment shall be computed as simple interest at the
interest rate of 1.5% per annum from the date of the breach
(March 18, 2010).
DeSoto County Regional Utility Authority (the Authority)
required the Walls-Lagoon Project for improvement and
expansion of a portion of DeSoto County's regional sewer
system. Phase two of the Walls-Lagoon Project included, among
other things, the trenching for and installation of
approximately 11, 300 lineal feet of sewer line several feet
below the ground surface in Walls, Mississippi.
RCI served as the Authority's general contractor on the
project and installed the subsurface-mainline-sewer pipe on
the project. Due to the project's proximity to certain
bodies of water, a necessary component of the project was
dewatering. RCI's commencement and completion dates
relied upon proper dewatering. Dewatering is the act of
removing ground water from a specified area to lower the
natural water table.
MDI prepared and sent RCI a proposal for the dewatering
aspects of the project. RCI accepted MDI's dewatering
contract (MDI contract), and RCI returned the executed MDI
contract to MDI. The price provision of the MDI contract was
Mainline Sewer Dewatering - [MDI] will install deepwells for
approximately 11, 300 lineal feet of sewer at a per foot cost
of $55[ ] per foot for deepwells [seventy] feet deep with a
minimum charge of 1, 000 lineal feet per mobilization. Each
individual system (approximately 1, 000 feet per system) will
be provided for up to [six] weeks, after which time each well
will [be] provided at a rental rate of $600[ ] per well per
week. Generators will be provided at. A mob/demob fee of $6, 750[
] each way will be charged at the start and completion of the
job. This puts the total for the project at a cost of $635,
000[ ] without overruns on the equipment. In the event that
the footage is increased, the $55[ ] per foot price will be
applied to that.
contract further contained a detailed scope of work that
delineated the responsibilities of both MDI and RCI
separately in multiple-bullet point descriptions, which
included but were not limited to the following:
[MDI] will be responsible for . . .
[d]elivery of equipment to job site . . .
[d]rilling and developing wells . . .
[g]enerator and electrical distribution to power the
dewatering system, . . .
[d]emobilization of equipment upon completion . . . [, and]
[RCI] is responsible for . . .
[a]ll fuel required for the operation of the dewatering
system . . .
[a]ssistance in loading of equipment on [MDI] trucks upon
project completion. . . .
Thereafter, RCI submitted an Associated General Contractors
subcontract (RCI subcontract) with a general scope-of-work
paragraph and general overall-pricing provision for the sum
of $635, 000 to MDI. This sum comports with the MDI
contract's calculated cost of 11, 300 linear feet of
dewatering at fifty-five dollars a foot added to an equipment
mobilization cost of $6, 750 and a demobilization cost of $6,
750. Adding to RCI's subcontract, MDI incorporated, by
handwritten notation, the detailed scope-of-work provisions
from the previously executed MDI contract. MDI executed the
RCI subcontract on or about May 12, 2009. Together, these
two documents form the contract between the parties for the
dewatering aspects of the project.
In addition to the dewatering, MDI provided certain pumps and
accessories (trash pumps) as rentals for use on the project
to RCI. Those trash pumps allowed the pumping of sewage and
solids on the project. There was no signed written agreement
between the parties regarding the trash pumps. But, the
parties operated in accord with the payment provisions of a
trash-pumps rental proposal forwarded to RCI prior to the
start of MDI's subcontract work.
Between late May and early June 2009, MDI mobilized on site
at the project. From July 24, 2009 until February 2010, MDI
provided dewatering-related labor, services, and equipment,
along with rental trash pumps. Per the specifications of the
project itself, the dewatering operation was to lower and
maintain the water table at least five feet below the bottom
of the pipe-trench excavation (required level). RCI could not
begin installing mainline sewer pipe until that required
level was reached. On July 29, 2009, the parties met with
Waggoner representatives to discuss delays due to flooding,
the amount of rain on the project site, and the slow pace at
which the water table was being drawn down. As a result, MDI
installed an additional well to aid the dewatering to reach
the required level and allow RCI to begin installing mainline
pipe. MDI installed and provided this additional work and
equipment at no charge.
Waggoner determined when RCI could begin installing mainline
pipe and whether MDI had reached the required level.
Eventually, Waggoner determined that MDI met the required
level in September 2009 but did not permit RCI to begin
laying mainline pipe on the project until October 1, 2009.
Despite multiple delays to RCI's scope of work, RCI
completed the project on time and was not assessed penalties
or damages by the Authority for untimely performance.
RCI contends the terms of the MDI contract, particularly the
payment terms regarding the use of each deepwell system
beyond six weeks, should not be enforced. But, Cotton
Roberts, RCI's president, testified that RCI provided the
fuel on the project because it was required of RCI pursuant
to the scope-of-work provision in the MDI contract. Roberts
also testified that the governing agreement between the
parties was a unit-price contract as stated in the
price-quotation portion of the MDI contract rather than the
general overall-price provision in the RCI subcontract.
Additionally, the parties performed as detailed in the MDI
contract's scope-of-work provision: MDI provided
deepwells for dewatering; RCI paid fifty-five dollars per
lineal foot of sewer-pipe laid in those dewatered areas; MDI
provided generators to power the dewatering system; MDI
mobilized and demobilized the equipment needed; and MDI
forwarded detailed invoices on a regular basis to RCI.
For the dewatering work and trash-pump rentals, RCI paid MDI
a total of $612, 448. MDI claimed it was owed an additional
$117, 690.30. Following a two-day bench trial on December
16-17, 2015, the circuit court entered judgment in favor of
MDI in the amount of $67, 579.