Summers Drilling & Blasting, Inc. v. Goodwin & Goodwin, Inc.

2020 Ark. App. 194, 598 S.W.3d 853

• Court: Court of Appeals of Arkansas
• Decided: March 18, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 194 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-19-489

Opinion Delivered: March 18, 2020

SUMMERS DRILLING & BLASTING, APPEAL FROM THE SEBASTIAN INC., A/K/A SUMMERS DRILLING, COUNTY CIRCUIT COURT, FORT INC. SMITH DISTRICT APPELLANT [NO. 66FCV-17-696]

V. HONORABLE J. MICHAEL FITZHUGH, GOODWIN & GOODWIN, INC. JUDGE APPELLEE AFFIRMED IN PART; REVERSED AND REMANDED IN PART

PHILLIP T. WHITEAKER, Judge

The appellant Summers Drilling & Blasting, Inc. (SD&B), a subcontractor, was

sued by the appellee Goodwin & Goodwin Inc. (Goodwin), a general contractor, under the

theory of breach of contract. The Sebastian County Circuit Court found that SD&B had

breached the parties’ subcontract by failing to perform its work in accordance with the

contract’s plans and specifications and ultimately by refusing to complete the contract. The

court awarded Goodwin $132,792.26 in damages, plus costs and attorney’s fees. On

appeal, SD&B argues (1) that Goodwin’s claims sound in tort, not in contract; (2) that

even if Goodwin’s claims were properly pled as a contract action, Goodwin failed to prove

a breach of that contract; and (3) that the court’s award of damages was not supported by the evidence presented. We disagree with SD&B’s first two arguments on appeal but agree

that a remand is necessary for a recalculation of damages.

2 I. Facts and Procedural History

Goodwin is a general contractor employed by the Arkansas Highway and

Transportation Department (AHTD) and the City of Fayetteville to assist in the Porter

Road–Highway 112/71B Widening and Interchange Project (“the Project”) in Fayetteville,

Arkansas. In December 2016, Goodwin obtained and accepted a bid from SD&B in

which SD&B agreed to drill and blast rock along a designated route of the Project for the

relocation of an existing sewer line, and Goodwin agreed to pay SD&B $181 per blasted

foot with a 1,350-foot minimum.

SD&B began work on the project. After having completed 1,204 linear feet of work,

it sent Goodwin an invoice requesting $217,924 for services rendered. Goodwin paid

$185,235.40, or 85 percent of the invoice less a 15 percent retainage. Approximately

halfway through the project, Goodwin discovered that certain areas blasted by SD&B were

not as deep as required. As a result, Goodwin rented equipment and employed crews to

hammer to the required depth, resulting in a delay of the project. SD&B subsequently

removed its equipment from the job site.1 At the time of withdrawal, SD&B had submitted

two other invoices in the amounts of $28,598 for 158 linear feet, and $32,761 for 181

linear feet. Goodwin did not pay these two invoices. In total, SD&B invoiced Goodwin

1 When SD&B withdrew from the project, it had blasted 1,540 feet, but the project plans specified relocation of approximately 1,650 linear feet of sewer line.

3 $279,283 for the work completed, but Goodwin paid only $185,235.40, or 85 percent of

the original invoice.

In July 2017, Goodwin filed suit against SD&B for breach of contract. Goodwin

alleged that SD&B had breached its contract by failing to blast to the depths specified by

the Project plans and in failing to complete the work. SD&B denied any breach,

contending that the written contract specified only a minimum distance to be blasted—

1,350 feet—and made no mention of a required depth. Because it had blasted the

minimum distance specified in the bid and because drilling to a required depth was not an

express term of the contract, SD&B claimed that there could be no breach.

The parties presented their dispute to the court at a bench trial. The circuit court

was presented conflicting positions and evidence concerning the terms of the agreement

between the parties and the performance of the parties pursuant to the terms of the

agreement. Goodwin took the position and presented evidence that its contract with

SD&B required performance under the terms and specifications of the Project plans that

Goodwin had with AHTD and the City of Fayetteville; that those Project plans detailed the

depth at which the sewer pipes were to be positioned; and that SD&B failed to meet the

depth specifications of the Project plans. SD&B took the position and presented evidence

that its bid constituted the written contract between the parties and that this written

contract was silent as to required depths. SD&B also contended that Goodwin never

provided the depth specifications of the Project plans and had not provided a suitable

4 blasting site in that there was an unacceptable amount of overburden 2 hindering its ability

to effectively blast. Goodwin disagreed and presented evidence that it had provided the

Project plans to SD&B and contended that SD&B had specified in the agreement that the

naturally occurring overburden should remain in place in order to prevent flooding of the

ditches.

After hearing all the evidence and reviewing the documents provided, the court

made specific findings concerning the parties’ agreement: (1) the parties had entered into a

contract; (2) the contract obligated SD&B to blast rock to grade; and (3) SD&B breached

the contract by not blasting to the required depths under the contract and had left the job

prior to completion. Concerning overburden, the court found that while there was some

dispute as to the removal of overburden, Goodwin had performed as required under the

contract. Concerning damages, the court found Goodwin was damaged as a result of

SD&B’s breach. The court calculated damages equal to the amount Goodwin incurred to

complete the project less the amount it would have paid SD&B if the contract had been

performed without breach, awarding Goodwin $132,792.26 in damages. SD&B appeals.

II. Standard of Review

SD&B appeals the judgment of damages from a breach-of-contract cause of action

entered after a bench trial. In appeals from civil bench trials, our standard of review on

appeal is not whether there is substantial evidence to support the findings of the court but

2 The term “overburden” is used to describe soil and ancillary material above the bedrock in a given area.

5 whether the court’s findings were clearly erroneous or clearly against the preponderance of

the evidence. Barnes v. Wagoner, 2019 Ark. App. 174, at 3, 573 S.W.3d 594, 595–96. A

finding is clearly erroneous when, although there is evidence to support it, the

reviewing court on the entire evidence is left with a firm conviction that a mistake has been

made. Id. Where the issue is one of law, our review is de novo. Id.

6 III. Analysis

A. Negligence v. Breach of Contract

In its first point on appeal, SD&B argues that Goodwin’s cause of action actually

sounds in negligence rather than in contract and that Goodwin failed to plead or prove a

negligence claim. Essentially, SD&B argues that Goodwin’s challenge is to the sufficiency

of its performance under the contract and not to the breach of any specific provision of the

contract. SD&B then concludes that because it did not breach a specific provision of the

contract, the judgment against SD&B should be reversed, along with the court’s award of

attorney’s fees, which are available only in breach-of-contract actions.

We begin analyzing SD&B’s argument by noting that the question of whether a

cause of action sounds in tort or in contract usually arises in the context of either

determining the appropriate application of the statute of limitations or in the award of

attorney’s fees. In reviewing the circuit court’s analysis as it relates to its characterization of

the nature of the claim, we look to the facts alleged in the complaint to ascertain the area

of the law in which it sounds. See Sturgis v. Skokos, 335 Ark. 41, 48, 977 S.W.2d 217, 220

(1998); McQuay v. Guntharp, 331 Ark. 466, 470, 963 S.W.2d 583, 584 (1998).

In order to prove a breach-of-contract claim, one must prove “the existence of an

agreement, breach of the agreement, and resulting damages.” Barnes, 2019 Ark. App. 174,

at 3, 573 S.W.3d at 595. As a result, Goodwin needed to file a complaint that asserted the

existence of a valid and enforceable contract between the parties, the obligation of SD&B

thereunder, a violation by SD&B, and damages resulting to Goodwin from the

7 breach. Rabalaias v. Barnett, 284 Ark. 527, 528–29, 683 S.W.2d 919, 921 (1985). When the

complaint contains a claim for breach of contract, the question is whether there is a

specific promise that transforms the gist of the action from one for negligence into one for

breach of the written agreement. Sturgis, 335 Ark. at 49, 977 S.W.2d at 221.

In its complaint, Goodwin alleged that it contracted with SD&B to “remove rock

along a course prescribed by AHTD and City of Fayetteville plans relative to a project

identified as AHTD Job # BB0414, being more completely discharged as ‘Porter Road –

Highway 112/71B Widening and Interchange Water and Service Relocation, in accordance

with specifications therefor, and to do so at a price of $181.00 per foot.” (Emphasis added.)

Goodwin further alleged that without legal justification, SD&B pulled its equipment from

the job and abandoned the contract without completing it and that SD&B had not blasted

the rock to depths specified by AHTD and the City of Fayetteville. Finally, Goodwin

alleged that these breaches caused a delay in the project and additional expenditures. These

allegations do not merely allege deficient performance under the contract; instead, they

allege the failure to perform as required under the provisions of the parties’ agreement

regarding the relocation of sewer lines as set forth in the Project documents. These

allegations clearly sound in contract and not in tort.

B. Breach

SD&B next asserts that even if Goodwin’s claim sounds in contract, the evidence

did not support the circuit court’s finding of a breach. First, SD&B posits that the court

erred in finding that it was obligated to blast to certain depths. Second, SD&B posits that

8 the court erred in finding that it was obligated to blast for designated distances. We will

address these two arguments separately.

Regarding depth requirements, SD&B asserts that its contract with Goodwin was

unambiguous and did not contain any requirement for it to blast to any particular depth.

Therefore, Goodwin failed to prove a breach of contract.

As noted above, our standard of review on appeal is not whether there is substantial

evidence to support the findings of the court but whether the court’s findings were clearly

erroneous or clearly against the preponderance of the evidence. The circuit court’s

findings in this case were not clearly erroneous.

SD&B submitted a written bid for the blasting work, which specifically referenced

the Project number at issue. The Project had certain specifications regarding the relocation

of the sewer lines, including the depth at which those lines must be placed. Goodwin

accepted the bid. While the bid itself was silent as to the depth to be drilled/blasted, this

silence is of no moment because parol evidence is admissible if it tends to prove a part of

the contract about which the written contract is silent. Gawenis v. Alta Res., LLC, 2013

Ark. App. 379, at 3.

Here, Goodwin presented evidence that the plans for the Project were made

available to SD&B prior to bidding. Floyd Summers, the proprietor of SD&B, denied

having seen the Project plans prior to submitting his bid. He did, however, admit visiting

the work site prior to submitting the bid and was aware that the Project required the area

to be blasted to “pre-established depths” or “grade,” plus approximately six inches deeper

9 for the pipe. Thus, the court did not erroneously consider the Project depth specifications

in analyzing Goodwin’s breach-of-contract claim.

Next, SD&B argues that, even assuming it was required by the contract to attain the

depths alleged by Goodwin, it presented to the court a drilling summary indicating that it

had attained the correct depths. Admittedly, SD&B did present the court with this

evidence. The court, however, heard other evidence, including testimony from Gary Jones,

Goodwin’s construction foreman on the project. He testified that certain areas were not

“shot to grade” and that Goodwin was forced to hammer to reach the requisite depth.

Even Floyd Summers testified that by early February, he knew Goodwin was hammering

where his crew had been blasting because SD&B had not reached grade.

We acknowledge that SD&B attempts to place the blame for its failure to reach

grade on Goodwin’s failure to remove the overburden. SD&B presented testimony that

under the contract, Goodwin had an obligation to maintain the site for blasting by

removing the appropriate amount of overburden retained in the trench and that Goodwin

failed to meet this obligation. The court acknowledged that the facts regarding the removal

of the overburden were disputed and found that Goodwin had performed as required.

This was a question of fact for the court to decide. Roach v. Whitehead, 2019 Ark. App. 525,

at 4, 588 S.W.3d 841, 844 (It is within the sole province of the fact-

finder to weigh credibility and resolve disputed facts.). Thus, we find no error in the court’s

conclusion that SD&B breached the depth requirements of the contract.

10 Regarding distance requirements, SD&B’s argument is difficult to follow. In its

brief, SD&B states: “At trial, Goodwin argued that Summers Drilling breached the

Contract by not blasting deep enough or for a long enough distance (stating the linear course

was a total of 1,636 feet). The circuit court agreed, and in doing so, disregarded both the law

and the evidence.” (Emphasis added.) SD&B then proceeds to argue that the contract

provided that the price for ditch-line blasting would be $181 per linear foot and noted that

the quoted price was based on a 1,350-foot minimum. Because it blasted more than the

1,350 feet, SD&B contends that it did not breach the contract by failing to blast “1,636

feet.” It appears that SD&B is arguing that the court found it in breach of contract for

failing to blast a total of 1,636 feet. This is incorrect. The court never made this finding.

The court did find that SD&B “left the job prior to completion.” SD&B does not

challenge this specific finding of the court; rather, it conflates the court’s finding with a

distance requirement. Because SD&B does not challenge the court’s specific finding that it

left the job prior to completion, we cannot conclude that the circuit court clearly erred in

this finding.

C. Damages

SD&B’s final argument is that the circuit court erred in the calculation of damages.

While we agree with the circuit court’s method of measuring damages, we conclude that it

erred in its actual calculations.

The circuit court found that the proper measure of damages for breach of the

construction contract was the amount Goodwin incurred to complete the work less the

11 amount it would have paid to SD&B if no breach had occurred. We agree. See Keith Capps

Landscaping & Excavation, Inc. v. Van Horn Constr., Inc., 2014 Ark. App. 638, 448 S.W.3d

207; MDH Builders, Inc. v. Nabholz Constr. Corp., 70 Ark. App. 284, 292, 17 S.W.3d 97, 102

(2000). Utilizing this measure of damages, the circuit court found that Goodwin spent

$432,008.26 to complete the job and that under the contract, it owed SD&B $299,216.01.

The court then awarded Goodwin the difference between the two amounts as damages.

After having reviewed the record before us, we cannot determine how the circuit

court calculated the $432,008.26 amount it specified that Goodwin incurred to complete

the project. We acknowledge that this figure was cited by Goodwin’s counsel in its posttrial

brief—a fact referenced by the circuit court in its award of damages—but neither the

posttrial brief nor the court’s order refers to any specific evidence introduced at trial to

explain how such a figure was calculated. The record before us contains conflicting

evidence as to amounts incurred in completion of the project, and we have been unable to

recreate the court’s finding under any scenario supported by the evidence in the record.

Because it is not entirely clear that the amount the circuit court used in calculating

damages was based on the evidence presented and not simply on the arguments of counsel,

we reverse and remand for a recalculation of the damages award.

Affirmed in part; reversed and remanded in part.

MURPHY, J., agrees.

HIXSON, J., concurs.

12 KENNETH S. HIXSON, Judge, concurring. There are different methods to calculate

damages for breach of contract in these types of cases. Regardless of the method utilized,

the goal is to place the injured party in the same position as if the contract had not been

breached. Spann v. Lovett & Co., Ltd., 2012 Ark. App. 107, 389 S.W.3d 77; Singleton v.

Williams, 2013 Ark. App. 226. The goal is not to place the injured party in a better

financial position than it would have been in had the contract not been breached. In

reviewing the evidence in the record, we cannot validate or corroborate the various

expenses requested by appellee, nor can we replicate the damages awarded by the court.

Hence, we have remanded the issue of calculation of damages to the circuit court. I concur

with the majority opinion that the calculation of damages must be remanded; however, I

write separately to point out several issues that frustrate our review of the circuit court’s

damages calculations that must be considered on remand.

First, we must at least have an elementary understanding of the performance of the

contract herein and the relative players. The City of Fayetteville (the City) was improving

the interstate exchange at the Porter Road exit. A part of the project required the City to

relocate or improve the sewer lines located within the project area. As such, a new ditch

had to be located and excavated to a sufficient depth to allow for the flow of the new sewer

line. The location of the new ditch and the depth of the new ditch were set forth in

the construction plans. The topography of the project area and the new ditch required

blasting and excavation of the subsurface limestone. Garver Engineering (Garver) was

hired to provide engineering services and to inspect the project. Goodwin & Goodwin, Inc. (Goodwin), was hired as the general contractor for the project. And, Goodwin

subcontracted with Summers Drilling & Blasting, Inc. (Summers), to perform the drilling

and blasting for the new ditch. Goodwin, as the general contractor and per its contracts

with the City and Summers, was required, inter alia, to excavate the broken rock and

materials and transport it from the new ditch so that the new sewer pipes could be lowered

therein.

One of the Garver’s engineering and inspection responsibilities was to daily

document in writing the equipment located on-site, the equipment actually used, and a

summary of the work performed. Garver was a representative of neither Goodwin nor

Summers; rather, it operated more as a liaison back to the City. These daily reports titled

“Garver Daily Reports of Construction” (Garver Daily Report) were introduced into

evidence. These Garver Daily Reports commenced on December 19, 2016, and continued

through May 25, 2017, when the Garver Daily Report concluded, “This completes all of

the gravity sewer line installation.” The Garver Daily Reports either described the actual

work performed that day or, if no work was performed due to inclement weather, included

a description, such as “[n]o work today due to rainfall.”

The Garver Daily Report for the first day of the project, December 19, 2016,

describes Goodwin personnel on-site as well as Goodwin’s equipment on-site. The Garver

Daily Report indicates that Goodwin had three superintendents/foremen along with eight

crew members. As it relates to the issues in this litigation, the Garver Daily Report

indicates that Goodwin had the following pieces of heavy equipment on-site: six trackhoes,

14 two backhoes, one loader, one dump truck, and one power broom. Although Goodwin

commenced the project on December 19, 2016, according to the Garver Daily Reports, the

first date that Summers appeared on-site was December 27, 2016. The Garver Daily

Reports indicate that while Summers was drilling and blasting over the next few months,

Goodwin was performing other tasks on the project.

This project can be generally described as involving approximately 1,650 linear feet

of sewer line with fourteen manholes located along the line. When referring to a portion

of the sewer line, the Garver Daily Reports and most of the testimony of witnesses refer to

the area on either side of the fourteen manholes. The first indication that something was

amiss with the drilling and blasting was in late January. The exact date was not noted. In

late January, Gary Jones, Goodwin’s foreman, advised Nick Palmer, Summers’s foreman,

that the rock was not being drilled and blasted deeply enough at manhole 6. The

unblasted limestone was generally one to two feet thick. When the rock is not drilled and

blasted to the proper depth required by the construction plans, the limestone is not broken

and cannot be removed or excavated. Therefore, someone has to use a “hammer” to break

up the rock. The hammer is generally an attachment to the boom of a trackhoe or

excavator. The excavator pounds the hammer into the solid rock at the bottom of the

ditch and breaks up the rock so it can be excavated and transported away.

During the conversation between Gary Jones of Goodwin and Nick Palmer of

Summers, Jones advised Palmer that the bottom of the ditch had to be hammered out.

Jones offered that Goodwin would do the hammering for $300 per hour. Palmer replied

15 that Summers could do the hammering for $165 per hour. The record is unrefuted that

Goodwin did not wait for Summers to commence hammering and that Goodwin

commenced hammering immediately. It also appears from the record that Summers’s

drilling and blasting remained too shallow for much of the remaining length of the sewer

line and that Goodwin hammered out the bottom of the ditch consistently between

Manholes 6 and 14. Summers did not provide any hammering services.

Having agreed with the majority opinion that Summers breached the contract, that

brings me to the issue of calculation of damages for the breach. We disagree on the

amount of damages sustained by the proof. Goodwin introduced exhibit 13 at trial, which

was the following itemized list of expenses Goodwin claimed was caused by the breach.

There is no doubt that the circuit court used the content of exhibit 13 in its calculation of

damages.

64 days rental/rental rates equipment 2 months, 1 week and 1 day is how it is charged

Komatsu 650 Excavator $37,558.88 $15,365/mo, $5,121.66/wk, $1,707.21/day

Terex TA40 40 ton Offroad Articulated Dump Truck $33,802.98 $13,828.50/mo, $4,609.49/wk, $1,536.49/day

Peterbilt Quad Axle dump truck $22,776.76 $9,317.77/mo, $3,105.92/wk, $1,035.30/day

5 man Crew with truck driver included $135/hr @ 291 hrs = $39,285

Hammering rock @ $300/hr x 291 hrs = $87,300 Using Kobelco Sk295 Excavator with Kent QT 45 Hammer

16 50 days rental rates 2 month Rental Sany SRC 840 Rough Terrain 40 ton Crane $15,255.24 $7,627.62/mo

Crane Crew $42/hr @ 231 hrs = $9,702

In summary, Goodwin first asserted that it took Goodwin 64 additional days to

hammer the rock. Accordingly, Goodwin claimed that it was entitled to 64 days of rent for

a Komatsu 650 Excavator, a Terex TA40 40-ton Offroad Articulated dump truck, and a

Peterbilt Quad-Axle dump truck. Further, it claimed that it was entitled to 50 days of rent

for a Sany SRC 840 Rough Terrain 40-ton crane, 231 hours of a crane crew, and another

291 hours of a five-man crew with a dump-truck driver. Finally, in addition to all those

expenses, Goodwin claimed that it was entitled to $300 per hour for 291 hours for actually

hammering the rock. These expenses totaled $245,680.86. I will now address what I

perceive as the inadequacies and errors in Goodwin’s calculation of alleged damages that

may well be repeated on remand.

I. Is Goodwin Entitled to any Damages other than the $300 per Hour Multiplied by 291 Hours?

When the breach occurred, Goodwin offered to perform the hammering for $300

per hour, and Goodwin performed that offer. Goodwin did not offer to hammer for $300

per hour plus expenses. Is this important? Yes. Summers said it could hammer the rock

for $165 per hour, which is a $135-per-hour difference, or $29,285. Was that a factor in

Summers’ decision to allow Goodwin to perform the hammering? Goodwin apparently

thought so. In its response brief on appeal, Goodwin argued that the difference of this

17 hourly rate was a factor in Summers’ decision. It specifically stated that “Summers

evidently believed, on balance, that it was cheaper to make Goodwin hammer at $300 an

hour than to do it itself.” However, contrary to its own offer to hammer at $300 an hour,

Goodwin now argues that it is somehow entitled to the $300 an hour amount plus an

additional $158,389 for leasing equipment.1 That is not the same offer it made to

Summers, and Goodwin should not be able to vary the terms of its agreement and recoup

additional expenses for leasing equipment.

II. Even assuming Goodwin is Entitled to Recoup Additional Expenses for Leasing Equipment, Does the Evidence support the Expenses claimed on Exhibit 13?

A. The 64 Days and the Hours Hammering

The “hammering” records maintained by Goodwin are reflected in handwritten

notes kept by its foreman, Gary Jones. Jones testified that during the early period of

hammering, he failed to make contemporaneous notes, and when he prepared the

“Goodwin Hammering Summary” for trial, he relied on his memory. Jones admitted that

some of his entries could be inaccurate. According to the Goodwin Hammering Summary,

the daily hammering times range from “0.5” hours to “14” hours. The Goodwin

Hammering Summary concluded that Goodwin hammered on 64 separate days and

actually hammered for 2912 hours. Goodwin contends that because it hammered during a

1 I disagree with the statement in the majority opinion that, “Goodwin rented equipment and employed crews to hammer to the required depth, resulting in a delay of the project.” 2 The Goodwin Hammering summary reflects a total of 294.5 hours and exhibit 13 used by Goodwin to calculate damages reflects 291 hours.

18 portion of 64 separate days, it is entitled to damages for additional equipment-lease

expenses as set forth below. Also, Goodwin contends in exhibit 13 that it is entitled to

damages for 291 hours of actual hammering at $300 an hour.

On the other hand, to calculate the actual hours hammered by Goodwin, Summers

relies on the independent Garver Daily Reports. Those Garver Daily Reports only

specifically reflect Goodwin hammering on 34 partial days—not 64 days. Summers then

argues that by adding up the actual hours hammered on those 34 days, the total hours

actually hammered were 218.5 hours and not 291 hours. Obviously, the resolution of

these records and the testimony will be central to the calculation of damages on remand.

B. The Komatsu 650 Excavator

Goodwin alleges it is entitled to 64 days of rent for the Komatsu 650 Excavator

totaling $37,558.88. One must presume that this is the excavator that was actually used to

hammer the rock. The Garver Daily Reports show that Goodwin had four excavators on-

site from the first day of construction. It appears that this Komatsu excavator was one of

those four excavators on-site because Goodwin introduced the invoices for this very

excavator at trial. Goodwin leased this Komatsu excavator in October, November, and

December 2016, almost three months before this project began on December 26. Then,

this Komatsu excavator plus three other excavators/trackhoes remained on-site for the full

project period. There is no evidence in the record that Goodwin paid any additional rent

for this Komatsu excavator because it was used for hammering. However, there are

additional issues with this calculation of damages. Even assuming Goodwin did pay

19 additional rent, Goodwin was charged a much lower monthly rent by the lessor and not

the much higher daily rent allegedly expended by Goodwin. Any way you cut it, the

expense of $37,588.88 requested by Goodwin for the Komatsu excavator and used by the

circuit court to award damages is not supported by the evidence.

C. The Terex TA40 40-Ton Offroad Articulated Dump Truck and the Peterbilt Quad Axle Dump Truck

The same date and value discrepancies for the Komatsu excavator are true for the

Terex TA40 40-ton Offroad Articulated Dump Truck and the Peterbilt Quad Axle Dump

Truck; plus, there is an additional error. Goodwin was required by its contract to excavate

and remove the rock and debris. This would be true whether the excavated material was

caused by blasting or by hammering. Summers’s job was to drill and blast; Goodwin’s job

was to excavate and transport the debris. In my opinion, Goodwin is not entitled to any

damages for the excavation of the hammered material.

D. The Sany SRC 840 Rough Terrain 40-Ton Crane and Crane Crew

Goodwin wants to recover damages for rent for using a crane for 50 days totaling

$15,255.24 and employment of a crane crew for 231 hours totaling another $9,702.

However, when one reviews the Garver Daily Reports, the crane was on-site for only 25

days of the project and used only 13 of those days—not the 50 days demanded. Again, the

evidence does not support the judgment.

20 E. The Five-Man Crew with Truck Driver Included

Goodwin additionally wants to recover damages for employment of a five-man crew

for a dump truck totaling $39,285. However, there is not any foundation for this request.

Further, if one agrees with the contention that Goodwin had to excavate and remove the

material whether it was blasted or hammered, Goodwin should not receive any award for

this element of damages. Again, the evidence does not support the judgment.

III. Is Summers Entitled to Offset any Damages with the Unpaid Invoices?

My last point is that regardless of the methodology used to calculate damages,

Summers is certainly entitled to a credit or an offset for the unpaid balance of its work.

Summers submitted three invoices to Goodwin for its work: one for $217,924; a second

for $28,598; and a third for $32,761. Although these invoices totaled $279,283, it is

undisputed that Goodwin paid only $185,235.40, leaving $94,047.60 unpaid. Goodwin

certainly benefited from this unpaid portion of drilling and blasting, and this unpaid

balance must be incorporated into the calculation.

IV. Conclusion

In conclusion, I join the majority in its determination that the damages awarded by

the circuit court are not supported by the evidence and the damages-calculation issue must

be remanded. The goal is to place the injured party in the same position as if the contract

had not been breached—not to provide a windfall. Thus, I write this concurrence to

illuminate other issues that should be considered on remand.

RMP LLP, by: Larry McCredy and Bo Renner, for appellant.

21 Smith, Cohen & Horan, PLC, by: Matthew T. Horan, for appellee.