Arcon Construction Co. v. South Dakota Department of Transportation
365 N.W.2d 866
S.D.
1985
Check Treatment

*1 FOSHEIM, WUEST, conclude, therefore, C.J., that the trial Circuit We Acting Justice, holding January Judge, Supreme as in that the Court court erred by specially. agreement par- concur was intended support. child to fix the amount of ties WUEST, Acting (concurring spe- Accordingly, the order inas- we reverse cially). modify attempted as it the child much ease, I with concur the result in this decree in support portion of the divorce agree contempt cannot to col- be used interpreta- accordance with trial court’s past housing due lect the allowance be- January agreement. of the tion entered, cause no order was which has however, mean, This does not could, However, been violated. the court be upon remand Sharon should entitled to opinion, my in enter an order based agreement January enforce the January supplemental agreement by contempt action of a the divorce means which, violated, later appro- if could under above, pointed proper As out citation. priate by circumstances be enforced con- rights ty parties by fixed were tempt. terms of the 1979 decree. There divorce agree majority opinion regard- after, any rights those modification of ing attorney future allowances for fees. A only by way agree occur could bilateral past judges pos- decision indicates are parties ment of the as manifested a special expertise fixing sessed attor- agreement. Inasmuch valid contractual as Hetland, ney fees. See Scott v. S.D. interpreted January we have that; 552, 215 N.W. 778 I doubt private agreement as an con enforceable but, event, any the future we should parties, tract between the Sharon will be type have some basis for evidence or required to commence a civil action for reaching a resorting conclusion rather than may whatever amounts be due her under “ballpark” figures. that contract. I am authorized to state Chief Jus- The trial court awarded Sharon joins special tice in this concur- FOSHEIM attorney fees the order to show $150.00 rence. proceedings. appeal, cause Sharon On asks we increase this to include award attorney bring

reasonable fees incurred note, however,

ing appeal. this We that no fees,

separate motion for attorney nor an thereof,

itemized statement in support appeal. been filed in this connection with CO., INC., ARCON CONSTRUCTION a upon we have little which to Corporation, Hardrives, Minnesota any appellate attorney base award of fees. Inc., Corporation, a Minnesota Plain- Accordingly, we will limit our award to Appellees, tiffs and $500.00. Following the date of the remittitur DAKOTA DEPARTMENT OF SOUTH action, in this we will not consider a re TRANSPORTATION, Defendant quest attorney appeal fees on domes Appellant. tic relations cases unless there submitted No. 14510. separate motion, accompanied by to us counsel's verified statement of itemized Court Supreme of South Dakota. legal costs incurred and services rendered. Argued Feb. 1985. appealed The order from is reversed and April 3, Decided the case is remanded to the circuit court. HENDERSON, JJ.,

MORGAN and con-

cur. *2 Schmidt, Schroyer,

Ronald G. Schmidt of Zinter, Pierre, plaintiffs Colwill & appellees. Groseclose, Wayne

Chester A. Jr. and F. Gilbert, Gen., Sp. Attys. Pierre, Asst. appellant; defendant and Mark V. Meier- Gen., Pierre, henry, Atty. on the brief. WUEST, Acting Justice. appeal money judgment

This is an from a against the South Dakota Transportation (Department) arising from a road performed by construction contract (Arcon). Arcon Company Construction We affirm. May 30, 1978,

On Arcon entered into a contract with for the construc- tion of nine and one-half miles of U.S. Highway “Brown-Spink as the known Project.” Arcon then contracted with the (Plant) South Dakota Cement Plant for the 8,900 delivery approximately tons of ce- job per- ment to the site truck. Plant they sonnel told Arcon intended to deliver the cement to via the Aberdeen Milwaukee Railroad, and truck it from the Aberdeen job terminal to the site. The construction completion contract carried a date of No- 1, 1978, vember and Arcon received notice project proceed to on the on June 1978. Plant, however, The Cement was unable to deliver the cement called for under its con- Arcon of a cement tract with because shortage. The failure of Plant to deliver the cement rendered Arcon unable to com- plete project Recognizing 1978. paving completed could not be charge any working Department did not “Brown-Spink Project” during days to the construction season. Arcon re- the 1978 quested completion a new date of Novem- 1, 1979, project. Department for the ber granted 71-day them a extension commenc- 4, 1978, ing April 1979. On December expected it advised begin paving “Brown-Spink Project” 15,1979, approximately requested June any delivery problems that it be advised of during the 1979 On construction season. April personnel met with employees purpose for the of discuss- project during Arcon then commenced suit De- ing shipments to Arcon’s recover, alia, again partment seeking inter in- 1979 season. Arcon advised begin paving creased rates and fuel intended Project” alleging that its total claim “Brown-Spink on or about June $70,249.44 originally of which action,” “separate had been awarded in a similarly- April In on a bid *3 therefore entitled the dif- to runway a at the project paving sized for $32,076.44. ference of Arcon later amend- airport. The Sioux Falls air- Sioux Falls $59,154.05which, lawyer ed its claim to its completion port project had a date of Octo- explained, sought the full amount in was damages liquidated It had a ber case, amount including the the Plant $11,000.00 provision per day, for whereas case, approximately awarded in that less Project” provision a “Brown-Spink the had $11,000.00 represented the “claim of which per day. liquidated damages for of $500.00 another subcontractor.” 18, 1979, May until From October very judicial the The trial took performed Arcon little work on court this case transcript pleadings “Brown-Spink Project.” The contract be- notice of the prior tween and Arcon contained a Plant’s case. Twice to trial and evidence, provision again Depart- Arcon of at the for reimbursement close of the costs, including freight increased rates and ment moved to dismiss this case on the costs, unexpected grounds estoppel, urging fuel were at the of collateral which bidding. provi- already time of It also contained a the issues raised this case had if completion sion for extension of the date been tried in the case. The motions delay there as the result were denied. The same motion re- was work was unanticipated delays, beyond subsequent In the con- newed to trial and denied. control, action, delivery present tractor’s of critical the used the Plant, i.e., as material. same defense that Arcon’s timely completion failure of was due to the Department, believing the contract had equipment fact that their was committed to timely performed, liqui- not been assessed airport job. the Sioux Falls Arcon’s claim damages against dated the sum of non-delivery cases both of ce- $40,500.00 delay completion for timely comple- ment caused the failure of contract. jury tion. The returned a verdict for Arcon Arcon sued Plant for failure to deliver liquidated for the assessed as the cement under their contract. Ar See damages freight and the rates and fuel con v. Constr. Co. South Dakota Cement asked, $57,- in the amount Plant, (S.D.1984). 349 407 N.W.2d Arcon n 164.05. sought recovery liqui from Plant for the Department claims that the trial damages by Department dated assessed for failing apply court erred in the doctrine complete failure to con construction estoppel. must, of collateral There how freight tract on time and also for increased ever, judgment a final unreversed be or surcharges. rates and fuel Plant defended competent jurisdiction decree of a court of claims, alleging these that Arcon’s judicata, the doctrines of before res collat assumption airport of the Sioux Falls estoppel, preclusion apply. eral or issue subsequent project equipment schedul Jewelry Mfg. Black Hills v. Felco Jewel ing decisions were the reasons Arcon was Ind., (S.D.1983); 336 N.W.2d 153 Golden v. complete “Brown-Spink unable Enterprises, Oahe Inc. 90 S.D. 240 Project” jury on time. The in the Plant (1976); N.W.2d Keith v. Truck Willers nothing liqui case awarded Service, 64 S.D. N.W. $40,500.00. damages claim of On the dated Co., of Arcon’s In question supra, claim the increased Arcon Const. we re freight surcharges, damages. rates and fuel the costs This includ $38,173.00. jury awarded ed the award for increased rates surcharges arising and fuel out again December establish a con- “Brown-Spink The Project.” jury did not tinuing car shortage. rail any liquidated damages award we affirm the “Brown-Spink Project,” but the is damage the trial court. sues were reversed. there is final Since no judgment, unreversed the doctrine col FOSHÉIM, C.J., concurs. estoppel preclusion lateral or issue no has HENDERSON, J., specially. concurs application in Counsel appel- this case. argument, MORGAN, during JJ., lee assured us oral if we WOLLMAN and dissent. affirm, should no further claim for dam HENDERSON, (specially concur- ages brought awarded in will this action be ring). in Arcon upon retrial. majority opinion moored, The basical- damages We hold Arcon cannot recover ly, holding its on the statement action, upon awarded this Ar retrial of must, “[tjhere however, abe final unre- con v. Cement Plant. *4 or decree of a court of that claims Arcon’s evidence competent jurisdiction before the doctrines prove was insufficient that there was judicata, of res estoppel, collateral or issue rail shortage deprived fact a car which it of preclusion apply.” quarrel I no have with spring cement deliveries in the and summer However, holding. such a in concurring could, of and that it with reasonable with majority opinion, the I wish to state diligence, have the project finished sooner ground that would an affirmance on the it than did. premise that the Cement Plant case and On appeal, we review the evi the Department Transportation case of light the dence most favorable the contracts, (a) (b) involve different different prevailing party resolve conflicting and evi damages due, (c) par- claims for different See, e.g., dence favor of the verdict. ties, (d) (e) issues, different and different (S.D. v. Royer, 359 N.W.2d 387 Hoffman jury instructions to the in both cases be- 1984); Stonecypher, Stoltz v. 336 N.W.2d (f) differing points cause of of law. There- (S.D.1983); Assam, 654 Zee v. 336 N.W.2d fore, pronounced the rule in Black Hills (S.D.1983); Ahlers, 162 Barnhart 79 applied here; Jewelry should indeed be (1961); S.D. 110 125 N.W.2d Hullan is, that a matter which had identi- McIntyre, der v. S.D. N.W.2d litigated may brought cal issues not be litigated again back before the court to be Contrary to Department’s claim of insuf- though parties even there is privity not of evidence rail shortage, ficient of a car litigation. to the second May Plant records for disclose simply apply We must Black Hills Jewel- Plant every advised Arcon that time ry properly Appellee to the hand. facts at there called were no rail cars. The record appellant and both offer Black Hills Jewel- May indicates also of 1979 Plant it, authority. ry as As I the view trying to lease railroad cars to run on Plant case arose from a of breach cement the Milwaukee rails. The official minutes sought rights sales contracts which South Dakota Cement Plant Commis- remedies under the Uniform Commercial (Commission) meeting May sion for us, Code. Before we now have the same shortage show a serious of rail cars plaintiff asserting a claim the De- Further, for terminal movement. partment Transportation of alleged July Arcon on met with concern- wrongs, seeking totally redress under a ing availability rail of cars for the contract, namely, different “Brown-Spink project.” Department was 30,1979, Brown/Spink July that as of contract. This latter con- advised there were tract, thereof, thirty rail only jury cars entire breach led the Milwaukee cement pool. Finally, Railroad car offi- to find there unavailability was an cial minutes meeting Commission for hauling railroad cars the cement. A plant Western shortage of cement at delay thing; a is one Dakota

South cement in Eastern South Da-

transporting altogether matter. different is an kota pre- issue

Therefore, estoppel or collateral inapplicable as the issues these

clusion readily distinguishable. cases are two

WOLLMAN, (dissenting). majority opinion makes abundant-

As the clear, sought recovery in the

ly Ce- liquidated case for the dam-

ment for failure to

ages assessed on time the construction contract

complete freight rates

and also increased surcharges. was awarded noth-

fuel damages claim liquidated

ing on the

only on the increased fuel claim. did

rates and respect file a notice review

not Accordingly, however infeli-

those issues.

citously dispositive paragraph worded opinion

in our the Cement case *5 been,

may have 349 N.W.2d not have re-

fact remains we could judgment respect those hold

two issues. would precluded by judgment

Arcon was relitigating Plant case from and

the issues case at bar would from. judgment appealed

reverse

I am authorized to state joins in this dissent.

MORGAN Evans, Evans, Davenport, E.

Edwin Falls, Smith, plaintiff & Sioux Hurwitz CO., TAYLOR REALTY a South Schaffer, Dav- J. appellant; Michael Corporation, Dakota Plaintiff Smith, Evans, & Sioux enport, Hurwitz Appellant, Falls, on brief. Cadwell, Sanford, & W. Sanford Steven HABERLING, Bill Defendant Deibert, Falls, ap- for defendant and Sioux Appellee. Cadwell, Garry, of San- pellee; William C. No. 14113. Falls, Deibert, on brief. ford & Sioux Supreme Court Dakota. of South MARTIN, Judge. Circuit on

Considered Briefs Jan. Plaintiff, Realty Company, ap- Taylor April 10, 1985. Decided peals from from a subse- denying order its motion for a new quent damages. We affirm. trial issue