APAC Carolina, Inc. v. Town of Allendale

41 F.3d 157, 1994 WL 660569
CourtCourt of Appeals for the Fourth Circuit
DecidedNovember 23, 1994
DocketNos. 93-1825, 93-1892
StatusPublished
Cited by11 cases

This text of 41 F.3d 157 (APAC Carolina, Inc. v. Town of Allendale) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
APAC Carolina, Inc. v. Town of Allendale, 41 F.3d 157, 1994 WL 660569 (4th Cir. 1994).

Opinion

Affirmed by published opinion. Senior Judge HARVEY wrote the opinion, in which Judge MURNAGHAN and Senior Judge SPROUSE joined.

OPINION

ALEXANDER HARVEY, II, Senior District Judge:

This litigation arises out of the construction of a sewage treatment facility for the towns of Allendale and Fairfax, South Carolina (collectively, the “Towns”). After construction of the facility had been completed, APAC Carolina, Inc. (“APAC”), the general contractor on the project, was sued in state court by Welco Construction and Utilities Company, Inc. (<cWelco”), the primary subcontractor on the project. Welco alleged that APAC had breached an oral agreement to compensate Welco for additional work which had been authorized by APAC and which had been required as a result of numerous inaccuracies and defects in the plans and specifications for the project which had been provided to Welco by APAC. After it was sued by Welco, APAC filed suit in state court against the Towns and Welco, asserting claims for breach of contract and negligent misrepresentation. APAC’s claims against the Towns were based upon the defective plans and specifications which the Towns had provided to APAC, and which APAC had in turn provided to Welco. APAC also asserted claims against Welco in the suit brought by it.

When Welco subsequently filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code, the two pending state court actions were removed to the United States Bankruptcy Court for the District of South Carolina and were docketed as adversary proceedings in Welco’s bankruptcy case. Thereafter, the United States District Court for the District of South Carolina withdrew reference of these adversary proceedings from the bankruptcy court, and the cases were docketed in the district court. In the first action, Welco sought to recover damages from APAC for, inter alia, breach of contract and breach of implied warranty. Welco Construction & Utilities Co. v. APAC Carolina, Inc., CA-90-1365 (hereinafter, “Welco v. APAC”). In the second action, APAC sought to recover damages from the Towns for breach of contract and negligent misrepresentation and against Welco for breach of contract. APAC Carolina, Inc. v. Towns of Allendale and Fairfax, South Carolina, et al, CA-90-1364 (hereinafter, “APAC v. Towns ”)1

[160]*160The two separate actions were consolidated, the parties were realigned, and the consolidated cases were tried together by the district court sitting without a jury. Following trial, the district court entered judgment, 868 F.Supp. 815, against APAC in the amount of $395,775, plus prejudgment interest, on Welch’s claims asserted in Welco v. APAC. The court entered judgment in favor of the Towns on APAC’s claims asserted in APAC v. Towns.

APAC now appeals from these judgments. The Towns in turn have cross-appealed from certain alternative conclusions of law which were entered by the district court in APAC v. Towns. Because we find no merit to any of the errors assigned by APAC, we affirm the judgments entered below.2

I

In December of 1984, APAC entered into an agreement (the “prime contract”) with the Towns, whereby APAC agreed to build for the Towns a sewage treatment facility for a total contract price of $1,044,912. In calculating its bid price for the project, APAC had specifically relied upon certain plans, drawings and specifications which had been provided to APAC by the Towns and which had been prepared for the Towns by the engineering firm of CRS Sirrine, Inc. (“Sirrine”). It is undisputed in this appeal that the plans and specifications (“the plans”) which were produced by Sirrine were materially defective and inaccurate in a number of ways and that the project could not have been built as designed.

Under the prime contract, APAC was required to build the project in strict accordance with the plans and was not permitted to deviate from the plans without the prior written approval of the Towns and/or Sirrine. In the ease of properly approved work changes, the prime contract provided that APAC would be entitled to additional compensation as follows:

Charges or credits for the work covered by the change shall be negotiated in accordance with Federal Register 40 CFR 33.1080(3). This procedure generally allows determination of charges or credits by one or more, or a combination of the following methods:
a. Unit bid prices previously approved.
b. An agreed lump sum.
e. ' The actual cost of [labor, materials, equipment, power, consumable supplies, insurance, and Social Security, old age, and unemployment contributions, plus] a fixed fee to be agreed upon but not to exceed fifteen percent (15%) of the estimated costs of the work. The fee shall be compensation to cover the cost of supervisions, overhead, bond, profit, subcontractors’ profit and overhead, and any other general expenses.3

The prime contract also included provisions relating to the rights and duties of the parties with respect to final payment under the contract. Pursuant to these provisions, APAC and the Towns agreed that “[t]he acceptance by [APAC] of final payment shall be and shall operate as a release to [the Towns] of all claims and all liability to [APAC] for all things done or furnished in connection with this work.” The prime contract further provided that APAC could accept final payment without forfeiting any outstanding claims for additional compensation if at the time of acceptance it executed an [161]*161express reservation of rights as to those other claims.

In January of 1985, APAC entered into an agreement (the “subcontract”) with Welco, whereby Welco agreed to provide all materials, labor, equipment and supplies for the project for a total subcontract price of $227,-523. In calculating its bid price for the subcontracting work, Welco had obtained the plans and had relied upon their accuracy. Under the subcontract, Welco agreed to be bound by the terms and conditions of the-prime contract, which was incorporated therein by reference.

In January of 1985, Welco began construction of the project’s pipeline, which was to be installed at a uniform depth along a route which for the most part ran parallel to U.S. Highway 301. Welco almost immediately discovered that the actual ground profiles and elevations along the highway’s shoulder varied significantly from the survey measurements represented in the plans. In addition, the plans failed to reveal several underground obstructions and failed to make any reference to certain applicable state regulations concerning the placement of manholes near or along highways. As a result of these and other problems, Welco not only had to excavate much more earth than had been anticipated, but also had to essentially resurvey the project in the field as the pipeline was being laid.

By March of 1985, the project had already fallen substantially behind schedule. On March 12, 1985, Sirrine, acting on behalf of the Towns, temporarily halted further construction because of unapproved deviations from the plans. Welco assured Sirrine that the changes had been necessary because the plans were defective.

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41 F.3d 157, 1994 WL 660569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apac-carolina-inc-v-town-of-allendale-ca4-1994.