*1 550 PARTNERSHIP, LIMITED
RAD-RAZORBACK INC., DEVELOPMENT, John ASSOCIATES REALTY LASUSA, MARCON, BURROW, Samuel Bruce CENTER, a Joint SHOPPING SQUARE RAZORBACK DEVELOPMENT Venture, ESTATE FIRST REAL CO. v. B.G. CONEY CORPORATION S.W.2d 462 713 85-281 Court of Arkansas Supreme 21, delivered 1986 July Opinion Rehearing September Partial Opinion on [Supplemental 1986.1] denied October [Rehearing 1986.2] 1 JJ., Holt, C.J., Hays, participating. Purtle and not 2 Holt, Hickman, J-., C.J., J., Hays, participating. grant. not would *2 Clark, Clark, for by: appellants. & BillS.
Friday, Eldredge Firm, B.G. cross-appellant for appellee Wood Law Coney Company. Construc- Shrader Murray, cross-appellees
Walter A. & Inc. Excavating Clearing, Shirley’s Company tion East, III, East, Jones, Allen, Jack Southern, by: James & River Inc. Valley, for cross-appellee that arose case involvesdisputes Hays, Justice. This Steele Shopping of The Razorback Square the construction during *3 the RAD- developers, are Center Little Rock. Appellants others, is the appellee Partnership Razorback Limited contractor, center The disputes primarily B.G. Coney Company. site and earthwork. around preparation against suit RAD-Razorback for items Coney brought contract, but were “extra he claimed were not work contract price. work” that warranted above the compensation called for the that the items were position RAD-Razorback took it for approximately the contract and counterclaimed $200,000 for failure charged against Coney in credits to be back date, some correcting and for the cost of to meet completion claims were work which RAD-Razorback parts on his The chancellor found for Coney improperly performed. on its against for extra work and RAD-Razorback claims of a counterclaim. RAD-Razorback moved for the appointment motions having master and that new trial be ordered. Those denied, brings now this appeal. been RAD-Razorback Chancery
Review Cases cases de on the record on are tried novo Chancery Co., 18, 702 v. 288 Ark. S.W.2d appeal. Sugarloaf Mining Dopp Dunn, 44, v. Ark. 679 S.W.2d (1986); (1984); 393 Rose 284 180 District, Bennett Ford v. Pulaski School County Special Walt 208, However, 274 426 we will not (1981). Ark. 624 S.W.2d the findings against reverse of the chаncellor unless clearly of evidence. 52. After due deference giving ARCP preponderance to the of the chancellor to determine the superior position their weight of the witnesses and the credibility given
553 are we come to the that some of the testimony, findings conclusion when, A clearly although erroneous. erroneous finding clearly it, there on entire support reviewing еvidence court evidence is left with a definite and firm conviction that a mistake Co., has been v. committed. United States U.S. 333 U.S. Gypsum (1947). 364
When arguing on
the burden is on the
appeal,
appellant
to demonstrate error
bring
and to
a record which so demon
up
530,
v.
strates. S.D.
RNF
278 Ark.
S.W.2d
Leasing
Corp.,
647
(1983).
447
It is
burden
appellant’s
present
an abstract that
will
show error.
v.
sufficiently
286
Burgess Burgess,
Ark.
However,
S.W.2d 312
if the
abstract
apрellant’s
demonstrates error and a
of the record has been omitted
that would
the court’s
support
must
finding,
appellee
respond
through
9(e)(1)
Rule
in the abstract.
supply
deficiency
Wilson,
Murphy
Undercutting Dispute The first item for which sought as compensation contract, “extra” work undercutting outside was for done throughout the construction site. Undercutting is the removal of unsuitable soils and with soil replacement that will properly It is compact. RAD-Razorback’s the contract position *4 and, included the undercutting waived alternatively, right any work, to payment by not a claim for a presenting extra procedure the specifically required by contract. the
Under contract was to complete major three store, phases development: construction of а K-Mart site center, for the preparation entire 18 acre and all shopping The paving. contract provisions outlining these provide phases work, a only sketchy with description references to other documents for The three specificity. items of work are primary described as follows:
A. [Complete construction of the K-Mart store]. demolition, excavation, B. fill, Site clearing, and cut bring borrow material to entire site to in subgrades and building parking areas all including undercutting the K-Mart as outlined in the building soils reports of prepared Laboratories, Engi- Southwestern Soils Arkansas, Rock, Division, dated of Little
neering 23, 1982, all in accor- March 1982 and February italics). (Our with grading plans. dance site base and 2Vi- consisting of 8-inch C. All asphalt paving areas and 10-inch in topping parking inсh asphalt in heavy-duty asphalt topping base 21/2-inch Soils areas, Engineering’s all in accordance Can- recommendations, work on including all paving Department with Highway trell Road in accordance italics). (Our specifications. reference. report incorporated
The soils
B,
Section
quotes
his position,
simply
In defense of
all other
this
excludes
provision
with the
claim that
unsupported
construction,
on the rule of
be
undercutting. Coney may
relying
Contracts,
17A C.J.S.
unius est exclusio alterius.
expressio
§
however, must bow to
overriding,
312.
That rule not
which indicates the
an
of the entire transaction
examination
different clauses of
Id. In
to harmonize
contrary.
seeking
contract,
exclusion of
we should not
effect
one
give
or
nor
conflicting
contradictory,
anоther even
seem
though they
if the
provision
an
which neutralizes
adopt
interpretation
The
is to ascertain
object
various clauses can
reconciled.
words
but
intention of
not from
or phrases,
the parties,
particular
&
v. Sklar
agreement. Wynn
from the entire context of
Co.,
taken the of problems, contractor to deal each those by recom- including undercutting. The other deal with paragraphs mended thicknesses of the and base аnd with the asphalt type to stone be used in the base. the wording
Given from the soils it would be difficult report, to come to any undercutting conclusion that was included except obligation as in the This section the contract. paving would necessitate undercutting large for shopping center, B, i.e. the lot. And under parking Coney Section Thus, expressly for the K-Mart. responsible undercutting of contrаct includes undercutting on the entire project, except sites, building other for which was not Coney responsible. site, Further preparation of the remainder of the including undercutting, is covered in requirements section paving of the contract.
This interpretation effectively harmonizes conflicting
gives
clauses and
a reasonable
to the
reading
entire contract. But
even if
rejected
we
that
based on a
interpretation,
finding the
language is ambiguous, we would
to
come
the same result. Where
contract
ambiguous, the court will accord considerable
to the
weight
it,
construction the
themselves
parties
give to
evidenced by
statements,
subsequent
acts and
Wynn
conduct.
v.
Sklar, supra; Organized
Security
Munyon, 247 Ark.
Life
virtually the record rothing to indicate the undercutting was of any serious concern Coney to this prior made, litigation. insists were complaints but his fact, citations to the record do not bear this out. In admitted that he had never written a letter nor contacted the owner about the undеrcutting. This was echoed his position Toland, chief superintendent, Charles who they said had no way get back to the and tell the owners company problem. about the Yet the evidence shows that throughout the there were project other requests for change orders made by RAD-Razor Coney. witness, architect, back’s an expert testified it is in the contrac tor’s best interest to havе the change signed order prior going ahead with work and that the order must be signed before contractor is covered completely on his He also testified expenses.
556 work covered new to perform the contractor proceeded that if owners, without to the anything saying an without addenda order, he would change for a asking and without protesting, that the performanсe contractor accepted assume the of the work. as contractor a long experience the face of
In
it is
$40,000
undercutting,
$30,000
claiming
he was
and the
order nor a
a change
there was neither
why
difficult to understand
now claims was outside
for the work he
made
complaint
will be
parties
ambiguous,
where a contract is
contract. Even
have placed
which
themselves
they
bound to the construction
Life, supra.
Security
it.
upon Organized
urges,
as
we to
the contract
interpret
But were
view,
on a
an award
to the same
precluding
we must come
standard
contained the
meruit basis. The contract
quantum
that a claim for
industry
requires
which
provision
construction
begun,
before work
approved
extra work must be made
cannot recover for
such аuthorization the contractor
and without
Coney.
made by
Coney’s explana
work. No claim was ever
that
the owner’s
thought
was that he
it was
tion for this omission
too fast.”
job
moving
or that the
responsibility
“just
and about one
testified that he had built three K-Mart stores
is incredible
background
hundred Wal-Mart stores. From that
it
consequences
aware of the
fully
would not
now
he
to file work claim for the added
failing
compensation
in the
we
the record that this provision
demands. Nor do
find from
conduct on
previous
contract had been waived by
RAD-Razorback,
v.
Construc
as
Sellers West-Ark.
occurred
tion,
726
The
rule
general
676 S.W.2d
is,
or certain
to construction contracts
absent a waiver
pertaining
case, if it
evident from the record in this
circumstances not
must be in
for additional
required,
compensation
request
Ida
the work is
writing
completed.
and cannot be made after
Lake,
(Iowa
N.W.2d 313
Grove
Storm
378
Roofing City of
Elec-Trol,
Contractors,
S.E.2d
v. C. Kern
284
119
1985);
Inc.
J.
Fritch,
(Tex.
We must conclude RAD-Razorback, arguments presented the chancellor’s find- ing that the undercutting was not under the contract is required *7 and, clearly against of evidence preponderance accordingly, we reverse the decree on that point.
Sewer Compaction Dispute Another item in involves a of dispute sewer easement of site, Little Rock. City The easement crosses the entire a 1,300 distance of some feet. During the course of the construction line, the city decided to sewer replace the a creating problem because the city’s backfill of the trench did not meet the 95% compaction under the density required contract. RAD-Razor- back contends agreed to Coney bring to contract compaction specifications, and to this perform “extra work” admittedly for $7,500. RAD-Razorback on signed relies change order which reads as follows:
Removе excess dirt placed by city installation sewer of line front and with parallel front of K-Mart store and provide compaction of backfill as required in K-Mart paving specification.
The of filling the trench a long became and involved process rains, due to heavy and poor drainage unsuitable soils and Coney $80,000 claims over approximately original contract for this work.
The fact, chancellor made no specific finding of he simply announced a judgment for Coney. The record consists of seven- teen exhibits, volumes and countless abstracted into 300 pages, with few exhibits abstracted. On issues largely involving an accounting, it is impossible arrive at definitive any conclusions. Thus, on de novo review we cannot determine whether the judgment supported preрonderance evidence. While it that no order ever appears change filed for $7,500 to, the amount claimed over the we assertedly agreed cannot with what say certainty effect that omission may have had in this case. we Nor can tell whether Coney has documented the expenditures he claims. we try chancery cases de novo
Ordinarily from record and rendеr the decree which should have been rendered below; however, when the record is such that we cannot end the
558 the case as will remand that part in this court we controversy v. Bennett Ford Walt proceedings. for further justice requires 213, School District No. County Special Pulaski Bush, 484 S.W.2d Ark. 253 426 Fish S.W.2d case, leaving in this to that recourse are forced 525 (1972).We or himself that determination to make the chаncellor whether making taking proof for the purpose a master appoint whether parties remanded are The issues recommendation. $7,500 and, would be performed of the work agreed phase this the work. not, completing cost if what was the Claim RAD-Razorback’s over comple- difficulties encountering After RAD-Razorback financial problems, tion date *8 of the completion to before the a termination Coney agreed would be RAD-Razorback acknowledged that Coney project. finishing of for the cost charging due back compensation counter- RAD-Razorback remedial work. and for project any due which calculated was for the amount it claimed this suit denied the The court Coney. from yet had not been recovered claim. а clear case for RAD-Razorback has appeal, presented
On we to that on its find no impediment counterclaim recovery to is entitled does not that RAD-Razorback dispute claim. Coney nor he on and remedial work does recovery completion argu- makes several challenge the amount. specifically of which are on other none attacking grounds, ments the claim claim. to defeat RAD-Razorback’s sufficient argu- undercutting, defense is the issue of Coney’s primary contract, it be could not that since it was not ing part However, we undercutting as found charged him. do, this argument in the work had contracted included to attack arguments makes several other without merit. unconvincing conclusory, but are they RAD-Razorback’s claim has presented or RAD-Razorback proof. unsubstantiated of its claim to show that the dismissal sufficient evidence the evidence. clearly against preponderance claim and reversed as to RAD-Razorback’s The decree is to establish an accurate for further proceedings remanded accounting of the amounts due.
Cross Appeal Awarded River Judgment Valley, from
Inc. Inc., River Cross-appellee, Valley, subcontracted with Co- to install ney a waterline and fire around the hydrants shopping center and to install all plumbing work in connection with the K- Mart store. The chancellor found River Valley, Inc. was entitled $33,380.80 to a judgment for for the of its balance subcontract 1,1985 and at an April hearing Coney acknowledged validity of the River Valley claim in full.
On $275, asserts a appeal Coney set-off of and set-off in an amount due Lеwis Trenching issue, from River The Valley. latter so far as we determine, can was not to the chancellor. presented River Valley has abstracted a significant proceed- ings below to sustain its position that from appeal faith, the decree is made in bad solely delay. The argument The decree convincing. to River respect Valley, Inc. is affirmed and in $276.00, addition to its costs of рrinting counsel for $1,750. River Valley, Inc. is a fee of allowed
Cross Appeal Awarded to Judgments Shrader from Construction Company Shirley’s Excavating and
Clearing, Inc. The chancellor found that Shrader Construction *9 and Company Inc., Shirley’s Excavating and Clearing, joint subcontractors were $107,369.60 entitled to a judgment for representing the balance of unpaid their subcontract with Coney to perform drainage work in connection with the site. has Coney cross-appealed it alleging that was error to allow the full amount claims,
of their
that he was due a set-off
the amount
against
claimed. We find no
to
proof
support
and we
Coney’s position
have been cited to nothing in the record. It being
burden
error,
to demonstrate
the judgment awarded these cross-appel
lees is
Sutton,
аffirmed. Dale v.
273 Ark.
Holt, C.J., J., Purtle, and not participating.
559-A J.,
Hickman, dissents. Hickman, Justice, are dissenting. The appellants Darrell judge The trial decision. trial court to a trial and a entitled it was too because not decide the case he could acknowledged the case delay only would further time spent and complicated court We are an appellate it to us. on He anyway. simply passed findings enter evidenсe and no to authority weigh and have determined. findings already of facts We review may only fact. to a trial. The is entitled litigant that every It elementary or “panel experts” conceded a master trial judge quite candidly one further. gone step He should have should been used. have him, a he have appointed should Conceding beyond the trial a new trial and asked new trial or granted master and ordered a hear the case. judge for another to However have no trial judgment. We allow a to party cannot made; difficult, however must be a decision disagreeable a trial court. be, to a decision litigant by it a entitled wrong may argue to reasoning judgment At least then one can use A this case. trial no in remedy correction. The have appellants has defaulted. A decision cannot a decision court that render to no the case amounts try an court without power appellant a all. I would remand this case for trial. decision at on Partial Rehearing Supplemental Opinion 22, 1986 September
713 S.W.2d denied in Petition for in Rehearing; granted part. that argues for rehearing Coney Per Curiam. In petition $338,638.00 was favor in the amount of his judgment and thаt this admitted RAD-Razorback to be owed RAD- be affirmed. In judgment response, should amount but not as Razorback admits that it offered to that pay contract, that it might for that mean final under the payment work and back- waived its claims for remedial against accept refused charges. RAD-Razorback states *10 circumstances, favor of judgment offer. In the in $338,638.00 in sense that Coney’s underlying is affirmed issue, no in but the longer amount is cause action for that
559-B affirmance is without prejudice Rad-Razorback’s claims against Coney with regard to other matters.
There having been no petition for rehearing respect judgments Inc., favor of River Valley, Shrader Inc., Construction Company, & Shirley Excavating Clearing Inc., Company, judgments those have become final.
In other respects Coney’s petition for rehearing denied. J., Hays, not in the participating consideration of the case on rehearing. J.,
Holt, C.J. Purtle, not participating.