PRESENT: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, AGEE,
JJ., and CARRICO, S.J.
BLAKE CONSTRUCTION CO., INC./
POOLE & KENT
OPINION BY
v. Record No. 022075 JUSTICE G. STEVEN AGEE
OCTOBER 31, 2003
UPPER OCCOQUAN SEWAGE AUTHORITY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Hon. Jane M. Roush, Judge
Blake Construction Co., Inc./Poole & Kent ("the Joint
Venture") appeals orders by the Circuit Court of Fairfax County
entered in proceedings brought by the Joint Venture against the
Upper Occoquan Sewage Authority ("UOSA").
On appeal, the Joint Venture assigns as error the trial
court's sustaining of UOSA's demurrer to Count I of the Joint
Venture's amended motion for judgment and declaratory judgment
which alleged that certain provisions of a contract between the
parties were unenforceable and void as against public policy
under Code § 2.2-4335(A). The Joint Venture also assigns as
error the trial court's dismissal of a claim for damages on the
grounds that the Joint Venture failed to give a timely notice of
claim, and alternatively on the basis of the jury's special
verdict finding. For the reasons that follow, we will affirm in
part and reverse in part the judgment of the trial court.
I. BACKGROUND
This litigation involves multiple disputes arising out of a
contract for construction of a waste water treatment facility
located in Fairfax County (the "Project"). UOSA, the owner of
the facility, is a public authority created pursuant to the
Virginia Waste and Water Authorities Act, Code §§ 15.2-5100
through -5158, to provide waste water reclamation for its member
jurisdictions, the counties of Fairfax and Prince William and
the cities of Manassas and Manassas Park. As a public
authority, UOSA is subject to the Virginia Public Procurement
Act, Code §§ 2.2-4300 through -4377 1 (the "VPPA").
Blake Construction Co., Inc. and Poole & Kent Corporation
formed the Joint Venture in order to submit a bid for the
Project. The Joint Venture's bid was successful, and the Joint
Venture agreed to furnish all labor, materials, and equipment
for the Project in a contract dated December 10, 1996 (the
"Contract"). The Contract allows the Joint Venture to obtain an
increase in the contract price and/or an extension of time to
complete certain work upon written application to UOSA pursuant
to procedures set forth in the Contract.
1
At the time the claims at issue in this appeal arose in
the trial court, the VPPA was codified at Code § 11-35 et seq.,
but was recodified at Code § 2.2-4300 et seq. by the General
Assembly in 2001. We will refer to the corresponding provisions
of the current Code of Virginia in this opinion.
2
The Joint Venture began work on the Project in January 1997
which is ongoing at the time of this appeal. During the course
of the work, numerous changes were made to the original
contract, some of which are in dispute and resulted in the
proceedings now at bar.
The VPPA allows a contractor on a public project to appeal
an adverse final decision by a public owner on its claim. See
Code § 2.2-4363. Under the statute, a contractor may obtain a
de novo determination of its claim in the circuit court provided
it institutes legal action "within six months of the date of the
final decision on the claim by the public body." Code § 2.2-
4363(D). As the Project remains ongoing, this has engendered
litigation by the parties during the construction process. On
May 26, 2000, the Joint Venture filed the first of several
related suits appealing adverse claim decisions by UOSA and
subsequently filed additional suits. The trial court
consolidated six of those suits (the "consolidated cases") by
order, including the matters now at bar.
In addition to contesting specific claims for particular
items, the Joint Venture also sought a declaratory judgment that
certain Contract provisions, General Conditions 91.K and 91.L,
were prohibited by Code § 2.2-4335(A) and therefore void as
against public policy. UOSA filed a demurrer which the trial
court sustained by letter opinion dated July 11, 2001, but with
3
leave to amend. The Joint Venture filed an Amended Motion for
Judgment and Declaratory Judgment to which UOSA filed another
demurrer. The trial court again sustained UOSA's demurrer in
reliance on the July 11, 2001 letter opinion, but without
further leave to amend.
UOSA filed a Plea in Bar to approximately 60 of the
specific work claims pled by the Joint Venture, asserting
failures to comply in a timely manner with various notice
requirements. 2 Some of the bars raised by the Plea in Bar were
tried to a jury in September 2001, including the dispute over
Work Order 248 which is at issue in this appeal. UOSA issued
Work Order 248, which removed specific work from the Project, on
April 12, 2000. Subsequently, on September 12, 2000, UOSA
issued Unilateral Change Order No. 100 ("UCO 100") which reduced
the Contract price to reflect the elimination of work under Work
Order 248. UOSA alleged the Joint Venture failed to file a
Notice of Claim until October 2, 2000, over four months after
UOSA asserts it was due and therefore no claim arising from Work
Order 248 could be made by the Joint Venture.
Both parties submitted proposed verdict forms at the close
of trial. The trial court substantially adopted UOSA's proposed
2
Some of the issues raised in the Plea in Bar are the
subject of an appeal by UOSA also decided today by this Court in
Upper Occoquan Sewage Authority v. Blake Construction Co.,
Inc./Poole & Kent, 266 Va. ___, ___ S.E.2d ___ (2003).
4
form rather than the form proffered by the Joint Venture. After
the jury issued its verdict, the Joint Venture moved to set
aside the verdict regarding Work Order 248 on the grounds that
General Condition 104 of the Contract did not require a Notice
of Claim for a reduction in the Contract price. The trial court
denied the motion by order dated November 30, 2001.
The Joint Venture moved for entry of an order of voluntary
nonsuit in the consolidated cases, which the trial court granted
on June 7, 2002. The Joint Venture has appealed the matters
dismissed with prejudice by the trial court prior to the order
of nonsuit: the jury verdict on Work Order 248 and sustaining of
the demurrer to its declaratory judgment action. We granted the
Joint Venture an appeal.
II. STANDARD OF REVIEW
Well-settled principles of appellate review guide our
analysis when error is assigned to the sustaining of a demurrer.
A demurrer admits the truth of the facts
contained in the pleading to which it is
addressed, as well as any facts that may be
reasonably and fairly implied and inferred from
those allegations . . . . A demurrer does not,
however, admit the correctness of the pleader's
conclusions of law.
Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 102, 540 S.E.2d
134, 136-37 (2001) (internal citation omitted). Therefore, we
consider the facts stated in the motion for declaratory
judgment, and those reasonably implied and inferred, in a light
5
favorable to the Joint Venture, the party against whom the
demurrer was filed. We consider de novo, however, the
sufficiency of the trial court's legal conclusions made as to
those facts.
We will uphold the judgment of the trial court unless it
appears from the evidence that the judgment is plainly wrong or
without evidence to support it. Code § 8.01-680; Nationwide
Mut. Ins. Co. v. St. John, 259 Va. 71, 76, 524 S.E.2d 649, 651
(2000) (citing RF&P Corporation v. Little, 247 Va. 309, 319, 440
S.E.2d 908, 915 (1994)).
[T]he trial court's authority to set aside a jury
verdict "can only be exercised where the verdict
is plainly wrong or without credible evidence to
support it. If there is a conflict in the
testimony on a material point, or if reasonable
[persons] may differ in their conclusions of fact
to be drawn from the evidence, or if the
conclusion is dependent on the weight to be given
the testimony, the trial judge cannot substitute
his conclusion for that of the jury merely
because he would have voted for a different
verdict if he had been on the jury."
Shalimar Dev., Inc. v. Federal Deposit Ins. Corp., 257 Va. 565,
569-70, 515 S.E.2d 120, 123 (1999) (quoting Lane v. Scott, 220
Va. 578, 581, 260 S.E.2d 238, 240 (1979)).
III. ANALYSIS
A. Are Contract provisions 91.K and 91.L void as against public
policy under Code § 2.2-4335(A) and therefore unenforceable?
In the absence of a contractual provision to the contrary,
a contractor whose performance is delayed by the actions of a
6
public owner may be entitled to monetary relief for damages
caused by the delay as well as an extension of time for
performance. See Atlantic Coast Line R.R. Co. v. A. M. Walkup
Co., 132 Va. 386, 390, 112 S.E. 663, 664 (1922); Susan S. Dunne,
"No Damage for Delay" Clauses, 19 APR Construction Lawyer 38
(1999). However, contract provisions in construction contracts
prohibiting monetary damages for owner-caused delay have become
commonplace. See Maurice T. Brunner, Annotation, Validity and
Construction of "No Damage" Clause with Respect to Delay in
Building or Construction Contract, 74 A.L.R.3d 187 § 2[a]
(1976). Although a majority of courts have recognized the
validity of such "no damage for delay" provisions, some take a
restrained view of such clauses because of their harshness. Id.
at 201. As such, certain delays caused by owner conduct have
been recognized as exceptions to the general rule of enforcement
of "no damages for delay" clauses. Id. Those exceptions vary
from state to state and could include delay caused by the
owner's fraud, bad faith, active interference, gross negligence
or abandonment of the contract. Williams Electric Company, Inc.
v. Metric Constructors, Inc., 480 S.E.2d 447, 448 (S.C. 1997).
"No damage for delay" clauses can be punitively detrimental
to contractors and many states have limited or prohibited such
contract provisions particularly in the context of construction
contracts with public entities. As of 2002, at least thirteen
7
states had adopted legislation affecting "no damage for delay"
clauses, and the courts of twenty-two states and the District of
Columbia had recognized at least one judicial exception to such
clauses. See Alain Lecusay, The Collapsing "No Damages for
Delay" Clause in Florida Public Construction Contracts: A Call
for Legislative Change, 15 St. Thomas L. Rev. 425, 446 (2002).
Virginia is among the states that address "no damage for
delay" clauses by statute. In 1991, the General Assembly
enacted what was then § 11-56.2, the current version of which
reads:
Any provision contained in any public construction
contract that purports to waive, release, or
extinguish the rights of a contractor to recover costs
or damages for unreasonable delay in performing such
contract, either on his behalf or on behalf of his
subcontractor if and to the extent the delay is caused
by acts or omissions of the public body, its agents or
employees and due to causes within their control shall
be void and unenforceable as against public policy.
Code § 2.2-4335(A).
No Virginia case, however, has addressed the enforcement of
a "no damages for delay" clause, whether exceptions might be
recognized as a matter of Virginia common law to such a clause
or what constitutes "unreasonable delay" under Code § 2.2-
8
4335(A). 3 Our case law does recognize the general rule, not
limited to construction cases, that loss resulting from
unreasonable delay is recoverable as damages. A. M. Walkup Co.,
132 Va. at 390, 112 S.E. at 664.
The issue of first impression in this case is whether
provisions like General Conditions 91.K and 91.L of the Contract
between UOSA and the Joint Venture violate the statutory
prohibition of Code § 2.2-4335(A) and are therefore void as
against public policy. General Condition 91.K provides in
pertinent part:
An extension of time shall be the sole remedy under
the Contract for any delay caused by any reason or
occurrence. The Contractor acknowledges such
extension of time to be its sole remedy hereunder and
agrees to make no claim for damages of any sort for
delay in the performance of the Contract for any
reason, including but not limited to delay occasioned
by any act or failure to act of the Owner . . . .
This blanket prohibition on delay damages is retracted,
however, by General Condition 91.L which provides in pertinent
part:
Notwithstanding the foregoing, the Contractor shall be
entitled to additional compensation for the actual
3
Prior to enactment of Code § 2.2-4335, we did note in
Algernon Blair, Inc. v. Norfolk Redevelopment and Housing
Authority, 200 Va. 815, 819, 108 S.E.2d 259, 263 (1959), that
the issue of whether the parties intended a "no damage for
delay" clause to permit recovery by the contractor for the
owner's direct interference with the contractor's work was a
question of fact which precluded summary judgment under the
facts of that case.
9
direct costs proximately and foreseeably resulting
from unreasonable delay caused by the Owner or the
Engineer due to causes within their control. As a
condition precedent to any entitlement to such
additional compensation for unreasonable delay, the
Contractor shall satisfy all Notice and submission
requirements set forth in the Contract Documents for
approval of any extension of Contract Time or any
change in the Contract Price. The term "unreasonable
delay" as used herein, shall apply only to the portion
of any delay which is on the Critical Path as
established by the Project Schedule in effect at the
time of the asserted delay, and which is determined to
be both unreasonable and not in any way the fault of
the Contractor, and not to the entire duration of such
delay, and which is (i) caused by the bad faith or
willful, malicious or grossly negligent conduct of the
Owner or the Engineer, or (ii) so severe that it
constitutes an abandonment of the Contract by the
Owner, or (iii) results from a failure of the Owner to
meet its payment obligations to the Contractor, to
provide Owner supplied materials or Equipment, if any,
or to secure permits, rights-of-way, or easements for
the procurement of which the Owner is responsible and
which are necessary and indispensable to the
prosecution of the Work.
General Condition 91.K, if considered alone, directly
conflicts with Code § 2.2-4335(A) and would be void and
unenforceable. However, General Condition 91.L mitigates the
outright prohibition of unreasonable delay damages in General
Condition 91.K. Accordingly, this case revolves around General
Condition 91.L (i), (ii), and (iii) which the Joint Venture
claims act as a prohibited bar to recovery for unreasonable
delay damages.
In its amended motion for declaratory judgment, the Joint
Venture attacks the provisions of General Condition 91.L (i),
10
(ii) and (iii) that bar delay damages where the delay is "both
unreasonable and . . . caused by the bad faith or willful,
malicious or grossly negligent conduct of the Owner . . ., or
. . . an abandonment of the contract by the Owner, or . . . a
failure of the Owner to meet its payment obligations . . . ." 4
(Emphasis added). The Joint Venture contends the plain language
of Code § 2.2-4335(A), that "Any provision . . . that purports
to waive, release, or extinguish the rights of a contractor to
. . . damages for unreasonable delay . . . shall be void and
unenforceable as against public policy," nullifies the bar of
General Condition 91.L for unreasonable delay damages except
when bad faith, malice, gross negligence or abandonment exist.
The trial court rejected this argument, determining that
bad faith, malice, gross negligence or abandonment define
unreasonable delay and is therefore not forbidden under Code
§ 2.2-4335(A). The trial court's letter opinion ruled as
follows:
. . . the contract at issue specifically permits
recovery for "unreasonable delay" caused by UOSA. See
General Condition 91(L). Nothing in Code § [2.2-
4335(A)] prohibits the parties from agreeing upon a
definition of what will constitute an "unreasonable
delay." The contract's definition of "unreasonable
4
For convenience, we will refer to the items in General
Condition 91.L (i), (ii), and (iii) collectively as "bad faith,
malice, gross negligence or abandonment," but this term shall be
inclusive of all the stated provisions.
11
delay" is not repugnant to Code § [2.2-4335(A)] or
violative of Virginia's public policy.
Indeed, UOSA argues on appeal that so long as the parties
do not, by contract, fully extinguish all monetary relief for
the contractor who is the victim of some type of unreasonable
delay, then no violation of the statutory prohibition occurs.
UOSA contends that since the statute does not specifically
forbid "restriction" of unreasonable delay damages, a public
construction contract can prohibit such damages so long as some
type of unreasonable delay damage is available regardless of how
minimal or remote. We disagree with UOSA and the trial court.
The plain language of the statute and the statute's express
identification of permitted exceptions to the prohibition of
limitations on unreasonable delay damages require reversal of
the trial court's judgment.
While courts will not rewrite a clear and unambiguous
contract between parties sui juris, Berry v. Klinger, 225 Va. 201,
208, 300 S.E.2d 792, 796 (1983), a court is bound to follow the
plain meaning of a statute. Earley v. Landsidle, 257 Va. 365,
370, 514 S.E.2d 153, 155 (1999) ("[W]hen the language in a
statute is clear and unambiguous, the courts are bound by the
plain meaning of that language."). In addition, "a contract to
perform an act prohibited by a statute is void." Palumbo v.
Bennett, 242 Va. 248, 251, 409 S.E.2d 152, 153 (1991).
12
UOSA's demurrer implicitly admits as true, as it must, the
allegations of the motion for declaratory judgment. McDermott
v. Reynolds, 260 Va. 98, 100, 530 S.E.2d 902, 903 (2000) ("In
reviewing a trial court's judgment sustaining a demurrer, we
will consider as true the facts alleged in the motion for
judgment, the facts impliedly alleged therein, and the
reasonable factual inferences that can be drawn from the facts
alleged."). So viewed, we accept as factual the Joint Venture's
allegations that it has experienced unreasonable delay caused by
UOSA resulting from (i) "numerous, extensive changes and
additions to the work," (ii) "deficiencies in the plans and
specifications provided by UOSA," (iii) untimely and inadequate
clarification or correction of conflicts and inconsistencies in
the plan, (iv) refusal "to allow the Contractor access to the
Project site," (v) "changes in the means, methods and sequences
for performance of the work," and (vi) "failure to timely and
adequately process submittals of proposed materials and
equipment." By its plain terms, the Contract bars damages for
these unreasonable delays caused by UOSA because the delay is
not "both unreasonable and . . . caused by the" bad faith,
malice, gross negligence or abandonment of UOSA. Pursuant to
the trial court's ruling, all these admitted instances of
unreasonable delay are waived, extinguished, and released by the
13
Joint Venture through the operation of General Condition 91.L.
The plain language of the statute mandates the opposite result.
Code § 2.2-4335(A) means what it says: "Any provision
. . . to waive, release, or extinguish the rights of a
contractor . . . shall be void." The General Assembly's use of
the inclusive and comprehensive term "any" is instructive and
mandatory. Without question, the provisions in General
Condition 91.L of the Contract waive, release, and extinguish
all unreasonable delay damages available to the contractor, the
Joint Venture, unless the unreasonable delay is coupled with
UOSA's bad faith, malice, gross negligence or abandonment of the
Contract. Such a contract provision contradicts the specific
statutory prohibition of Code § 2.2-4335(A). If an expansion or
constriction of the blanket prohibition found in Code § 2.2-
4335(A) is to be created, that authority must come from the
General Assembly and not the parties or the judiciary.
UOSA contends that the unreasonable delay damages for bad
faith, malice, gross negligence or abandonment permitted by the
Contract are the most widely recognized exceptions to the "no
damages for delay" rule adopted by most American courts. See
Metric Constructors, Inc., 480 S.E.2d at 448. Accordingly, UOSA
argues that the General Assembly intended for Code § 2.2-4335(A)
to codify the common judicially created exceptions. The plain
language of the statute repudiates this argument.
14
The General Assembly has determined that in public
construction contracts damages for unreasonable delay may not be
extinguished as a matter of public policy. If the legislature
intended to permit the contractor to extinguish or waive
unreasonable delay damages in part by contract, it certainly
could have done so by codifying the purported exceptions UOSA
relies upon. Instead, the General Assembly broadly prohibited
"[a]ny provision . . . to waive, release, or extinguish . . .
damages for unreasonable delay." In such a circumstance,
parties may not contract to the contrary, and undo what the
General Assembly has determined to be the public policy of the
Commonwealth. See Blick v. Marks, Stokes & Harrison, 234 Va.
60, 64, 360 S.E.2d 345, 348 (1987) ("Generally, a contract based
on an act forbidden by a statute is void and no action will lie
to enforce the contract.").
In the context of a contract under the VPPA, unreasonable
delay damages are to be determined by the court under the facts
and circumstances of each case. Contract limitations on the
contractor's right to damages for unreasonable delay are thus
forbidden except to the extent enumerated by the General
Assembly under Code § 2.2-4335(B) or other specific statutory
enactment. "Our construction of the statute is governed by the
maxim expressio unius est exclusio alterius, which provides that
the mention of a specific item in a statute implies that other
15
omitted items were not intended to be included in the scope of
the statute." Smith Mountain Lake Yacht Club, Inc. v. Ramaker,
261 Va. 240, 246, 542 S.E.2d 392, 395 (2001).
To obtain damages for unreasonable delay caused by UOSA,
the Joint Venture must meet certain conditions precedent under
General Condition 91.L. First, it must fulfill the Contract's
notice requirements which are specifically sanctioned by Code
§ 2.2-4335(B)(2) as an exception to the Code § 2.2-4335(A)
prohibition. Further, recoverable damages are limited to those
within the owner's control, a specific exception permitted by
Code § 2.2-4335(A). 5 Those limitations are not by implication,
but only a matter of express legislative grace in view of the
clear and absolute language of Code § 2.2-4335(A). We must
assume the General Assembly, having specified exceptions to the
statutory prohibition, intentionally excluded any others. Smith
Mountain Lake Yacht Club, 261 Va. at 246, 542 S.E.2d at 395. It
is a matter for the General Assembly's determination as to
whether other limitations are permitted.
UOSA also argues the Contract's prohibition on unreasonable
delay damages absent bad faith, malice, gross negligence or
abandonment is simply what the General Assembly meant to say
5
The contract also limits delay damages to delay that is
part of the "Critical Path." No issue has been raised as to
this provision and we express no opinion thereon.
16
constituted unreasonable delay. Citing Williams Electric Co. v.
Metric Constructors, Inc., UOSA contends the legislative term
"unreasonable delay" is shorthand for the panoply of judicially
recognized exceptions. However, in its opinion the Supreme
Court of South Carolina only uses the term "unreasonable delay"
in conjunction with its adoption of the abandonment exception.
Metric Constructors, Inc., 480 S.E.2d at 449-50. That Court
does not use the term with the all-encompassing breadth
suggested by UOSA. UOSA cites no other case, statute or
treatise to support its contention that the term "unreasonable
delay," as used in Code § 2.2-4335(A), should be read as an
effort by the General Assembly to incorporate the broad variety
of exceptions. As noted above, the General Assembly could have
written the statute as UOSA suggests, but declined to do so.
For all the foregoing reasons, the provisions of General
Condition 91.L barring the Joint Venture's claim for
unreasonable delay damages, except upon UOSA's bad faith,
malice, gross negligence or abandonment, are void and
unenforceable as against public policy under the provisions of
Code § 2.2-4335(A). It was therefore error for the trial court
to sustain UOSA's demurrer to the Joint Venture's amended motion
for declaratory judgment. Accordingly, we will reverse the
judgment of the trial court sustaining UOSA's demurrer.
B. Work Order 248
17
The Joint Venture assigns error to two interrelated issues
regarding Work Order 248. The Joint Venture first contends that
its claim on Work Order 248 should not have been dismissed as
untimely because the Contract does not require a written notice
of claim when work is deleted from the Contract and the Contract
Price reduced. Alternately, the Joint Venture argues that if a
written notice of claim was required, the special jury verdict
on which the trial court based its affirmation of UOSA's plea in
bar was inadequate as a matter of law. We disagree with the
Joint Venture.
1. Notice of Claim Was Required To Be Given
Citing Contract General Condition 104.A, the Joint Venture
contends that because the Contract does not specifically address
claims arising from a price adjustment for work deleted from the
Contract, no notice of claim was required and therefore its
claim should not have been dismissed pursuant to UOSA's plea in
bar. However, the Contract's definition of terms supports
UOSA's contention that once UCO 100 was issued, resulting in a
reduction of the Contract Price by $69,000.00, that act "reset"
the defined term "Contract Price" under the Contract. That
event had the effect of converting the Joint Venture's claim
into one for additional funds beyond the adjusted Contract Price
under General Condition 104.A, which provides in pertinent part:
18
In any case where the Contractor deems it is due
additional compensation beyond the Contract Price, the
Contractor shall give written Notice of such claim to
the Owner and to the Engineer at the time of the
discovery of the occurrence of the event giving rise
to the claim and before beginning any Work on which
the claim is based.
The Contract defines the term "Contract Price" as "[t]he
total compensation to be paid the Contractor for performance of
all requirements of the Contract Documents." "Contract
Documents" is defined to include "the signed contract . . . and
all supplemental agreements or changes to the Contract documents
. . . in accordance with General Conditions, Article 40, Changes
in the Work."
General Condition 40, in turn, provides that the owner "may
order changes in the Work . . . altering, adding to, or
deducting from the Work", with the Contract Price being adjusted
accordingly. General Condition 40 also sets out the methods by
which the change in the work can be accomplished, including the
use of a unilateral change order as in this case.
The Contract thus adjusts the defined term "Contract Price"
when a change in the work is made under General Condition 40.
Such a change occurred in this case when UCO 100 redefined the
Contract Price by the amount of the $69,000 deduction. Under
the plain language of General Condition 104.A, the Contractor
was then required to give notice to UOSA that it was claiming
additional compensation beyond the Contract Price.
19
While clarity might have been better served by a more
specific provision, the defined terms of the Contract answer the
Joint Venture's argument. General Condition 104.A required
notice when the Joint Venture sought to claim additional
compensation beyond the Contract Price, as adjusted, which
includes the circumstance where a deduction from work resets the
Contract Price. Whether that notice was timely given then
became an issue for the jury to determine and its verdict will
not be set aside unless "plainly wrong." Shalimar Dev., Inc. v.
Federal Deposit Ins. Corp., 257 Va. 565, 569, 515 S.E.2d 120,
123 (1999).
2. The Special Jury Verdict Form Was Sufficient
The Joint Venture further argues that if notice was
required for the reduction in price occasioned by Work Order 248
and UCO 100, the verdict form used by the trial court was
incorrect and a jury verdict could not be based upon it. The
Joint Venture contends the verdict form proposed by UOSA, and
adopted by the trial court, was defective in stating that notice
was required to be given at the time the work order was issued.
That verdict form provided:
We the Jury find that the Joint Venture ___ did ___
not give to UOSA notice of a claim disputing the
amount by which this Work Order reduced the Contract
Price at the time the Work Order was issued.
20
The Joint Venture argues the proper jury issue was whether
timely notice of claim was given when UCO 100, which actually
reduced the Contract Price, was issued. The absence of a jury
finding on that point, the Joint Venture contends, renders the
trial court's judgment void because it could not infer facts not
found by the special verdict form used.
Although the Joint Venture's failure to raise an objection
to the jury form at the trial level would usually bar objection
on appeal, see Rule 5:25; Buck v. Jordan, 256 Va. 535, 545-46,
508 S.E.2d 880, 885-86 (1998) ("We have repeatedly refused to
consider . . . objections raised for the first time on
appeal."), the Joint Venture's failure to object at trial to the
trial court's submission of the adopted UOSA special verdict
form to the jury is not necessarily a bar where a verdict form
was proffered which reflects the issue.
In Pilot Life Insurance Co. v. Karcher, 217 Va. 497, 229
S.E.2d 884 (1976), this Court held that, because the party
objecting to a jury instruction had, in a refused instruction,
propounded a theory contrary to the one set forth in the granted
instruction, timely objection was made. Id. at 498, 229 S.E.2d
at 885; see also Atkins v. Commonwealth, 257 Va. 160, 178, 510
S.E.2d 445, 456 (1999) (citing Pilot as grounds for finding the
issue preserved for appeal where defense counsel consistently
21
stated a preference for the form he submitted to the trial
court).
Scrutiny of the Joint Venture's proffered form, however,
reveals it falls short of being sufficiently contradictory to
UOSA's form so as to fall within the Pilot and Atkins exception.
The Joint Venture's proffered verdict form provided: "Has UOSA
met its burden of proof to establish that Article 104 of the
General Conditions to the Contract applies to Deductive Work
Order 248, which reduced the Joint Venture's compensation under
the Contract?"
The Joint Venture's proffered form makes no mention of the
unilateral change order it now contends prompted the notice
requirement. Instead, the Joint Venture's proffered form
actually used in this case goes only to the issue of whether
notice was required for Work Order 248. As the Joint Venture's
proffered form did not deal with the specific factual inquiry it
now raises, its objection has not been preserved for appeal and
is therefore waived. Rule 5:25.
IV. CONCLUSION
For the reasons stated herein, we will reverse the trial
court's order granting UOSA's demurrer to Count I of the Joint
Venture's Amended Motion for Judgment and Declaratory Judgment.
We will affirm the judgment of the trial court in dismissing the
Joint Venture's claim as to Work Order 248. The case will be
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remanded for further proceedings in accordance with this
opinion.
Affirmed in part,
reversed in part,
and remanded.
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