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Building Construction Enterprises, Inc. v. Gary Meadows Construction Co.

September 10, 2007

BUILDING CONSTRUCTION ENTERPRISES, INC. PLAINTIFF/COUNTERDEFENDANT
v.
GARY MEADOWS CONSTRUCTION CO., INC. DEFENDANT/COUNTERCLAIMANT



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge

ORDER

Presently before the Court are Plaintiff Building Construction Enterprises, Inc.'s ("BCE") Motion in Limine to Exclude Parole Evidence (Docket No. 42), and BCE's Motion in Limine to Exclude Hearsay Evidence (Docket No. 44).

I. Background

This case involves a dispute over work contemplated to be performed at the Arkansas State University student center. BCE was the general contractor and Defendant Meadows was a subcontractor on the project. The Complaint states that on or about July 17, 2001, the parties entered into a contract. In March of 2005, a dispute arose between the parties regarding the scope of work to be completed by Defendant.

The Complaint alleges that BCE took the position during the work that fill and backfill were included in the work Meadows was obligated to do under contract, but that Meadows took the position that it was not responsible for fill and backfill. BCE alleges that it contacted Meadows and asserted that Meadows had separately charged them for backfill work that was within the scope of the original contract between the parties. BCE also alleges that it informed Meadows that if Meadows did not fulfill its obligations under the contract, BCE would be forced to hire others to do the work, and that Meadows abandoned the job due to the controversy. Subsequently, BCE contracted with other construction companies to complete the work.

In its Answer, Defendant Meadows asserts that it did not enter into a contract with Plaintiff BCE for performance of Excavation, Section 02316, or Fill and Backfill, Section 02375, of Plaintiff's contract with ASU. Defendant further states that its proposal did not include those two items, and it was not the intent of Defendant or Plaintiff for the subcontract to include those two items. Defendant asserts that several months after entering into the contract, Plaintiff asked Defendant to submit a proposal for the excavation Section of Plaintiff's contract with ASU and that a proposal was submitted by it on October 15, 2001, in the amount of $64,600.00. Defendant states that Plaintiff declined to accept said proposal and informed Defendant that it would use its own forces to complete that portion of the job. However, from October 6, 2001, through November 3, 2004, Defendant was asked by Plaintiff to perform extra work consisting of excavation, fill, and backfill. Defendant states that it submitted invoices for the extra work during that three-year period of time and that Plaintiff paid Defendant for that extra work as billed.

Defendant further states that it was only in March, 2005, when a different job superintendent of Plaintiff came on the job, that Plaintiff took the position that the excavation, fill, and backfill were included in Defendant's original subcontract agreement. Defendant states that beginning in March 2005, Plaintiff refused to pay Defendant for the extra work, and that Plaintiff refused to meet with Defendant to attempt to resolve the situation, and that Plaintiff ceased paying Defendant for work already completed that it contends was extra work outside the subcontract agreement. Defendant alleges that Plaintiff breached its contract with Defendant by refusing to pay for charges incurred that were submitted and authorized by Plaintiff's personnel on the job and by refusing to fulfill its obligations under the subcontract agreement and its agreement for the payment for the extra work performed.

Defendant counterclaims alleging that Plaintiff is indebted to Defendant in the amount of $5,017.51 for invoiced and billed amounts pursuant to the original subcontract agreement for which Plaintiff has refused to pay, and in the amount of $24,462.76 for the ten percent retainage held by Plaintiff for work performed by Defendant pursuant to the subcontract. Defendant also asserts that it performed extra work at the request of Plaintiff for which it submitted invoices to Plaintiff which remain unpaid in the sum of $51,499.66.

II. Plaintiff's Motion in Limine to Exclude Parole Evidence (Docket No. 42)

Plaintiff moves this Court to exclude any and all alleged evidence proffered or offered by the Defendant in this matter designed to explain and/or change the contract terms between the parties. Plaintiff states that it anticipates that Defendant intends to introduce evidence, including, but not limited to, proposals and bids allegedly submitted to Plaintiff by the Defendant, in an attempt to explain and/or interpret the terms of the contract between the parties. Plaintiff further states that the contract between the parties is signed by the Defendant's agent, contains terms that are specific in nature and whose definition are not in dispute, and speaks for itself. Specifically, paragraph 4 of Attachment A to the contract states,

This Subcontract includes Site Demolition, Earthwork, Paving, and Pavement Trench Repair for Utilities, as specified in Section 02200 -- Demolition and Site Preparation, Section 02310 -- Earthwork, Section 02315 -- Excavation, Section 02316 -- Fill and Backfill, Section 02375 -- Temporary Erosion Control, Section 02721 -- Bituminous Concrete Paving, and Section 03300 -- Cast in Place Concrete.

Defendant responds by stating that paragraph 5 of Attachment "A" to the contract and also the references to sections in paragraph 4 of Attachment "A" to the contract are ambiguous as to what work was covered. Defendant states that it will introduce evidence to explain and interpret the terms of the contract as it was interpreted and relied upon by the parties for over three years after it was entered into. Defendant also states that the parties were agreeable and consistent in their interpretation of the contract for over three years and it was not until March 2005 that Plaintiff's new job superintendent interpreted the contract in a different manner.

Defendant argues that if there is a contradiction between general provisions, and more detailed, specific provisions in the contract, the specific provisions qualify the meaning of the general provisions. See Missouri Pac. R. Co. v. Winburn Tile Mfg. Co., 461 F.2d 984 (8th Cir. 1972). Essentially, Defendant argues that paragraph 4, the general provision, is qualified by paragraph 5, the specific provision. Defendant states that paragraph 5 of Attachment "A" to the subcontract agreement specifically sets forth the items of work that Meadows was to do pursuant to the subcontract, and mirrors the items as set forth in Meadows' proposal to the Plaintiff dated May 9, 2001.

Paragraph 5 states:

This Subcontract specifically [includes], but is not limited, ...


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