United States District Court, E.D. Arkansas, Western Division
RANDY KINDER EXCAVATING, INC. PLAINTIFF
J.A. MANNING CONSTRUCTION COMPANY and GRANITE RE, INC. DEFENDANTS TRICON PRECAST, LTD PLAINTIFF
J.A. MANNING CONSTRUCTION COMPANY and GRANITE RE, INC. DEFENDANTS
M. MOODY JR. UNITED STATES DISTRICT JUDGE.
is Tricon Precast, Ltd's (“Tricon”) motion
for partial summary judgment. (Docket # 49). Responses and
replies have been filed and the motion is ripe for
disposition. For the reasons set forth herein, Tricon's
motion is DENIED.
Kinder Excavating, Inc. ("Kinder") executed a
contract with the United States Army Corps of Engineers
("USACE") to serve as general contractor on a
construction project known as, "Grand Prairie Pump
Station" ("Project"). Kinder entered into a
subcontract with Manning to engineer, furnish and install a
mechanically-stabilized earthen wall ("MSE Wall")
at the Project. Manning terminated the firm it had originally
contracted with for the engineering and design of the MSE
Wall and hired Tricon to provide the necessary engineering
services and materials.
claims that it prepared a design to meet the project specs
and submitted it to Manning. Manning approved the design and
passed it along to Kinder and the Army Corps of Engineers,
both of whom signed off on the approval of the design. Tricon
then began work on the wall. Tricon contends that after
several months of work, Manning was terminated by Kinder due
to purported issues with Manning's construction of the
wall. Tricon claims that no party involved raised any dispute
regarding the quality of Tricon's design, materials or
engineering services; it has performed all of the duties
required under its contract with Manning; and, is entitled to
payment in the amount of $151, 274.65 for work performed.
construction began, Manning contends that Kinder and USACE
rejected its work partially based on their belief no
tolerances were allowed in the joint gap widths of the
erected MSE Wall. Kinder and USACE also complained about
other aspects of Manning's work, including its use of
12" filter fabric behind the MSE Wall, in lieu of the
24" fabric supposedly called for in the Project plans
and specifications. The disagreements between the parties
eventually led to Kinder terminating Manning's
subcontract and hiring another company to re-build the MSE
Wall. Manning argues that the decision to reject the MSE Wall
was based, in part, on incorrect information provided by
Tricon during the submittal review process. Tricon gave a
confusing answer to an engineering question posed by USACE,
which was interpreted to mean no tolerances should be allowed
in the joint gap widths of the MSE Wall being erected by
Manning. Manning's use of 12" filter fabric,
something called for by Tricon in its engineered drawings,
also played a role in the decision to reject the MSE Wall.
for Summary Judgment
judgment is appropriate only when there is no genuine issue
of material fact, so that the dispute may be decided solely
on legal grounds. Holloway v. Lockhart, 813 F.2d 874
(8th Cir. 1987); Fed.R.Civ.P. 56. The Supreme Court has
established guidelines to assist trial courts in determining
whether this standard has been met:
The inquiry performed is the threshold inquiry of determining
whether there is a need for trial -- whether, in other words,
there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably
be resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
Eighth Circuit Court of Appeals has cautioned that summary
judgment should be invoked carefully so that no person will
be improperly deprived of a trial of disputed factual issues.
Inland Oil & Transport Co. v. United States, 600
F.2d 725 (8th Cir. 1979), cert. denied, 444 U.S. 991
(1979). The Eighth Circuit set out the burden of the parties
in connection with a summary judgment motion in Counts v.
M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):
[T]he burden on the moving party for summary judgment is only
to demonstrate, i.e., ‘[to] point out to the
District Court, ' that the record does not disclose a
genuine dispute on a material fact. It is enough for the
movant to bring up the fact that the record does not contain
such an issue and to identify that part of the record which
bears out his assertion. Once this is done, his burden is
discharged, and, if the record in fact bears out the claim
that no genuine dispute exists on any material fact, it is
then the respondent's burden to set forth affirmative
evidence, specific facts, showing that there is a genuine
dispute on that issue. If the respondent fails to carry that
burden, summary judgment should be granted.
Id. at 1339 (quoting City of Mt. Pleasant v.
Associated Elec. Coop., 838 F.2d 268, 273-274 (8th Cir.
1988) (citations omitted)(brackets in original)). Only
disputes over facts that may affect the outcome of the suit
under governing law will properly preclude the ...