Leo A. Daly Co. v. Omaha-Douglas Public Building Commission

Hippe, D.J.,

concurring in the result.

With all respect, the opinion’s reliance on-the seven-party agreement is misplaced.

First, the architect’s attorney made it clear to the trial judge that the original agreement, not the seven-party agreement, was its claimed basis for recovery. The same position was taken in the briefs and argument on appeal. It seems that the plaintiff’s attorney, the defense attorney, the trial judge, *544and now the five judges on this panel all agree on one point: the plaintiff cannot recover because of anything in the seven-party agreement.

It seems odd, therefore, that pages and pages of the opinion discuss that agreement and conclude it does not form a basis for recovery. No one ever said it did.

Second, the parties to the seven-party agreement wanted it to be “without prejudice to any right of any party hereto.” The opinion, in contrast, kicks the plaintiff out of court because of it.

The background for the agreement shows why it should be given no effect one way or the other.

To build this slurry wall, the contractor poured the wall with concrete and reinforced it by connecting anchors in the ground to the wall with cables. After excavating inside, the serrated clamps holding the cables apparently slipped and the wall caved in. A street had fallen, sewer lines were broken, the building under construction was in jeopardy, and the walls had to be replaced under different circumstances than when they were originally designed and built. In addition, the cause of the collapse had to be investigated, and all parties wanted a complete and fair investigation.

In this setting, the seven parties agreed to ground rules for investigating the collapse and assigned responsibilities to get the streets open, the sewer running, and the building construction back on track.

It is clear that this agreement studiously proceeds upon three bases. First, no one admits any fault for the collapse. Second, no one agrees to pay a dime to anyone for anything. Third, all parties did not want the agreement to prejudice any right, and each “preserv[ed] all of its legal rights against every other party hereto and against all other[s] . . . .” I therefore believe it should be given its expected ineffectiveness and not be the basis for deciding this case.

*545The third reason the seven-party agreement should have nothing to do with the result of the case involves some confusing pleading.

The architect anticipated the defense that this agreement would be used to claim that its extra work was volunteered and that it expected no payment for it. This is because the agreement has the following language: ‘Daly, at its own expense pending final determination of liability for the casualty as settled and compromised among the parties or as finally determined by courts of competent jurisdiction, shall: [redesign the wall].”

The problem comes from the fact that the architect had no way to see that the liability for the casualty could be determined. It was not the purchaser of any product and thus able to claim a breach of warranty. It was not the user of any product and thus able to claim a defective product. It was not a foreseeably damaged person to claim that any work was negligently done. Only the defendant owner, the contractor, or the subcontractor for the wall could make any of those claims. Since they did not do it, after all these years, Daly claimed that the owner was estopped to use the quoted language as a shield. It would permit the defendant to profit from neglecting to pursue the alleged wrongdoers.

This is the reason the seven-party agreement found its way into the plaintiff’s pleading. It was explained at length to the trial court during the trial and to this court in briefs and argument. It was never intended that the plaintiff was claiming it did the extra work because of that agreement. It has maintained throughout that it did the work because of the original 1968 architect’s agreement, and that agreement is the one it claims entitles it to a recovery.

Therefore, I am of the opinion that the case should be decided by analyzing the original 1968 architect’s agreement and not by reliance upon the 1974 agreement.

*546One good reason for doing so is that the 1968 agreement is the only agreement between the plaintiff and the defendant alone. It is the agreement that outlines who should pay for what, and on what basis. This lawsuit involves a dispute between an architect and a building owner for the payment of extra services performed after a building construction project was well underway. The 1968 agreement is the written contract that deals with those points.

It provides that the architect is obliged to perform extra services above and beyond the design, drawings, bid letting, and building supervision. The contract also provides that the owner will pay for that extra work by reimbursing the architect 2.5 times actual out-of-pocket labor time for architectural employees, and reimburse for outside consulting fees that the architect had to pay. The clause providing for this reimbursement is one dealing with many extra services that may come up. It deals with extra work made necessary to replace parts of the job that were damaged by fire or other cause. Other clauses for extra work deal with other kinds of extra work made necessary for various reasons.

Some of the extra-work clauses expressly provide that the architect has to ask first before going ahead and doing the extra work. Some of the clauses do not say anything about asking first. The clause for casualty, relied upon by plaintiff, is one of those silent ones.

The point actually litigated to the trial court was whether the architect was required to ask first before it could do this extra work and expect payment for it. The architect claimed that it did not have to; the owner claimed that it did have to. The owner won.

There was no issue that the architect actually got prior approval before doing the work. It simply did not do it. As I have already explained, the seven-party agreement should not be used as a prior ap*547proval because that would give it effect on this dispute, and it should not have any effect.

I am of the opinion that the architect would have to ask first before being entitled to pay for the extra work done. The clause is silent on this point, but it refers to the preceding clause, which does require prior approval. The contract has language in other parts that requires prior approval before the architect is entitled to recover out-of-pocket expenses for hiring outside consultants. Also, to hold otherwise would give the architect a blank check to do whatever extra work it deemed necessary and the owner would have no way to control costs if it did not have a veto over extra expenses.

This is the reasoning given by the trial judge in deciding that the plaintiff was entitled to no extra fee. It seems adequate reasoning to me. It simply finds as a fact that the acts performed by the architect do not fit the requirements of the contract to entitle it to the claimed reimbursement. That is quite a different thing from legally construing a contract.

The court’s opinion claims this case stands for three rules of law.

First, it claims that construction of contracts is a judge’s task, not a fact finder’s job. The contracts here do not call for any construction. The meaning is not ambiguous, just complicated. If this case had been tried to a jury, the holding would mean it should have been decided by the court as a matter of law. That rule will take a lot of juries out of a lot of breach of contract cases. All such cases have one side claiming that it did what was called for by the contract and the other side claiming contra. This fact of litigation should not subject cases involving fact issues to 2 days in court, 1 at the trial and another on appeal.

The second rule of law deals with the rule of integrated contracts. That rule simply defines when the parol evidence rule applies. No parol evidence *548was used in this case, and it was not an issue in any way.

I would respectfully suggest that this case stands for no rule of law at all. It simply involves applying extraneous facts to a complicated written contract and concludes that the facts do not fit the rights defined by that contract. Anything further is dictum.

I agree that the trial court’s decision should be affirmed, but I cannot agree with the reasons given in the court’s opinion for doing so.