City of Lawrenceburg v. Milestone Contractors, L.P.

809 N.E.2d 879, 2004 Ind. App. LEXIS 1085, 2004 WL 1277767
CourtIndiana Court of Appeals
DecidedJune 10, 2004
Docket15A01-0308-CV-313
StatusPublished
Cited by20 cases

This text of 809 N.E.2d 879 (City of Lawrenceburg v. Milestone Contractors, L.P.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Lawrenceburg v. Milestone Contractors, L.P., 809 N.E.2d 879, 2004 Ind. App. LEXIS 1085, 2004 WL 1277767 (Ind. Ct. App. 2004).

Opinions

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, City of Lawrence-burg (Lawrenceburg), appeals the trial court's award of summary judgment in favor of Appellee-Plaintiff, Milestone Contractors, L.P. (Milestone) with regards to its claim for additional compensation under a construction contract.

We affirm.

ISSUE

Lawrenceburg raises one issues on appeal, which we restate as follows: Whether the trial court correctly interpreted the construction contract between the parties as a basis for its entry of summary judgment in favor of Milestone upon Milestone's claim for additional compensation, and the trial court's denial of Lawrence-burg's cross-motion for summary judgment advocating a different interpretation of the construction contract.

FACTS AND PROCEDURAL HISTORY

On or about January 16, 2001, Law-renceburg solicited and received lump sum bids for the construction of a railway bridge over Front Street in Lawrence, burg, Dearborn County, Indiana. Various contract documents for the project were prepared and assembled by either Law-renceburg or its engineering consultant, Hrezo Engineering Co. (Hrezo), and made available to bidders. These documents included construction drawing plans, a project manual containing detailed specifications, and other written materials.

A substantial part of this project consisted: of supplying and driving 44 steel HP 12x53 pilings to provide structural support for bridge abutments and piers. The specifications in the bid documents called for each of these pilings to be driven into the ground to whatever depth (tip elevation) was required to provide a load bearing capacity of at least 70 tons. Specifically, specification 02000, § 1.B, provides that:

[pliling: all bridge pile shall be HP 12x53 sections conforming to ASTM A-36 Specifications. Piling shall be driven to batter and location shown and to the minimum bearing capacity as noted on the plans. All pile[s] shall be dynamically monitored for bearing capacity as set fort[h] in the geotechnical investigation report by H.C. Nutting Co.

(Appellant's App. p. 80) (emphasis added). The notation on the plans S-8 and S-9 further detailed:

[njote: All piles shall [be] HP 12x53 and shall be driven to a minimum tip elevation of 34.0 ft and pile bearing capacity of 70 tons.

(Appellant's App. pp. 86, 88) (emphasis added).

However, the geotechnical investigation report by H.C. Nutting (Nutting Report), referred to in the specifications and drawing note included within section 02010 of the project manual, described two different estimated pile tip elevations and pile lengths required to achieve the 70 ton bearing capacity. This difference in estimated pile tip elevations depended on whether or not a plug would form at the top of the piling as it was being installed: (1) tip elevation 34.0 feet with a plug forming, and (2) tip elevation minus 5 feet without a plug forming. (Appellant's App. pp. 28-4). The contract documents further contained a table of estimated quantities, prepared by Hrezo, for 11 different elements of work, including an estimated [882]*882quantity of 4,096 linear feet (LF) for the HP 12x58 piling work, which would translate to an average piling depth of about 93 feet.

On February 2, 2001, three days before bids were due, Lawrenceburg and Hrezo issued addendum # 2, which stated in pertinent part:

[in the event that the specified pile tip elevation is reached and the adequate soil bearing capacity is mot yet achieved, as witnessed by the project engineer and the geotechnical engineer, the contractor shall be paid for an additional HP 12x53 bearing pile required at a rate of $60 per lineal foot.

(Appellant's App. p. 88) (emphasis added).

On or about February 5, 2001, Milestone submitted a lump sum bid of $865,600.00 to perform the project in accordance with the provisions of the contract documents. Lawrenceburg accepted Milestone's bid and awarded it the contract for the construction of the Front Street bridge project. Following the award, on March 21, 2001, both parties entered into and executed a written contract.

During the performance of the work, Milestone drove a total of 4,561.72 LF of piling to achieve the specified 70 ton load bearing capacity for each of the 44 piles. Of this amount, 2,865.48 LF was driven to the 34.0 ft minimum pile tip elevation, and an additional 2,196.24 LF was driven below such 34.0 ft. pile tip elevation to an actual depth which achieved the specified 70 ton soil bearing capacity. Consequently, pursuant to addendum # 2, Milestone requested payment from Lawrenceburg in the amount of $131,774.40 for the 2,196.24 LF of additional piling driven below the 34.0 ft minimum pile tip elevation point. However, Lawrenceburg approved only $28,814.40 of Milestone's claim, stating that the minus 5 ft elevation, as specified in the Nutting Report, should be used as the specified pile tip elevation.

On July 2, 2002, Milestone filed its Complaint against Lawrenceburg demanding payment of the remaining $102,960.00. Thereafter, on March 25, 2003, Milestone filed its Motion for Summary Judgment, accompanied by a designation of materials and brief in support of the motion. On April 28, 2003, Lawrenceburg responded by filing its Motion for Summary Judgment, designated materials and brief in opposition to Milestone's Motion and in support of Lawrenceburg's cross-motion for summary judgment. On May 28, 2003, Milestone filed a reply brief. On June 11, 2003, the trial court conducted a hearing on the cross motions for summary judgment. Subsequently, on July 7, 2008, the trial court granted Milestone's Motion for Summary Judgment, and denied Law-renceburg's cross-motion.

Lawrenceburg now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. American Family Mut. Ins. Co. v. Hall, 764 N.E.2d 780, 783 (Ind.Ct.App.2002) trams. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. In doing so, we consider all of the designated evidence in the light most f2-vorable to the non-moving party. Id. The [883]*883party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. See Ayres v. Indian Heights Volunteer Fire Dep.'t, Inc., 493 N.E.2d 1229, 1234 (Ind.1986).

Generally, the construction of a written contract is a question of law for the trial court for which summary judgment is particularly appropriate. Mid State Bank v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Toby D. Pope v. City of Lawrenceburg
Indiana Court of Appeals, 2014
Wesley Patterson v. Mutual of Omaha Ins. Co.
743 F.3d 1160 (Eighth Circuit, 2014)
Lula L. Jenkins v. South Bend Community School Corp.
982 N.E.2d 343 (Indiana Court of Appeals, 2013)
George Dean King v. Kay S. King
982 N.E.2d 1026 (Indiana Court of Appeals, 2013)
BRC Rubber & Plastics, Inc. v. Continental Carbon Co.
876 F. Supp. 2d 1042 (N.D. Indiana, 2012)
Harness v. PARKAR
965 N.E.2d 756 (Indiana Court of Appeals, 2012)
Estate of Kinser v. Indiana Insurance Co.
950 N.E.2d 23 (Indiana Court of Appeals, 2011)
Stewart v. TT COMMERCIAL ONE, LLC
911 N.E.2d 51 (Indiana Court of Appeals, 2009)
Trustees of Indiana University v. Cohen
910 N.E.2d 251 (Indiana Court of Appeals, 2009)
City of Portage v. South Haven Sewer Works, Inc.
880 N.E.2d 706 (Indiana Court of Appeals, 2008)
Steve Silveus Insurance, Inc. v. Goshert
873 N.E.2d 165 (Indiana Court of Appeals, 2007)
Johnson v. Dawson
856 N.E.2d 769 (Indiana Court of Appeals, 2006)
Orthodontic Affiliates, P.C. v. Long
841 N.E.2d 219 (Indiana Court of Appeals, 2006)
Indianapolis-Marion County Public Library v. Shook, LLC
835 N.E.2d 533 (Indiana Court of Appeals, 2005)
City of Lawrenceburg v. Milestone Contractors, L.P.
809 N.E.2d 879 (Indiana Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
809 N.E.2d 879, 2004 Ind. App. LEXIS 1085, 2004 WL 1277767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-lawrenceburg-v-milestone-contractors-lp-indctapp-2004.