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2011-UP-372 - Underground Boring v. P Mining

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Underground Boring, LLC, Respondent,

v.

P Mining, Inc., Appellant.


Appeal From Horry County
Steven H. John, Circuit Court Judge


Unpublished Opinion No. 2011-UP-372
Submitted April 1, 2011 – Filed July 21, 2011   


AFFIRMED


Douglas Charles Baxter, of Myrtle Beach, and Mason A. Summers, of Columbia, for Appellant.

William A. Bryan, of Surfside Beach, for Respondent.

PER CURIAM: In this breach of contract action, P Mining appeals the trial court's judgment in favor of Underground Boring in the amount of $99,041.35 plus $29,369.48 in prejudgment interest.  We affirm.[1] 

FACTS/PROCEDURAL HISTORY

The City of North Myrtle Beach (the City) hired P Mining to replace all overhead utility lines with underground ones.  It provided P Mining with plans and detailed specifications for the project.  P Mining subcontracted with Underground Boring for boring and installation of conduit.  The parties entered into a one-page contract, which listed the prices for the different sizes of conduit.  The contract did not specify the depth that the conduit should be buried.  The parties subsequently agreed to a price adjustment. 

After Underground Boring finished its work, Santee Cooper complained to P Mining that the conduit had not been buried deeply enough in some places.  On July 29, 2005, Charles Permenter with P Mining wrote Donnie Stewart of Underground Boring to inform him P Mining would not pay any funds towards the outstanding balance until Stewart met with the City and Santee Cooper and they signed off on all of the bores completed.  Stewart testified the meeting was never scheduled.  P Mining requested Underground Boring correct the installation of conduit that had not been buried deeply enough in the median of Ocean Boulevard.  Stewart stated he was willing to make the repair if P Mining paid the remaining funds owed Underground Boring.  The payment was never forthcoming.  Other than the Ocean Boulevard location, Stewart never received any written requests identifying particular areas P Mining, the City, or Santee Cooper wanted Underground Boring to make corrections. 

A dispute also arose between the City and P Mining concerning the amount of conduit buried.  Because the City had concerns about the depth of the conduit, as well as the quantity P Mining had billed, it withheld payment from P Mining.  P Mining, in turn, withheld payment from Underground Boring. 

Underground Boring brought this action seeking payment of the balance due of $116,656.35 in addition to interest, attorney's fees, and costs.[2]  In its answer, P Mining asserted Underground Boring had breached the contract. 

After a bench trial, the court found Underground Boring was never made aware of any specifications and specifically was not told a depth for the borings.  The court noted the contract between P Mining and Underground Boring did not require a specific bury depth, nor did the contract incorporate by reference the terms of the City's contract and specifications.  Thus it held P Mining was not entitled to a setoff for the amounts it claimed it incurred to bury the conduit deeper.  The trial court also rejected P Mining's contention Underground Boring had submitted bills for more than the actual linear footages bored.  The court further found P Mining was entitled to a set-off for repairs it made to sewer lines Underground Boring hit on three separate occasions.  Thus, it held Underground Boring was owed an unpaid balance of $116,656.35, less the amount owed for the repairs by P Mining, leaving an amount of $99,041.35.  It denied Underground Boring's request for attorney's fees and prejudgment interest. 

Both parties filed motions to alter or amend.  The court denied P Mining's motion.  It also denied Underground Boring's motion to the extent it requested attorney's fees and interest pursuant to section 27-1-15 of the South Carolina Code (2007), but granted prejudgment interest in the amount of $29,369.48 pursuant to section 34-31-20(A) of the South Carolina Code (Supp. 2010).  It denied the remainder of the motion requesting the court exclude the set-offs for the repairs.  This appeal followed. 

STANDARD OF REVIEW

"An action for breach of contract is an action at law."  Electro Lab of Aiken, Inc. v. Sharp Constr. Co. of Sumter, Inc., 357 S.C. 363, 367, 593 S.E.2d 170, 172 (Ct. App. 2004).  In a law action tried without a jury, this court's review is limited to correcting errors of law, and we are required to uphold the trial court's findings of fact unless there is no evidence to support them.  Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 85-86, 221 S.E.2d 773, 775 (1976).

LAW/ANALYSIS

A.  Required Burial Depth

P Mining argues the trial court erred in finding Underground Boring was not required to install the conduit at a minimum burial depth of three feet.  It first contends the court erred in finding Underground Boring was never made aware of the requirement set forth in the plans and specifications for the project that the conduit be installed at a minimum depth of three feet. 

The City's detailed specifications for the project provided "Conduit depth must have at least 3' of cover over the conduits to meet code.  Conduits in areas where proposed and existing water, sewer, and drainage exist must be installed at a depth approved by a City of North Myrtle Beach inspector on site."  Stewart stated that while he was given the plans, he was never provided with the specifications.  The trial court held, "Based on the testimony presented and the Court's viewing of the credibility of the witnesses, the Court specifically finds that [Underground Boring] was never made aware of any specifications and specifically was not told a depth for the borings."  "Credibility determinations regarding testimony are a matter for the finder of fact, who has the opportunity to observe the witnesses, and those determinations are entitled to great deference on appeal."  Okatie River, L.L.C. v. Southeastern Site Prep, L.L.C., 353 S.C. 327, 338, 577 S.E.2d 468, 474 (Ct. App. 2003).  We hold the trial court's finding is supported by the evidence. 

P Mining next contends the trial court erred in concluding that the contract between P Mining and Underground Boring was unambiguous and in refusing to consider parol evidence that demonstrated Underground Boring was required to bury the conduit at a minimum depth of three feet. 

"It is a question of law for the court whether the language of a contract is ambiguous."  S.C. Dep't of Natural Res. v. Town of McClellanville, 345 S.C. 617, 623, 550 S.E.2d 299, 302-03 (2001).  An ambiguous contract is one that can be understood in more ways than just one or is unclear because it expresses its purpose in an indefinite manner.  Klutts Resort Realty, Inc. v. Down'Round Dev. Corp., 268 S.C. 80, 89, 232 S.E.2d 20, 25 (1977).  "[W]here a contract is ambiguous, parol evidence is admissible to ascertain the true meaning and intent of the parties."  Penton v. J.F. Cleckley & Co., 326 S.C. 275, 280, 486 S.E.2d 742, 745 (1997).

The one-page contract did not refer to the plans and specifications the City of North Myrtle Beach gave P Mining nor did it incorporate by reference the contract between the City of North Myrtle Beach and P Mining.  As stated above, we find the record supports the trial court's ruling that Underground Boring was never made aware of any specifications and specifically was not told a depth for the borings.  As Underground Boring was not aware of this requirement, it could not have been the intent of the parties to have this requirement in the contract.  Thus, even if the contract was ambiguous, we find no error in the court's ruling on this issue.     

P Mining argues the trial court erred in failing to find Underground Boring breached its contract with P Mining because Underground Boring did not bury the conduit to the depth required.  As stated above, the record supports the trial court's finding that the contract between the parties did not require a burial depth of three feet.  Accordingly, we find no error in the court's ruling on this issue. 

Finally, P Mining argues Underground Boring installed the conduit in a manner that not only failed to comply with the depth requirements of the plans and specifications for the Project, but also failed to comply with the industry standard for minimum boring depth.  In its order on the parties' motions to alter or amend, the trial court reaffirmed its ruling Underground Boring was not in breach.  As the trial court noted, Stewart testified that where possible, the conduit was buried to meet industry standards of thirty to thirty-six inches.  However, occasionally, because of existing utilities, the bore might be shallower or deeper.  In both of the examples cited by P Mining in its brief where the conduit was not buried deeply enough, an existing storm drain was under the conduit.  We find no error in the court's ruling on this issue. 

B.  Quantity of Conduit Installed

P Mining argues the trial court erred in finding Underground Boring was entitled to be paid for the installation of a total of 47,092 linear feet of conduit.  It first contends the trial court erred in allowing and considering hearsay evidence of former employees of Underground Boring who did not appear at trial. 

Generally, "[t]he admission or exclusion of evidence is a matter within the sound discretion of the trial court and absent clear abuse, will not be disturbed on appeal."  Gamble v. Int'l Paper Realty Corp. of S.C., 323 S.C. 367, 373, 474 S.E.2d 438, 441 (1996).  As an exception to the hearsay rule, the South Carolina Rules of Evidence provide for the admissibility of records of regularly conducted activity.  Rule 803(6), SCRE.  This rule states the following is admissible:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness; provided, however, that subjective opinions and judgments found in business records are not admissible.  The term "business" as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Id.

P Mining asserts the records of the measurements taken by Underground Boring's employees and Underground Boring's invoices do not fall within this exception because "the source of information or the method or circumstances of preparation indicate lack of trustworthiness." 

Stewart testified that as his supervisor Tony Knight finished installing conduit in an area, he would measure the area with a measuring wheel.  Knight would either submit a written report with the measurement or call into the office where Stewart or his secretary would record the measurement.  The secretary used these measurements in preparing the invoices submitted to P Mining.  The measurements were also used in calculating Knight's payments.  Stewart testified he had never received any complaint from other jobs about Knight's measurements being excessive.  The evidence shows the records Underground Boring submitted were kept in the course of a regularly conducted business activity and their method of preparation did not indicate a lack of trustworthiness.  Accordingly, we find the trial court did not abuse its discretion in admitting the records. 

P Mining also argues the trial court should have used the linear footage measurement made by a City employee.  City employee Travis Dupree testified that after the dispute over the amount of conduit installed arose, he and P Mining employee Rocky Permenter made their own measurements of the project.  He stated his measurements indicated a total of 44,898 feet.  Dupree acknowledged on cross examination he had measured the project by himself before measuring it with Permenter.  Although the total of that measurement was only 70 linear feet greater from the one measured with Permenter, the measurement of each individual section was different.  When taking the higher measurement for each section, the total was 48,399 feet.  The trial court noted "P Mining failed to produce testimony to explain which of the two measurements for the various sections was correct." 

The records Underground Boring presented into evidence indicated the total footage for its work was 47,092 feet.  As the record contains evidence to support the trial court's finding that Underground Boring was entitled to payment for 47,092 linear feet of conduit, we find no error in the trial court's ruling. 

C.  Prejudgment Interest

P Mining argues the trial court erred in awarding Underground Boring prejudgment interest.  The only basis for this argument is its contention that the trial court erred in granting a judgment in favor of Underground Boring.  As we affirm the judgment, we also affirm the award of prejudgment interest.

AFFIRMED.

HUFF, SHORT, and PIEPER, JJ., concur. 


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Underground Boring originally named as defendants Charles L. Permenter and Christopher A. Permenter d/b/a P Mining Co.  By stipulation of the parties, P Mining was substituted as the proper defendant in lieu of Charles and Christopher Permenter.