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Strong Construction, Inc v. City of Torrington

May 23, 2011

STRONG CONSTRUCTION, INC., APPELLANT (DEFENDANT),
v.
CITY OF TORRINGTON, APPELLEE (PLAINTIFF).



Appeal from the District Court of Goshen County The Honorable Keith G. Kautz, Judge

The opinion of the court was delivered by: Burke, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] The City of Torrington filed suit against Strong Construction, Inc., alleging breach of contract based on Strong's failure to supply and install water pump motors that conformed to contract specifications. After a bench trial, the district court entered judgment in favor of the City. Strong challenges the district court's decision. We affirm.

ISSUES

[¶2] Strong presents the following issues:

1. Did the court err when it held Strong Construction breached the agreement with the City of Torrington and awarded the City of Torrington damages and attorney fees?

2. Was the City of Torrington's claim barred by the one year warranty period, pursuant to Article 13.07 of the Standard General Conditions of the construction contract?

3. Is Strong Construction obligated to pay any portion of the judgment attributed to Baker and Associates' negligence?

The City phrases the issue as follows:

1. Were the trial court's factual findings and legal conclusions supported by the record?

FACTS

[¶3] Strong entered into an Agreement with the City to provide general contracting services on the second phase of a municipal water project. The Agreement incorporated the "Standard General Conditions of the Construction Contract" prepared by the Engineers Joint Contract Documents Committee, No. 1910-8 (1996 Edition) (General Conditions). As part of the project, Strong hired subcontractor Kelly-Deines Irrigation to supply and install three submersible water pumps and motors in three separate wells in a well field. Prior to commencement of the work, Strong was required to submit plans and specifications relating to the motors to the City's engineer, Baker & Associates, Inc., for approval.

[¶4] The parties' Agreement required Strong to "furnish complete details of the pump and motor [it] intends to provide," including "[e]lectric motor performance and construction data." The Agreement specified that the motors would need to operate at a frequency of 60 hertz and that they would need to be compatible with a "variable frequency drive" (VFD), which would allow the motors to operate within a range of frequencies. The Agreement, however, did not specify the range of frequencies within which the motors would need to operate.

[¶5] Strong submitted specifications relating to a Hitachi motor, and Kelly-Deines ultimately supplied and installed Hitachi motors. The district court found that Strong's submittals included a set of seven pages describing specifications relating to the Hitachi motor. However, those seven pages included a document setting forth guidelines relating to a Centripro motor (Centripro Guidelines). The Centripro Guidelines indicated that the motor would operate within a range of 42 to 60 hertz and that the motor had "been used extensively with variable frequency drives." The submittals were approved by Baker & Associates on March 17, 2005.

[¶6] In April of 2005, approximately four weeks before the motors were shipped to Kelly-Deines, the supplier sent revised operational guidelines for the Hitachi motor to Kelly-Deines indicating that the motors could operate only in the range of 55 to 60 hertz. Kelly-Deines, however, did not provide this information to Strong, to the City, or to Baker & Associates. The pumps and motors were installed in the wells in July of 2005, but were not used until March of 2007, after the third phase of the water project was completed. After initial electrical problems with one of the motors, that motor was removed and replaced with the same model of Hitachi motor. The failed motor was sent to the manufacturer, who determined that the type of damage to the motor was consistent with damage that typically occurs when the motor is operated for extended periods at frequencies between 51 and 55 hertz in conjunction with a VFD. Based on the report by the manufacturer indicating a limited operational capacity for the Hitachi motors, Baker & Associates adjusted the operation of the well field to prevent the other motors from failing. The adjustments, however, reduced the efficiency of the well field and limited water production to the City. The City replaced all three Hitachi motors with Pleuger motors that could be operated in a wider range of frequencies, which allowed the City to return to normal operation of the wells.

[¶7] The City subsequently filed suit against Strong in district court, and a bench trial was held on February 23 and 24, 2010. The City argued that Strong breached the Agreement by failing to provide motors with the specifications represented in Strong's submittals. These specifications, the City contended, included the Centripro Guidelines indicating that the motor would operate within a range of 42 to 60 hertz. Strong argued that the Hitachi motors met the contract specifications because no range of frequencies was specified in the Agreement and because the motors operated in a range of 55 to 60 hertz, which, according to Strong, was compatible with a VFD. Strong also disputed the City's claim that the contract submittals included the Centripro Guidelines and the claim that Baker & Associates relied on that document in approving the Hitachi motors. Further, Strong argued that the one-year "Correction Period" for defective work under the General Conditions barred the City's claim against Strong.

[¶8] The district court found that Kelly-Deines provided the Centripro Guidelines to Baker & Associates prior to approval of the project submittals and, further, that Strong was required to submit the information in the Guidelines pursuant to the specifications in the parties' Agreement. The court also found that, in reliance on the information contained in the Centripro Guidelines, the parties agreed that the motors would have a minimum operating frequency of 42 hertz. The court held that "Strong[,] through its subcontractors[,] breached the contract by providing motors that did not have the performance and construction data as represented in the submittal; and by providing motors that were incompatible with operation of the variable frequency drive system for this project." The district court entered judgment in favor of the City and awarded damages equal to the cost of the replacement Hitachi motor and the three Pleuger motors. Strong appeals the judgment of the district court.

STANDARD OF REVIEW

[¶9] When reviewing the factual findings of a district court following a bench trial, we apply the following standard of review:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail re-weighing disputed evidence. Findings of fact will not be set aside unless they are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

Piroschak [v. Whelan, 2005 WY 26], ΒΆ 7, 106 P.3d [887,] 890 [(Wyo. 2005)]. Findings may not be set aside because we would have reached a different result. Harber v. Jensen, 2004 WY ...


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