|
COURT
OF APPEALS DECISION DATED
AND RELEASED November
8, 1995 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-1510
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
RAWSON
CONTRACTORS, INC.,
Plaintiff-Appellant,
v.
LISBON
SANITARY DISTRICT NO. 1,
Defendant-Respondent.
APPEAL
from a judgment of the circuit court for Waukesha County: ROBERT G. MAWDSLEY, Judge. Affirmed.
Before
Anderson, P.J., Brown and Snyder, JJ.
PER
CURIAM. Rawson
Contractors, Inc. appeals from a judgment against Lisbon Sanitary District No.
1 arising out of a contract dispute.
Although Rawson recovered some damages against the sanitary district,
Rawson contends that the trial court erred in declining to award additional
damages. We disagree and affirm.
Rawson
bid for a sanitary sewer installation contract in the Town of Lisbon. The contract required Rawson to install
approximately 20,000 lineal feet of sanitary sewer mains and laterals to
provide sanitary sewer service to existing homes in the sanitary district. The contract required Rawson to excavate streets,
install the sanitary sewer pipe, backfill the trenches, install the laterals to
the lot line and repave the portions of the street disturbed by the
excavation. The bids on the project
were opened on March 15, 1989; Rawson was the low bidder on the project. Pursuant to the bid documents, Rawson held
its bid open for 150 days or until August 12, 1989.
The
district's proposal documents authorized it to issue addenda or amendments to
the project. On August 11, 1989, the
district issued Addendum No. 5, which revised the specifications and
drawings to accommodate two scenarios.
First, if sewers were deleted for Jeanine Lane, Hamilton Drive and Alta
Vista, the total contract price would be reduced from Rawson's bid price of
$869,851 to $832,421. The second
scenario involved deleting sewers only for Alta Vista. In that case, Rawson's bid price would be
reduced from $869,851 to $850,027. The
modifications in the contract price were achieved by adjusting the lineal foot
price by $2. If Jeanine, Hamilton and
Alta Vista were deleted, the lineal foot price would be $25.50. If only Alta Vista was deleted, the price
would be $23.50.
Addendum
No. 5 also stated:
At the present time, the sanitary district is not sure
if the sewer in Jeanine Lane and Hamilton Drive will be installed. This Addendum establishes the contract
amount for either alternative. The
Sanitary District will resolve this problem by September 15, 1989 and advise
the Contractor.
On
August 11, 1989, Rawson received written notice that it had been awarded the
contract and that Addendum No. 5 modified the bid. The notice restated the two scenarios under which the contract
price would be adjusted. Rawson had ten
days to provide an executed agreement to the district. On September 6, 1989, the district notified
Rawson to proceed with the contract.
The notice stated:
You are notified
that the Contract Time under the above contract will commence to run on
September 11, 1989. By that date, you
are to start performing your obligations under the Contract Documents. In accordance with Article 3 of the
Agreement, the date of Final Completion shall be September 11, 1990.
Rawson
began construction on October 3. The
district ultimately decided that Jeanine and Hamilton would receive
sewers.
A
dispute arose regarding the circumstances under which Rawson would receive
an additional $2 per lineal foot as provided in Addendum No. 5. Kenneth Servi, Rawson's president, testified
that the additional $2 per lineal foot was consideration for Rawson's
agreement to extend the 150-day contract award period specified in the bid
proposal. However, James Vincent,
the district's president, testified that although Rawson was asked to extend
the 150-day contract award period, it had refused to do so. Vincent further testified that the purpose
of the additional $2 per lineal foot provision was to compensate Rawson in the
event that Jeanine and Hamilton residents did not join the sewer project.
Rawson
also claimed that it was entitled to the additional $2 per lineal foot because
the district delayed in informing it that Jeanine and Hamilton would receive
sewers. Rawson found support for this
claim in the fact that it had received two progress payments calculated at
$25.50 per lineal foot. Rawson argued
that this was evidence that the additional $2 per foot was linked to the delay
in deciding the fate of Jeanine and Hamilton.
The
trial court ruled that Addendum No. 5 did not require the district to notify
Rawson by September 15, 1989, if Jeanine and Hamilton would receive
sewers. Therefore, the fact that Rawson
did not begin work on the project until October 3, ostensibly because of
Rawson's lack of notice regarding the status of these streets, was not the
cause of the delay and additional cost to Rawson.
The
trial court also found that the contract price depended upon how many streets
received sewers—not when Rawson received notice regarding the number of streets
to be included.[1] The trial court found no damage attributable
to the date Rawson learned that Jeanine and Hamilton would get sewers.
A
second dispute arose related to restoration of the road surface as specified in
the contract. Under the contract,
Rawson was required to repave those street areas disturbed by the sewer
installation. On November 2, 1989,
Rawson suggested to the district that in lieu of paving the disturbed portions
of the roadways, which would yield a patched effect, Rawson could install two
inches of asphalt binder over the trenches, flush with the existing road
surface, and resurface the entire roadway the following spring or summer. The district issued Change Order No. 1,
which required Rawson to perform initial pavement restoration by installing
eight inches of crushed limestone and two inches of binder flush with the
adjacent existing pavement. The change
order provided that final restoration of the road surface would be resolved between
the district and Rawson on or before June 1, 1990.
The
parties were unable to reach an agreement as to the manner in which the roads
should be restored, and the district determined that some of Rawson's patchwork
from fall/winter of 1989 and other road surfaces had settled several inches
below the preconstruction road surface.
In the summer of 1992, the district hired a substitute contractor to
resurface the entire road. At that
time, the district discovered that the road surface was not the width specified
in Rawson's contract. The district
deducted $23,895 from Rawson's final contract payment as a result of the
pavement restoration dispute.
The
trial court found that Rawson did not substantially perform its contractual
obligation to repave the roadway and concluded that the change order was an
agreement to agree regarding restoration of the pavement. Because Rawson failed to finish the
restoration as it was obligated to do under the contract, the court also found
that the district properly employed another contractor to restore the pavement
and that the amounts expended by the district were properly withheld from
Rawson.[2]
Rawson
argues on appeal that Addendum No. 5 is ambiguous and the trial court's factual
findings regarding the significance of the dates in the document are clearly
erroneous. The construction of a
written contract presents a question of law which we review independently of
the trial court. Eden Stone Co.
v. Oakfield Stone Co., 166 Wis.2d 105, 115, 479 N.W.2d 557, 562 (Ct.
App. 1991). The goal of contract
interpretation is to ascertain the parties' intent. Id. at 116, 479 N.W.2d at 562. If the parties' intent can be determined
with reasonable certainty from the language of the contract itself, there is no
need to resort to extrinsic evidence.
Here,
the trial court permitted evidence of the parties' intent in entering into
Addendum No. 5. We will assume for
purposes of this opinion that the addendum was ambiguous. We turn to whether the trial court's
findings of fact regarding the parties' intent are clearly erroneous. See § 805.17(2), Stats.
We conclude they are not.
The
trial court was required to resolve conflicting testimony regarding the purpose
of Addendum No. 5. When the trial court
acts as the finder of fact, it determines the weight of the evidence and the
credibility of the witnesses. Micro-Managers,
Inc. v. Gregory, 147 Wis.2d 500, 512, 434 N.W.2d 97, 102 (Ct. App.
1988). Here, Rawson presented evidence
that the additional $2 per lineal foot was intended to compensate it either for
extending the contract award period beyond the previously specified 150 days or
for the delay in receiving notice of the status of Jeanine and Hamilton. The district presented testimony that the
additional $2 per lineal foot was to be paid only if Jeanine and Hamilton were
excluded from the project. It was for
the trial court to assess the credibility of the witnesses and weigh the
evidence. The trial court's finding that
the $2 per lineal foot was related to the number of streets getting sewers is
not clearly erroneous.
The
trial court's finding that Rawson failed to substantially perform road surface
restoration is also not clearly erroneous.
Whether a party has substantially performed requires determining whether
the party "has met the essential purpose of the contract." M & I Marshall & Ilsley Bank
v. Pump, 88 Wis.2d 323, 333, 276 N.W.2d 295, 299 (1979). This inquiry is a factual one. See id. at 333‑34,
276 N.W.2d at 299-300.
The
trial court found that a videotape of the roads in question showed that the
areas Rawson worked on were not properly saw cut and finished when compared
with those areas completed by the substitute contractor. The trial court also found that Rawson did
not complete the restoration work pursuant to the parties' agreement to agree
on restoration by June 1, 1990.
In
support of its claim that it substantially performed under the contract, Rawson
points to the testimony of its expert witness, engineer Paul Schmidt. Schmidt testified that seven of his ten core
boring samples had the asphalt thickness required by the contract. However, the other three samples did not
have the required thickness. This
evidence is sufficient to uphold the trial court's finding that Rawson did not
substantially perform under the contract.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] By this finding, the trial court implicitly
rejected Rawson's claim that the $2 per lineal foot was in consideration for
the district having more than 150 days to award the project. The trial court found that the project was
awarded to Rawson on August 11, one day before the 150-day period expired.