State, Department of General Services v. Cherry Hill Sand & Gravel Co.

443 A.2d 628, 51 Md. App. 299, 1982 Md. App. LEXIS 268
CourtCourt of Special Appeals of Maryland
DecidedApril 7, 1982
DocketNo. 593
StatusPublished
Cited by3 cases

This text of 443 A.2d 628 (State, Department of General Services v. Cherry Hill Sand & Gravel Co.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State, Department of General Services v. Cherry Hill Sand & Gravel Co., 443 A.2d 628, 51 Md. App. 299, 1982 Md. App. LEXIS 268 (Md. Ct. App. 1982).

Opinion

Morton, J.,

delivered the opinion of the Court.

The State of Maryland, through its Department of General Services, appellant and cross-appellee herein, solicited bids from construction contractors to construct a fish hatchery on the grounds of Cedarville State Park in Anne Arundel County. The plans and specifications as prepared by Frederick Ward Associates, Inc., required the clearing, excavation, and grading of a large site and the lining of 27 excavations which would become ponds.

[301]*301Several interested contractors, including Cherry Hill Sand and Gravel Company, Inc., appellee and cross-appellant herein, before putting in their bids, inquired of David Hall, an employee of Frederick Ward Associates, Inc., whether there was on-site "impervious fill” sufficient to line the 27 excavations as required. Mr. Openshaw, the president of Cherry Hill, and at least one other inquiring contractor were advised that there was. Cherry Hill prepared its bid, a component of which was $194,920, a $4 per cubic yard charge for placing, compacting, and shaping an estimated 48,730 cubic yards of borrow, or "impervious fill.” Cherry Hill, acting on the assumption that all the impervious fill needed was on the site, did not include in its estimate a cost for hauling the fill or other costs associated with hauling fill from an off-site area.

Cherry Hill was awarded the contract. The written contract entered into between the parties provided, at Paragraph 2B-9a, that the contractor was to supply the fill required where cuts did not provide sufficient materials. No representation was made within the written contract that sufficient quantities were available on site.

During construction it became apparent that there was very little borrow on-site which met the requirements of impervious fill, and Cherry Hill was forced to retrieve 45,997 of the 49,941 cubic yards needed from areas 800 to 1500 feet "off-site” — away from the ponds — thus incurring additional costs.

Cherry Hill filed a declaration in the Circuit Court for Anne Arundel County (Williams, J.) against the State of Maryland, Department of General Services, first alleging that it incurred the additional expense of hauling the fill and was owed $321,979 under the contract, based on a figure of $7 per cubic yard for 45,997 cubic yards of borrow.

The trial judge in an oral opinion issued at the end of the trial concluded that the oral representation made to Cherry Hill two days before bids were accepted was a part of the written contract which followed. He awarded as damages for the State’s breach $1.96 per cubic yard for the hauling of [302]*30246,041 cubic yards and the cost of opening and closing two "pits,” in addition to $1,665.84 to repair a cable in one of the pits that Cherry Hill was forced to use.

The State herein appeals the final judgment entered in favor of Cherry Hill in the amount of $91,906.20, arguing that the court erred in ruling that the contract between the parties contained an oral representation made by the State engineer prior to the time that the parties entered into a written contract. It argues that under the parol evidence rule, the prior oral assertion made by Hall that there was sufficient on-site impervious fill is not admissible to vary, alter, or contradict the complete and unambiguous written contract later entered into by the parties. Indeed, argues the State, such parol evidence would not be admissible even to explain the meaning or determine the construction of a writing susceptible as this is to a reasonable construction.

The contract, appellant asserts, was clear and unambiguous:

"2B9 Borrow and Surplus Cut
a. When sufficient materials are not available from cuts to establish the required grading, the contractor shall supply the fill required ....
b. The Contractor shall note that some fill, if required, is available from the site designated 'Borrow Area’ as shown on the drawings unless otherwise directed . . ..”

As such, parol evidence of a prior representation to the contrary was not admissible. For support, appellant relies on the case of Delmarva Drill Co. v. Tuckahoe Shopping Center, 268 Md. 417 (1973), where the Court of Appeals held inadmissible an oral statement by a drill company employee to appellee that usable water would be found, whereas a written contract subsequently entered into between the company and appellee specifically disclaimed any guarantee as to water quality. Judge Levine, quoting several of his predecessors, stated, at 426:

[303]*303" '[P]arol evidence is inadmissible to vary, alter or contradict a writing which is complete and unambiguous, where no fraud, accident or mistake is claimed, [citation omitted] but where doubt arises as to the true sense and meaning of the words themselves or difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and determined by evidence dehors the instrument.’ ”

Appellee corporation initially raises the threshold issue of waiver. It argues that after appellant objected to Openshaw’s testimony that he was "assured” by Hall that there was sufficient impervious fill, it called Hall to the stand and questioned him on the alleged conversation, thus waiving its prior objection to the evidence of that conversation.

The record reflects that the appellant did indeed solicit this testimony from its witness Hall:

"Q. Now, Mr. Openshaw in his testimony stated that he had a phone call with you on or about March 15, 1977 ....
Q. What was said in the conversation between you and Mr. Openshaw?
A. Are you talking about the alleged . . .
Q. The one that . . .
A. ... in March?
Q. Yes.
A. Well, for one thing, let me set the record straight. I do not recall every [sic] talking to Jim Openshaw before the bids.”

Hall testified that he did, however, recall talking to one of Openshaw’s estimators, Mr. Vonella, about the borrow. He told Mr. Vonella that it was Vonella’s responsibility to determine whether there was sufficient impervious material on-site and that he would guarantee nothing, but that his [304]*304"gut reaction, off the record” was that there was enough material in and beyond the area of the pond.

While appellee acknowledges that appellant need not "play the ostrich and simply ignore the evidence” admitted over its objection in order to preserve the issue for appeal, City of Baltimore v. Smulyan, 41 Md. App. 202, 219 (1979), it argues that appellant’s actions at trial exceeded allowable bounds. In Smulyan, Judge Wilner, speaking for this Court, alluded to those bounds, at 219:

"[Appellant] may cross-examine . . . the witness about the evidence, Peisner v. State, 236 Md. 137, 144 (1964), and make other reasonable efforts to show that the evidence, admitted over his objection, should nevertheless be discounted or disregarded by the trier of fact. This is all that [appellant] did in this case, and it is quite different from soliciting (or failing to object to)

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

Related

Department of Public Safety & Correctional Services v. Ara Health Services, Inc.
668 A.2d 960 (Court of Special Appeals of Maryland, 1995)
Dep't of Gen. Serv. v. CHERRY HILL S & G CO.
443 A.2d 628 (Court of Special Appeals of Maryland, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
443 A.2d 628, 51 Md. App. 299, 1982 Md. App. LEXIS 268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-department-of-general-services-v-cherry-hill-sand-gravel-co-mdctspecapp-1982.