Randy Kinder Excavating Inc v. JA Manning Construction Company Inc et al

Filing 85

ORDER denying Tricon's 49 motion for partial summary judgment. Signed by Judge James M. Moody Jr. on 11/8/2016. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

RANDY KINDER EXCAVATING, INC.
VS.

PLAINTIFF

4:12CV00668 JM

J.A. MANNING CONSTRUCTION
COMPANY and GRANITE RE, INC.

DEFENDANTS

TRICON PRECAST, LTD

PLAINTIFF

VS.
J.A. MANNING CONSTRUCTION
COMPANY and GRANITE RE, INC.

DEFENDANTS

ORDER
Pending is Tricon Precast, Ltd’s (“Tricon”) motion for partial summary judgment.
(Docket # 49). Responses and replies have been filed and the motion is ripe for disposition. For
the reasons set forth herein, Tricon’s motion is DENIED.
Facts
Randy Kinder Excavating, Inc. ("Kinder") executed a contract with the United States
Army Corps of Engineers ("USACE") to serve as general contractor on a construction project
known as, "Grand Prairie Pump Station" ("Project"). Kinder entered into a subcontract with
Manning to engineer, furnish and install a mechanically-stabilized earthen wall ("MSE Wall") at
the Project. Manning terminated the firm it had originally contracted with for the engineering
and design of the MSE Wall and hired Tricon to provide the necessary engineering services and
materials.
Tricon claims that it prepared a design to meet the project specs and submitted it to

Manning. Manning approved the design and passed it along to Kinder and the Army Corps of
Engineers , both of whom signed off on the approval of the design. Tricon then began work on
the wall. Tricon contends that after several months of work, Manning was terminated by Kinder
due to purported issues with Manning’s construction of the wall. Tricon claims that no party
involved raised any dispute regarding the quality of Tricon’s design, materials or engineering
services; it has performed all of the duties required under its contract with Manning; and, is
entitled to payment in the amount of $151,274.65 for work performed.
After construction began, Manning contends that Kinder and USACE rejected its work
partially based on their belief no tolerances were allowed in the joint gap widths of the erected
MSE Wall. Kinder and USACE also complained about other aspects of Manning's work,
including its use of 12" filter fabric behind the MSE Wall, in lieu of the 24" fabric supposedly
called for in the Project plans and specifications. The disagreements between the parties
eventually led to Kinder terminating Manning's subcontract and hiring another company to
re-build the MSE Wall. Manning argues that the decision to reject the MSE Wall was based, in
part, on incorrect information provided by Tricon during the submittal review process. Tricon
gave a confusing answer to an engineering question posed by USACE, which was interpreted to
mean no tolerances should be allowed in the joint gap widths of the MSE Wall being erected by
Manning. Manning's use of 12" filter fabric, something called for by Tricon in its engineered
drawings, also played a role in the decision to reject the MSE Wall.
Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue of material fact, so
that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th

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Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial courts
in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining
whether there is a need for trial -- whether, in other words, there are
any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of
either party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The Eighth Circuit Court of Appeals has cautioned that summary judgment should be
invoked carefully so that no person will be improperly deprived of a trial of disputed factual
issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir. 1979), cert. denied,
444 U.S. 991 (1979). The Eighth Circuit set out the burden of the parties in connection with a
summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):
[T]he burden on the moving party for summary judgment is only to
demonstrate, i.e., ‘[to] point out to the District Court,’ that the
record does not disclose a genuine dispute on a material fact. It is
enough for the movant to bring up the fact that the record does not
contain such an issue and to identify that part of the record which
bears out his assertion. Once this is done, his burden is discharged,
and, if the record in fact bears out the claim that no genuine dispute
exists on any material fact, it is then the respondent’s burden to set
forth affirmative evidence, specific facts, showing that there is a
genuine dispute on that issue. If the respondent fails to carry that
burden, summary judgment should be granted.
Id. at 1339 (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-274 (8th
Cir. 1988) (citations omitted)(brackets in original)). Only disputes over facts that may affect the
outcome of the suit under governing law will properly preclude the entry of summary judgment.
Anderson, 477 U.S. at 248.

Discussion
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Tricon claims that it performed all duties required under its contract with Manning and is
entitled to payment. Although Manning contends that the MSE Wall was wrongfully rejected,
Manning argues that the decision to reject the MSE Wall was based, in part, on incorrect
information provided by Tricon during the submittal review process and its use of 12" filter
fabric, something called for by Tricon in its engineered drawings. The Court finds that these
questions of fact preclude the entry of summary judgment. Additionally, the Court finds that
Manning’s contingent counterclaim was properly plead.
Accordingly, Tricon’s motion for partial summary judgment is DENIED.
IT IS SO ORDERED this 8th day of November, 2016.

____________________________________
James M. Moody Jr.
United States District Judge

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