issues on the job the major problem which was that durkin was leaving in conditions when it should not have been paving their considered death three affidavits god i'm sorry mike's wire who was running the job john yoakum who had been the job and was manager managing the job from the office and mandy kirkland would rest issues of damages the one point that i did not make clear in my brief and i was i was distressed with the fact that the court had gotten so many facts wrong and so many legal issues wrong but she took the motion and decided the case what she was to do was decide whether or not there was a genuine issue was doing a material fact and that was the issue that that's what she would decide but it looked to me as though what she really did was she looked at what work and submitted and she looked at what lasalle submitted and she went through the facts as she saw them and she decided the  there are no material facts of the yes i would have the what was interesting to me from the case is that when the affidavit was submitted from from the south from someone who wasn't on the job and when the affidavits were submitted from gerken short comings on the short short coming is that our affidavits were uncontroverted there was no objection submitted to any affidavit that was furnished there was no motion to strike all of the exhibits the fact that we were paving at a time of the year when we should not have been paving ok but you had a contract that laid out what was supposed to happen did you make any effort under that contract to amend the contract take care of the problem well we found the contract and the from our perspective the contract had language in it that allowed us to address the problem what we were supposed to do was to give notice of the fact that we have a problem then we're supposed to do during the time that we when we have the problem are supposed to alert was out of the fact that our costs are increasing the first thing that we did was to have a letter that was was acknowledged every day that were paving in  written request to change the contract price career was a fixed price contract correct but the next thing that happened was that there on the twenty eighth and twenty ninth of november we went to the soule what they request for additional funds because of the problem that we were having and so they prepared a field director and the field directive was the language used in the field  but our testimony was that that was a field directive that recognized that we are are operating on our time and material basis each day and that we are entitled to additional money and they recognize that on the twenty eighth and twenty ninth and sign the field that the problem is it's not a question of whether you were treated unfairly i mean it appears to be that the contractor ask you to do things and made promises and didn't keep them correct me but but what can we do about that if the contract requires written activity by you and the contractor decides to hold you to that contract regardless of how obnoxious that might be because we did what the contract required the contract requires a notification in writing of a problem there was notification in writing in it doesn't say notification in writing it out of a problem it says notification in writing of a request for an increase in the contract price yes and let me let me read you the contract provision that we complied with the contract provision is in section five point six of the contract right but what about the last sentence of that provision that's that says that that you still must request increases in contract price  now let me read the sentence and i want to tell you how we comply ok the sense says if the work is if the work is to be performed on a time and material basis and this detail pricing must be submitted within five business days from the completion of the twenty eighth and twenty ninth we have an acknowledgment from the south that we're working on a time and material basis to address the fact that the that the work site is unsuitable they know that on that day and they promise to pass on the next day we submit this is the testimony of mr mr zire in the affidavit he stated that we furnish them with a record that day of the  additional quantity of asphalt that was used that day and we did that every day thereafter for the next seven days for the balance of the work so they have been writing every day for i don't have from them is any well you don't do the contract authority to bind without he was the person yes you see what i'm saying he's not the president he's not the person who signed the contract with you but that's a question of fact as to whether he was where he was if he's the person who there every day on the job and he's the person we report to and he's the person who's accepting the information from us is a question of fact as to whether or not he's authorized and we gave that every single day and it's uncontroverted you have from him day about how much additional asphalt we were using because they promised us that they would pay us for it and then after we had done that at the end of the period where's the promise or where's the promise that they e field directive that you say allows time and material for the entire contract no it's the fact that they understood that the only way that they could pay us for this work is on a time and material basis because we could not anticipate in advance of doing the work with the cost would be there but there was there's clearly only one field directive that's in the record correct correct and that field directive is specifically limited to to a particular circumstance at a particular time yes and that's the way it should have been handled but they refused to do that that's another question of fact our position is we asked for additional field directives and they refused to do it ok so so what happens to five point four of the contract well let me finish with five point six my point six says that this detailed pricing must be submitted within five business days from completion of the work so each day we're giving them the additional asphalt that replacing and at the end of doing the work on december fifteenth we know that we're finished and we're calculating what our total contract additional cost is replacement and on the twentieth within five days we send them a letter saying this is the additional cost but those but that provision of five point six is in response to a field directive those obligations to submit within five days it's supposed to be in response to a failed directive is it not all of the provision says that we are supposed to give the deeds hill pricing within five days of completing the work so each day that we were we tell them that this is the additional asphalt that replacing they know whatever our prices are for quantities but we meet the obligation of this provision that on december twentieth we send them a letter which i think was exhibit seven and that letter says here's the additional cost for the asphalt that we've been placing so we meet the obligation of this provision and they know it's time material because when they gave us their first when we went to them asking for it they gave us a time and material field director they refused to give us any additional so we did what we could do which was to give them the amount of asphalt additionally that replacing every day that's an uncontroverted allegation in the affidavit and at the end of the period as this provision requires within five business days we were less than five business days the twentieth was not by it's five days after the fifteenth but we had additional time because there's a weekend in there so within the time limited in this provision we gave them a complete summary of our additional pricing probably our additional cost which was the detail pricing we met the obligation of the contract to the letter and the co refused to consider that and i'm not sure that you're understanding me by that but this this is a difficult contract to read and difficult contract to deal with and my answer just to your question is that five point four doesn't govern this five point six this one sentence in five point six governs is the only sentence that governs and we met this the requirements of five point six the sentence i'm reading you we met the requirements of that sentence to good morning may it please the court kelly camera on behalf of the lasalle group as an initial matter there's no dispute that michigan law governs this matter and furthermore there is no dispute that under michigan law a clear and unambiguous terms of a contract must be enforced as written here as your honour's indicated this is a fixed price contract which its terms govern the relationship of the parties but there was a window within the contract for th just told us about that you could adjust the price the contract certainly sets five when arctic well all of five point article five deals with changes or claim procedures for the contract five point six is one provision of the contract dealing with those issues so it does allow for price changes i mean we know it's fixed price but now we're going to talk about the galaxy only there is a very specific procedure set forth in the contract for price changes now you just heard your brother in here lay out why he's convinced that they did meet the contract terms with respect to this additional asphalt  sentance bear any weight well first of all there are a couple of steps here and number one when you look at the provisions of five point two and five point four there has to be an agreement in writing of performing the work or starting the work at issue that indeed gerken will be paid extra compensation for that particular work well that's it that says there has to be that agreement in writing before the work begins if in fact there's to be an increase in the contract price so that fixed contract price but that's different from a field directive and five point six it says or the like which could be just an oral directive that would contemplate that we're asking you to do more that goes beyond the sum contract salut lee and we're asking you to do more and we're going to pay you for that more and even in the situation where  it's not an extra work or a change but we're asking you to do more as you're indicating you're going to stall obligated to within five days of that request after admission whatever it may be by lascelle burkett as obligated within five days to submit a written plame or that change for the additional and they said they didn't they did not do that no no document has been produced where and gerken says we're going to use extra asphalt seven in that letter gherkin indicates to list cell that because temperatures are going to be below forty degrees gerken cannot be responsible for warranting the work because they can't isn't the letter right i don't think that's the letter counsel just mention to all the other letter that he is referring to as a december twentieth player and that letter was the minute after gerken left the project but within the five to seven day time range under five point six well first again is it within the five days they submitted a letter within the five days so what's the problems point to what are the shortcomings absolutely what we've just been told absolutely first of all the letter was submitted in five days it was a letter there was no supporting documents we should it's the problem is it's a letter it rather than a what there should have been the instead there should have been detailed price information supporting allegedly asphalt over jets gerken at no point on the project requested lascelle to authorize an increase in the quantity of asphalt use and or should we discount the what we're told about the field directive and the gentleman on the job who knew and they notified him each day are you telling us that that matters not with respect to the field directive the field directive was for a very very specific area it was laid out exactly on the plans you know from the two x point and it kept the time and materials for that particular section of the project at four thousand dollars or five point six isn't limited to field directives i think that would judge cook is talking about is that the allegations that are that appear by affidavit that the lasalle representatives on the site knew that additional asphalt would be needed and authorized the use of the directed them to use the additional asphalt and five point six says and the like it doesn't what is that supposed to mean it doesn't refer specifically to feel directives one would think that that could reasonably compas oral directives on the site again there's nothing in the record indicating that authorized additional asphalt nothing absolutely has been produced to that effect and again so if that's what your point but that's where you'd like to hang your hat is that the f a david deposition testimony of perkins representatives birkin's representatives testified at their deposition their their area manager mr yoakum testified that nothing was the mid to low was on the project asking for additional asphalt nothing no request at any point in december twentieth letter is the very first time anything was submitted i said no written request was submitted but it he said that  understood on the job i mean how does how does the construction project work you're on the site you realize that you need additional asphalt because you've been pushed into a new time frame you expect everybody go home sit down and write letters to each other well understand your honor but i think it's very telling in this case is gerken didn't go home and it did sit down and write letters every single day that gherkin asserts that the paving the weather was out of spec it wrote a letter to low sell it said it's below forty degrees we can't warrant the work and we want you to sign off on this to say that you'll warrant the work they wrote these letters each day yet there was zero mention in any one of these letters that also we're going to be using extra quantities of asphalt and you've that way they absolutely could have but it way you make a point that they could have done it that way in the question before us is but the way they did do it does it suffice absolutely none by the field directive in working with the gentleman on the job well there's no field directive there's no field directive i think what we have to do is we have to look at section five in total which very specifically says unless otherwise directed by contractor in writing any increase or decrease in the subcontract price resulting from any changes shall be agreed upon in writing by the parties here too in advance of performing the work therefore unless otherwise directed list sell in writing had to agree in writing to any contract price increase before and started the work five point four further specifically provides any claim for an increase in the sub contract price based upon contractors written or verbal order or other act or omission is there a difference between an increase in a sub contract price meaning a price for a given set of work and an increase in work that therefore might result in a time and material increase that's very different yes there are two different things and that's exactly what right so i think we're we need to be looking at five point six well we're not talking about a name crease in the sub contract price for necessarily extra work as i was indicating it's either based on the verbal or written order of lascelle or another act or a mission of contractor which could be saying hey you need to continue with your paving and by the way this is all based contract work work and was responsible for this paving it was an extra work as as your honour's indicating what five point four requires is again whether it's a change order or not the request or sation must be made by subcontractor to contractor in writing within five working days from the date of the claimed order act or omission did the original subcontract contemplate an amount of asked well what it does is based on the bid documents that it's provided the plans and specifications gerken calculates its bed now doesn't necessarily know what perkins planned quantities are that something that can would do internally  obviously proceed accordingly now in this case girkins bed documents were extremely limited i think they produced two pages in response to less else discovered requests and it's also important to note that for the days that were above forty degrees americans representatives testified and acknowledge that indeed gerken did go over its planned asphalt quantities on those days as well so every single day that gergen was on this project it exceeded what it had expected to use so when you're looking at five point six in the very first sentence of it well first sentence that i'm looking i'm not sure that the first sentence of the  section to the extent that was cell requests that extra work be performed your position as i understand it is but so it wasn't requesting any extra work it was simply a question of how much material is it going to take to perform the work that can bid on it you've got the contract for correct your honor my position is no extra work was requested certainly there were would that mean in your view that five point six doesn't apply at all here i don't believe five point six is the will section at all your honor i believe that we look at five point two five point four and five point five but even if five point six applied gerken still has not complied with its requirements  part of the problem is that it sounds like we're making a lot of you're making a lot of factual arguments and we are in a summary judgment context are we not we are so how could we resolve all of these facts or how can the trial court resolve all these facts in a summary judgment contact your honor because the contract is very clear we can talk all day about what burke and says last cell said or what did the point is pursuant to the contract a writing was required birken never submitted a writing its representatives admitted that in their deposition testimony so the material facts are undisputed it doesn't matter whether a conversation took place on the site and that's the point i mean this is the whole reason that the contract is structured the way that it is is so that we avoid this he said she said that's why writing is required as a general contractor certainly can't go and build a project and after a subcontractor is done the subcontractor comes back and says hey let's sell we used three times as much materials as we expected to use so we passed an extra two hundred thousand dollars but that's simply not worth it because the contract itself said that this site would be ready for them to lay the asphalt before a particular point in time when when the temperature drop and the site wasn't ready that's correct but the general contractor instructed them to go forward anyway well first of all the site wasn't ready you are correct there was a delay of approximately two weeks maybe three weeks and  was the only testimony on the record was a believed a soil issue that was the owners issue there was no testimony that that was lascelles fault that lasalle had anything to do with that broken is asserted that that slight delay was somehow a material breach by law sell however all of the case law says unless lasalle took some affirmative act or knew that the site wouldn't be ready that's not on list l that's not a substantial contract price it would be a non issue if it exceeded or there were other issues you know i'm speculating of course but i presume that's exactly what would have happened thank you thank you previously we understood the contract and we understood the need to get things in writing and when we were asked to pave in unsuitable conditions we alerted everybody to that fact and they dollars in the writings that they signed that were paving in unsuitable conditions and we tried to get a writing the first day that were paving in a suitable conditions and they gave us one they gave us a feel direct agaves for additional money time and materials for the work that we're doing this is extra work when you're paving out of spec and so we're there and we're working so the next day we come to them and this is all in the affidavit and we try to get another feel directive they said no don't worry about it we'll pay you so we follow up every day with a every day with a statement of how much we're over every day and then we get to the end of this and within the five days we send them the writing that's been criticized as exhibit seven it is detailed it we have type one and type two asphalt and we say as to type as to type two we're one thousand and sixty seven point five nine tons over at a price of fifty four point two five dollars per ton for a total of fifty seven thousand nine hundred  sixteen and on type one we're over by six hundred sixty five point four four tons at a price of fifty five point five zero dollars per ton for a total amount of thirty six thousand and nine thirty one ninety two how much more detail can we be we're giving the point six controls that you get that ok and you know and and as you heard judge batchelor ask the paragraph begins with that it that it controls situations where extra work of requests for extra work being performed correct and this extra work yes it's actually is it extra work the work you contract that's where i get hung up here the work you contracted to do was to pave this whole area that was the work yes now the materials you were supposed to estimate that you could you did you put a bid you were clearly wrong even in good weather you were clearly wrong so the bid was inaccurate well we weren't judge we weren't necessarily wrong in  have been trouble in the first two days that we're paving and and we're adjusting to the site that we have and so we ran over ago but that doesn't mean that we didn't estimate correctly it just means that getting started on the first couple of days we ran over bit no it least that there were some problems with the estimate relative to some good weather as well as the problems which cropped up as a result of the bad weather i would risk but i don't understand why there isn't a distinction under five point six between extra work and extra material let me explain to you ives extra work when we planned to do the work we understood that we would be paving in accordance with the ohio department of transportation specifications and they tell you specifically that you're going to pay within a certain temperature range and that you're not going to pave with another temperature range when sal comes to us and tells us that there were going  be paving on frozen ground this is not the contract that we agreed to this is extra work this is something new and we didn't we didn't ask for money for the additional labor we didn't ask for the money for additional equipment time we could have at that went the whole job got bigger it took longer it was harder work you had two weeks to renegotiate when they said it's going to be two weeks later i think i'm just wondering why two weeks until two weeks two to three weeks later because because we're there and they're there and bade the owner wants it pay and we're going to get it done because we're going to help them get it done and they know big that we're to have additional cost because they're signing these acknowledgments and you're hoping that they know know when we did the whole on the first day that we're paving out a spec they did give us a field director for additional funds and they said we'll give you more and then they didn't because they weren't going to so so they made a promise and we did with the contract required before we started work on the first day working out of spec we got a field a record the past additional funds and the next that were mobilized were there were working we expect to do the same thing the next day no were not given a duty so we gave them the total quantity over every day and when we're all done we gave them the december twentieth letter which shocked them