                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT             FILED
                            ___________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                    No. 05-12136                           APRIL 26, 2006
                            ____________________________                 THOMAS K. KAHN
                                                                              CLERK
                       D.C. Docket No. 03-00041-CV-J-32-TEM


MARTIN K. EBY CONSTRUCTION CO., INC.,

                                                           Plaintiff-Appellant,

                                            versus


JACKSONVILLE TRANSPORTATION AUTHORITY,
a body politic and corporate,

                                                           Defendant-Appellee.

                             ____________________________

                      Appeal from the United States District Court
                           for the Middle District of Florida
                           _____________________________

                                        (April 26, 2006)

Before ANDERSON and DUBINA, Circuit Judges, and Albritton*, District
Judge.


       *
        Honorable William H. Albritton, III, United States District Judge for the Middle District
of Alabama, sitting by designation.
ALBRITTON, District Judge:


      Appellant Martin K. Eby Construction Co., Inc. (“Eby”) appeals the district

court’s judgment against it in this case involving a dispute between Eby and

Jacksonville Transportation Authority (“JTA”). Eby is a Kansas-based private

contractor. JTA is an independent state agency that provides transportation

services for Duval County, Florida.

      The district court conducted a nine day bench trial in December 2004 and

heard closing arguments in January 2005. The district court found for JTA on all

of Eby’s claims in a thorough and well-reasoned eighty-eight page findings of fact

and conclusions of law.

      After reviewing the record and the parties’ appellate briefs, and hearing oral

argument, for the reasons discussed below, we affirm the district court’s judgment.

                               I. BACKGROUND

      The dispute in this case arises from construction of part of the Wonderwood

Connector in Jacksonville, Florida. Eby was the winning bidder for the portion of

the project which required construction of one bridge to span Greenfield Creek

and another to span the Intercoastal Waterway and Pablo Creek.

      The issues in this case arise from the temporary access structures which



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were required in order to construct the bridges. Information available to

contractors during the bidding process which was relevant to temporary structures

was found in various documents which comprised the contract documents,

including special contract provisions, environmental permits, and written

contractor questions and answers. Soil boring information, also incorporated as

part of the contract documents, revealed that there were areas of very soft soil on

the construction site which in some places went to a depth of 45 feet.

      Plan sheet drawings provided by JTA also contained information relevant to

temporary structures and was incorporated into the contract documents. The plan

sheets showed dirt haul roads and fingers formed by placing fill on top of filter

fabric at both Greenfield Creek and Pablo Creek. The plan sheets did not state

that they were not to be used as a design for temporary access structures.

Information about temporary structures also was incorporated into the contract

documents from a Florida Department of Transportation standard specification

which provided that if conditions are encountered at the site differing materially

from those indicated in the contract, or if unknown physical conditions of an

unusual nature differing materially from those ordinarily encountered and

generally recognized as inherent in work provided for in the contract are

encountered at the site, if it is determined that the conditions materially differ and

                                           3
cause an increase or decrease in the cost or time required for the performance of

the work under the contract, an adjustment will be made.

      Eby submitted a request to JTA, which was approved, to make some

changes, including flipping the temporary access road reflected in the plan sheets

from the south side to the north side of Greenfield Creek. Eby characterizes these

changes as cost-saving measures.

      Once it began construction of the project, Eby determined that the soft soils

it encountered would require temporary access structures to be constructed

differently than Eby had anticipated in formulating its bid. When Eby reached the

Pablo Creek area of the project, it decided that the soil conditions necessitated

dredging and reliance on barges for access, rather than building temporary access

structures. Marine-based construction, however, presented inefficiencies because

Pablo Creek became too shallow for barges at low tide.

      Eby contends that JTA misled bidders into believing that the construction

site could be accessed using temporary roads as reflected in the plan sheets of the

contract documents, and that Eby formulated its bid based on JTA’s plan sheets

regarding temporary access structures. At trial, Eby sought over $10 million in

damages relating to costs, inefficiencies, and losses incurred in accessing the

construction site in and over water and soft soils.

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                                      II. ISSUES

         Eby challenges the district court’s findings of fact and conclusions of law

by raising the following issues on appeal: whether it was proper for the district

court to limit its evaluation of Eby’s differing site conditions claim to a “Type II”

claim analysis; whether the district court properly disregarded the quantity-based

payment provisions in the contract in deciding Eby’s quantity claim; whether

Eby’s inclusion of possible cost-saving ideas within its bid precluded Eby from

asserting contract claims based on differing site conditions or any other

inadequacies or defects in the contract documents; whether the district court’s

factual determination in support of its conclusion that Eby failed to demonstrate

reasonable reliance on the contract documents was clearly erroneous; and whether

the district court properly disregarded Florida law, construction industry custom,

and public policy in evaluating Eby’s claims. Eby contends that four of these five

issues challenge a conclusion of law, rather than a finding of fact, by the district

court.



                          III. STANDARDS OF REVIEW

         We review de novo a district court’s conclusions of law and its application

of the law to the facts. Merrill Stevens Dry Dock Co. v. M/V Yeocomico II, 329

                                            5
F.3d 809, 813 (11th Cir. 2003). We review a district court’s factual findings for

clear error. Commodity Futures Trading Comm’n v. Sidoti, 178 F.3d 1132, 1135

(11th Cir. 1999). “If the district court's account of the evidence is plausible in

light of the record viewed in its entirety, we must uphold the factual findings even

if we would have weighed the evidence differently.” Id. (internal quotations and

citation omitted).

                                IV. DISCUSSION

      Eby’s first contention on appeal is that the district court improperly

evaluated its differing site condition claim as a matter of law. Eby points to the

language incorporated in the contract documents from a standard specification,

which is set out above, and draws a distinction between two clauses in that

language. Eby describes the first clause as defining a “Type I” claim, and the

second as defining a “Type II” claim. According to Eby, a so-called “Type I”

claim is a claim that latent conditions differed materially from those indicated in

the contract documents, and a so-called “Type-II” claim is a claim that unknown

physical conditions of an unusual nature differ materially from those ordinarily

encountered and generally recognized as inherent in the construction provided for

in the contract documents. Eby states that the district court analyzed the claims

brought by Eby only as “Type II” claims.

                                           6
      It does not appear that the “Type I” and “Type II” nomenclature was

employed by the district court or the parties at trial. In its lengthy and thorough

findings of fact and conclusions of law, however, the district court noted the two

types of differing site condition claims. The district court acknowledged Eby’s

argument that the extent of the soft soil issues could not be determined from the

surface because the soil behaved differently than expected, but the district court

concluded that the soil boring information incorporated into the contract

documents and the contractually required site inspection revealed wet and marshy

conditions consistent with what Eby encountered. Within this determination is

also a determination, relative to a so-called “Type I”claim, that the contract itself

“indicated” the soil conditions. The district court concluded that the differing site

conditions claim was just another way to argue a constructability or superior

knowledge claim. In evaluating these claims, the district court made credibility

determinations; considered and made detailed findings with respect to the

testimony of multiple witnesses at trial, including expert witnesses; and made

detailed findings with respect to contract documents and photographs. Therefore,

the district court did not fail to analyze both types of site conditions claims, but

instead made findings of fact and conclusions of law with respect to both types of

differing site condition claims, and Eby has not demonstrated that the district

                                           7
court’s findings as to either of the different site conditions claims are clearly

erroneous. Eng’g Contractors Ass'n of S. Fla., Inc. v. Metro. Dade County, 122

F.3d 895, 904 (11th Cir. 1997) (explaining that the clearly erroneous standard

applies equally to fact findings which rest on physical or documentary evidence

and credibility determinations).

      Eby’s second argument on appeal is that the district court improperly

disregarded the quantity-based payment provisions in the contract and improperly

applied a reliance analysis when deciding Eby’s quantity claim. Eby states that the

district court improperly incorporated the quantities claim into its analysis of

Eby’s constructability/superior knowledge claims.

      The district court specifically analyzed the scope of any breach of contract

claim being asserted. The district court reviewed the Amended Complaint, Eby’s

summary judgment motion, and Eby’s Proposed Findings of Fact and Conclusions

of Law, and determined that Eby’s breach of contract claim was just part of the

constructability/superior knowledge claims.

      We have reviewed the record with respect to the quantities claim as defined

by Eby on appeal. While there is a reference to quantities in JTA’s Revised

Proposed Findings of Facts and Conclusions of Law, in the Revised Proposed

Findings of Facts and Conclusions of Law submitted to the trial court by Eby,

                                           8
there is no request for damages based on a breach of the quantities remedy

provision of the contract. Instead, the issue of quantities is linked to other claims.

The transcript of the closing arguments at trial also does not reveal a request for

damages based on a separate quantities claim. Eby presented some evidence of

quantities at trial, but the thrust of the arguments raised before the district court

was that the specification of quantity in the contract had bearing on whether the

plan sheets contained design or performance specifications, not that there was a

separate quantities claim. Because the quantities evidence was presented as

evidence in support of other claims, the relevant findings before us for review are

findings with regard the constructability/superior knowledge claims, not a separate

quantities claim. We discuss below Eby’s argument that the district court’s

conclusion with respect to reasonable reliance in the analysis of the

constructability/superior knowledge claim was clearly erroneous.

      Eby’s next issue on appeal is whether the district court properly determined

that Eby’s inclusion of possible cost-saving ideas precluded Eby from asserting

contract claims based on differing site conditions, or any other inadequacies or

defects in the contract documents. Eby argues that its incorporation of cost-saving

ideas at Greenfield Creek ought not be held against it in its attempt to recover

under the contract.

                                           9
      Whether or not cost-savings is a good idea as a matter of policy does not

preclude as a matter of law the district court’s consideration of Eby’s actions as

evidence in its analysis of all of the evidence of reasonable reliance. The finding

of no reasonable reliance, which took into account evidence of Eby’s conduct, is a

factual, not a legal determination.

      As stated above, Eby separately challenges the district court’s factual

determination that Eby failed to demonstrate reasonable reliance on the contract

documents. Eby states that this finding is not supported by substantial evidence.

Eby specifically contends that the district court made the following findings which

were not supported by substantial evidence in the record: that Eby could not have

reasonably determined that the plan sheets presented a design specification, that at

the time it submitted its bid Eby knew the temporary access structures would

require additional reinforcement, that Eby failed to seek clarification of the

inconsistencies in the contract, and that reliance was unreasonable because the

defect in the contract documents was obvious. Eby’s argument essentially is that

the district court focused too narrowly on some record evidence and did not

properly account for other testimony and evidence.

      As stated above in connection with the district court’s findings with respect

to the differing site conditions claims, the district court made credibility

                                          10
determinations, considered and made detailed findings with respect to the

testimony at trial, and made detailed findings based on contract documents and

photographs. Based upon our review of the briefs on appeal and the oral

arguments, the district court’s detailed findings of fact and well-reasoned

conclusions of law, and our review of the trial transcript, we conclude that the

district court’s factual findings are plausible in light of the entirety of the record.

Sidoti, 178 F.3d at 1135.

      Eby finally contends that the district court inappropriately disregarded

Florida law, construction industry custom, and public policy in evaluating Eby’s

differing site conditions and quantities claims. Eby states that the district court

failed to apply the differing site conditions and quantities provisions of the

contract documents. As already discussed, however, the district court did not

disregard Florida contract law, but made findings of fact and conclusions of law

with respect to both types of differing site conditions claims, and the district court

was not called upon to decide a breach of contract claim under the quantities

provisions of the contract.

                                 V. CONCLUSION

      For the forgoing reasons, we affirm the judgment of the district court.

      AFFIRMED.

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