Palazzi Corp. v. Stickney

619 A.2d 1001, 136 N.H. 250, 1992 N.H. LEXIS 163
CourtSupreme Court of New Hampshire
DecidedOctober 30, 1992
DocketNo. 90-607
StatusPublished
Cited by2 cases

This text of 619 A.2d 1001 (Palazzi Corp. v. Stickney) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Palazzi Corp. v. Stickney, 619 A.2d 1001, 136 N.H. 250, 1992 N.H. LEXIS 163 (N.H. 1992).

Opinion

Thayer, J.

This case concerns a contract dispute between the plaintiff construction contractor, The Palazzi Corporation (Palazzi), and the defendant, Wallace E. Stickney, commissioner of the State Department of Transportation (the State). The State appeals the Superior Court’s (Dickson, J.) order awarding over $400,000 in damages to Palazzi, arguing that the trial court erred in finding that the construction project at issue was an expensive “borrow” project and not a more economical “waste” project, as the State originally promised when it solicited bids for the project. The State also contends that, in awarding damages for Palazzi’s cost of maintaining another contractor’s haul road, the superior court erroneously neglected evidence that Palazzi waived any claim to such costs. Finally, the State asserts that the superior court relied on an ill-conceived formula to compute the damages related to the haul road maintenance and should have instead awarded damages only for those expenses that were contemporaneously recorded. For the reasons stated below, we vacate the court’s awards and remand for further proceedings consistent with this opinion.

In 1982, Palazzi successfully bid on a State construction project (the “E” project) involving two sections of route 101, approximately seven miles apart. Between the two sections, and adjacent to the easterly one, was another State construction area known as the “D” project. The State required the “D” contractor to build and maintain a haul road across its project so that Palazzi could easily travel from [252]*252one “E” section to the other. Such travel was crucial to Palazzi’s work, because the easterly section of the “E” project, which needed to be excavated down to a certain level, provided most of the fill required in the westerly section, which needed to be built up.

In soliciting bids for the “E” project, the State described it as a “waste” project, which meant that enough rock and other material could be found within its designated confines to supply all the fill demanded by the project. The opposite of a “waste” project is a “borrow” project, compelling the contractor to look off-site for the needed fill. To determine that the project would be a “waste” project, the State measured and examined the unexcavated rock on the construction sites, estimated how much volume the rock would occupy once it was excavated, and then compared that figure to the amount of fill needed to complete the project. As rock broken up occupies more space than rock in the ground, the State’s computation necessarily included an “expansion factor” to calculate how much the unexcavated rock would increase in volume once it was cut out of the ground. Based on its analysis of the rock’s various attributes, the State chose an expansion factor of thirty-five percent and concluded that there would be more than enough rock to satisfy the fill needs of the project.

Once construction began, another occasion arose to use an expansion factor. It became apparent that the “D” project contractor would not construct the haul road by the date agreed, threatening Palazzi’s ability to transport fill from the easterly section of its project to the westerly section. After some negotiation, the “D” contractor and Palazzi agreed to a swap: Palazzi would let the “D” contractor take as much unexcavated fill as it needed from Palazzi’s easterly section, and in exchange the “D” contractor would let Palazzi take an equivalent amount of excavated fill from the “D” contractor’s “borrow” pits near Palazzi’s westerly section, where the fill was needed. To ensure that no more fill was taken than given, the two contractors needed to measure and compare the rock being exchanged. But as Palazzi’s rock was not yet excavated, and thus occupied a smaller volume than an equivalent amount of the “D” contractor’s rock, an expansion factor was needed to make an adequate comparison. They agreed on twenty-four percent and proceeded with their respective construction projects.

The “D” contractor did eventually build the haul road over its construction site, but apparently did not maintain it properly. Palazzi took on the job of maintenance and notified the State of the problem on December 1, 1983. The State refused Palazzi’s request for reim[253]*253bursement of its maintenance costs, but asked its own engineer, Laurent Levesque, who later resigned from the department of transportation to work for Palazzi, to keep track of these expenses. Levesque partially complied: Palazzi kept contemporaneous account of the maintenance work for sixteen days, and Levesque copied Palazzi’s figures into his State reports. At trial, testifying for Palazzi, Levesque stated that further record-keeping was impossible for him because the State did not provide needed accounting assistance.

After Palazzi completed its construction project, it sued the State for the costs of the haul road maintenance. Additionally, it claimed that the entire operation was in fact a “borrow” project, not a “waste” project, and sued the State for the cost of transporting the extra fill it alleged was needed to finish the project. After eight days of testimony and the introduction of over one hundred exhibits, the trial court accepted all of Palazzi’s arguments and calculations and ruled in its favor. The State appealed, arguing that the evidence presented was insufficient to support the superior court’s rulings and that the court erred as a matter of law.

The standard of review on a sufficiency of the evidence challenge is well-established: “If the findings can reasonably be made on all the evidence, they must stand. Our function in reviewing the trial court’s findings is not to decide whether we would have found differently but to determine whether a reasonable person could find as did the trial judge.” Liberty Mut. Ins. Co. v. Custombilt, Inc., 128 N.H. 167, 170, 512 A.2d 1098, 1100 (1986) (quotation omitted). These words are especially appropriate in a case such as this, where over a dozen experts gave conflicting testimony on various significant factual issues. At the same time, however, we cannot let stand an obvious legal or mathematical error—such as the ones found here—under the guise of affirming a trial court’s broad discretion.

I. “Waste” vs. “Borrow”

The problem presented by the “waste”/”borrow” issue is essentially a simple one. The project must be deemed a “waste” project if Palazzi could have gotten all of its required fill from its own project sites. Palazzi did not actually use all of its rock, but instead used some of its own and some of the “D” contractor’s rock, and in so doing obtained all the fill it needed. Palazzi gave the rock it did not use to the “D” contractor in an exchange for the “D” contractor’s rock. Thus, we must compare the rock traded in the swap. If Palazzi used no more of the “D” contractor’s rock than the “D” contractor [254]*254took from Palazzi, then there was enough rock on Palazzi’s sites to provide all the fill Palazzi needed, and the project was a “waste” project. The project was a “borrow” project if Palazzi took more rock from the “D” contractor than it gave.

Both Palazzi and the State acknowledge these basic principles, and the parties generally agree on the measurements taken of the rock exchanged in the swap. These figures, however, reveal that Palazzi’s rock was measured while still unexcavated, while the “D” contractor’s rock was measured after it had been broken apart.

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Smith v. Shepard
740 A.2d 1039 (Supreme Court of New Hampshire, 1999)
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663 A.2d 1335 (Supreme Court of New Hampshire, 1995)

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Bluebook (online)
619 A.2d 1001, 136 N.H. 250, 1992 N.H. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palazzi-corp-v-stickney-nh-1992.