SBA Network Services, LLC v. Techtonic Engineering and Surveying Consultants, P C et al

Filing 70

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS MOTION FOR SUMMARY JUDGMENT DKT. NO. 65 . Signed by District Judge Irene M. Keeley on 8/1/2014. (Copy counsel of record via CM/ECF)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

SBA NETWORK SERVICES, LLC.,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:12CV164
(Judge Keeley)

TECTONIC ENGINEERING AND SURVEYING
CONSULTANTS, P.C.,
Defendant.

MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 65]
Pending before the Court is the motion for summary judgment
(dkt. no. 65), filed by the defendant, Tectonic Engineering and
Surveying Consultants, P.C. (“Tectonic”).

For the reasons that

follow, the Court DENIES the motion.
I. FACTUAL BACKGROUND
The plaintiff, SBA Network Services, LLC (“SBA”), owns and
operates wireless communications infrastructure throughout the
world.

As part of its operations, SBA planned to erect a 300'

telecommunications
Virginia.

tower

on top

of

a

hill

in

Fairview,

West

The design and construction of the tower site and the

roadway leading up to it are in dispute.
In October 2009, SBA’s Property Specialist, Nichole Arntz
(“Arntz”),

approached

Tectonic’s

Vice

President

of

Homeland

Security and Public Safety Services, Edward Martella (“Martella”),
to discuss the possibility of retaining Tectonic’s professional

SBA NETWORK SERVICES v. TECTONIC ENGINEERING AND
SURVEYING CONSULTANTS, P.C.
1:12CV164
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
services.

Although the parties dispute the exact scope of the

services Tectonic was retained to perform,1 they do agree that, at
a minimum, Tectonic was responsible for designing the tower site
and

roadway.

Notwithstanding

the

dispute

that

later

arose

regarding the scope of Tectonic’s work, following negotiations
between the two parties, SBA sent Tectonic a purchase order in
November 2009.
SBA retained Andrew Systems, Inc. (“Andrew”)2 to construct the
tower

site

and

roadway

designed

by

Tectonic.

After

Andrew

completed construction, however, SBA observed stress fractures and
earth movement at the tower site and along the roadway.

Following

further investigation, SBA decided to construct a new roadway,
rather than to repair the existing one.
On October 23, 2012, SBA filed a complaint in this Court,
alleging professional negligence, breach of contract, and breach of

1

According to Martella’s affidavit, Tectonic originally was “to
provide environmental evaluations and surveys for the site,” and was not
asked to provide construction drawings until after gas pipelines were
found on the site.
(Dkt. No. 65-1 at 1).
According to Arntz’s
affidavit, Tectonic was “to perform site surveys and to develop and
design a site plan for the construction of [the] tower site.” (Dkt. No.
67-5 at 2).
2

Originally, Andrew was a defendant, cross-claimant, and crossdefendant.
However, on July 30, 2014, the parties agreed to dismiss
Andrew from the case.

2

SBA NETWORK SERVICES v. TECTONIC ENGINEERING AND
SURVEYING CONSULTANTS, P.C.
1:12CV164
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
warranty against

Tectonic.

It

claimed

damages in

excess

of

$400,000.
Tectonic moved for summary judgment on May 23, 2014, asserting
that there are no material issues of fact in dispute because (1)
SBA lacks competent expert testimony supporting its professional
negligence claim against Tectonic, and (2) SBA did not follow
Tectonic’s design.

In its response, SBA argues that (1) its

expert’s testimony supports a prima facie case of professional
negligence against Tectonic, and (2) there are material facts in
dispute regarding the cause of SBA’s damages.
II. STANDARD OF REVIEW
Summary
documents,

judgment

is

electronically

declarations,

stipulations

appropriate
stored
.

.

where

the

information,
.,

admissions,

“depositions,
affidavits

or

interrogatory

answers, or other materials” show that “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law.”

Fed R. Civ. P. 56(a), (c)(1)(A).

When ruling on

a motion for summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving party.

Providence

Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000).

The Court must avoid weighing the evidence or determining
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SBA NETWORK SERVICES v. TECTONIC ENGINEERING AND
SURVEYING CONSULTANTS, P.C.
1:12CV164
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
the truth and limit its inquiry solely to a determination of
whether genuine issues of triable fact exist.

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

nonexistence of genuine issues of fact.
477 U.S. 317, 323 (1986).

of

establishing

the

Celotex Corp. v. Catrett,

Once the moving party has made the

necessary showing, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.”

Anderson,

477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the
nonmoving party will not prevent the entry of summary judgment; the
evidence

must

be

such

that

a

rational

reasonably find for the nonmoving party.

trier

of

fact

could

Id. at 248–52.

III. DISCUSSION
Tectonic contends that, as a matter of law, the testimony of
SBA’s expert, Mark F. Altrogge (“Altrogge”), does not support a
claim for professional negligence.

It further asserts that there

is no dispute that SBA and Andrew failed to follow Tectonic’s
design, and it is that failure, not its design, that led to the
earth movement at issue in this case.
4

For its part, SBA disputes

SBA NETWORK SERVICES v. TECTONIC ENGINEERING AND
SURVEYING CONSULTANTS, P.C.
1:12CV164
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
those arguments and urges that any deviations from Tectonic’s
design were immaterial and not the cause of the earth movement.
Under West Virginia law, the general rule is that “want of
professional skill can be proved only by expert witnesses.”3

Syl.

Pt. 3, Totten v. Adongay, 337 S.E.2d 2 (W. Va. 1985) (quoting Syl.
Pt. 2, Howell v. Biggart, 152 S.E. 323 (1930)).

In his report,

Altrogge, SBA’s expert, opined as follows:
Based upon the review of the plans and documentation
provided it is with a reasonable degree of engineering
certainty that:
•

the lack of adequate stormwater conveyance
facilities;

•

lack of soil erosion control measures;

•

limits
of
grading
based
upon
as-built
conditions are less than the proposed limits
as shown on the design drawings that indicate
some of the cut and fill slopes have been
constructed “steeper” than designed; and

•

no documentation confirming that the roadway
was compacted to the specifications provided
on the construction drawings

caused the slope failures at the compound site and/or
roadway.

3

Although West Virginia also recognizes the “common knowledge”
exception to the expert testimony requirement, see Totten v. Adongay, 337
S.E.2d 2, 6 (W. Va. 1985), that exception is inapplicable to this case,
which involves construction and engineering related matters that are
beyond the common knowledge of a lay juror.

5

SBA NETWORK SERVICES v. TECTONIC ENGINEERING AND
SURVEYING CONSULTANTS, P.C.
1:12CV164
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Dkt. No. 67-2 at 2).

Notably, in its briefing, Tectonic admits

that “the first two bullet points reference the design.” (Dkt. No.
65 at 9).

Thus, its argument that this case should not proceed to

trial due to lack of expert testimony is unpersuasive.
According to Tectonic, “it is undisputed that [SBA] and/or
[Andrew] chose not to follow designs in the plan specifically
related to the materials used in the construction of the road,
compaction of the road, and precautionary measures which were in
the plan to assist in the prevention of earth movement.”
65 at 10).

(Dkt. No.

The four design features at issue are the fabric under

the roadway, the type of stone used in the fill, the compaction of
the soil, and the storm water protection plan.
SBA admits that “weed fabric was not used underneath the
entire roadway and that, during the construction phase, SBA and the
contractor substituted a locally available type of rock for the
road for the type that was specified on the design drawings.”
(Dkt. No. 67 at 6).

Nevertheless, it argues that, while “these may

be deviations from Tectonic’s designs,” it is “unclear whether
these deviations caused the failure of the slopes and road.”
at 7.

6

Id.

SBA NETWORK SERVICES v. TECTONIC ENGINEERING AND
SURVEYING CONSULTANTS, P.C.
1:12CV164
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
SBA relies on a decision by the Supreme Court of Ohio,
Cincinnati Riverfront Coliseum, Inc. v. McNulty, Co., 504 N.E.2d
415, 419 (Ohio 1986), asserting it stands for the proposition that
“[a] contractor’s deviations from the plans and specifications
submitted by a structural engineer or architect should be regarded
as material only if they serve independently to break the causal
connection between the design and the plaintiff’s damages by
completely removing the effects of any negligence on the part of
the structural engineer or architect in preparing the design.”
Careful review of that case supports SBA’s argument.
In McNulty, the structural engineer responsible for designing
a walkway that subsequently deteriorated was found to be partially
liable for

negligent

design,

and

the trial

court

denied

the

engineer’s motion for judgment notwithstanding the verdict or for
a new trial.

Id. at 417.

On appeal, the intermediate court of

appeals reversed the judgment against the engineer and ordered a
new trial.

Id.

On further appeal to the Supreme Court of Ohio,

the engineer argued that the lower appeals court should have
reversed on an additional ground, that as a matter of law, the
engineer could not be liable because the construction of the
walkway materially deviated from its design plans.

7

Id. at 419.

SBA NETWORK SERVICES v. TECTONIC ENGINEERING AND
SURVEYING CONSULTANTS, P.C.
1:12CV164
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Applying the above rule, the Supreme Court rejected the
engineer’s argument, finding “evidence to negate the effect of the
deviations.” Id. For instance, the engineer “did not consider the
effect of exposure to weather or the ability to disperse surface
water when it designed the walkway.”

Id.

Here, Tectonic has satisfied its initial burden on summary
judgment by pointing to evidence linking the deviations from its
design to the alleged instability of the tower site and roadway.
For example, SBA’s Construction Manager, Dennis Manko, testified at
his deposition as follows:
Q. And [the fabric] wasn’t placed under the entire access
drive; was it?
A. I don’t think it was.

No.

Q. Okay.
Are you aware that the weed control fabric
affects the stability of the road?
. . .
A. Yes.
Q. You were aware of that?
A. Yes.
Q. Okay.

How did you become aware of that?

A. As far as the –- can you repeat that again?

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SBA NETWORK SERVICES v. TECTONIC ENGINEERING AND
SURVEYING CONSULTANTS, P.C.
1:12CV164
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Q. Yeah. You said that you were aware that weed control
fabric affects the stability of the road. How are you –how did you become aware of that?
A. It’s just through past experience and the use of it on
many jobs and different areas.
Q. And you used the fabric to make the road more stable;
is that right?
A. Yes.
Q. And the engineers called for fabric on this entire
road; didn’t they?
. . .
A. Yeah.
Q. So it’s called for in the drawings on the entire
access road; isn’t it?
A. Yes.
Q. And it wasn’t done; was it?
A. No.
Q. So that’s not in accordance with the drawings, either;
was it?
A. No.
(Dkt. No. 65-1 at 29).
Regarding

the

inadequate

compaction,

Tectonic’s

expert,

Matthew E. Meyer, offered the following opinion:
A slope should be properly constructed to provide a
stable condition.
We understand from the deposition
testimony provided that no compaction testing of the fill
9

SBA NETWORK SERVICES v. TECTONIC ENGINEERING AND
SURVEYING CONSULTANTS, P.C.
1:12CV164
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
material was accomplished and no engineering firm was
engaged to provide quality control or testing services of
the soils during construction.
Criteria for minimum
compaction levels were provided in the project drawings
and in the geotechnical report. The lack of construction
phase quality control and testing is atypical for
projects in West Virginia considering the critical nature
of constructing foundations supporting a 300-ft-tall
communications tower, re-grading of the tower pad area
and an access roadway, which required re-grading (i.e.,
cuts and fills) of an existing hillside.
(Dkt. No. 59-1 at 6) (emphasis added).
With respect to SBA’s decision to use a type of stone other
than

that

incorporated

into

Tectonic’s

design,

SBA’s

Project

Manager, Shawn McCoy, admitted that, despite making that decision,
“I don’t have the knowledge or the experience to understand the
fact that stone is part of the road.”

(Dkt. No. 65-1 at 12).

In its response to Tectonic’s motion, SBA does not point to
evidence directly contradicting the causative link between its
deviations and the earth movement.

Rather, it seeks to negate the

materiality of any deviations, and shift the bulk of culpability
back onto Tectonic by arguing that the primary cause of its damages
was Tectonic’s failure to include a storm water protection plan in
its design.

10

SBA NETWORK SERVICES v. TECTONIC ENGINEERING AND
SURVEYING CONSULTANTS, P.C.
1:12CV164
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
While Tectonic concedes that it “did not design a storm water
drainage plan for the tower site,”4 (dkt. no. 65 at 11), it
contends that the relevant question is whether, prior to the
design, SBA had directed Tectonic not to incorporate the storm
water protection plan against Tectonic’s advice.

The evidence as

to this issue is hotly disputed.
A

week

before

Tectonic

filed

the

instant

motion,

its

representative, Martella, signed an affidavit, swearing he advised
Arntz of the need for a storm water protection plan, but she told
him they would “worry about that later.”

(Dkt. No. 67-6 at 1-2).

On the day SBA filed its response brief, Arntz also signed an
affidavit, swearing “I did not have a discussion with Tectonic
regarding storm water management nor did anyone from Tectonic raise
that as an issue with me.”

(Dkt. No. 67-5 at 2).

She further

stated, “I did not refuse to allow Tectonic to design a roadway
that could withstand storm water runoff.”

Id.

At the summary judgment stage, courts should avoid making
credibility determinations, which are left to the discretion of the

4

Furthermore, according to Andrew’s expert, Patrick E. Gallagher,
“it can be reasonably concluded that the roadway and pad failures are a
result of the improper design details relative to drainage, erosion, and
slope stability.” (Dkt. No. 67-3 at 2-3).

11

SBA NETWORK SERVICES v. TECTONIC ENGINEERING AND
SURVEYING CONSULTANTS, P.C.
1:12CV164
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
fact-finder.

See Watson v. Brown, 446 Fed. App’x 643, 645 (4th

Cir. 2011).

Therefore, it would be error to make a dispositive

credibility

determination

here

on

the

basis

of

the

parties’

competing affidavits.
IV. CONCLUSION
Based on the evidence discussed, summary judgment is clearly
unwarranted.

Significant

questions

of

material

fact

exist

regarding the scope of Tectonic’s work, whether Tectonic breached
its

professional

duty

by

failing

to

include

a

storm

water

protection plan in its design, and, with regard to the professional
negligence claim, whether SBA materially deviated from Tectonic’s
design.

Because the resolution of these and other factual issues

is properly reserved for the fact-finder at trial, the Court DENIES
Tectonic’s motion for summary judgment.
It is so ORDERED.
The

Court

directs

the

Clerk

to transmit

copies

of

Memorandum Opinion and Order to counsel of record.
DATED: August 1, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

12

this