Anne Arundel County v. Norair Engineering Corp.

Smith, J., delivered the opinion of the Court. Appellee, Norair Engineering Corporation (Norair), contracted with appellant, Anne Arundel County (the County), to construct in the County the Broadneck Wastewater Treatment Plant. After construction was well under way a large outfall line extending from a chlorine contact chamber to a manhole structure near the shoreline of the Chesapeake Bay was discovered to have pulled apart or to have moved to such an extent that the danger of separation appeared imminent, thus producing this litigation. Norair sued the County for the extra work involved in correction of this problem.

The matter was tried without a jury. The trial judge entered judgment in favor of Norair against the County for $62,241.97, of which $50,741.97 was for this extra work and $11,500 was in connection with a dispute relative to funds that had been retained by the County as a result of its claim for liquidated damages. The matter reaches us on direct appeal. We shall affirm the judgment relative to the extra work, but on the issue of liquidated damages we shall remand for further proceedings.

Four questions are presented on appeal, (1) whether the judge who considered an earlier law motion erred as a matter of law in sustaining Norair’s exceptions to the County’s demand for a bill of particulars; (2) whether the trial court “err[ed] as a matter of law in denying the County’s special plea of limitations as to the first Count”; (3) whether the trial court “err[ed] as a matter of law under the contract in finding the County rather than the contractor responsible for the repairs to the outfall line which occasioned the damages claimed in Count I”; and (4) whether the trial court “err[ed] as a matter of law under the contract in finding that the County was either required or failed to demonstrate damage sufficient to recover liquidated ⁴⁸³ damages stipulated in the contract as to Count III.” We shall develop facts in the process of discussing these questions. I The Demand for Particulars Count I of the Declaration consisted of three paragraphs, the first two of which were the common counts relative to work done and materials provided and money found to be due on accounts stated, respectively. The third paragraph of that count was as follows: “3. and for that on August 19, 1968 in consideration of the sum of Two Million, Four Hundred Fifty Thousand ($2,450,000.00) Dollars Plaintiff contracted with Defendant to construct the Broadneck Wastewater Treatment Plant in Anne Arundel County, Maryland. That the Plaintiff performed its side of the contract in its entirety according to specifications provided by the Defendant but was also required to perform additional work, as permitted under the contract, due to deficiencies and omissions in the specifications for the project, as provided by Defendant.

That the additional work was not caused by any fault of the Plaintiff. That the Plaintiff was forced to repair the 48 foot outfall line on the project due to the improper specifications causing additional expense over and above the contract price, which the Defendant has refused to pay thereby breaking the contract, and the Plaintiff claims the sum of Fifty Thousand Seven Hundred Forty-One Dollars and Ninety Seven Cents ($50,741.97).” The demand for particulars here under consideration was: “1. With respect to Count 1, subparagraph 3, please state what repairs were accomplished to the 48' outfall line and which specifications are alleged ⁴⁸⁴ to have been improper and to have caused additional expense above the contract price.” Norair excepted to that demand as improper, claiming that “[t]he information demanded [was] a matter of evidence to prove [Norair’s] claim, and [was] not necessary in order to give sufficient notice of the claim,” that “[i]t m[ight] not be obtained by particulars, but only, if at all, by interrogatory or other discovery procedure.” This exception was sustained, thus producing the County’s assignment of error. First of all, it must be noted that the demand for particulars is not of the first two paragraphs of the first count, the two common counts.

Under the statute as it existed for many years prior to 1957 (Maryland Code (1951) Art. 75, § 28 (107) being the most recent codification), a bill of particulars could be obtained as a matter of right “where the pleading [was] so general as not to give sufficient notice to the opposite party of the evidence to be offered in support of it.” This was interpreted to require particulars of a common count upon request. See 1 Poe, Pleading and Practice § 136 (5th ed. Tiffany 1925). The present Maryland Rule 346 a provides for “a bill of particulars whenever a pleading is so general as not to give sufficient notice to [a defendant] of the claim ... asserted by such pleading,” which has been interpreted as effecting a change in the former rule.

See editor’s note to Rule 346 a. It is in the light of this rule that the present request must be examined. In Sommers v. Wilson Bldg. & L. Ass’n, 270 Md. 397 , 311 A. 2d 776 (1973), we had before us a demurrer to a declaration. We said relative to the declaration: “Even a careful examination leaves one at a loss in determining whether the declaration sounds in assumpsit or tort, or whether it represents an effort by the pleader to impermissibly combine these two forms of action into a single count.” Id. at 400 .

We concluded that the declaration was vulnerable to attack on demurrer and that the interests of justice would be ⁴⁸⁵ promoted by remanding the case without affirmance or reversal in accordance with Rule 871 a, with leave to file an amended declaration. However, in acceding to the request of the appellant that he be given an opportunity to file an amended declaration, Judge Digges said for the Court: “This request is granted in part because confusion has resulted from the appellees’ erroneous utilization of Rule 346 (demand for particulars) to procure information which is only obtainable under the deposition and discovery rules (Rules 400-425). Here, the demand sought the particulars of all agreements and understandings between the parties, written or otherwise, whether they formed the basis of the action or not, concerning the duty of the appellees to keep the appellants’ property insured. Such a broad request under Rule 346 is improper.

Particulars are only permitted to satisfy the demands of pleading. Cline v. Fountain, etc., Company, 214 Md. 251 , 134 A. 2d 304 (1957). On the other hand, if a party desires the extensive information requested here, interrogatories and other forms of discovery are the proper tools to be utilized. The discovery rules are designed to satisfy the cravings of a litigant to acquire pretrial knowledge of the contentions being made by opposing parties, as well as all facts relevant to the dispute.

In fact, a bill of particulars is rarely used today as its function has been largely made obsolete by the rules governing discovery and summary judgment. Nicholson v. Blanchette, 239 Md. 168, 188 , 210 A. 2d 732 (1965); Hub Bel Air, Inc. v. Hirsch, 203 Md. 637, 641 , 102 A. 2d 550 (1954).” Id. at 401-02. (Emphasis in original.) It must be remembered that our present discovery practice is of comparatively recent origin, dating from the adoption by the Court of General Rules of Practice and Procedure on January 30, 1941, effective September 1, 1941, “pursuant to the 18th Section of Article 4 of the Constitu ⁴⁸⁶ tion of this State, and Chapter 719 of the Acts of the General Assembly of 1939.” All of the information sought by the County here was available to it under Chapter 400 of the Maryland Rules and could well have been obtained by interrogatories under Rule 417. The third paragraph of the first count of the declaration “g[ave] sufficient notice to [the County] of the claim . .. asserted by such pleading.” Accordingly, Judge Melvin did not err in sustaining the exceptions to the demand.

II and III Denying the Plea of Limitations to the First Count and Holding the County Responsible for Repairs to the Outfall Line On this count the trial judge, sitting as the trier of fact, said in his memorandum opinion: “COUNT I “Count one embodies the common counts for work and materials and for money found to be due between plaintiff and defendant. It also contains a special count alleging a contract between plaintiff and defendant dated August 19, 1968 which plaintiff asserts had been fully performed. However, it goes on to state that it was required to perform additional work as permitted under the contract due to deficiencies and omissions in the specifications in that it was required to repair a forty-eight inch outfall line due to improper specifications. The defendant refused to pay the expense of the repair, thereby allegedly breaking the contract. “To this count the defendant has entered the special plea of limitations as well as a defense. “The limitations defense is inappropriate. “Exhibit one which was entered into evidence without objection and purports to be the ⁴⁸⁷ Specifications Proposal Contract and Bond for Contract No. 580-BS — Broadneck Wastewater Treatment Plant on page A-3 indicates 1 that it is a sealed instrument.

Such being the case, this case was filed well within the twelve-year period of limitations for such a contract. [Code (1974) § 5-102 (a) (5) of the Courts and Judicial Proceedings Article.] Even if somewhere within this weighty document there were contained a three-year limitation provision, the last payment made by the County on account of the contract was dated March 5, 1971. Suit was filed March 14, 1973, also within the three-year limitation apparently urged by defendant. . . . “The nature of the claim arises over the fact that on or about November 19, 1969, an inspector surveying the effluent line in question which extended from the chlorine contact chamber to a manhole structure located distant therefrom some 1000 feet and near the shoreline of the Chesapeake Bay, discovered that some of the sections of pipe which were generally 16 feet in length had either pulled apart completely or had moved to such an extent that danger of separation appeared imminent. The entire line had moved twenty inches toward the outfall structure .... When this fact was called to the attention of the project engineer for Norair, he immediately directed that all work stop on the line.

A meeting was held with the principals to determine what could be done. The County officials blamed the condition upon gross neglect... on the part of the plaintiff; the plaintiff attributed the problem on design deficiencies. The court finds that plaintiff has the better of the argument. ⁴⁸⁸ “Details of the line are graphically presented on Exhibit 2, the working drawing. “The outfall line was made of prestressed concrete cylinder pipe to be placed in stable soil to a point approximately 259 feet from the north face of the chlorine contact chamber. At that point, the placement was to be made for the remaining distance in unstable soil and muck typical of tidal marsh material found in the Chesapeake Bay region.

Beginning four pipe sections in the stable area, the plans called for the pipe to be supported on pile ‘bents.’ These bents consisted of a creosoted pile driven on either side of the pipe line, the plane formed by the piles being perpendicular to the center line of the pipe. This pair of piles was then notched to receive a pair of four inch by twenty inch timber wales — horizontal beams — bolted to the piles at the precise elevation for the particular station. These bottom wales would provide a stable platform to support the pipe as it was placed on grade. Shifting of the pipe in a lateral direction was to be prevented by a pair of tapered wooden chocks secured to the bottom wales in such a fashion that the tapered faces contacted the outside diameter of the pipe.

Once the pipe had been placed on the lower wales, a second