United States District Court, D. South Dakota, Western Division
SOUTH DAKOTA BOARD OF REGENTS on behalf of BLACK HILLS STATE UNIVERSITY, Plaintiff and Counterclaim Defendant,
GLOBAL SYNTHETICS ENVIRONMENTAL, LLC, D/B/A GEO-SURFACES, Defendant, Counterclaim Plaintiff and Third-Party Plaintiff,
MIDSTATE RECLAMATION S.D., INC.,
JEFFREY L. VIKEN, CHIEF JUDGE.
South Dakota Board of Regents, on behalf of Black Hills State
University (“BHSU”), filed a motion for partial
summary judgment, a statement of undisputed material facts
with supporting exhibits and a supporting brief against
defendant Global Synthetics Environmental, LLC,
(“GSE”). (Dockets 40-41 & 43-44). GSE filed a
brief in resistance to BHSU's motion, together with a
response to plaintiff's statement of undisputed facts
with supporting exhibits. (Dockets 45-46 & 48). Plaintiff
filed a reply brief in support of its motion. (Docket 49).
For the reasons stated below, BHSU's motion for partial
summary judgment is granted.
filed a cross motion for summary judgment against BHSU
together with a statement of undisputed material facts with
supporting exhibits and a supporting brief. (Docket 54-57).
BHSU filed a brief in resistance to GSE's motion together
with a response to defendant's statement of undisputed
facts with supporting exhibits. (Dockets 78-84). GSE filed a
reply brief in support of its motion. (Docket 85). For the
reasons stated below, GSE's motion for summary judgment
is granted in part and denied in part.
Defendant Midstate Reclamation SD, Inc.,
(“Midstate”) filed a motion for summary judgment
against GSE together with a statement of undisputed material
facts and a supporting brief. (Dockets 58-60). GSE filed a
brief in resistance to Midstate's motion together with a
response to the statement of undisputed material facts with
supporting exhibits. (Dockets 70-72). Midstate filed a reply
brief in support of its motion. (Docket 76). For the reasons
stated below, Midstate's motion for summary judgment is
Defendant FMG, Inc., (“FMG”) filed a motion for
summary judgment against GSE together with a statement of
undisputed material facts and a supporting brief. (Dockets
63-65 & 67). GSE filed a brief in resistance to FMG's
motion together with a response to the statement of
undisputed material facts with supporting exhibits. (Dockets
73-75). FMG did not file a reply brief in support of its
motion. For the reasons stated below, FMG's motion for
summary judgment is denied.
filed a complaint against GSE in state court. (Docket 1-1 at
pp. 5-11). GSE timely removed plaintiff's complaint from
state court. (Docket 1). GSE filed an answer and
counterclaim. (Docket 6). BHSU filed a reply to the
counterclaim. (Docket 7).
filed unopposed motions for leave to file third-party
complaints against Midstate and FMG. (Dockets 17 & 22).
The court granted the motions. (Dockets 20 & 26). GSE
filed third-party complaints against Midstate and FMG.
(Dockets 24 & 27). Midstate and FMG filed their answers
to the third-party complaints. (Dockets 29 & 35). The
court entered a scheduling order setting deadlines for the
completion of all discovery and filing substantive motions.
(Docket 39). The parties' motions for summary judgment
were all timely filed.
Fed.R.Civ.P. 56(a), a movant is entitled to summary judgment
if the movant can “show that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). Once
the moving party meets its burden, the nonmoving party may
not rest on the allegations or denials in the pleadings, but
rather must produce affirmative evidence setting forth
specific facts showing that a genuine issue of material fact
exists. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). Only disputes over facts that might affect
the outcome of the case under the governing substantive law
will properly preclude summary judgment. Id. at p.
248. “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Id. at 247-48
(emphasis in original).
dispute about a material fact is genuine, that is, if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party, then summary judgment is not
appropriate. Id. However, the moving party is
entitled to judgment as a matter of law if the nonmoving
party failed to “make a sufficient showing on an
essential element of her case with respect to which she has
the burden of proof.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In such a case,
“there can be ‘no genuine issue as to any
material fact, ' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at p. 323.
determining whether summary judgment should issue, the facts
and inferences from those facts must be viewed in the light
most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986). The key inquiry is “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477
U.S. at pp. 251-52.
following recitation consists of the material facts developed
from the complaint (Docket 1-1 at pp. 5-11), the third-party
complaints (Dockets 24 & 27), the parties' answers
(Dockets 6, 29 & 35), the parties' statements of
undisputed material facts (Dockets 44, 55, 59 & 65), the
parties' responses to opposing parties' statements of
undisputed material facts (Dockets 46, 72, 74 & 79) and
other evidence where indicated. Where a statement of fact is
admitted by the opposing party, the court will only reference
the initiating document. These facts are “viewed in the
light most favorable to the [party] opposing the
motion.” Matsushita Elec. Indus. Co., 475 U.S.
at 587. The facts material to the parties' motions for
summary judgment are as follows.
South Dakota Board of Regents is a South Dakota governmental
entity with the power to sue and be sued on behalf of those
educational institutions under its control, including Black
Hills State University. (Docket 1-1 at p. 5 ¶ 1). BHSU
is a state university located in Spearfish, South Dakota.
Id. ¶ 2. Global Synthetics Environmental, LLC,
is a Louisiana corporation with its principal place of
business in Baton Rouge, Louisiana. Id. ¶ 3.
Midstate Reclamation, Inc., is a Minnesota corporation with
its principal place of business in Lakeville, Minnesota.
(Docket 24 ¶ 4). FMG, Inc., is a South Dakota
corporation consisting of a multi-discipline engineering
consulting firm in Rapid City, South Dakota. (Docket 27
30, 2013, BHSU and GSE entered into a contract
(“Contract”) in which GSE would provide the
labor, materials and equipment to install an artificial
sports field consisting of a GeoGreen infilled replicated
grass field on a GeoFlo drainage and shock attenuation
blanket over a cement stabilized deck which was to perform as
a vertical-to-horizontal draining synthetic turf system at
BHSU's Lyle Hare Field (the “Project”).
(Docket 1-1 at p. 6 ¶ 4; see also Dockets 24
¶ 7; 27 ¶ 8 & 44 ¶ 4). The pertinent
documents include the Contract, GSE's Proposal of May 13,
2013, the Design and Build Installation Guide Specifications,
GSE's Warranty, and GSE's Maintenance Requirement
Manual (the “Contract documents”). (Docket 44 ¶
artificial turf system contracted for is a
vertical-to-horizontal draining system comprised of the
following layers, from top to bottom:
a. Rubber infill;
b. Sand infill;
c. Artificial grass or turf;
d. Backing layer;
e. Drainage and shock attenuation blanket; and
f. Base course consisting of a “cement stabilized
(Docket 44 ¶ 9).
soil stabilization (“cement stabilization”) is a
commonly used method of improving the overall strength and
stability of soils for use as a base, similar to granular
material or aggregate bases. Id. ¶ 10. The
process of stabilizing soil involves mixing a certain amount
of cement with an amenable soil type which causes a chemical
reaction to create a hard, impervious product. Id.
¶ 11. Cement stabilization is not appropriate for all
soil types. Id. ¶ 12. A “mix
design” is typically utilized before starting
construction to determine whether cement stabilization is
appropriate and, if so, the type and amount of ingredients
required to achieve a desired result. Id. ¶ 13;
see also Docket 59 ¶ 14. The mix design
procedure recommends the soil to be stabilized be tested for
pH, organic content and plasticity. (Docket 44 ¶ 14;
see also Docket 59 ¶ 15). GSE determined it
could achieve a proper cement stabilized deck with eight
percent cement if the plasticity index of the soil material
is acceptable or as determined by a geotechnical engineer.
(Docket 44 ¶ 16).
required BHSU to hire an engineering firm to conduct soil
tests GSE wanted performed in order to determine if a cement
stabilized deck could be utilized in the field. Id.
¶ 17. FMG was hired by BHSU for the Project.
Id. ¶ 18. On May 10, 2013, GSE instructed FMG
as to the tests GSE wanted performed to determine if cement
stabilization was appropriate on the Project. (Docket 44
¶ 18; see also Docket 59 ¶ 11)
(“Charles Dawson of GSE told FMG what to test
for.”). FMG had no prior experience in cement soil
stabilization. (Docket 65 ¶ 7). FMG was not asked to do
a cement mix design or a soil stabilization
test. Id. ¶ 6. FMG sent a proposal
to BHSU itemizing the tests requested by GSE and the total
cost. Id. ¶ 2; see also Docket 75-1.
17, 2013, GSE received FMG's report of the test results.
(Docket 44 ¶ 19). FMG's testing was correctly
conducted, the results were accurate and fell within the
reasonable values which should be expected for the soil at
the Lyle Hare Field. (Docket 65 ¶ 4). Based on FMG's
report, it was not possible to determine whether the soil was
suitable for cement stabilization. (Docket 59 ¶ 37).
knew cement stabilization would not work in soil containing
organic material. (Docket 43-5 at p. 49:2-12). GSE did not
test the soil for organics. Id. at p. 95:17-19. GSE
was responsible for the mix design. Id. at p.
125:17-19. Although a mix design is customarily performed on
projects like the Lyle Hare Field Project, no mix design was
utilized by GSE for the Project. (Docket 44 ¶ 15;
see also Docket 59 ¶ 16). GSE concluded the
soil was acceptable for cement stabilization. (Docket 44
¶ 17; see also Docket 59 ¶ 4). The cement
stabilization process was intended to make the soil a
suitable subgrade to support the artificial turf surface on
the field. (Docket 44 ¶ 10). After receiving FMG's
report, GSE represented to BHSU that the soil at Lyle Hare
Field could be properly stabilized using the concentration of
cement contained in GSE's May 13, 2013, proposal and the
Contract of May 30, 2013. (Docket 44 ¶ 22).
3, 2013, GSE received Midstate's bid to perform the
cement stabilization work. (Docket 24 ¶ 14). On June 11,
2013, Mr. Dawson provided Midstate's owner with a 2005
FMG report which included a proctor test performed on the
soil at Lyle Hare Field in that year. (Docket 24 ¶ 15).
17, 2013, GSE entered into a subcontract with
Midstate. Id. ¶ 8. Under the
subcontract, Midstate was hired to perform cement
stabilization for the Project. Id. ¶¶ 9
and 26. Midstate suggested to GSE that a pre-project mix
design be conducted. (Docket 59 ¶ 19). GSE instructed
Midstate “to put cement 8 inches deep at 8%
volume” on the field but did not indicate how GSE came
to that conclusion. Id. ¶ 20. GSE provided
Midstate with no testing information regarding the soil
organic content. Id. ¶ 34. Ultimately, whether
to use cement stabilization was GSE's decision. (Dockets
59 ¶ 9 and 72 ¶ 9).
19, 2013, Midstate's employees began the cement
stabilization process. (Docket 24 ¶ 18). Superintendent Doug
Kahnke of Midstate's cement stabilization division
immediately noticed the soil may not be appropriate for
cement stabilization. Id. ¶ 19. He suspected
the soil may contain too much organic material or may not
have sufficient other components to make the soil suitable as
a subgrade for the artificial turf surface. Id.
Mr. Kahnke never expressed his concerns to anyone. (Docket 72
the Project began it involved removing the natural grass,
attempting cement stabilization, grading,
installation of shock pad, drainage pad, turf, markings,
logo, and rubber in-fill. (Docket 44 ¶ 23). Grading and
compaction, which constituted the balance of the cement
stabilization process, were not activities performed by
Midstate. (Docket 59 ¶¶ 29-30; see also
Docket 44 ¶ 25). Midstate completed its portion of the
cement stabilization work in one day. (Docket 44 ¶ 24).
19, 2013, at the request of BHSU and GSE, FMG visited the
site to take moisture content and density tests on the
subgrade soils during the cement stabilization process.
(Docket 75-2 at p. 1). The average moisture content readings
were used by GSE “to calculate the percentage of cement
. . . required to treat . . . the subgrade soils.”
Id. After compaction of the treated subgrade soil,
FMG did density testing. Id. Light watering and
additional compaction was done and a second density test
taken. FMG was told the contractor was “targeting a
completed cement treated subgrade wet density of 104.0 pounds
per cubic foot.” Id. Both of FMG's density
tests “exceeded 104.0 pounds per cubic foot.”
Id. FMG's oral results were provided to BHSU and
GSE with a cover letter dated June 25, 2013. (Docket 75-2).
the soil after it has been stabilized can destroy the
integrity of the cement stabilization process. (Docket 59
¶ 38). GSE recognized the material should not be moved
around once the cement stabilization process begins.
Id. ¶ 40. The entire grading, or layback,
process should be completed within two hours. Id.
¶ 39. Final grading and compaction on the Project took
longer than two hours and went well into June
20. Id. ¶ 41.
grading subcontractor encountered problems and failed to
grade the field to the specifications required by the
Contract. (Docket 44 ¶ 25). In addition to the grading
problems, many soft areas (“divots”) started
appearing under the turf soon after construction.
Id. ¶ 27.
was entitled to receive an athletic field which was fully
functional and ready by the beginning of the 2013 football
season. (Docket 55 ¶ 4). On September 19, 2013,
BHSU's Athletic Director noticed some areas on the field
which were soft and needed to be addresses as soon as
possible. (Docket 57-3 at pp. 89:16-90:3). GSE agreed the
field did not meet Contract specifications and returned in
September 2013 to regrade part of the field. (Docket 44
¶ 26). GSE acknowledged it became clear there were
issues with the subgrade soil because of the divots which
were developing. (Docket 55 ¶ 6).
least three occasions in the fall of 2013, GSE attempted to
repair divots. (Docket 44 ¶ 28). Some of the
repairs did not function consistent with the expectations for
the turf surfacing, with many of the seams not bonding and
additional divots forming around the repaired
areas. Id. ¶ 29. Because of the
recurring problems with the field, BHSU withheld the final
Contract payment. Id. ¶ 30.
November 2013, GSE was concerned about the long-term
stability of the field and consulted with Midstate.
Id. ¶ 36. Midstate recommended additional
testing be performed to determine if the soil stabilization
system was working as intended. Id. GSE never
notified BHSU of GSE's concern over the cement
stabilization system or the additional testing recommended by
Midstate. Id. ¶ 37. BHSU's
football team played its 2013 home season on the field.
(Docket 57-4 at p. 72:19-21).
spring of 2014, BHSU reported to GSE that there were
continuing problems with the field. (Docket 44 ¶ 31).
GSE offered to repair the field in return for the final
Contract payment. Id. ¶ 32. On May 12, 2014,
BHSU and GSE entered into an Amendment to the Contract
Agreement (“Amendment”). Id. ¶ 6.
The Amendment required GSE to:
[C]ommence work on the Field as necessary to conform with the
specifications of the . . . Contract Agreement, which shall
be accomplished by [GSE] furnishing the necessary materials,
labor and equipment to proceed as follows:
a. Remove “infill” from the surface of the field;
b. Remove synthetic turf and shock pads;
c. Re-grade the base of the field with dual plane laser
d. Remove soft or noncompacting material and replace with
e. Make a final grade to tolerance as per specifications; and
f. Reinstall shock pad, turf, and infill.
(Docket 43-2 ¶ 3). GSE was responsible for determining
the means and methods to be utilized under the Amendment,
subject to the completion of the work according to the
Contract specifications. Id. ¶ 7; see
also Docket 44 ¶ 34. In exchange for the work to be
performed, BHSU agreed to pay GSE the final amount due under
the Contract on a progressive payment schedule. (Docket 43-2
fifth payment was due “upon completion of
grading/compaction.” (Docket 43-2 ¶ 8(F). Prior to
making the payment, BHSU hired Interstate Engineering to
verify the grading of the field by GSE. (Docket 57-4 at pp.
58:20-59:1). Interstate Engineering was asked to determine
whether the field “had been graded to elevation and
slope by [GSE] to meet certain contract
specifications.” (Docket 83 ¶ 2). William Moths is
a licensed land surveyor employed by Interstate Engineering.
Id. ¶ 1. On May 22, 2014, Mr. Moths' e-mail
to BHSU stated:
Please find the attached drawing representing the Lyle Hare
Stadium Football Field surface after regrade and prior to
placement of shock pad and turf. . . . Grades were blended
from the side lines to the drainage channels at the edge of
the track and from the end zones to the edge of the
rubberized surface at each end. I feel the [GSE] crew has
provided a sub-surface that meets or exceeds the
specifications for the project and think that you will have a
field to be proud of.
(Docket 48-4). Following receipt of Mr. Moths' e-mail,
BHSU made the fifth progress payment to GSE on May 28,
2014. (Docket 55 ¶ 29).
the Amendment the final payment was to “be paid upon
BHSU receiving confirmation from its consultant(s) that the
field conforms to the project specifications as set forth in
the Contract Agreement.” (Docket 43-2 ¶ 8(G).
There is no evidence in the record that BHSU conferred with
any other consultants before making the final payment under
the Amendment. BHSU made the final payment to GSE under the
Amendment on May 30, 2014. (Docket 55 ¶ 34). BHSU made
all of the payments to GSE required by the Contract and the
Amendment. (Docket 44 ¶ 53).
10, 2014, GSE “re-sent” to BHSU the warranty
contained in the Contract. (Docket 55 ¶ 43). The
warranty contains a “date of completion or first
use” of July 25, 2013. (Docket 57-12 at p. 3).
BHSU football team began fall practice on the field on August
14, 2014. (Docket 57-13; see also Dockets 55 ¶
44 & 79 ¶ 44). During that practice BHSU
“discovered two sink holes (soft spots) similar to the
ones . . . experienced in the past.” (Docket 57-13).
After describing the locations of the divots to GSE,
BHSU's Athletic Director asked Mr. Dawson to
“please send someone as soon as possible to fill and
repair these two areas.” Id. About August 25,
2014, GSE sent a couple of men to work on the field. (Docket
43-5 at p. 155:6-14). GSE made three trips that fall to
repair areas which were failing to meet tolerances. (Docket
43-5 at p. 179:1-5). In addition, the parties agreed Tom
Verhelst of Spearfish, South Dakota, would do minor repairs
to the field. (Docket 80-4 at p. 1). Having Mr. Verhelst
repair divots saved GSE the expense of having one of its own
employees travel to South Dakota as problems surfaced.
GSE's attempted repairs of the field were not working,
BHSU hired David L. Rettner, a geo-technical engineer with
vast experience in cement stabilization, to assess the field
and make repair recommendations. (Docket 44 ¶ 39).
Mr. Rettner conducted a site visit on August 31, 2015, and a
geotechnical investigation of the field on September 18,
2015. (Docket 43-3 at pp. 5 & 10). Mr. Rettner issued a
written report dated March 2, 2016. (Docket 43-3). Another of
BHSU's expert witnesses, W. Todd Smith, a professional
engineer experienced in design and installation of artificial
turf fields, conducted a site inspection on July 28-29, 2015,
and issued a report dated March 9, 2016. (Docket 44
his site inspection, Mr. Rettner made a number of
observations about the condition of the field. Those
observations included the following:
1. [S]everal dozen soft areas in the turf. These areas were
soft enough that they would deform under the load applied by
2. [S]everal areas of the turf . . . were now over ½
inch below the adjacent surface which was a concern as a
tripping hazard . . . .
3. There were several areas on the field where . . . the seam
tape had failed and the turf ...