Opinion
A97A1222.
DECIDED JUNE 17, 1997 — RECONSIDERATIONS DENIED JULY 10, 1997 — CERT. APPLIED FOR.
Action on contract. Catoosa Superior Court. Before Judge Wood.
Michael J. Bowers, Attorney General, Cathy A. Cox-Brakefield, Senior Assistant Attorney General, Lawson, Davis Pickren, G. Thomas Davis, Winslow A. Ward III, Alison H. Price, for appellant.
Griffin, Cochrane Marshall, Harry L. Griffin, Jr., John D. Marshall, Jr., William H. Parkman, for appellee.
The appellant, the Georgia Department of Transportation ("DOT"), challenges a jury verdict for the appellee, Dalton Paving and Construction ("Dalton Paving"), in a highway construction contract dispute. In asserting 27 enumerations of error, the DOT attempted to have this Court reexamine every aspect of this case, from the admissibility of evidence and the failure to give certain jury charges, to the weight of evidence presented and the credibility of witnesses. Although this Court refuses to invade the province of the trial court and the jury by retrying the case in its entirety, we must, in an effort to fairly and effectively resolve the issues on appeal, review the sequence of events leading to the jury verdict for the appellee.
The facts, viewed in a light most favorable to the jury's verdict, Dept. of Transp. v. Blair, 220 Ga. App. 342, 343 ( 469 S.E.2d 446) (1996), are as follows: in 1989, the appellee, Dalton Paving, contracted with the appellant, the DOT, for the reconstruction of a state road (S.R. 146) as it passed under Interstate 75 in Catoosa County.
DOT began planning for the construction prior to 1987, and a Field Plan Review Inspection was conducted on March 6, 1987. The inspection report refers to potential problems with the grade change at Ramps B and C, in that the project required a 4 and 1/2 foot drop or "cut" in the grading, thereby impeding access to the ramps during construction, and that the bridge embankments did not allow sufficient width for an additional temporary lane to provide for traffic flow during the project. The DOT transportation engineer who prepared the inspection report presented three alternatives for dealing with the problems, including (1) temporarily closing the interchange, (2) keeping a single lane open to two-way traffic and utilizing flagmen or traffic signals to direct traffic, or (3) staging construction so that two-way traffic is re-routed onto one side of the interchange while work is conducted on the other side, then switching sides. The engineer opined that the third alternative "would be the most hazardous of the alternatives . . . and the least recommended of the three alternates." Further, the inspection report recommended that "the contractor be provided an opportunity for a separate alternate at the Preconstruction Conference that would have to be approved by DOT from a variation of one of the above listed alternates." (Emphasis supplied.)
On August 1, 1989, DOT engineers recognized that the construction plan was still incomplete and that the DOT "should clarify the staging of the construction of Ramps B, C, and D." Shortly thereafter, the DOT solicited bids for the project, even though the DOT had not provided the necessary clarification of the construction plan. The appellee acquired bid documents for the project, visited the site, and submitted a bid in the amount of $915,285.22, which was 95.8 percent of the DOT's cost estimate of $955,207.50. The DOT accepted the appellee's bid on September 1, 1989.
A preconstruction conference was held on October 18, 1989 "for the purpose of discussing and familiarizing [all parties] with the various construction details" of the project. At the meeting, Tommy Patterson of Dalton Paving ("Patterson") asked for clarification concerning the construction on Ramp B and the resultant grade changes, saying that "I have not found out any provisions for the ramps, as far as what to do with traffic." Mike Long, a DOT engineer, responded that Ramp B was the "only problem ramp we have on 146," and that Dalton Paving will have to do the construction "[i]n phases, you will have to maintain traffic there." When more questions were asked by Patterson, the DOT turned off the tape recorder, so the discussion between the parties intentionally was unrecorded by the DOT. However, when recorded discussion resumed, John Rakestraw, another DOT engineer, said that "the project has three phases of construction and the phases should be set up to handle it, if there should be some problems arise [sic] on the construction, then it will have to be handled out there on construction to keep the traffic flowing, is that pretty well what we said?" (Emphasis supplied.) Patterson responded, "Sounds wonderful," and the meeting was adjourned. Thus ended the preconstruction conference, wherein the contractor was supposed to have an "opportunity" to discuss a separate alternative.
On May 29, 1990, the Federal Highway Administration ("FHWA") conducted an intermediate inspection of the project and found the quality of the work to be "satisfactory." The inspection report noted, however, that the " stage construction plans do not provide staging requirements for construction of the ramp terminals. The grades of all of the ramp terminals are being lowered when the grade for SR146 is lowered. A section of the ramp must be used to maintain traffic during each stage of construction. There is not enough information on the traffic control plans to detail the sequence of operations to maintain traffic on the ramps and construct the ramps to the new grades. The contractor will be required to provide a traffic control plan that will detail the sequence of operations he will perform to complete the construction of the ramps." (Emphasis supplied.)
On June 4, 1990, the appellee notified the DOT that it would be "impossible" to construct the interchange around Ramp B according to the original DOT traffic control plan contained in the bid documents and upon which the appellee had relied in submitting its bid. The DOT responded that any changes to the original plan would be the appellee's responsibility and asserted that the appellee requested the revision to the traffic control plan due to the appellee's error in construction of temporary pavement, asserting that the appellee did not widen the pavement enough to accommodate the existing traffic control plans. The DOT's position is further clarified in a July 26, 1990 FHWA inspection report, which states that the DOT "informed the contractor that since the change is required due to an error on the part of the contractor that he is responsible for developing an acceptable traffic control plan and that he will be responsible for all the additional expense for the new traffic sequence."
Pursuant to these instructions, the appellee submitted an alternate traffic control plan for DOT's approval on August 2, 1990. In this letter, the appellee also notified the DOT that, because of the "erroneous Georgia DOT traffic control plan," they had sustained "additional direct job expenses," and asked the DOT to extend the time for completion of the project so that a "workable" traffic plan could be approved.
DOT considered the appellee's proposed plan and, in an August 6, 1990 memo between DOT engineers, the DOT noted that the "main problem to be addressed is Westbound traffic wanting to go South on I-75. The difference in grade (3'+) makes it difficult for [westbound lane] traffic to turn left." No mention was made of any purported mistake on the part of the appellee in its alleged failure to pave the road to the appropriate width.
On August 10, 1990, the appellee sent a letter to the DOT, asserting that any alleged paving problem "can be easily corrected," and noting that the DOT had previously inspected and accepted the paving. The same letter notified the DOT that the appellee continued to sustain additional direct job expenses due to the "erroneous GA DOT sequence of operations and traffic control plan," and that the appellee "intends to claim compensation for said additional expenses." Further, they noted that the "only reason" they submitted the proposed new traffic plan on August 2, 1990 was "because of your verbal threat to retain our monthly [payments]."
Having reached a virtual impasse, the parties met on August 15, 1990 to "work out a solution for staging traffic throughout Stages I, II, III so the project can be completed." According to the DOT's own notes from that meeting, Felton Rutledge ("Rutledge") of the DOT "re-defined the problem as being [the] grade connection [at] SR 146 ramps `B' `C' and said D.O.T.'s [traffic control] plan was a suggestion from D.O.T. Felton [Rutledge] also said that D.O.T. would review any proposal from D.P.C. [Dalton] and if D.P.C. [Dalton] chose to accept D.O.T.'s plan that it would be `their' [Dalton's] plan." The DOT reiterated that the " original plan was buildable and that [the new DOT proposed] plan was merely an alternative to [the] original plan since [the] original plan was not followed from ramps `B' `C' west . . ." (Emphasis supplied.)
After discussing DOT's proposal, the appellee asked DOT to put it in writing, but DOT refused, responding that it was the appellee's responsibility to furnish a plan and that DOT was only responsible for reviewing it. At the end of the meeting, representatives of both sides agreed to proceed with the "DOT proposal."
On the same day, following the meeting and after reviewing the project site, DOT and FHWA officials met and "decided" on a traffic control plan, including the use of barricades, signs, and message boards. The officials then returned to the project site and " explained [to the appellee] what needed to be done" regarding traffic control. (Emphasis supplied.)
In an inspection report dated August 29, 1990, the FHWA inspector referred to the August 15th meeting and the agreement regarding the revised traffic plan, and noted that "[t]his additional work may make these bid items overrun the bid quantity." A Supplemental Agreement executed between the parties provided the appellee with $7,000 for two variable message boards, one of which was needed "on the West side of the project ahead of a temporary detour not shown on the plans but constructed by the contractor to correct some staging problems that were not addressed on the [traffic control] plans." (Emphasis supplied.)
On November 5, 1991, the appellee submitted a claim for additional compensation in the amount of $234,313 for the extra work associated with the DOT's revised traffic control plan. The claim asserted that the "revised sequence under which Dalton was required to construct the Project disrupted Dalton's work and caused Dalton to incur substantial additional expenses. Had GDOT's original construction sequence been workable, Dalton could have performed the Project in accordance with its bid and avoided the disruptions which plagued Dalton's construction of the Project and substantial additional expenses which Dalton actually incurred." The DOT responded on November 12, 1991, noting that it would classify the appellee's claim as a "delay" claim, and that the claim should be resubmitted to the DOT in "strict compliance with the provisions of Section 105 . . . [with] detailed information in accordance with Section 105.13D1 a-j."
Supplemental Specification § 105.13 sets out the process required to assert claims for adjustments and disputes. Subsection D.1 lists the required contents for delay claims.
On February 21, 1992, the appellee submitted a "claim supplement," including business records and cost documentation, which, according to the appellee, "reasonably complie[d] with the provisions of Section 105."
In a memo between DOT engineers, dated March 6, 1992, the DOT summarized the appellee's claims and noted that the appellee's Stage 1 construction was not completed in accordance with the DOT's project staging plans. However, with surprising candor, Felton Rutledge, the District Engineer for the DOT, admitted that, "[g]ranted the project stageing [sic] plans are not specific and in fact are in all likleyhood [sic] `unworkable' if not modified." Further, Rutledge admitted that "[a]s previously mentioned the [original] project traffic control and staging plans were not specific as to how to handle the required grade changes at the intersection of SR 146 and the acess [sic] ramps to and from I-75 in the west . . . [t]he problem of maintaining acess [sic] while lowering the grade through this area of the roadway were [sic] not addressed. The problem was in fact compounded by a plan crossover to be used on Stage 2 . . . used to bring the split traffic in the west bound lane of SR 146 back across the mainline to the south side of the roadway. . . . Here in [sic] lies the problem both with DPC's [the appellee's] construction of Stage 1 and the weekness [sic] in the department[']s staging plans. [The appellee failed] to construct Stage 1 properly . . . but no provisions were made [in the DOT traffic plan] to handle the W.B. [westbound] traffic shift. . . . [This] combination of problems led to a `Mexican standoff' between the department and [the appellee]." (Emphasis supplied.) While the memo noted that Stage 2 was constructed out of the original plan's sequence and "probably did result in some additional costs to the contractor . . . this was the only area of the project affected and I find [the appellee's] claim of $235,663 in damages to be ludricruss [sic]."
On February 22, 1993, one year after the appellee submitted the claim supplement to the DOT, the claim was reviewed by a DOT engineer, Benny Dunn ("Dunn"). Dunn recommended that the claim for extra compensation be denied "due to [the appellee's] failure to follow Section 105.13 of their project contract." However, Dunn recommended that DOT offer to pay the appellee $10,466.29 in "good faith" for additional quantities not previously paid, if the appellee would agree to discontinue its request for any additional compensation.
On March 29, 1993, DOT sent a "Final Acceptance" letter to the appellee in which it stated that the project was completed on July 16, 1991, almost two years earlier. The letter noted that the DOT District Engineer would be authorized "to submit a final statement for payment of work done."
The next day, DOT notified the appellee that its claim for additional compensation had been denied because it lacked both "substantive issues and for its failure to conform to the contract requirements." The aforementioned settlement offer of $10,466.29, plus $1530 in delay damages, also was extended to the appellees.
Appellee responded to the claim denial by asserting that its claim was not a delay claim, but was an extra work claim governed by § 105.13.C., and that it had "reasonably complied" with the notice and record-keeping requirements of that provision. Appellee rejected the DOT settlement offer.
The parties met on May 7, 1993 to discuss a separate, but related, dispute regarding unpaid quantities for construction materials; these unpaid items were first brought to the DOT's attention two years previously. The DOT noted that, if the extra work compensation claim dispute went to court, the DOT "did not want to be in [a] position of holding legitimate pay items from the contractor." The DOT refused to discuss the extra work claim at this meeting, but agreed to submit the dispute regarding the unpaid quantities claim to the DOT for a decision on whether or not it would be paid. On June 4, 1993, the DOT State Highway Engineer denied the appellee's claim for unpaid quantities, affirming that the DOT's prior statement was correct. The appellee rejected the decision of the State Highway Engineer in a letter dated June 21, 1993, and refused to sign a release for this claim.
Appellee filed suit against DOT on June 27, 1993. A jury trial was conducted from March 4 through March 9, 1996. On March 9, 1996, the jury returned a verdict for the appellee which awarded the appellee $180,215.20 in compensatory damages, $31,751.10 in unpaid quantities, and $146,286.95 in attorney fees and costs. However, according to the verdict form completed by the jury, the jury based the award upon a finding that a "force account" existed between the parties to compensate the appellee for its extra work on the project; the jury also indicated on the verdict form that prejudgment interest should not be awarded in this case.
Following the jury's verdict, the trial court entered judgment for the appellee, awarding $180,215.20 in compensatory damages, $129,754.96 in prejudgment interest, and $146,286.95 in attorney fees and costs. The trial court also reduced the jury's award of unpaid quantities from $31,751.10 to $15,264.95, finding that the jury's award exceeded the appellee's proof of unpaid quantities by $16,486.15.
Pursuant to OCGA § 7-4-16 on the principal amount of $180,215.20 for four years at the annual rate of 18 percent, accruing from March 22, 1992.
DOT previously had moved for a directed verdict, which was denied; following the verdict, DOT timely moved for a new trial or a judgment n.o.v., both of which the trial court denied. DOT timely appeals from the judgment below. Held:
In the first seven enumerations of error, DOT asserts that the trial court erred, on several grounds, in denying the DOT's motion for directed verdict and motion for j.n.o.v.
"In determining whether the trial court erred by denying defendant's motion for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict[.] . . . A directed verdict and judgment n.o.v. is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict. [Cit.]" Dept. of Transp. v. Blair, supra at 344-345 (1) (b).
1. DOT asserts that it was entitled to a directed verdict or j.n.o.v. on the issue of whether DOT breached its contract, because the appellee knew or should have known that the construction plans did not provide for traffic control at Ramp B and, by submitting its bid, the appellee agreed to perform under any conditions encountered in performing the contract.
The evidence presented showed that DOT's construction plans were incomplete regarding a traffic control plan for the ramps; the DOT recognized this prior to soliciting bids; the appellee performed a site inspection prior to preparing its bid in accordance with § 102.05 of the Standard Specifications; the appellee submitted a bid that was 95.8 percent of the DOT's cost estimate for the project based upon the DOT's construction plans in existence at that time; and the appellee questioned the traffic control plans at the first opportunity following its successful bid, the preconstruction conference, and was told by DOT representatives that any problems that arose from the plans would be handled during construction. Further, DOT's own documents, and the FHWA inspection reports, raised serious questions as to whether or not the DOT's traffic control plans for ramp B were ever "workable."
Standard Specification § 102.05 reads as follows: "Examination of Plans, Specifications, Special Provisions, and Site of the Work: The Bidder is expected to examine carefully the site of the proposed work, the Proposal, Plans, Specifications, Supplemental Specifications, Special Provisions and Contract forms before submitting a Proposal. The submission of a Proposal shall be considered prima facie evidence that the Bidder has made such examination and is satisfied as to the conditions to be encountered in performing the Work and as to the requirements of the Plans, Specifications, Supplemental Specifications, Special Provisions and Contract."
Therefore, jury issues were presented as to whether or not DOT's original traffic control plans were defective or unworkable; whether the appellee fulfilled its duty to inspect the site under § 102.05 prior to submitting its bid; whether or not the appellee should have recognized, prior to submitting its bid, that the DOT's plans were so flawed as to be unworkable; whether the appellee should have known that the problems with the DOT's plans would result in uncompensated extra work; and whether the DOT waived its § 102.05 defense by agreeing to address any traffic control problems "during construction." See Fincher v. Bergeron, 193 Ga. App. 256, 259 ( 387 S.E.2d 371) (1989); see also State Hwy. Dept. v. Hewitt Contracting Co., 113 Ga. App. 685, 691 ( 149 S.E.2d 499) (1966); State Hwy. Dept. v. Wright Contracting Co., 107 Ga. App. 758, 762 ( 131 S.E.2d 808) (1963) (finding that the conditions encountered on the project were not "such that the contractor should have been expected to have anticipated in the exercise of reasonable diligence. The fact that the contract makes provisions for extra work necessitated by unforeseen conditions is evidence enough that not every condition is expected to be anticipated."). Therefore, the DOT was not entitled to a directed verdict or j.n.o.v. on these issues.
2. DOT asserts that it was entitled to a directed verdict or j.n.o.v. because the contract between the parties required the appellee, not DOT, to provide a traffic control plan. However, while the contract is clear that a traffic control plan is required prior to any changes in traffic on the highway, the contract does not assign responsibility to the contractor for such plan.
Supplemental Specifications § 150.01.E. reads in part: "A Traffic Control Plan will be required prior to any changes in traffic on interstate and other controlled access highways. The Engineer may require a Traffic Control Plan on other projects at his discretion."
In fact, the evidence showed that the Special Provisions of the contract, which supersede the Supplemental Specifications, refer the contractor to the DOT's "construction plans for details" of the "[s]tage construction including temporary lane shifts to maintain two-way traffic on S.R. 146." The evidence also indicated that the DOT's construction plans included workable provisions for traffic control at Ramps A and D; the DOT did not require the appellee to submit a traffic control plan for Ramps A and D; the DOT did not request a traffic control plan for Ramps B and C from the appellee when the appellee raised questions about the ramps at the preconstruction conference; and the DOT promised to handle any traffic control problems during construction.
Standard Specifications § 105.04. Coordination of Plans, Specifications, Supplemental Specifications, and Special Provisions.
Further, even though the appellee eventually submitted a revised traffic control plan for Ramps B and C following the DOT's threat to withhold monthly payments, the DOT rejected the proposed plan. The evidence showed that the DOT then proposed a revised plan to the appellee during the August 15, 1990 meeting; the DOT insisted the appellee adopt and perform the plan; and DOT representatives met with FWHA officials, "decided" on a traffic control plan, and then "explained [to the appellee] what needed to be done." Under the circumstances, there are material issues of fact as to which party was obligated to present a traffic control plan. Accordingly, the DOT was not entitled to a directed verdict or j.n.o.v. on this issue.
3. DOT next alleges that it was entitled to a directed verdict or j.n.o.v. because the appellee failed to give notice under § 105.13.C. that it intended to claim compensation for extra work. However, "[w]hile forfeitures [due to noncompliance with contract provisions] are not unlawful, the law does not favor them, and all ambiguities in a contract are to be resolved against their existence. (Cit.)' . . . [Cits.]" APAC-Ga. v. Dept. of Transp., 221 Ga. App. 604, 605 (1) ( 472 S.E.2d 97) (1996). "Notice requirements must be reasonably construed. The key issue is whether DOT had actual notice of [the appellee's claims]." Id. at 606 (2).
Supplemental Specifications § 105.13.C. reads as follows: "Other Claims: 1. In any case in which the Contractor believes that it will be entitled to additional compensation for reasons other than delay or acceleration, the Contractor shall notify the Engineer in writing of its intent to claim such additional compensation before beginning or proceeding further with the work out of which such claim arises. If such notification is not given, then the contractor hereby agrees that it shall have waived any additional compensation for that work and the Contractor shall have no claim thereto. 2. The liability of the Department for such claims shall be limited to those items of damages which are specifically identified as payable in connection with delay claims as set forth in Sub-Section 105.13.A.6. For such claims, the Department will have no liability for those items of damages identified as not payable in connection with delay claims as set forth in Sub-Section 105.13.A.8."
The evidence in the case sub judice showed that the appellee gave the DOT notice on August 2, 1990 that they had incurred "additional direct job expenses" as a result of the "erroneous Georgia DOT traffic control plan." Further, the appellee again notified the DOT on August 10, 1990 that they intended to claim compensation for additional direct job expenses that resulted from the DOT's "erroneous" sequence of operations and traffic control plan. Under the circumstances, the "evidence [that the appellee] presented appears to be `in the spirit' of the contract provision, presenting the factfinder with a question of whether that notice was sufficient to reasonably comply with [the contract provisions]. [Cits.]" Id.
Further, "[t]hese facts also present a jury issue as to whether the DOT, through its conduct, waived the notice provisions [of the contract]. It is well recognized that a party to a contract may waive contractual provisions for his benefit. Courts will readily seize upon any fact or circumstance growing out of the conduct of the parties, tending to show waiver of strict compliance, and will seek to avoid the forfeiture and to leave the actual merits of the case open to investigation." Id. at 607 (2).
In the case sub judice, the evidence indicates that DOT recognized that a problem existed which was impeding the appellee from completing the project. In response, the DOT called a meeting on August 15, 1990 "to work out a solution for staging traffic through stages I, II, III so the project can be completed from where it is now." Further, in November 1991, the DOT expressly acknowledged that the appellee's August 10, 1990 letter served as actual notice of the appellee's intent to file a claim. From these facts, a jury could infer that the DOT had received actual notice of a potential claim by the appellee and thereby waived any further notice under § 105.13.C. Therefore, the DOT was not entitled to a directed verdict or j.n.o.v. on this issue.
4. In the fourth enumeration of error, DOT alleges that the trial court erred in denying its motion for a directed verdict or j.n.o.v. on the issue of whether a "force account" existed between the parties, as the DOT had not agreed to the creation of such account in writing, as required by Supplemental Specification § 104.03.
Standard Specification § 101.27 defines "Extra Work" as follows: "An item of work not provided for in the Contract as awarded but found essential to the satisfactory completion of the Contract within its intended scope." (Emphasis supplied.) See also § 104.04. Standard Specification § 101.28 then defines a "Force Account" as a "method of payment for Extra Work when a Supplemental Agreement is not arrived at between the Engineer and the Contractor." Further, Supplemental Specification § 104.03 provides that "[w]henever an alteration in character of work involves a substantial change in the nature of the design or in the type of construction, a Change Order covering such alteration will be issued. All work shall be performed as directed and in accordance with the Specifications. If the alteration materially increases or decreases the cost of the performance, a Supplemental Agreement acceptable to both parties shall be executed before work is started on such alteration, except that in the absence of a Supplemental Agreement acceptable to both parties, the Engineer may direct that the Work be done either by Force Account or at existing Contract prices subject to the provisions of Sub-Section 105.13. Any Force Account Agreement must be in writing, specifying the terms of payment, signed by the State Highway Engineer and agreed to in writing by the Contractor." (Emphasis supplied.) See also Supplemental Specification § 109.05.B; OCGA § 32-2-60 (c) (2). Thus, the DOT, not the contractor, ultimately controlled the creation of a force account.
The evidence, viewed in the light most favorable to the verdict, indicates that the DOT recognized that there were serious problems with its traffic control plans for Ramps B and C; the DOT promised at the preconference meeting to address such problems during construction; the appellee questioned the plans several times, asserting that they were unworkable as designed; such assertions eventually led to a meeting between the parties on August 15, 1990; the parties reached an agreement to utilize the DOT's "suggestion" for traffic control under threat from the DOT; such suggestion involved substantial changes from the DOT's original traffic control plan; and, following the meeting, the DOT representatives visited the site, decided on a traffic plan, and gave the appellee specific directions on how to control traffic at the site. The evidence also indicated that the DOT adamantly refused to put its own directive in writing, but insisted that, if the appellee utilized the DOT's "suggestion," the plan would become the appellee's responsibility. Further, upon submitting its claim for additional compensation to the DOT, the appellee submitted daily cost records which were in substantial compliance with the requirements of Supplemental Specification § 105.13.D.2., and which complied with the directions issued by the DOT on November 12, 1991, when it acknowledged the appellee's claim for additional compensation.
Given DOT's acknowledgement of the problems with its original plans, and its verbal directive to the appellee to make substantial changes in the DOT's construction sequence to accommodate these problems, the DOT was under a duty to act in good faith and to negotiate a Supplemental Agreement to address the cost of these changes. See §§ 101.28; 104.03, supra. Clearly, the changed plans involved "extra work" under the contract specifications, since it was a "substantial change" which "materially increase[d]" the cost of the project. See §§ 101.27; 104.03, supra; OCGA § 32-2-60 (c) (2). Lacking such agreement, the appellee was faced with two undesirable choices: (1) either complete the project by making the changes as directed by the DOT, even though the DOT refused to issue a written directive or sign a written agreement or (2) attempt to construct the project as originally designed, which was not possible.
Under the circumstances, a jury question existed as to whether the DOT waived the express provisions for the creation of a force account under the contract, so that the DOT was not entitled to a directed verdict or j.n.o.v. on this issue. See OCGA § 13-4-23; Consolidated Fed. Corp. v. Cain, 195 Ga. App. 671, 672 ( 394 S.E.2d 605) (1990) (even if the contract requires "a written change order before beginning work for which recovery is sought . . . where the parties by a course of conduct have departed from the terms of the contract and operated without prior written change orders, there may be a waiver, or oral variation of the provisions of the contract."); State Hwy. Dept. v. Wright Contracting Co., supra at 762 (finding that the highway department waived contract provisions requiring a written agreement for extra work by directing the work to be performed without such agreement, after receiving notice that the contractor intended to claim compensation for the extra work); see generally Taliafaro, Inc. v. Rose, 220 Ga. App. 249, 250 ( 469 S.E.2d 246) (1996). Had the DOT acted in good faith compliance with the contract, a force account would have been created.
We also find that, since there was some evidence that a force account existed between the parties, it was not error for the trial court to admit evidence supporting this theory of recovery. Further, there was no error in providing the jury a special verdict form which allowed the jury to base an award on a force account theory.
5. In the fifth enumeration of error, the DOT asserts that it was entitled to a directed verdict or j.n.o.v. on the issue of attorney fees and costs of litigation, in that the contract between the parties clearly disallows such damages and because the appellee submitted no evidence of bad faith on the part of the DOT.
According to Supplemental Specification § 105.13.C.2., in pursuing a claim for compensation for extra work, the Contractor is limited to the damages listed in § 105.13.A.6., and the DOT is not liable for the expenses listed in § 105.13.A.8, including "Attorneys fees, claims preparation expenses or costs of litigation." Supplemental Specification § 105.13.A.8.g.
However, this specification does not preclude a finding by the jury that the plaintiff/appellee is entitled to attorney fees and litigation costs when the defendant/appellant has acted in bad faith. OCGA § 13-6-11 allows such award "where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense . . ." Further, whether or not the defendant/appellant acted in bad faith in its contractual relations is an issue for the jury to determine. Jim Anderson Co. v. ParTraining Corp., 216 Ga. App. 344, 346 ( 454 S.E.2d 210) (1995).
In the case sub judice, there was evidence of bad faith on the part of the DOT in failing to accept responsibility for the defective traffic plans; threatening to withhold payments unless the appellee submitted revised plans; attempting to blame the appellee when the original plans proved unworkable; insisting that the appellee adopt revised plans while refusing to put such directive in writing; and refusing to settle the claims of the appellee in a timely manner. Therefore, the DOT was not entitled to a directed verdict or judgment n.o.v. on this issue. Further, it was not error to admit evidence regarding attorney fees; charge the jury on attorney fees; or present the jury with a special verdict form which specifically listed attorney fees as a possible award.
6. The DOT also asserts that it was entitled to a directed verdict on the issue of prejudgment interest because (a) the contract prohibited such interest; (b) the sum that was allegedly due under the contract was unliquidated; and (c) the jury found that prejudgment interest should not be allowed. The record shows that the trial court submitted to the jury a verdict form which specifically asked, inter alia, "Should prejudgment interest be awarded?" The jury responded in their verdict, "No." However, the trial court, in its judgment entered on the verdict 19 days later, found that the plaintiff/appellee was entitled to prejudgment interest as a matter of law under OCGA § 7-4-16. Therefore, the court computed interest on $180,215.20 at an annual rate of 18% interest, accruing from March 22, 1992, and awarded the appellee $129,754.96 in prejudgment interest.
(a) DOT points to the Standard Specifications § 109.08.B., which deems any disputed amounts to be unliquidated and which specifically waives the appellee's right to interest thereon. However, in Dept. of Transp. v. APAC-Ga., 217 Ga. App. 103, 106 ( 456 S.E.2d 668) (1995), this Court held that "[e]xculpatory clauses must be clear and unambiguous, they must be specific in what they purport to cover, and any ambiguity will be construed against the drafter of the instrument. In this case, Standard Specification [§] 109.08.B. seeks to bar recovery of prejudgment interest for any sum claimed by the Contractor under the Contract or for any extra or additional work. The specification does not specifically bar the recovery of prejudgment interest on sums obtained for . . . damages resulting from a breach of contract on the part of DOT. It is well settled that exculpatory clauses will not be applied to delays or their causes not contemplated by the parties. In this case, we cannot say as a matter of law that [Dalton Paving] and DOT ever contemplated that Standard Specification [§] 109.08.B. would be applicable to a breach of contract claim such as that advanced by [the appellee]." (Citations and punctuation omitted; emphasis supplied.) Therefore, the appellee did not waive its right to prejudgment interest.
(b) However, without deciding whether or not the contract at issue in the case sub judice comes within the ambit of OCGA § 7-4-16, we note that the appellee would have been entitled to interest under that provision only if the underlying amount of damages is liquidated. Typo-Repo Svcs. v. Bishop, 188 Ga. App. 576, 579 ( 373 S.E.2d 758) (1988). "[A] claim is unliquidated when there is a bona fide contention as to the amount owing. A liquidated claim is an amount certain and fixed, either by the act and agreement of the parties or by operation of law; a sum which cannot be changed by the proof." (Citations and punctuation omitted; emphasis in original.) Home Ins. Co. v. North River Ins. Co., 192 Ga. App. 551, 557 (4) ( 385 S.E.2d 736) (1989); see also Rice v. State Farm Fire c. Co., 208 Ga. App. 166, 172 ( 430 S.E.2d 75) (1993); Ryan v. Progressive Retailer Publishing Co., 16 Ga. App. 83, 89-91 ( 84 S.E. 834) (1915). "Whether there was a bona fide dispute between the parties is ordinarily a question for the jury." Id. at 91 (3). This Court previously has determined that a dispute as to the final payment due the contractors precluded an award of prejudgment interest, since "[c]learly, the parties were never in agreement as to the total amount due." Shepherd Constr. Co. v. State Hwy. Dept., 138 Ga. App. 252, 253 (1) ( 226 S.E.2d 79) (1976).
In the case sub judice, a bona fide dispute existed as to whether the appellee was entitled to compensation for extra work performed and, if so, in what amount. The fact that the contract, in § 109.05, provided specific guidelines for computation of compensation under a force account theory does not liquidate the appellee's claim, as there was conflicting evidence regarding the appellee's entitlement to such compensation; the nature and amount of materials, labor, and other costs; and the necessity of such charges. As such, the jury was empowered to determine the amount of the award, if any, and "[i]t was only after entry of a judgment upon that verdict that the claim became liquidated." Firemen's Ins. Co. v. Oliver, 182 Ga. 212, 213 ( 184 S.E. 858) (1936); see also B. G. Sanders Assoc. v. Castellow, 154 Ga. App. 433, 434 ( 268 S.E.2d 695) (1980); Buck Creek Indus. v. Crutchfield Co., 133 Ga. App. 80, 81 ( 210 S.E.2d 32) (1974).
As an unliquidated claim, whether or not to award prejudgment interest is a decision within the jury's discretion. See Davis v. Carpenter, 155 Ga. App. 301, 303 ( 270 S.E.2d 810) (1980), rev'd on other grounds, 247 Ga. 156 ( 274 S.E.2d 567) (1981); see also Aston Mills v. Suntek Indus., 190 Ga. App. 217, 218 ( 378 S.E.2d 399) (1989). The jury in the case sub judice determined that no prejudgment interest should be awarded.
Therefore, the trial court erred in including prejudgment interest under OCGA § 7-4-16 in the final judgment; the appellee was not entitled to prejudgment interest on the unliquidated damages; and the DOT was entitled to a directed verdict or a judgment n.o.v. on the issue of prejudgment interest.
7. In this enumeration, the DOT asserts that the trial court erred in denying a directed verdict or judgment n.o.v. as to the amount of disputed quantities due the appellee, because the appellee was bound by the determination of the State Highway Engineer, and the appellee failed to show the State's Engineer acted fraudulently or in bad faith in arriving at that figure.
DOT refers to the Standard Specifications § 105.01, which reads, in part, that, "[t]he Engineer will determine the quantities of the several kinds of work performed and materials furnished which are to be paid for under the contract and his determination shall be final." In State Hwy. Dept. v. MacDougald Constr. Co., 189 Ga. 490, 495 ( 6 S.E.2d 570) (1939), the Supreme Court upheld a similar contract clause, finding that "[i]t was the clear intention of the parties, as expressed in this contract, and such is its legal effect, that the engineer . . . should be the arbitrator to determine when the contract had been complied with by either party, and to adjust all disputes and differences between them under it, and his decision was to be conclusive upon them[.] . . . Their chosen arbitrator, by the express terms of their contract, was to determine all disputes and differences between them arising under it, without further recourse or appeal."
Therefore, since there was no evidence that the State Engineer acted fraudulently or in bad faith in determining the amount of unpaid quantities due the appellee, we find that the appellee was not entitled to additional compensation for unpaid quantities, and the DOT was entitled to a directed verdict or j.n.o.v. on this issue.
Although the appellee asserts that the Georgia Arbitration Code, OCGA § 9-9-1 et seq., supersedes this contract provision, the record does not indicate that this argument was raised in the court below. Therefore, it is waived.
8. DOT asserts that the trial court erred in admitting certain evidence over the DOT's objection. "In reviewing [these] enumeration[s] of error, we note at the outset that `(a)dmissibility of evidence is a matter which rests largely within the sound discretion of the trial court.' [Cit.]" Dept. of Transp. v. 2.953 Acres of Land, 219 Ga. App. 45, 47 (1) ( 463 S.E.2d 912) (1995). Even "evidence of doubtful relevancy or competency should be admitted and its weight left to the jury." (Citations and punctuation omitted.) Benton v. Chatham County, 206 Ga. App. 285, 291 (5) ( 425 S.E.2d 317) (1992). Further, "where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it." (Citations and punctuation omitted.) Id. Finally, "[e]vidence which, in connection with other evidence, tends, however slightly, to prove, explain, or illustrate a fact, even though it is not sufficient, standing alone, to sustain a finding of such fact, is relevant, has probative value and is admissible as against objection as to its relevancy and probative value; doubt as to the latter should be resolved in favor of admission and against exclusion, sufficiency not being a test or condition of admissibility. (Cits.)' [Cits.]" Dept. of Transp. v. Whitehead, 169 Ga. App. 226, 231 (4) ( 312 S.E.2d 344) (1983), aff'd, 253 Ga. 150 ( 317 S.E.2d 542) (1984). Therefore, this court will not interfere with the trial court's decision to admit evidence absent a finding of abuse of discretion.
(a) DOT first asserts that the trial court erred in admitting the entirety of the appellee's claim letter, which the DOT labels as "self-serving." This Court finds this argument without merit, since the claim letter at issue was required by the contract, to wit, "All claims must be submitted in writing, and must be sufficient in detail to enable the Engineer to ascertain the basis and the amount of each claim." Supplemental Specifications § 105.13.D. Since the DOT argues that the appellee's claim should be barred because it failed to follow proper procedures in submitting its claim, evidence that the appellee, in fact, submitted the claim and the supporting documentation was relevant to the issue of the appellee's compliance with the contract and their good faith efforts in attempting to resolve the dispute. As such, the letter was both relevant and probative. Cf. Executive Constr. v. Geduldig, 170 Ga. App. 560, 562 ( 317 S.E.2d 564) (1984) (claim letters at issue were not required under a contract between the parties); Denton v. Etheridge, 73 Ga. App. 221, 227-228 ( 36 S.E.2d 365) (1945) (the letter at issue, which was an offer to compromise, was inadmissible as misleading, argumentative, irrelevant, highly prejudicial, and of questionable validity).
Further, DOT objected to the letter solely because portions were "self-serving declarations." This objection is insufficient, since "[t]he general rule is that where a portion of the evidence offered is admissible and a portion inadmissible, an objection to the evidence as a whole which does not point out and limit itself to the objectionable part is not sufficient." Employers Liability c. Corp. Ltd. v. Sheftall, 97 Ga. App. 398, 403 (3) ( 103 S.E.2d 143) (1958). Notably, an objection that evidence is "self-serving" does not describe an independent ground for excluding evidence; such assertion is merely ancillary to a proper, underlying objection that alleges the proponent's manufacturing of favorable evidence, i.e., hearsay. See Swain v. C S Bank of Albany, 258 Ga. 547, 550 ( 372 S.E.2d 423) (1988); Chrysler Motors Corp. v. Davis, 226 Ga. 221, 225 ( 173 S.E.2d 691) (1970).
However, even if a hearsay objection had been made, the letter was admissible as evidence of the appellee's attempt to comply with the contract requirements, not for proof of the statements contained therein, and as such, was original evidence, not hearsay. OCGA § 24-3-2. Pretermitting whether or not the letter may be deemed hearsay, the letter was admissible as a business record, pursuant to OCGA § 24-3-14 (b), since the appellee was required to submit it to the DOT under the contract. See Kilgore v. Caldwell, 152 Ga. App. 863 ( 264 S.E.2d 312) (1980); see also Tucker v. Whitehead, 155 Ga. App. 104, 105-106 ( 270 S.E.2d 317) (1980), overruled on other grounds, Merrill Lynch, c. v. Zimmerman, 248 Ga. 580, 581 ( 285 S.E.2d 181) (1981). In addition, the author of the letter, Tom Patterson, testified at trial, and the DOT's counsel had the opportunity "to draw the jury's attention to [the letter's self-serving nature] through cross-examination of the witness and argument to the jury." Swain v. C S Bank of Albany, supra at 550 (1); see also Johnson v. State, 265 Ga. 668, 669 ( 461 S.E.2d 209) (1995).
In summary, the self-serving nature of the letter does not render it per se inadmissible, but affects instead the weight of the evidence. See id. at 669; Swain v. C S Bank of Albany, supra at 550; Whitehead v. Joiner, 234 Ga. 457, 459 ( 216 S.E.2d 317) (1975). Therefore, we find no abuse in discretion in the trial court's decision to admit the appellee's claim letter.
(b) DOT also asserts that it was error for the trial court to admit a letter from the appellee to the DOT because there was no evidence as to when the letter was mailed. However, the letter was authenticated by the sender, Tom Patterson ("Patterson") of Dalton Paving, who testified that he wrote the letter, kept a file copy, and requested an employee to mail it on May 11, 1990, all in the ordinary course of business. Further, Patterson testified that he sent a duplicate copy to the DOT on August 2, 1990, after "Mr. Adams [of the DOT] had indicated to me that he had lost the previous letter." Based on this testimony, the enumeration is without merit.
(c) DOT asserts that the trial court erred in allowing the appellee's expert to offer an opinion in response to an incomplete, inaccurate hypothetical question. However, the question was consistent with the evidence and was not incomplete or inaccurate. Therefore, we find this enumeration to be without merit.
9. DOT asserts that the trial court erred in giving certain instructions to the jury. "It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge was error." (Citations omitted.) Stephens v. State, 263 Ga. 789, 791 (4) ( 439 S.E.2d 478) (1994); Jackson v. State, 214 Ga. App. 683 ( 448 S.E.2d 763) (1994). Further, the court must consider whether the charge to the jury, read in its entirety, is "sufficiently clear to be understood by jurors of ordinary capacity and understanding." (Citations and punctuation omitted.) All Risk Ins. Agency v. Belk, 191 Ga. App. 576, 577 (2) ( 382 S.E.2d 361) (1989).
(a) DOT claims that the trial court erred in instructing the jury that ambiguous contract terms must be construed against the drafter, asserting that the terms were not ambiguous, and therefore, did not need to be construed. The DOT also claims the jury instruction was confusing and misleading. However, by submitting this instruction to the jury, the trial court impliedly ruled that the terms of the contract were ambiguous and in conflict, so that parol evidence may be admitted to explain the terms and the parties' intent. Further, the charge was not misleading or confusing, was a correct statement of law, and was supported by the evidence presented; therefore, there was no error.
(b) DOT asserts as error the trial court's instruction to the jury that an oral agreement modifying a contract waives a writing requirement, asserting that there was no evidence to support the charge and that the charge was contrary to Georgia law. However, we find that there was evidence to support the charge, since it is undisputed that a subsequent agreement was reached regarding "revised" traffic control plans. Further, while Georgia law requires a writing for all DOT construction contracts, OCGA § 32-2-60 (a), it also provides that a supplemental written agreement shall be made "whenever an alteration materially increases or decreases the scope of the work specified in the contract." (Emphasis supplied.) OCGA § 32-2-61 (c) (2). The evidence in the case sub judice supports a finding that the DOT waived its defense under the requirement when it orally directed the appellee to change the traffic control plans, but refused to commit such directive to writing. Therefore, there was no error in giving this instruction.
10. DOT also asserts as error the trial court's refusal to give the jury several requested instructions. In addressing this assertion, we note that "[w]here the charge given substantially covers the applicable principles, failure to give requested instructions in the exact language requested is not error." (Citations and punctuation omitted.) Birge v. State, 143 Ga. App. 632, 639 ( 239 S.E.2d 395) (1977). Although the DOT cites to case law that purports to hold that the failure to give a requested instruction that is supported by evidence and is a correct statement of law is reversible error, review of these cases shows that the charges given to the jury, reviewed in their entirety, completely failed to present essential defenses or theories of recovery. See McDevitt Street Co. v. K-C Air Conditioning Svc., 203 Ga. App. 640, 647 ( 418 S.E.2d 87) (1992); Smoky, Inc. v. McCray, 196 Ga. App. 650, 655-657 ( 396 S.E.2d 794) (1990); Pritchett v. Anding, 168 Ga. App. 658, 663 ( 310 S.E.2d 267) (1983); Tallman Pools of Ga. v. Fellner, 160 Ga. App. 722, 723-724 ( 288 S.E.2d 46) (1981). Such is not the situation in the case sub judice.
(a) DOT cites as error the trial court's refusal to charge the jury that, under the contract, the appellee's failure to notify the DOT of its intention to seek additional compensation waives any right to such recovery. However, the contract was in evidence, the jury was specifically instructed that the parties were bound by the expressed terms therein, and the charge, as given, substantially covered the proposed instruction. See Birge v. State, supra. Therefore, there was no error in refusing to give this requested instruction.
(b) DOT asserts that the trial court erred in refusing to charge the jury that the DOT does not warrant construction plans and specifications, so that the plaintiff/appellee "must recover, if at all, under the contract and subject to the terms and requirements of the contract."
However, this instruction is a misstatement of the law, as it prevents a finding by the jury that the DOT breached other duties or warranties under the contract, such as implied warranties of good faith and fair dealing. See Dept. of Transp. v. APAC-Ga., supra at 105. As such, the instruction was inaccurate, confusing, and misleading.
Further, the case cited by the DOT as the basis for this charge, State Hwy. Dept. v. Hewitt Contracting Co., supra at 690, addresses the absence of such warranty as a basis for preventing the plaintiff from recovering outside the contract under the principles of quantum meruit or by renouncing the contract for fraud or mistake; no such recovery was sought in the case sub judice. Finally, the DOT failed to cite any evidence in the record that supports this jury charge.
A "request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper. (Citation, punctuation and emphasis omitted.) Asbury v. Ga. World Congress Center, 212 Ga. App. 628, 631 (4) ( 442 S.E.2d 822) (1994). Therefore, there was no error in the trial court's refusal to give this charge.
(c) DOT asserts that the trial court erred in refusing to instruct the jury regarding the contract requirements for traffic control. However, the proposed instruction covers only one of many provisions in the contract that address traffic control and attempts to limit the jury's consideration of the DOT's duty regarding traffic control to that single provision. Further, the contract provision is ambiguous, in that it states that "[a] Traffic Control Plan will be required prior to any changes in traffic[,]" but does not indicate who is responsible for such plan. The proposed instruction then misstates the provision in asserting that "the contract goes on to instruct the contractor as to what information he shall include in a traffic control plan." (Emphasis supplied.) In fact, the cited provision clarifies what a plan shall include, not who is responsible for proposing such plan. As such, the instruction is inaccurate, confusing, and misleading. It was not error for the trial court to refuse to give this instruction.
(d) DOT asserts that the jury should have been instructed on the contract requirements pertaining to the Sequence of Operations. However, the jury was instructed that they must determine what terms and conditions of the contract, if any, existed between the parties, and that the parties were bound by such terms. As such, the charge as given, reviewed in its entirety, substantially covered the proposed charge. See Birge v. State, supra. The trial court did not commit error in its failure to give the DOT's proposed charge.
(e) DOT asserts that the trial court erred in refusing to charge the jury regarding the requirements under the contract for establishing a force account. We find that the comprehensive charge, as given, substantially covered the proposed charge. Id. Therefore, there was no error.
11. All other enumerations not specifically addressed in this opinion were resolved or were found to be without merit.
In summary, we find that the trial court erred in failing to direct a verdict or granting a j.n.o.v. for the appellant on the issues of prejudgment interest and unpaid quantities. We reverse the judgment of the trial court on these issues only, and affirm the judgment of $180,215.20 in damages and $146,286.95 in attorney fees for the plaintiff/appellee.
Judgment affirmed in part and reversed in part. Birdsong, P. J., and Ruffin, J., concur.