“[W]e give effect to the plain language of the contract.”
How later courts described this case
- “[W]e give effect to the plain language of the contract.”
Written by the judges who cited it.
The opinion
Ray Thornton, Justice, dissenting. I can find no provision in the contract for payment of engineering fees except upon the condition that such payments become due during construction of the project. Constmction work on this project did not commence. Because I believe that the language in the contract precludes payment to Mr. Perkins unless work on the project commenced, I must respectfully dissent.
The pertinent language from the contract is as follows:
SECTION B — COMPENSATION FOR ENGINEERING SERVICES
1. The OWNER shall compensate the ENGINEER for design and contract administration engineering services in the amount as shown in Attachment i.
When Attachment 1 is used to establish compensation for the design and contract administration services, the actual constmction costs on which compensation is determined shall exclude legal fees, administration costs, engineering fees, land rights, acquisition costs, water costs, and interest expense incurred during the constmction period.
2. The compensation for preliminary engineering services, design and contract administration services shall be payable as follows:
(a) A sum which equals eighty percent (80%) of the compensation payable immediately after the constmction contracts are awarded.
(b) A sum equal to fifteen percent (15%) of the compensation will be paid on a monthly basis for general engineering review of the contractor’s work during the constmction period on percentage ratios identical to those approved by the ENGINEER as a basis upon which to make partial payments to the contractors). However, payment under this paragraph and of such additional sums as are due the ENGINEER by reason of any necessary adjustments in the payment computations will be in an amount so that the aggregate of all sums paid to the ENGINEER will equal ninety-five (95%) of the compensation. A final payment to equal 100 percent shall be made when it is determined that all services required by the Agreement have been completed except for the services set forth in Section A-20 hereof. [Emphasis added.]
We have explained that when contracting parties express their intention in a written instrument in clear and unambiguous language, it is our duty to construe the written agreement according to the plain meaning of the language employed. C & A Constr. Co. v. Benning Constr. Co., 256 Ark. 621 , 509 S.W.2d 302 (1974).
Applying that principle to the case now before us, I believe that the plain language of the contract provides that Mr. Perkins would not be compensated unless certain events occurred. First, section B1 of the contract provides that “[t]he OWNER shall compensate the ENGINEER for design and contract administration engineering services in the amount as shown in Attachment 1.” A review of attachment 1 reveals that the fee schedule for basic engineering services is based on “total actual construction cost.” According to the clear language of the contract, Mr. Perkins’s compensation is based upon total actual construction costs. There were no actual construction costs, and therefore, Mr. Perkins is not entitled to compensation for a project that was never built.
Next, according to Section B2(a), Mr. Perkins, as engineer, would be entitled to “[a] sum which equals eighty percent (80%) of the compensation payable immediately after the construction contracts are awarded.” In this case, a construction contract was not awarded. Thus, Mr. Perkins was not entitled to compensation pursuant to Section B2(a).
Finally, Section B2(b) provides that Mr. Perkins would be compensated for reviewing the “contractor’s work during the construction period.” Because there was no construction project for Mr. Perkins to review, he was not entitled to compensation under this provision of the contract.
After reviewing the plain language of the contract, I believe that Mr. Perkins was not entitled to payment because the events that would give rise to his compensation never occurred. Accordingly, I would reverse the trial court.
I respectfully dissent.