T+c Contracting, Inc. v. Commonwealth of Kentucky, Kentucky Transportation Cabinet ( 2021 )

RENDERED: MAY 7, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1425-MR
T+C CONTRACTING, INC. APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 13-CI-01384
COMMONWEALTH OF KENTUCKY,
KENTUCKY TRANSPORTATION
CABINET AND OWENSBORO-
DAVIESS COUNTY REGIONAL
WATER RESOURCE AGENCY APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.
CALDWELL, JUDGE: After a lengthy bench trial, the Franklin Circuit Court
ruled in favor of the Commonwealth of Kentucky, Transportation Cabinet (the
Cabinet) and the Owensboro-Daviess County Regional Water Resource Agency
(Water Agency) on all claims brought against them by T+C Contracting, Inc.
(T+C). The main disputed issue was, and remains, whether a manhole upon which
T+C was working pursuant to a contract with the Cabinet failed because of T+C’s
improper excavation method or because the manhole’s concrete was deteriorated.
Because the evidence was conflicting, the trial court had to choose which evidence
to believe and which to reject. The trial court’s findings in favor of the Cabinet
and the Water Agency are supported by substantial evidence, so we affirm.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
T+C entered into a contract to help with a road project in Owensboro,
Kentucky. The project required relocating some of the Water Agency’s sewer
facilities, though the Water Agency itself was not a party to the contract between
T+C and the Cabinet. As it specifically pertains to this appeal, T+C had to connect
a new sanitary sewer line into an existing manhole and sewer pipe at Goetz Drive
(the manhole). The contract stated that any damage to existing utilities was T+C’s
sole responsibility to remediate, as were dewatering and sheeting, for which T+C
was not entitled to any additional payments.1
T+C’s initial project plan, according to some testimony at trial, called
for excavating around all sides of all manholes involved in the project, but T+C
1
“Dewater” simply means “to remove water from[.]” https://www.merriam-
webster.com/dictionary/dewater (last visited March 30, 2021). In this context, “sheeting” means
“a lining (such as wood or steel) used to support an embankment or the walls of an
excavation[.]” https://www.merriam-webster.com/dictionary/sheeting (last visited March 30,
2021).
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nonetheless chose to excavate on only one side of the manhole at issue. One
afternoon, after hearing a cracking sound, T+C investigated and discovered the
manhole had shifted several inches toward the excavated area, i.e., the manhole
had “failed.”
Everyone agreed the failed manhole needed to be replaced. The
disagreement was why it failed because that impacted whether T+C was entitled to
be reimbursed for replacing it. The Cabinet (and Water Agency) asserted that the
manhole failed because T+C improperly excavated on only one side of it, exposing
the manhole to overwhelming pressure from the nearby earth. T+C contended the
manhole failed because its concrete was severely deteriorated. The Cabinet
ultimately refused to reimburse T+C, concluding T+C’s excavation method caused
the manhole to fail. T+C then filed this action against the Cabinet and Water
Agency, which eventually proceeded to a lengthy bench trial.
We do not need, for purposes of this appeal, to delve into the
testimony presented on a granular level. Instead, we note that T+C initially
presented evidence generally tending to show that the manhole failed due to
deteriorated concrete. For example, Nick Scaglione, who worked for a concrete
research and testing entity, and Dr. Joseph Hagerty, an expert witness, generally
testified that the concrete on the manhole was significantly deteriorated.
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The trial court initially appeared to be swayed by T+C’s evidence,
commenting aloud at one point that the manhole seemed to have been “rotten to
the core” and “needed to be replaced no matter what.” However, though T+C
focuses extensively on them in its brief, the trial court’s comments were only
that—off the cuff musings, not formal, binding rulings. In fact, the trial court
stated it was just “talking off the top of my head right now . . . .” And, crucially,
the court made those comments before the Cabinet and Water Agency had
presented their countervailing evidence.2
The Cabinet and Water Agency presented multiple witnesses who
testified that the manhole failed because T+C excavated only one side of it. For
example, geotechnical engineer George Webb testified that the manhole’s concrete
was not deteriorated and even a manhole with new concrete would have failed due
to T+C’s one-sided excavation. Another geotechnical engineer, Neal Wedding,
gave similar testimony.3 A third engineer, Ted Lolley (sometimes called Lolly in
2
Despite T+C’s emphasis of them, we need not address the trial court’s preliminary oral
comments further because, simply put, they lacked any actual force of law. “[J]udges often
voice views and opinions which may be inconsistent with their final judgments” but “[w]hen
there is a conflict between a court’s oral statements and the written judgment, the written
judgment controls.” Machniak v. Commonwealth, 351 S.W.3d 648, 652 (Ky. 2011) (quotation
marks and citations omitted).
3
The trial court referred to Wedding as “Dr. Neal Weddy” on page seven of its post-trial ruling,
thus misspelling his name and awarding him a doctorate degree which he apparently does not
possess. T+C pounces on those errors, but they are typographical-type errors which do not
detract from Wedding’s substantive testimony or the trial court’s evaluation thereof.
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the record), testified via deposition that T+C’s one-sided excavation approach was
imprudent.4 Also, a former Water Agency employee, Gerald Price, testified that he
had inspected the manhole a few weeks before it failed and found it to have then
been in good condition. Price also opined that the proper method is to excavate all
around a manhole to avoid placing so much pressure on it from the earth.
Several months after the bench trial concluded, the trial court issued
an opinion and order wholly favorable to the Cabinet and the Water Agency. After
recounting some of the testimony, the court reached these key conclusions:
3. Having heard the testimony of the expert witnesses for
all three (3) parties to this action, it is the Court’s finding
that the evidence is overwhelming that the failure of the
Goetz drive manhole was the direct and proximate result
of inadequate dewatering of the site and the method of
excavation of the manhole.
4. By performing a one-sided excavation of the manhole,
forces were placed upon the manhole that caused it to
fail.
5. The Court finds and concludes that the concrete was
not deteriorated due to the testimony of Ted Lolley and
the various photos entered into evidence.
6. The Court finds and concludes that T+C’s excavation
of the manhole was indirect [sic] contravention of their
4
The trial court’s opinion and order incorrectly states that Lolley testified at a certain date and
time during the trial, when actually only his deposition was introduced into the record. T+C
seizes on that error but, again, the minor error does not detract from Lolley’s deposition
testimony or the trial court’s evaluation thereof. “The trial court is the finder of fact whether the
case is tried by deposition or by personal attendance, and the judgment of the trial court may not
be reversed unless the findings are clearly erroneous.” Largent v. Largent, 643 S.W.2d 261, 263
(Ky. 1982).
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[sic] own excavation plan, contrary to accepted practices
of excavation of a manhole and in violation of OSHA
regulations.
Opinion and order, p. 7-8. T+C then filed this appeal.
STANDARD OF REVIEW
The trial judge, as the finder of fact, has the sole ability to weigh the
evidence and determine the credibility of the witnesses. Kentucky Properties
Holding LLC v. Sproul, 507 S.W.3d 563, 568 (Ky. 2016). We may not disturb the
trial court’s findings of fact unless they are clearly erroneous, bearing in mind that
court’s exclusive ability to assess witness credibility. Id. “When evidence is
conflicting, this Court cannot substitute its judgment unless the findings of fact are
manifestly against the weight of evidence.” Yung v. Grant Thornton, LLP, 563
S.W.3d 22, 60 (Ky. 2018). If the trial court’s findings of fact are not clearly
erroneous, meaning they are supported by substantial evidence, “then the appellate
court’s role is confined to determining whether those facts support the trial judge’s
legal conclusion. Indeed, simple doubt as to the appropriateness of a finding will
not justify its reversal.” Sproul, 507 S.W.3d at 569 (internal quotation marks and
citations omitted). We do, however, review de novo the trial court’s legal
conclusions. Id.
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ANALYSIS
As aptly framed by the trial court, the “main issue” was “whether the
excavation of the manhole caused the manhole to shift or was the manhole in such
poor condition that it collapsed due to concrete failure.” Given that discrete
overarching issue, T+C does not focus on the particular elements of its various
claims, nor does it argue any evidence was improperly admitted or excluded.
Instead, T+C lists only three interrelated main issues: 1) whether the trial court’s
conclusion that the manhole’s concrete had not seriously deteriorated is illogical or
unsupported by the evidence; 2) whether T+C’s excavation method caused the
manhole to fail; and 3) whether the trial court’s references to T+C’s having
violated OSHA standards and to the Cabinet’s paying T+C to replace the manhole
after it failed again were erroneous or irrelevant.
Deteriorated Concrete and T+C’s Construction Methods
T+C argues the manhole initially failed because the concrete was
deteriorated; the Cabinet and Water Agency argue the manhole failed because T+C
excavated improperly. The choice appears binary in that either the manhole failed
due to the poor state of its concrete or because T+C excavated improperly—but not
both. The trial court, having to choose one conflicting proximate cause or the
other, concluded the concrete was not deteriorated and the manhole instead failed
due to T+C’s one-sided excavation process. Thus, though T+C presents them
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separately, the issue of whether the concrete was fatally degraded and whether
T+C’s excavation method was improper are inextricably intertwined, so we shall
address them together.
We are an appellate court of review, so we do not write on a blank
credibility slate “because judging the credibility of witnesses and weighing
evidence are tasks within the exclusive province of the trial court.” Moore v.
Asente, 110 S.W.3d 336, 354 (Ky. 2003) (emphasis added). When viewed through
that deferential lens, the trial court’s decision cannot be disturbed.
Stressing some photographs of the manhole, many of which are also
found in its brief, T+C insists “[n]o reasonable person could look at this manhole
. . . and honestly say the ‘concrete was not deteriorated.’” And the photos do seem,
at least at first glance, to depict concrete that is not in pristine condition (which is
not surprising since the concrete at issue had not been freshly poured when the
manhole failed). But, as the Water Agency cogently notes in its brief, there was
testimony that some corrosion is expected because every sewer manhole suffers
acid attack. Consequently, the pertinent question is “not whether the Goetz Drive
manhole had ever suffered acid attack in its twenty-five years of existence . . . .”
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Instead, the true question is what “was the proximate cause of the failure of the
manhole[?]”5
T+C’s “fatally deteriorated concrete” argument is supported by some
evidence, such as Scaglione’s expert testimony and report, but there is contrary
evidence. For example, Webb testified that the concrete was good and that the
photographs emphasized by T+C depict damage caused by its own improper
excavation, not deterioration.6 As a result, T+C’s vehement protestations to the
contrary notwithstanding, there is evidence to support the court’s conclusions that
the concrete had not deteriorated and the photographs do not depict deteriorated
concrete. Consequently, though another finder of fact may have reached a wholly
different conclusion, we must reject T+C’s argument that the trial court’s
deterioration conclusions are illogical or unsupported by substantial evidence.
The question then becomes whether T+C’s excavation method caused
the manhole to fail. Again, the evidence was mixed and conflicting. Hagerty, for
example, testified that the manhole would have failed even if T+C had excavated
5
In fact, the Water Agency’s director of engineering, Dean Behnke, testified that acid attacks
occur in every sewer manhole, so some corrosion is expected.
6
In concluding the concrete was not degraded, the trial court referred to Lolley’s testimony
instead of the seemingly more definitive testimony from others, such as Price, Webb and
Wedding. But our Supreme Court has held that “[i]f an appellate court is aware of a reason to
affirm the lower court’s decision, it must do so, even if on different grounds.” Mark D. Dean,
P.S.C. v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014). Therefore, we note
Webb’s testimony, which is sufficient to support the trial court’s core conclusion(s).
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uniformly on all sides of the manhole. However, Price, Webb, Wedding and
Lolley all generally testified to the contrary. In fact, T+C admits in its brief that
“several witnesses” criticized its “means and methods” by testifying that “T+C
should have excavated around the entire circumference of the manhole instead of
only on the north side and that dewatering was not adequate.” The trial court was
free to give more credence to the witnesses who were critical of T+C than to the
witnesses who were critical of the state of the manhole’s concrete. T+C quibbles
with the analysis and educational or professional background of the witnesses for
the Cabinet and Water Agency but is unable to cite any authority to buttress its
argument that the trial court had to believe its witnesses and disbelieve those of its
opponents. For example, T+C has not shown that the evidence presented by the
Cabinet and Water Agency was inadmissible or so outlandish as to be unworthy of
belief by rational factfinders.
Weighing the evidence and assessing credibility are matters reserved
for the finder of fact, not appellate courts. Moore, 110 S.W.3d at 354. In plain
English, there was evidence to support the baseline positions of T+C and the
Cabinet and the Water Agency. As we held, albeit in a different context,
“[u]ltimately, the [trial court] was faced with conflicting testimony, and had to
choose one version as preferable to the other. When the testimony is conflicting,
we will not substitute our decision for that of the trier of fact.” Ford Contracting,
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Inc. v. Kentucky Transp. Cabinet, 429 S.W.3d 397, 412-13 (Ky. App. 2014).
Consequently, though perhaps the trial court engaged in rhetorical judicial
hyperbole when it stated the evidence favoring its conclusions was
“overwhelming,” there was substantial evidence to support the trial court’s
conclusion that the manhole failed because T+C excavated improperly. And since
an appellate court may not reweigh the merits of conflicting evidence, we affirm.
OSHA Violation and New Manhole Construction
The trial court also found that T+C’s excavation method violated
OSHA regulations; T+C argues that finding was wrong and irrelevant. The fact
that T+C deems the OSHA findings to be irrelevant dooms its request for appellate
relief because irrelevant matters play no role in a court’s decision and any errors
which do not impact the outcome of a case are perforce harmless. See Kentucky
Rule of Civil Procedure (CR) 61.01; CSX Transp., Inc. v. Begley, 313 S.W.3d 52,
69 (Ky. 2010) (“When considering a claim of harmless error under CR 61.01, the
court determines whether the result probably would have been the same absent the
error . . . .”) (footnote and citations omitted).
T+C’s superintendent, Dennis Coffman, admitted that T+C was cited
by OSHA regarding the manhole excavation. But Coffman said the citations
related to having a ladder which was not three feet above the sheeting, having a
footprint on a beam and for what he called “depth over twenty” (presumably
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meaning the hole was over twenty feet deep, though he did not explain why or how
having such a hole was an OSHA violation). None of those three citations facially
pertains to any regulations requiring excavation around the entire perimeter of the
manhole, nor have the parties cited to where, if at all, we may view the OSHA
citation(s) in the voluminous record. Webb also testified that T+C failed to obtain
a shoring plan stamped by a professional engineer, which OSHA requires for
excavations deeper than twenty feet. However, that testimony also does not
specifically pertain to OSHA’s requiring excavation on all sides of a manhole such
as the one at issue.
The trial court did not explain the evidentiary basis by which it
concluded T+C’s one-sided excavation method violated OSHA regulations, nor did
it cite any specific regulation(s) T+C violated. The Water Agency essentially
ignores the OSHA matter in its brief, and the Cabinet has not pointed us to specific
evidence to support its contention that “[t]he OSHA standards are relevant to the
case because the OSHA standards would have required complete excavation
around the Manhole and an engineer’s design and plan with respect to the
excavation. V.R., 10/23/18, 10:00.” The trial was not held on October 23, 2018.
However, on August 23 at 10:00 a.m., Webb testified the movement of the
manhole could have been avoided if sheeting had been done prior to the
excavation, but he did not testify that OSHA required excavating around the entire
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manhole. We decline to watch the entire multi-day trial or sift through the
thousands of pages in the gargantuan record to attempt to find specific evidence to
support the Cabinet’s assertion that OSHA required “complete excavation around
the Manhole . . . .” See, e.g., Monroe v. Cloar, 439 S.W.2d 73, 73 (Ky. 1969).
However, we need not explore the OSHA matter further because we
agree with T+C that it is irrelevant since it does not impact the fundamental
conclusion that T+C caused the manhole to fail. So, even if we were to assume
(solely for purposes of argument), that the trial court erred by concluding that
OSHA regulations forbade T+C’s one-sided excavation method, T+C would not be
entitled to relief because that error would be harmless.
T+C’s final issue also involves, at most, a harmless error. As T+C
notes in its brief, “[a]fter the new [second] Goetz Drive manhole was constructed,
it failed” and so the Cabinet contracted with T+C to replace the manhole again, at a
cost of over $2,000,000. The trial court concluded the Cabinet’s paying T+C
$2,000,000 to construct the third manhole showed the Cabinet’s good faith. T+C
claims that conclusion was erroneous as all the payment showed was that the
Cabinet complied with its contractual obligations. Any error by the trial court in
finding that the $2,000,000 payment showed the Cabinet’s good faith is harmless
because, again, nothing involving that $2,000,000 payment impacts the bottom line
conclusion that T+C’s acts/omissions, not poor concrete, caused the first manhole
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to fail. CSX Transp., Inc., 313 S.W.3d at 69. And the conclusion that T+C caused
the first manhole to fail doomed all of T+C’s sundry causes of action.
CONCLUSION
For the foregoing reasons, the Franklin Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE
COMMONWEALTH OF
Gerald L. Stovall KENTUCKY, TRANSPORTATION
Louisville, Kentucky CABINET:
Stewart C. Burch
Frankfort, Kentucky
BRIEF FOR APPELLEE
OWENSBORO-DAVIESS COUNTY
REGIONAL WATER RESOURCE
AGENCY:
Patrick D. Pace
Stephen C. Pace
Owensboro, Kentucky
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