Amitech U.S.A., Ltd. VS Nottingham Construction Company

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2048 AMITECH U LTD A S I AA VERSUS r NOTTINGHAM CONSTRUCTION COMPANY Judgment Rendered OCT 2 9 2010 On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No 510 269 Honorable Timothy E Kelley Judge Presiding Michael D Hunt Counsel for Plaintiff Appellant 1 A Paul LeBlanc Jr Baton Rouge Louisiana Amitech U LTD A S Murphy J Foster III Counsel for Defendant Appellant 2 J Mark Robinson Nottingham Construction Company Inc Baton Rouge Louisiana BEFORE WHIPPLE McDONALD AND McCLENDON JJ McCLENDON J A contractor appeals a trial court judgment that rescinded an alleged settlement agreement between said contractor and an owner for whom the contractor had constructed a pipe manufacturing facility The owner also appeals a judgment following a trial on the merits which awarded the contractor 00 520 893 after the amounts the trial court determined the parties owed to each other were offset For the following reasons we affirm the judgment that rescinded the purported settlement agreement but amend the trial court s judgment following the trial on the merits to reflect that the owner is entitled to an award of 5 after the awards are offset 00 560 FACTS AND PROCEDURAL HISTORY Amitech U Ltd Amitech was created to bring certain foreign pipe A S manufacturing processes the Meyer and Flowtite processes to North America In 2001 Amitech hired Ron Cormier who resided in Ohio as a manager and it began considering locations within the United States to build a pipe manufacturing plant that would utilize the Meyer and Flowtite processes Richard Vanek a former business acquaintance of Cormier suggested that Baton Rouge Louisiana may be an attractive location for a plant because remedial work was required on the city sewer systems and infrastructure which s could result in the use of Amitech products s Vanek also suggested that Nottingham Construction L C a general Nottingham contractor with experience in municipal and industrial construction was a contractor in Baton Rouge that could construct Amitech facilities s In February 2001 and again in April 2001 Cormier traveled to Baton Rouge to meet with Ted Hicks who was the principal of Nottingham In May 2001 Nottingham representatives at Cormier request and s s Nottingham expense agreed to travel to Europe to tour pipe manufacturing Amitech had three other managers Hartmut Ludwig Wehbe Rafih and Fareed Khalawi who all resided overseas Z Ludwig accompanied Cormier on the first visit 2 facilities that employed the Meyer and Flowtite processes After returning from Europe Nottingham submitted a proposal to Amitech containing an estimate of costs for the construction of certain elements of the Meyer and Flowtite facilities in East Baton Rouge Parish In June 2001 Cormier traveled to Europe and made presentations to s Amitech parent company Saudi Arabian Amiantit Company Amiantit which owns pipe manufacturing facilities throughout the world Cormier presentation s reflected that the total project cost for commissioning a North American production facility is assumed to be 26 million At the conclusion of the 02 presentation to Amiantit Cormier was provided with verbal authorization to proceed with the efforts to construct a pipe manufacturing facility in North America In November 2001 at Cormier request Nottingham representatives s along with design professionals took another trip to Europe to tour Meyer and Flowtite facilities The representatives spent approximately one day touring a Meyer facility and one day touring a Flowtite facility Amitech reimbursed Nottingham and the design professionals for their expenses incurred for this second trip Following the November 2001 trip to Europe Nottingham and Amitech negotiated and entered into a Design Build Contract which was executed by the parties on February 26 2002 The primary dispute at issue arises out of the scope of the work Nottingham was required to complete in accordance with the Design Build Contract In the spring of 2003 Nottingham and Amitech reached an impasse concerning the amount due Nottingham for its work under the Design Build Contract As a result the parties engaged in a severalmonth long process to resolve the claims between them resulting in two agreements namely a letter agreement dated June 30 2003 and 3 an agreement styled Program Management Agreement dated July 2 2003 Both the letter and the agreement sometimes collectively referred to as the settlement agreement were signed by Cormier in his capacity as President of Amitech On July 31 2003 Amitech filed the instant action against Nottingham to rescind the settlement agreement alleging that Cormier did not possess the requisite authority to bind Amitech to the settlement agreement Nottingham filed an answer and a reconventional demand wherein it sought to enforce the settlement agreement Amitech amended its petition to assert claims for breach of fiduciary duty breach of contract and alternatively rescission of the Design Build Contract Prior to trial Amitech filed a motion for partial summary judgment seeking to dismiss Nottingham suit to the extent it sought enforcement of the s settlement agreement On September 19 2008 the trial court granted s Amitech motion and rescinded the settlement agreement Specifically the trial court found that Amitech had not provided written authority to Cormier to settle and absent such authority Cormier could not enter into a valid settlement agreement Moreover in its September 25 2008 judgment the trial court ordered Nottingham to return the 409 that Nottingham had received 00 000 from Amitech pursuant to the purported settlement In response to the trial court grant of Amitech motion for partial s s summary judgment Nottingham amended its reconventional demand asserting that in the event the settlement agreement was not enforceable Nottingham was entitled to damages in the amount of its claims existing prior to the parties settlement of disputes A bench trial was conducted between September 29 and October 8 2008 After trial the court took the matter under advisement and subsequently issued s In the letter Amitech pledged to pay Nottingham 409 and enter into a Program 00 000 Management Agreement to resolve all claims existing between the parties and Nottingham agreed to cancel a lien that it had placed on Amitech property In the Program Management s Agreement Amitech designated Nottingham as Amitech program manager andor construction s manager for all of Amitech construction projects from April 15 2003 through April 14 2007 s with a minimum guaranteed contract amount payable to Nottingham of 1 Although 00 000 047 neither party performed pursuant to the Program Management Agreement Amitech paid Nottingham the 409 referenced in the letter and Nottingham cancelled its lien 00 000 C its written reasons The judgment awarded for judgment Nottingham 00 000 040 1 less an amount recoverable by Amitech of 146 resulting 00 480 in a net amount awarded to Nottingham of 893 00 520 ASSIGNMENTS OF ERROR Nottingham has appealed to seek enforcement of the putative settlement agreement and has assigned three errors raising the following issues for review 1 Whether in the absence of written evidence authorizing an agent to enter into a settlement agreement a third parry may enforce the settlement agreement against the principal based upon the theory of apparent authority 2 Whether in the absence of written evidence authorizing an agent to enter into a settlement agreement a third party may enforce the settlement agreement against the principal based upon estoppel and detrimental reliance as permitted by La Civil Code art 1967 3 Whether Nottingham demonstrated genuine issues as to material facts prohibiting Amitech from an award of summary judgment which rescinded a settlement agreement in conjunction with Issue Nos 1 and 2 Amitech has also appealed assigning the following as errors The 1 trial court erred in finding that no fiduciary duty existed between Amitech and Nottingham The 2 trial court erred in failing to properly interpret the Design Build Contract and as a consequence further erred by finding that Amitech was not owed reimbursement for Nottingham s failure to deliver the scope of the work contemplated by the contract price 3 Alternatively the trial court erred in not rescinding the Design Build Contract The 4 trial court erred in awarding Nottingham 800 for 000 Extra Fill and Site Work The 5 trial court erred in awarding Nottingham 240 as part 000 of an early completion bonus THE PURPORTED SETTLEMENT AGREEMENT Nottingham has appealed to seek review of the trial court failure to s enforce the purported settlement agreement entered into between the parties In response Amitech has filed a motion to dismiss Nottingham appeal s asserting that Nottingham waived its right to appeal the settlement issue by proceeding to trial on the post rescission demand We disagree The granting of 5 the motion for partial summary judgment was a partial final judgment from which no right to appeal existed absent a designation by the trial court See LSAC arts 1911 and 1915 We recognize that the trial court declined to P C designate the partial summary judgmentan interlocutory rulingas final for purposes of an immediate appeal pursuant to LSAC art 1915 However P C 6 after an appealable judgment is rendered in a case the correctness of any interlocutory judgment can also be considered on appeal Vanderbrook v Jean 2006 1975 p 6 n 4 La 1 Cir 2 959 So 965 968 n 4 App 07 14 2d People of Living God v Chantilly Corp 251 La 943 94748 207 So 2d 752 753 1968 Accordingly once the trial court signed the final judgment following the trial on the merits Nottingham could seek review of the prior interlocutory ruling with regard to the settlement issue Therefore Amitech s motion to dismiss Nottingham appeal is hereby denied s Nottingham contends that the trial court by focusing solely on whether Cormier possessed express authority to enter into the agreement failed to consider whether Nottingham could enforce the settlement agreement against Amitech based upon the theory of apparent authority The judicial understanding of the principles of apparent authority are analogous to the concept of putative mandatary set forth in LSAC art 3021 C Constr Co L v G Horne C M 08 20 2 984 So 827 836 2d See Walton Co Inc 07 0145 p 12 La 1 Cir App Under this theory an agent is empowered to bind his principal in a transaction with a third person when the principal has made a manifestation to the third person or to the community of which the third person is a member that the agent is authorized to engage in the particular transaction Walton Constr Co L 07 0145 at p 10 984 So at 835 C 2d To support its position that a putative mandate existed Nottingham notes that Cormier was the duly elected President of Amitech and was the only manager domiciled in the United States Nottingham avers that the remaining 4 Notwithstanding a 1915 designation we note that nothing precludes a party from seeking a 6 supervisory writ if the circumstances dictate See LSA C art 2201 P managers visited Louisiana a total of possibly two to three times over the course of the construction Nottingham asserts that Cormier took actions daily for a period in excess of two years on behalf of Amitech without the written approval or even knowledge of Amitech overseas managers s Particularly Nottingham notes among other things that Cormier negotiated and executed the Design Build Contract on behalf of Amitech Nottingham received payments in the form of checks signed by Cormier in excess of 15 and Cormier 00 000 participated in and consented to the performance of work beyond the scope of the Design Build Contract for work performed at a cost in excess of 00 000 000 2 Hicks attested that not once did Amitech question disavow or challenge the authority of Cormier concerning actions taken on behalf of Amitech As such Nottingham concludes that it reasonably believed that Cormier had authority to settle the claims at issue Despite Nottingham position regarding why it assumed a putative s mandate existed we note that Hicks understood that Cormier authority was s limited Specifically in his deposition Hicks testified that Cormier did not do anything or approve anything unless they called Hartmut and those guys over there We would get approval from them once they talked to their people overseas With regard to the costplus work Hicks testified that it was all done with Hartmut Ludwig and the s and all of the board approval Everything had s to be approved by the entire group Because Nottingham recognized that Cormier was required to obtain approval we cannot conclude that a putative mandate with regard to Cormier authority to settle existed herein s Moreover even assuming a putative mandate existed we note that Amitech did not provide Cormier express written authority to enter into a settlement agreement Louisiana Civil Code art 2997 provides that express authority must be given to enter into a compromise Louisiana Civil Code article 3072 requires that a compromise be made in writing or recited in open court Because the law prescribes a certain form for an act a mandate authorizing the act must be in that form LSA C art 2993 The comments to LSAC art C 7 2993 explain that when any act such as a compromise requires an authentic act or written form a contract of mandate giving authority to do these acts must also be in authentic or written form LSAC art 2993 comment c C Therefore a third party cannot rely upon a putative mandate where the transaction at issue is one for which express authority is required under LSAC C art 2997 See Hoffman Siegel Seydel Bienvenu Centola APLC v Lee 051491 p 11 La 4 Cir 7 936 So 853 860 writ denied App 06 12 2d 06 1995 La 11 940 So 671 apparent authority could not be utilized 06 3 2d to refer a matter to arbitration where arbitration requires express authority under LSAC Art 2997 C 5 Also Nottingham is charged with knowing the statutory limitations of an agent In Carey Hodges Associates Inc v Continental Fidelity Corp 264 So 734 736 La 1 Cir 1972 this court noted 2d App The jurisprudence of this state has been consistent in holding that the person who deals with a corporation is chargeable with notice of the limitations and restrictions placed upon it by statute and is generally bound to know whether or not the person who presumes to represent the corporation and act in its name is authorized to do so Our jurisprudence holds additionally that the person dealing with an agent is put on his guard by the fact of the s person alleged agency alone and deals with him at his own risk It is his duty to inquire into and ascertain the nature and extent of his powers as an agent and determine whether or not the act or contract about to be consummated comes within the province of his agency and will or will not bind his principals Therefore Nottingham could not rely upon an alleged putative mandate when express written authority was required by LSAC arts 2993 2997 and 3072 C As such assignment of error number one is without merit In its second assignment of error Nottingham urges that the trial court erred in holding a third party may not enforce a settlement agreement against 5 Pursuant to Amitech operating agreement however any significant undertaking required the s approval of a majority of Amitech four managers Although written resolutions signed by the s managers were generally used to approve company undertakings outside of formal board meetings the record contains no resolution or other writing reflecting that the Board authorized Cormier to settle the dispute 6 Nevertheless because we find that no putative mandate existed agency by estoppel cannot be applied herein E the principal based upon estoppel and detrimental reliance as permitted by LSA C art 1967 Louisiana Civil Code article 1967 provides Cause is the reason why a party obligates himself A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee reliance on the s promise Reliance on a gratuitous promise made without required formalities is not reasonable The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts admissions representations or silence To prevail on a detrimental reliance claim Louisiana law does not require proof of a formal valid and enforceable contract Rather in determining whether a claim for detrimental reliance has been established the focus is on whether the party proved three elements by a preponderance of the evidence 1 a representation by conduct or word 2 justifiable reliance and 3 a change in position to one detriment East Tangipahoa Dev Co LLC s v Bedico Junction LLC 081262 pp 13 14 La 1 Cir 12 5 App 08 23 3d So 238 246 writ denied 09 0166 La 3 5 So 146 citing Suire v 09 27 3d Lafayette City Parish Consolidated Gov 041459 p 31 La 4 907 t 05 12 2d So 37 59 Nottingham notes that the Louisiana Supreme Court has indicated that a principal may be estopped from asserting the defense of lack of written authority if the third person can show a change of position in reliance on the appearance of authority manifested by the principal Tedesco v Gentry Dev Inc 540 2d So 960 964 La 1989 However as we noted above Nottingham reliance s was unreasonable given Hicks acknowledgement that Cormier was required to obtain approval from the overseas managers prior to entering into transactions 7 As a result of the purported settlement agreement Nottingham contends that it cancelled its lien and lost the security afforded by the lien up to the amount of 2 However 00 000 700 Hicks also acknowledged that after Nottingham discovered Amitech would not honor the purported settlement agreement Nottingham secured a new lien 9 Moreover the Louisiana Supreme Court later recognized that a bsent fraud or at least affirmative misrepresentations as to the necessity of a writing it is almost always the case that it will be unreasonable to rely on an oral promise where the law requires such a promise to be in writing to be enforceable See Morris v Friedman 94 2808 p 10 n La 11 14 95 27 663 So 19 26 n see also East Tangipahoa Dev Co LLC 081262 at 2d 14 pp 1415 5 So at 247 In East Tangipahoa Dev Co LLC this court held 3d that it was not reasonable for the principal of East Tangipahoa Development to rely on an alleged oral agreement where an agreement to repurchase immovable property had to be in writing East Tangipahoa Dev Co LLC 081262 at p 15 5 So at 247 Because the law requires a writing giving an agent authority 3d to enter into a valid settlement agreement coupled with the fact that Nottingham was charged with knowledge of the limits of Cormier authority it s was unreasonable for Nottingham to rely on Cormier representations alone s In light of the foregoing we find that LSAC art 1967 cannot be C applied under these circumstances Accordingly Nottingham assignment of s error number two is without merit TRIAL ON THE MERITS Fiduciary Duty In its first assignment of error Amitech contends that the trial court erred in finding that Nottingham owed it no fiduciary duty Amitech asserts that the dealings between it and Nottingham prior to the execution of the February 26 2002 Design Build Contract created a fiduciary relationship which Nottingham breached by failing to ad honestly and divulge material information Amitech seeks damages for what it deems was an unreasonable profit earned by Nottingham in relation to the Design Build Contract and Amitech acquisition of s real estate 8 In light of our rulings with regard to assignments of error numbers 1 and 2 Nottingham third s assignment of error is also without merit 10 Amitech notes that Hicks agreed to assist in Amitech acquisition of real s estate upon which a plant could be constructed Hicks directed Amitech to a certain parcel located in Zachary Louisiana the Zachary Property upon which his son Kyle Hicks obtained an option about the same time Hicks showed Amitech the property The price quoted to Amitech to purchase various acreages of the Zachary Property was more than double the per acre price under the option held by Hicks son The option was later extended several times by Nottingham Hicks VANED L Kyle Hicks andor Hartec Corporation a C corporation owned and operated by Hicks At some point during the initial negotiations the parties anticipated that Nottingham would acquire financing to purchase the property construct the facility and then lease the plant to Amitech However in November 2001 because Nottingham could not secure financing absent a guarantee from Amitech Amitech made the decision to purchase the Zachary Property and finance the construction of the facility On December 7 2001 after learning that Amitech would purchase the property Nottingham invoiced Amitech 30 to extend the option through 00 000 February 24 2002 for purchase of 52 acres on Hwy 61 Emphasis added Amitech paid the 30 and contends it was in turn used by Nottingham to 00 000 extend the option on the Zachary Property on Nottingham behalf s In January 2002 an Amitech board meeting was held in Baton Rouge The board after reviewing a presentation of the site plan objected to the proposed location of the plant because it was sited immediately adjacent to a residential trailer park acre tract was available As a result Hicks informed Amitech that the entire 94 s Amitech overseas managers approved acquisition of the 94acre tract at the price quoted by Hicks However Amitech was unaware that the entire tract was already subject to an option held by Nottingham and financed at least in part by the 30 payment made by Amitech 00 000 9 VANED L was an unformed limited liability company to be owned in equal membership C units by Vanek and Hicks 11 Two Zachary Property transactions occurred on February 26 2002 Nottingham purchased the entire 94acre tract from its owner for 448 00 300 and then sold the property to Amitech for 911 Cormier was not aware 00 800 that Nottingham had purchased the property until he appeared at the latter closing that day Both Nottingham purchase of the property and the immediate s resale to Amitech were funded exclusively by Amitech Only one settlement statement was prepared and Nottingham was paid off as if it were a mortgagee of the Zachary Property Although Cormier posited that he did not believe Hicks was acting as Amitech agent Cormier testified that Hicks had negotiated with s the owner for acquiring that land for us Generally whether a fiduciary duty exists and the extent of that duty depends upon the facts and circumstances of the case and the relationship of the parties Scheffler v Adams and Reese LLP 06 1774 p 6 La 2 950 07 22 2d So 641 647 As a basic proposition for a fiduciary duty to exist there must be a fiduciary relationship between the parties The Uniform Fiduciaries Law LSA R 9 defines fiduciary S 3801 2 Fiduciary includes a trustee under any trust expressed implied resulting or constructive executor administrator guardian conservator curator receiver trustee in bankruptcy assignee for the benefit of creditors partner agent officer of a corporation public or private public officer or any other persons acting in a fiduciary capacity for any person trust or estate The dominant characteristic of a fiduciary relationship is the confidence reposed by one in the other and a person occupying such a relationship cannot further his own interests and enjoy the fruits of an advantage taken of such a relationship He must make a full disclosure of all material facts surrounding the transaction that might affect the decision of his principals Plaquemines Parish Com Council v Delta Dev Co Inc 502 So 1034 1040 La n 2d 1987 One is said to act in a fiduciary capacity when the business which he transacts or the money or property he handles is not his own or for his benefit but for the benefit of another person as to whom he stands in relation implying and necessitating great confidence and trust on the one part and a high degree 12 of good faith on the other part State v Hagerty 251 La 477 493 205 So 2d 369 37475 1967 cert denied 391 U 935 88 S 1848 20 L 855 S Ct 2d Ed 1968 We recognize that the initial options taken on the Zachary Property were done at Nottingham sole risk insofar as there was no guarantee that Amitech s would utilize this location to construct a pipe manufacturing facility However the intentions of the parties and their respective positions with regard to the property changed after Amitech turned from a future lessee into a future owner and Nottingham no longer bore any further risk After Nottingham learned that Amitech would purchase the property and construct its own facility Nottingham rather than utilizing its own funds to extend the option billed Amitech to fund the extension of the option s Nottingham invoice clearly reflects that the 000 30 was being utilized to extend a prior option The invoice does not reflect that Amitech was buying an option to purchase the property directly from Nottingham In light of the foregoing we find that Nottingham owed a fiduciary duty to Amitech with regard to this specific real estate transaction The money Nottingham handled in connection with the final option extension and the business it transacted in that regard was not its own or for its benefit but for the benefit of Amitech Hagerty 205 So at 374 75 2d The fiduciary duty s includes the ordinary duties owed under tort principles as well as a legally imposed duty which requires the fiduciary to handle the matter as though it were his own affair Noe v Roussel 310 So 806 819 La 1975 2d In addition the fiduciary may not take even the slightest advantage but must zealously diligently and honestly guard and champion the rights of his principal against all other persons whomsoever and is bound not to act in antagonism opposition or conflict with the interest of the principal to even the slightest extent Id As such Nottingham was required to disclose among other things the price contained in the option agreement 13 Amitech has shown a breach of the trust it placed in Nottingham and Nottingham has failed in its duty not to take the slightest advantage of that trust Therefore Amitech is entitled to recover from Nottingham the profits Nottingham made on the real estate transaction as a result of the breach Cf Woodward v Steed 28 La 2 Cir 9 676 App 96 25 680 So 1320 writ not considered 962648 La 12 684 So 411 2d 96 6 2d Amitech also seeks recovery for what it considers an unreasonable profit made by Nottingham in constructing the facility Nottingham ultimately earned a Amitech contends that profit of at least 6 against 26 948 904 s Amitech total cost of 13 or a profit of more than 100 of cost 29 908 336 Amitech asserts that this occurred at the same time Nottingham was the paid consultant of Amitech was providing Amitech with legal and real estate services and was assisting Amitech in developing its building plan Amitech urges that based on these facts the trial court manifestly erred in failing to find a fiduciary relationship and a breach of same when considering the amount Amitech earned under the contract We note that the parties freely negotiated the terms of the Design Build Contract in an arms length transaction A court is not to be concerned with the wisdom or folly of a contract It cannot annul or amend it simply to avoid some supposed hardship arising therefrom Its duty is confined to the ascertainment of the limits of the rights and obligations of the contracting parties as they have defined them for themselves Weeks v T James L Co Inc 626 So 2d 420 424 La 3 Cir 1993 writs denied 93 2909 93 2936 La 1 App 94 28 630 So 794 As such a court cannot undermine a contract simply because it 2d was a bad deal for one of the parties Id Accordingly we affirm the trial s court judgment to the extent that the trial court found that no fiduciary duty was breached when the parties entered into the Design Build Contract Scope of Work Under the Design Build Contract In its second assignment of error Amitech contends that the trial court erred in failing to properly interpret the DesignBuild Contract and as a consequence further erred by finding that Amitech was not owed reimbursement 14 for Nottingham failure to deliver the scope of work contemplated by the s contract price Amitech notes that Nottingham posits that it was only required to deliver the shell of the buildings with no interior electrical or mechanical processes but Amitech contends that the contract documents required Amitech to deliver full electrical and mechanical installation in the Meyer and Flowtite buildings excepting only process equipment and installation of same Article 1 of the Design Build Contract described the work contemplated 01 by the contract as follows Construct site improvements including but not limited to rail road crossing access road paving parking limestone storage signs outside lighting security fencing utilities landscaping construct 4 sq foot administration building construct 3 000 000 sq foot maintenance building construct 4 sq foot employee 000 building construct two 2 4 sq foot warehouses construct 000 000 55 sq foot Meyer building and construct 24 sq foot 500 Flowtite building Moreover Article 3 of the general conditions of the contract provides 6 01 It is the intent of the Contract Documents to describe a functionally complete Project or part thereof to be designed and constructed in accordance with the Contract Documents Any Work materials or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result will be furnished and performed whether or not specifically called for When words or phrases which have a well known technical or construction industry or trade meaning are used to describe work materials or equipment such words or phrases shall be interpreted in accordance with that meaning Article 8 of the Design Build Contract further provides that t Contract 01 he Documents which comprise the entire agreement between OWNER and DESIGNBUILDER concerning the Work consist of among other things Conceptual Documents and the DESIGNBUILDER Proposal S Amitech notes that at trial Hicks testified that the only Conceptual Documents were Flowtite schematics and a proposed layout of the Meyer Building Amitech further notes that Hicks testified that the Budget Review document was the DESIGNBUILDER Proposal and other than the specific S 15 changes specified in the Design Build Contract there were no documents in existence which changed the scope of this proposal Amitech avers that the Budget Review Document clarifies the scope of a number of construction items including specific items with regard to the Flowtite and Meyer Buildings The document reflects that the Flowtite Building will be constructed as per the copyright Flowtite Technology 2001 drawings and specifications excluding all equipment and or installation of same The drawings and specifications include details for full mechanical and electrical service Also the Budget Review document specifies that the Meyer Building includes handrails ladders mezzanine decks electrical and mechanical excluding only all equipment and or installation Amitech contends that the evidence showed that at least into the last quarter of 2002 Nottingham was proceeding as per the scope of work set out in the Budget Review Document completing electrical and mechanical services to the Meyer and Flowtite buildings excepting only equipment and installation of same Amitech also asserts that Nottingham engineering subcontractors s proceeded in the months prior and after the Design Build Contract execution s with an understanding of a scope of work that included interior mechanical and electrical services that would result in a functional manufacturing facility and prepared plans depicting such interior services as well as structuring drawings regarding the foundations upon which particular pieces of equipment would sit Amitech concludes that the trial court erred as a matter of law in failing to give full effect to the referenced documents On the other hand Nottingham points out that at the time the parties entered into the DesignBuild Contract neither party was aware of the specific equipment which Amitech would ultimately install in the facility Hicks testified that as a result at the time the contract was entered into it was impossible for Nottingham to give a contract price on anything other than the shells Without information concerning the equipment and its layout Hicks testified that there was no way for Nottingham to establish a scope of work to address 16 differing loads of the equipment and the attendant special foundations required to meet those loads nor the requirements of the equipment for power supply water supply and drainage Cormier testified that the Design Build Contract only contemplated a shell because Nottingham had no information with regard to the electrical and the support slab at the time the parties entered into the contract Similarly Keith Shackelford an employee of CSRS Inc explained that a Design Build Contract is a fasttrack process that saves time but rarely saves money He indicated that during construction components are being designed as construction progresses He testified that at the time the Design Build Contract was signed Nottingham may have received a list of the requisite electrical loads but the parties had no knowledge whether any of the foreign components were compliant with codes in the United States He also indicated that Nottingham did not have any information with regard to loads to determine the requisite foundations Moreover because alternate layouts were being considered Nottingham did not have any information with respect to drainage requirements for different pieces of equipment Nottingham also points out that Bill McCann an operations manager for Amitech monitored Nottingham construction efforts s Nottingham notes that while it was working on the construction of the facility McCann hired third party designers and contractors on behalf of Amitech to perform work simultaneously with Nottingham work s Moreover Nottingham contends that McCann never indicated either in writing or verbally an understanding that the additional work performed by these thirdparty contractors was actually within Nottingham s scope of work pursuant to the Design Build Contract Nottingham notes that Amitech approved additional work performed by Nottingham which was billed outside of the scope of the DesignBuild Contract as evidenced by payment of the invoices Nottingham argues that these facts establish that additional work outside the scope of the Design Build Contract was anticipated by the parties 10 CSRS Inc was an engineering firm hired by Nottingham to assist with the project R 3072 17 Contracts subject to interpretation from the instrument four corners s without the necessity of extrinsic evidence are to be interpreted as a matter of law The use of extrinsic evidence is proper only where a contract is ambiguous after an examination of the four corners of the agreement Freeport McMoran Inc v Transcontinental Gas Pipe Line Corp 040031 p 7 App La 1 Cir 10 924 So 207 212 writ denied 05 2358 La 05 14 2d 06 31 3 925 So 1256 citing Investors Associates Ltd v B Trappey 2d F s Sons Inc 500 So 909 912 La 3 Cir writ denied 502 So 116 La 2d App 2d 1987 However when the terms of a written contract are susceptible of more than one meaning or there is uncertainty or ambiguity as to its provisions or the intent of the parties cannot be ascertained from the language employed or fraud is alleged parol evidence is admissible to clarify the ambiguity show the intention of the parties or prove fraud Freeport McMoran Inc 040031 at p 7 924 So at 212 2d Louisiana Civil Code article 2045 defines interpretation of a contract as the determination of the common intent of the parties Such intent is to be determined in accordance with the plain ordinary and popular sense of the language used and by construing the entirety of the document on a practical reasonable and fair basis Moreover Louisiana Civil Code article 2047 provides that t words of a contract must be given their generally prevailing meaning he Words of art and technical terms must be given their technical meaning when the contract involves a technical matter The rule of strict construction does not authorize perversion of language or the creation of ambiguity where none exists and does not authorize courts to make a new contract where the language employed expresses the true intent of the parties One of the best ways to determine what the parties intended in a contract is to examine the method in which the contract is performed particularly if performance has been consistent for a period of many years Intent is an issue of fact which is to be inferred from all of the surrounding circumstances Freeport McM ora n Inc 040031 at p 7 924 So at 212 Whether a contract is ambiguous or not is a question of 2d law Where factual findings are pertinent to the interpretation of a contract those factual findings are not to be disturbed unless manifest error is shown Freeport McMora n Inc 040031 at p 8 924 So at 213 2d Because the terms of the Design Build Contract were not clear and unambiguous with regard to the scope of the project factual findings are pertinent to its interpretation and the trial court findings are not to be disturbed s unless manifest error is shown Under the manifest error standard if the findings are reasonable in light of the record reviewed in its entirety an appellate court may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Furthermore when factual findings are based on the credibility of witnesses the fact finder s decision to credit a witness testimony must be given great deference by the s appellate court Rosell v ESCO 549 So 840 844 La 1989 2d In denying Amitech claim for reimbursement for items associated with s the building interior the trial court reasoned While Amitech brought forth several documents to support its position the exhibits do not establish the scope of interior electrical and mechanical work now claimed by Amitech At best they establish only that some electrical and mechanical work was contemplated In fact the shell buildings provided by Nottingham under the Design Build Contract do contain some electrical and mechanical certainly enough to support the position of Nottingham that the additional electrical and mechanical work invoiced under the costplus contract was extra work beyond the scope of the Design Build Contract As additional evidence of the intent of the parties throughout the course of the Project on this issue Amitech after review by McCann and Cormier paid in full without objection the costplus invoices submitted by Nottingham Clearly such contemporaneous action by McCann and Cormier in accepting such work as costplus extra work flies in the face of s Amitech and McCann position taken at trial that such work s properly fell within the scope of the Design Build Contract After considering the foregoing and particularly in light of the credibility determinations made by the trial court we find that a reasonable basis for the trial court ruling appears in the record Accordingly we cannot conclude that s With regard to witness credibility we note that the trial court made a specific factual finding that Cormier and Shackelford were the most credible witnesses R 2036 19 the trial court rejection of Amitech claims for reimbursement for items s s associated with the buildings interior was manifestly erroneous Amitech also asserts that despite Nottingham representatives visiting the manufacturing facilities overseas to ascertain what the pipe manufacturing processes involved Nottingham in constructing the Meyer and Flowtite buildings failed to address the noise dust and wastewater issues created by the processes the electrical power required the heat for the pipe making processes foundations sufficient to hold or seat the process equipment as well as construct facilities necessary to accept raw materials used in the processes Amitech also contends that other necessary components of buildings such as bathrooms foreman offices and control rooms were not built Moreover Amitech contends that additional work was required to bring the buildings up to code and or work was deficiently performed that required correction 12 Specifically Amitech contends that the following should have been included within the scope of the DesignBuild Contract Sound proofing air locks sump pumps pavement additions and catch basins to suppress noise dust and channel wastewater 61 00 286 Construction of a control room in the Meyer building 69 00 200 Construction of a foreman office and restroom facilities in the Meyer Building s 00 626 85 Build a limestone parking lot in front of the administration building as depicted on the s Nottingham site plan 32 00 700 Design and construction of a gravel pit for the Meyer plant 208 00 65 Delivery of basic electrical infrastructure to the Meyer building 206 82 399 Connect power to heating units in both Flowtite and Meyer buildings 17 92 020 Amitech also contends that it should be reimbursed for the following corrective work andor work necessary to meet requisite standards Additional work required to bring the buildings up to code 30 00 700 Redesigning infrastructure items that failed to operate properly or not sufficient to meet the buildings demands 81 00 184 Alterations to Meyer Building foundations because the existing foundation could not handle process equipment load 47 00 250 Corrective electrical work due in part to subgrade wiring 42 00 183 Amitech also seeks reimbursement of 166 for the time and material billings including 57 050 overtime from the contractors used for the referenced work 20 Amitech also claims that Nottingham invoiced Amitech separately for engineering services comprised of work done by Shackelford under the Design Build Contract to install trenches and to perform a number of tasks ranging from providing utilities to modifications required by code Amitech contends that these items were necessary for the facility to function as intended and should have been included in the contract price With regard to the referenced claims the trial court in its written reasons indicated The Court has gone through each of these claims in detail in its review of the case Much time and effort was expended by the Court in reviewing the exhibits and in going back over the testimony given during trial The Court finds that most of the items claimed do not fall within the scope of the Design Build contract and are therefore not recoverable by Amitech 13 After reviewing the record in its entirety we find that a reasonable basis exists to support the trial court ruling with regard to these specific items Accordingly s we cannot conclude that the trial court ruling with regard to any of these claims s is manifestly erroneous Amitech also contends that the Design Build Contract expressly includes a concrete access road and asserts that that the trial court should have awarded it the monies necessary to complete the road Amitech asserts that although a concrete road was required under the contract Nottingham only constructed a limestone road Amitech notes that the Design Build Contract requires Nottingham to furnish a Work materials or equipment that may reasonably be inferred ny from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result whether or not specifically called for Amitech submits that a concrete access road was needed to permit the plant to engage in its intended function as the hauling of heavy pipes requires a paved access road 13 Despite denying the referenced claims we note that the trial court found that other items were recoverable by Amitech These awards were not appealed by Nottingham 21 Moreover Amitech contends that a concrete access road was included in the Unit Price Work under the DesignBuild Contract under Paving Parking and Limestone Storage which had a total estimated unit cost of 2 00 082 805 Amitech asserts that the unit price is unreasonable if the concrete access road is removed given that all that remains is a parking lot for the administration building lips around the buildings and a limestone storage yard Although the Design Build Contract provided no specific cost breakdown the Budget Review document prepared by Nottingham indicated a p 8 inch concrete roposed paving for drives After execution of the DesignBuild Contract Amitech notes that Shackelford began drawing plans for an access road with an 8 inch concrete surface that followed up site plan drawings prepared by Shackelford in January and March of 2002 both of which showed a 30footwide concrete access road as part of the Amitech facility Ultimately Shackelford plans for a paved access s road were issued for construction in July of 2002 and constituted his final design The trial court in finding that a concrete road was not included in the price of the contract indicated that t testimony of Shackelford Hicks and he Cormier convinces this Court that both parties intended that the access road be concrete but that the cost was going to be absorbed by the City Parish Specifically Hicks testified that when the Design Build Contract was signed the parties understood that the Department of Economic Development the Department would fund the roadway Hicks testified that the Department had set a budget funding number of 750 to dedicate to the roadway 00 000 and that he was certain that the funds would come through at the time the parties entered into the DesignBuild Contract Hicks also indicated that Nottingham did not include any charges for a concrete road in the Design Build 14 We note that parol evidence as to what the parties to a contract may have said is not admissible for purpose of proving an antecedent or contemporaneous agreement contrary to that which was reduced to writing See LSAC art 1848 and Southern Fleet Leasing Corp v C Brown 257 So 819 821 22 La 1 Cir 1972 Amitech offered no contemporaneous 2d App objection to the admission of the parol evidence Therefore the parol evidence was properly admitted into the record See Wade v Joffrion 387 So 1265 1266 La 1 Or 1980 2d App Moreover Amitech has not raised this issue on appeal 22 Contract Hicks testified that the Department later determined that it would not be able to fund the roadway as a private street so he met with local officials to determine a mechanism to make the roadway public Hicks indicated that after Nottingham left the site Ludwig decided that he did not want a public road in the facility Similarly Shackelford testified that during the initial stages of planning upgrading the limestone roadway to a thirty concrete drive was contingent foot on receipt of funds from the Department Although the plans reflected a thousand linear foot access road Shackelford testified that the estimate he used for calculation of his engineering fees reflected the cost of the roadway at one hundred dollars per linear foot or the cost of a limestone road Shackelford indicated that a concrete roadway could not be built for such a low price so the Design Build contract provided for something other than a paved roadway for access initially Moreover Cormier testified that the Department indicated that it would help with the roadway Cormier also pointed out that these discussions occurred long before the parties entered into the DesignBuild Contract Nevertheless Amitech argues that the trial court in making its ruling failed to consider the contract change order Nottingham submitted with its final application for payment The change order reflected a reduction of 276 00 300 and the justification was to d for Road turnouts fire hydrant and educt builders risk 15 Amitech contends that the change order shows that Nottingham prior to this litigation recognized that a concrete access road was included in the scope of the Design Build Contract We note however that Hicks testified that his understanding was that the credit was for eightinch paving that was around the back side of the Flowtite Building Hicks further indicated that it is implausible for one to conclude that the credit was for completion of a concrete roadway insofar as the roadway would have cost significantly more than the proposed credit 15 Amitech rejected this change order 23 Moreover Joseph Caldererra an expert in the field of construction and construction cost estimating estimated that the cost of the concrete access road was approximately 462 which 00 099 is significantly higher than the amount reflected in the change order In light of the foregoing we find that a reasonable basis exists in the record for the trial court ruling s Although we may have reached a different conclusion had we been sitting as a trier of fact we cannot substitute our judgment for the judgment of the trial court Ryan v Zurich American Ins Co 07 2312 p 1 La 7 988 So 214 215 Accordingly we cannot 08 1 2d conclude that the trial court failure to assess Nottingham with costs to s construct a concrete road was manifestly erroneous Rescission of the Design Build Contract In its third assignment of error Amitech contends that the trial court erred in not rescinding the Design Build Contract Amitech asserts that the trial court failed to articulate any scope of work finding that the Specifications and Plans were developed on a continual basis and the Project details were decided between the parties as issues arose and as the Project progressed Amitech concludes that if the court accepts that the scope was simply that which evolved as the project progressed then the contract lacked a determinable object at the time it was executed and should be rescinded See LSAC arts 1971 and C 1973 We disagree The trial court found that the parties intended Nottingham to provide the basic framework of the Project under the Design Build Contract with the exception of the Administration Building which the parties intended to be completed under the scope of the contract The trial court also found that the parties intended for anything that fell outside of the scope of the Design Build Contract including much of the interior work in both the Meyer and Flowtite buildings to be completed on a costplus basis Moreover Amitech s actions in hiring third party contractors to complete work contemporaneously with the work being performed by Nottingham and in approving and paying most of Nottingham costplus invoices reflects Amitech understanding that the s s 24 Design Build Contract did not contemplate a finished facility Accordingly we find no merit in Amitech third assignment of error s Extra Fill and Site Work In its fourth assignment of error Amitech contends that the trial court erred in awarding Nottingham 800 for Extra Fill and Site Work As noted 000 above after learning that the initial plans sited the Amitech facility next to a residential trailer park Amitech decided to move the buildings on the property to provide an additional buffer to the trailer park In a letter to Cormier dated February 4 2002 Hicks wrote The costs to relocate the plant to the rear and opposite side of the property cannot be determined until elevations are established and final quantities of dirt are in place By using this method we can use actual quantities and not estimated quantities We will submit the actual costs once all fill is in place and the new entrance road is complete Amitech notes that a few weeks later the parties signed the Design Build Contract which obligated Nottingham to perform the Work defined in Article 01 1 to include site improvements Article 3 of the general conditions of B 01 contract specifies that a work materials or equipment that may reasonably ny be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result will be furnished and performed whether or not specifically called for Additionally Article 3 of A 01 the general conditions of the Design Build Contract further specifies that t he Contract Documents comprise the entire agreement between OWNER and DESIGNBUILDER concerning the Work Finally Article 10 of the General 01 Conditions states that t Contract Price constitutes the total compensation he subject to authorized adjustments payable to DESIGN BUILDER for performing the Work Amitech notes that the trial court found that an agreement existed to compensate Nottingham for extra fill and dirt work due to Amitech changing the location of the plant because the extra fill was not contemplated in the original Budget Review document as the buildings were contemplated to be placed close 25 to the highway where the elevations were higher Amitech asserts that in so finding the trial court erred as a matter of law by failing to give effect to the unambiguous language of the Design Build Contract making it the parties entire agreement concerning the Work and further specifying that the Contract Price was the total compensation to be paid for the Work including all site improvements Amitech urges that the Design Build Contract displaced any antecedent agreement about the cost of the Work and to construe the contract language otherwise would render the integrative and exclusive price clauses meaningless Additionally Amitech contends that in ruling the trial court ignored the subsequent actions of the parties which it alleges were inconsistent with the existence of any enforceable obligation Amitech notes that in March 2002 Cormier prepared a summary of potential cost overruns but the document did not reflect extra fill Amitech also notes that it was not invoiced for the dirt work but received a change order submitted on May 30 2003 nearly a year after the dirt work was complete After receiving the referenced change order along with a second change order Amitech notes that Cormier sent an e to mail Amitech on June 9 2003 which characterized the change orders as seeking an extra one million dollars which is outside the contract and ridiculous Amitech ultimately rejected this change order At trial Hicks testified that he was aware that it would be more expensive to construct the plant at the new location so he informed Nottingham that it would incur additional costs Ludwig testified that following the decision to move the facility he understood that Amitech will incur some cost Similarly Cormier testified that he knew that there would be some additional excavation and that Hicks said he would be doing that on a costplus basis but there would be an additional charge yes Hicks testified that because the Design Build Contract was signed a few weeks after Amitech decided to move the plant Nottingham was unable to include the final figures in the contract 0 Moreover Hicks testified that after the parties entered the Design Build Contract Nottingham through Jim Montgomery and McCann agreed on a unit price based on actual costs at the job site Hicks testified that an agreement was reached because McCann knew that the parties agreed that the additional dirt work was to be done on a costplus basis We note that contracts have the effect of law for the parties LSAC art C 1983 Courts are obligated to give legal effect to contracts according to the common intent of the parties LSAC art 2045 When the words of a contract C are clear and explicit and lead to no absurd consequences no further interpretation may be made in search of the parties intent LSAC art 2046 C Written construction contracts may be modified by oral contracts and by the conduct of the parties even when the written contract contains a provision that an owner is liable only if the change orders are in writing Cajun Constructors Inc v Fleming Const Co Inc 05 2003 p 8 La 1 Cir App 06 15 11 951 So 208 214 writ denied 070420 La 4 954 So 2d 07 5 2d 146 citing Pelican Electrical Contractors v Neumeyer 419 So 1 5 2d App La 4 Cir writ denied 423 So 1150 La 1982 2d Whether an oral agreement modifies a written contract is a question of fact Id While modification can be presumed by silence inaction or implication one person may not change the terms unilaterally L A Contracting Co Inc v Ram Indus Coatings Inc 990354 p 15 La 1 Cir 6 762 So App 00 23 2d 1223 1232 writ denied 002232 La 11 775 So 438 00 13 2d The party asserting a modification of an obligation must prove by a preponderance of the evidence facts or acts giving rise to the modification LSAC art 1831 C Although Amitech alleges that the Design Build Contract subsumed the prior actions of the parties 16 Hicks testified that after the Design Build Contract was signed the parties agreed that a unit sum for dirt work and fill was required 16 Notwithstanding Amitech argument we note that no contemporaneous objection was made s with regard to the parol evidence being admitted See FN 14 27 in addition to the site improvement sum in the Design Build Contract In light of Hicks testimony in that regard we cannot conclude that the trial court was manifestly erroneous in finding the parties agreed to modify the DesignBuild Contract Amitech contends that even if an enforceable obligation Amitech Nottingham failed to prove a quantum of damages existed avers that Nottingham was unable to produce a single receipt or invoice associated with this extra fill and site work Rather Amitech contends that the amount awarded by the trial court was based upon an unsubstantiated cost peryard figure applied by Hicks Amitech notes that Nottingham had not calculated the difference between the costs of the site work at the original location as opposed to the cost of the work at the final location Amitech further contends that the exhibits and testimony reflect that under the original site plan the pipe storage yard the single largest unit by area ran deeper into the northwest section of the property the lowest point on the tract and thus would have required substantially more fill than was used in the final location As such Amitech concludes that Nottingham failed to prove that it incurred any greater cost than it would have incurred had the site location not changed At trial Shackelford testified that the topographical relief in the area where the plant was constructed was three and a half to four feet lower than the original plant site Shackelford indicated that the floor elevations for the buildings required that they be at an elevation of 98 feet In order to meet the 5 requisite elevation Shackelford testified that roughly 65 cubic yards of 000 compacted fill was required or roughly 90 cubic yards of loose dirt Based 000 upon these figures it appears that Nottingham billed Amitech 8 per cubic 89 yard of loose dirt Hicks and Shackelford testified that the dirt utilized to meet the requisite elevations included dirt taken from the detention pond However Hicks also testified that the detention pond was included in the scope of the Design Build A contract may be modified by subsequent mutual consent Contract and that Amitech had been charged for excavation of the detention pond Hicks further indicated that regardless of the elevations of the original site the dirt taken from the detention pond would necessarily have been placed on that site had the plant location not have been moved Caldererra testified that considering the detention pond in the smallest view a minimum of 22 000 cubic yards of dirt had been removed Because the scope of the Design Build Contract at a minimum required Nottingham to excavate the pond and utilize the fill for Amitech facility we find that the trial court manifestly erred in failing s to credit Amitech for 22 cubic yards of dirt or 195 000 00 580 Early Completion Bonus In its final assignment Amitech contends that the trial court erred in awarding Nottingham 240 as part of an early completion bonus The 00 000 contract time was defined in Article 3 of the Design Build Contract which 01 required that the work be substantially completed within 349 calendar days of February 26 2002 Article 3 of the Design Build Contract provided an 03 incentive for early completion and required Nottingham to pay Amitech 00 000 5 for each and every day that the Work is completed prior to the time specified in paragraph 3 for Substantial Completion Moreover Article 11 01 02 of the General Conditions allowed extensions for delays beyond Nottingham s control including abnormal weather Amitech subsequently executed Change Order Number 1 which extended the contract time by 23 calendar days thereby increasing the total contract time to 372 days Amitech through McCann accepted the work required by the DesignBuild Contract on December 20 2002 or 76 days prior to the requisite completion date On March 13 2003 Nottingham made a written request for payment of an early completion incentive Therein Nottingham requested a total or 00 000 440 consisting of 380 from execution of Notice of Acceptance 00 000 18 It is unclear whether the 22 cubic yards consisted of loose or compacted fill Because 000 the unit price charged by Nottingham was based on loose fill we have utilized that cubic yard measure to determine the credit owed 29 76 days x 5 per day and an additional 60 for rain days 60 00 000 00 000 days x 1 per day 00 000 On May 19 2003 Nottingham submitted Change Order Number 5 which reflected a 240 for Adder Credits for future pipe purchases as agreed to 00 000 by Ron Cormier Amitech rejected this change order The trial court concluded that Nottingham had earned an early completion bonus of 680 consisting of the 440 reflected by 00 000 00 000 the March 13 2003 request and the 240 pipe credit reflected in 00 000 Change Order Number 5 In reaching this conclusion the trial court found that Cormier agreed to extend the contract time an additional 120 days for abnormal weather The trial court found in accordance with the March 13 2003 request for payment that Nottingham would receive 1 per day for 60 days of 00 000 abnormal weather but it also found that Cormier agreed that Nottingham would be compensated with pipe credits in the amount of 240 for the 00 000 remaining 60 days of abnormal weather Amitech contends that the trial court s finding is completion unreasonable because the bonus was fixed upon substantial Amitech asserts that Nottingham own demand for payment on s March 13 2003 reflects no extension of contract times other than the 23 day extension reflected in Change Order Number 1 Amitech contends that the pipe credit as Cormier testified was simply another way to pay Nottingham part of the 440 it claimed as an early completion incentive 00 000 Amitech asserts that such an understanding was consistent with Nottingham own documents s which set forth that the total calculation of the early incentive bonus was only 00 000 440 not 680 00 000 As such Amitech concludes that this court should reverse the trial court award of 240 s 00 000 After a thorough review of the record we find no reasonable basis to support the finding that the parties agreed that Nottingham in addition to the 60 days referenced in the March 13 2003 request would be compensated with pipe 19 On appeal no party has alleged that the 440 early completion sum referenced in the 00 000 March 13 2003 letter has not been paid 30 credits in the amount of 240 for an additional 60 days of abnormal 00 000 weather Accordingly the trial court was manifestly erroneous in awarding this sum to Amitech CONCLUSION In sum we deny Amitech motion to dismiss Nottingham appeal but s s affirm the district court judgment on Amitech motion for partial summary s s judgment that rescinded the settlement agreement Amitech as a result of s Nottingham breach of fiduciary duty with regard to the real estate transaction is entitled to recover from Nottingham the profits Nottingham made on the real estate transaction or 463 00 500 Amitech is also entitled to a credit of 00 580 195 for fill and dirt work because the work was contemplated and billed under the scope of the original DesignBuild Contract Additionally the trial s 000 court 240 pipe credit award to Nottingham was manifestly erroneous 00 Accordingly after the referenced amounts are setoff against the remaining trial court awards Amitech is owed a sum of 5 00 560 Additionally we note that the trial court in its September 25 2008 judgment ordered Nottingham to return the 409 it had received 00 000 pursuant to the purported settlement Accordingly considering the two judgments collectively Nottingham is required to pay Amitech 414 plus 00 560 interest from the date of judicial demand Each party is to bear their own cost for their respective appeals FOR MOTION TO DISMISS APPEAL DENIED JUDGMENT ON MOTION PARTIAL SUMMARY JUDGMENT AFFIRMED JUDGMENT ON MERITS AMENDED AND AFFIRMED AS AMENDED 31

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