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Roberts Contracting Inc. v. Mersino Dewatering Inc.

Court of Appeals of Mississippi

September 25, 2018

ROBERTS CONTRACTING INC. AND FIDELITY & DEPOSIT COMPANY OF MARYLAND APPELLANTS/ CROSS-APPELLEES
v.
MERSINO DEWATERING INC. APPELLEE/ CROSS-APPELLANT

          DATE OF JUDGMENT: 05/11/2016

          DESOTO 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 BARRON VANCE

         EN BANC

          TINDELL, J.

         ¶1. 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).

         FACTS

         ¶2. 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.

         ¶3. 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.

         ¶4. 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 as follows:

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.[1] 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[ ] with[]out overruns on the equipment. In the event that the footage is increased, the $55[ ] per foot price will be applied to that.

         The MDI 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. . . .

         ¶5. 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.[2] Together, these two documents form the contract between the parties for the dewatering aspects of the project.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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.

         ¶9. 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.

         ¶10. 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.

         STANDARD ...


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