October 1, 1979. Rehearing and Rehearing En Banc Denied October 29, 1979.
Robert A. Huffaker, Montgomery, Ala., for plaintiffs-appellants.
J. Pelham Ferrell, Phenix City, Ala., Herbert I. Burson, Jr., Asst. Atty. Gen., Montgomery, Ala., for defendants-appellees.
James W. Webb, Montgomery, Ala., for Russell County.
Philip C. Davis, Asst. Counsel., Ron J. Bowden, Asst. Counsel, Dept. of Revenue, Montgomery, Ala., for Boswell.
Appeal from the United States District Court for the Middle District of Alabama.
Before COLEMAN, RONEY and FAY, Circuit Judges.
This case is one of the progeny sprung from the decision of a three-judge panel in Weissinger v. Boswell, 330 F. Supp. 615 (M.D.Ala. 1971), which invalidated the Alabama property tax structure and generated a massive reappraisal effort in every county in the State. At issue here is the interpretation of one clause of a contract for the reappraisal of property in Russell County, Alabama.
On April 27, 1973, Russell County, with the approval of the Alabama Department of Revenue, executed a "State of Alabama Uniform Contract Articles of Agreement" with John E. Green for Green to accomplish the reappraisal for that county. Green sub-contracted the entire performance to Cole-Layer-Trumble Co. (CLT), a large mass-appraisal firm. In dispute is the proper interpretation of paragraph IC of this agreement, which reads as follows:
C. STARTING AND COMPLETION DATES
Work on the project shall start no later than 30 days from the date this contract is approved by the commissioner. All appraisals, maps, records, cards, lists of property owners, and other materials required and used in this project, shall be furnished by the contractor, except property records and index cards which will be furnished by the State, and shall remain at all time the property of the county. The contract will not be completed until such time as all work, review and hearings, and corrections have been completed to the satisfaction of the department, including the reconciliation of the county's current property tax returns with the appraisal cards and county maps prepared by the appraisal firm in such a manner as to account for all parcels of real property in the county, and all records shall have been completed and handed to the assessor; provided, that appraisal of all property under construction and transfers of property prior to 45 days before the completion date stated below will be the responsibility of the company under this contract.
This contract shall be completed not later than the 1st day of March, 1975.
Specifically, the parties disagree upon the appraisers' responsibility to "update" the appraisal, i. e., to make the final work product reflect all new construction and property transfers occurring up to 45 days before the completion date of the appraiser's work.
Another paragraph of the contract imposed liquidated damages of $100 per day for each day that the company exceeded the contract date of completion. Although the interpretation of that provision was debated in the district court, it is not at issue here.
Appellants failed by many months to meet the contract completion date of March 1, 1975. When it became apparent that the work could not be completed by March 1, 1975, Green and representatives of CLT held several meetings with the Russell County Commission seeking an extension of the completion date. On April 2, 1975, the appraisers, meeting with the Commission, requested an extension until January 16, 1976, and a waiver of the liquidated damages of $100 per day. In return they offered to update their work to within 45 days of the extended completion date. Later in April, after the March 15 completion date but before the Commission had acted on the proposed amendment, CLT sought an extension of the 45-day period to 90 days on the grounds that the 45-day period would begin after informal hearings were completed. Accordingly to CLT's General Counsel, CLT's planning schedule called for informal hearings in Russell County between October 27 and November 21, 1975, with all mapping and appraisal to be completed as early as September 12, 1975. Adhering to the 45-day requirement, CLT contended, would require the appraiser to record transfers and improvements after those hearings and would thus require additional hearings. In late April or early May 1975, the Commission denied the appraisers' request for amendment. Green and CLT continued to perform their appraisal work, paying the County liquidated damages of $100 per day. However, they did not do any update work.
In response to a hypothetical question concerning an appraiser's liability for updating, a Revenue Department internal memorandum of January 15, 1975, gave the Department Chief Counsel's opinion that the appraiser was only obligated to update to within 45 days of the completion date stated in the contract, even though the actual completion date was somewhat later. This position was conveyed to the Department's District Supervisors. Nevertheless, according to deposition testimony, the Russell County Commission consistently refused to accept the interpretation made by the Department of Revenue. A subsequent formal opinion issued by the Alabama Attorney General in September 1976 rejected the Revenue Department's view and agreed with the position maintained by Russell County. Faced with the Attorney General's opinion, Green and CLT instituted this declaratory judgment action in the District Court.
The District Court determined that it was the responsibility of Green and CLT, at their expense, to appraise all property under construction and transfers of property prior to 45 days from the completion of their work. Green and CLT appeal this decision, asserting that appellees are estopped to require updating to the actual completion date, that the contract does not require an update to the actual completion date, and that there was no implied contract to perform the update to the actual completion date.
This case was tried in the District Court entirely on depositions, affidavits, and documents. Although we have noted that in such a circumstance the burden of establishing clear error is not so heavy as in the normal case, our review of the factual findings is nevertheless governed by the clearly erroneous standard. Cooper v. Department of the Navy, 5 Cir. 1979, 594 F.2d 484, 486; Petition of Geisser, 5 Cir. 1977, 554 F.2d 698, 705; Sicula Oceanica, S.A. v. Wilmar Marine Engineering and Sales Corp., 5 Cir. 1969, 413 F.2d 1332, 1333-34. See also McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Fed.R.Civ.P. 52(a). We have likewise observed that where the legal conclusions of the trial judge may reasonably be inferred from the record, "such conclusions should not be disturbed on appeal . . . even though conflicting inferences of equal reasonableness may be drawn from a review of the same body of evidence." McKensie v. Sea Land Service, Inc., 5 Cir. 1977, 551 F.2d 91, 92, quoting Skidmore v. Grueninger, 5 Cir. 1975, 506 F.2d 716, 724.
After carefully reviewing the entire record and applying these considerations to the findings and conclusions of the three-judge panel, we are of the opinion that those findings and conclusions are not clearly erroneous. We note that the Alabama Supreme Court has recently reiterated that state's position that in reviewing contracts, courts are to "accord them a reasonable construction under the terms used by the parties who made them, and when the contracts contain several provisions, all are construed together so that a harmonious operation can be given to each provision as far as the language used will permit." United States Fidelity Guaranty Co. v. Jacksonville State University, 357 So.2d 952, 955 (Ala. 1978). Accordingly, we affirm the judgment of the District Court on the basis of the trial court's opinion, the relevant portions of which are attached hereto as an appendix.