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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 101,153 SOUTHWESTERN BELL TELEPHONE CO. D/B/A AT&T KANSAS, Appellee, v. BEACHNER CONSTRUCTION COMPANY, INC., Appellant.

SYLLABUS BY THE COURT 1. The interpretation of a statute is a question of law over which an appellate court exercises unlimited review.

2. In reviewing a statute, the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained.

3. As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation.

4. Various provisions of an act in pari materia must be construed together in an effort to reconcile the provisions so as to make them consistent, harmonious and sensible.

5. Generally, the question as to whether a duty has been breached is a question of fact.

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6. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.

7. The responsibility for providing a record on appeal sufficient to support a party's argument belongs to that party.

8. On the facts of this case, the district court erred in determining the appellee's duty of care.

Appeal from Crawford district court; A.J. WACHTER, judge. Judgment of the district court is reversed and remanded. Opinion filed December 11, 2009.

Richard L. Hines, of Hines & Ahlquist, P.A., of Erie, argued the cause and was on the briefs for the appellant.

Mimi B. MacDonald, argued the cause, and James T. Lorenzetti, of Robert A. Kumin, P.C., of Mission, was on the brief for the appellee.

Molly Aspan, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., of Tulsa, Oklahoma, was on the brief for amicus curiae MCI Communications Services, Inc.

William A. Larson, of Larson & Blumreich, Chartered, of Topeka, was on the brief for amicus curiae Kansas Contractors Association.

The opinion of the court was delivered by

NUSS, J.: This is a property damage case arising out of a public improvements project in Frontenac, Kansas. Southwestern Bell Telephone Company d/b/a AT&T Kansas (SBT) obtained judgment against Beachner Construction Company, Inc. (Beachner) for damages negligently 2

caused to an SBT underground telephone cable which SBT had relocated at the city's request to accommodate Beachner's project construction. We transferred Beachner's appeal to this court pursuant to K.S.A. 20-3018(c).

The issue on appeal, and this court's holding, is as follows:

Did the district court err in holding that SBT's only duty was to relocate the cable "to avoid any conflicts" with Beachner's completed construction? Yes.

Accordingly, we reverse the district court and remand.

FACTS The Kansas Department of Transportation (KDOT) submitted to interested contractors the specifications for a project involving McKay Street in Frontenac, Kansas. Defendant Beachner Construction Company, Inc., (Beachner) submitted a bid price in reliance upon the plans and specifications and was awarded the contract. The project required Beachner to tear out and widen McKay Street, to install a storm sewer, new curb, gutter, and inlets, and then to repave the street. KDOT and Beachner ultimately signed a contract for the project.

The KDOT construction plans required the storm sewer to be installed at specified underground locations at a depth of 4 feet 11 inches sloping downward to 5 feet 1 inch for drainage. According to Beachner, the construction plans required the actual depth of the sewer to deviate no more than 2 inches from the depth provided in the plans.

SBT had an underground telephone cable located in the same public right-of-way where the sewer was to be trenched and laid. Prior to construction, KDOT notified SBT of the upcoming project and instructed SBT to move the cable in accordance with the project plans and specifications. SBT was provided a copy of the plans.

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David Ghram was in charge of the cable relocation for SBT. He testified on crossexamination about his understanding of the relocation standards:

"[ATTORNEY]: Okay. And basically what they [KDOT] indicate to you is Southwestern Bell, here are the plans and specifications, you move your line to comply with ensuring that you don't violate those plans and specifications, isn't that the requirements? "[GHRAM]: That sounds correct. "[ATTORNEY]: Okay. And if they say we are putting a storm sewer in and these are--and this is the location, this is the depth, we want you to move your lines so it doesn't interfere with that, isn't that, in fact, what they indicate to you or to your engineers? "[GHRAM]: That would be correct.

"[ATTORNEY]: Okay. And your engineers, based on KDOT's plans and specifications for the project on your behalf, they being your agent, draw up plans and specifications for Southwestern Bell on what they think should be done? "[GHRAM]: That would be correct. "[ATTORNEY]: Okay. So it is not--these plans are not KDOT's plans, it is the plans that your agent has done for you on what they think they should do? "[GHRAM]: That is correct."

Ghram testified that he was able to point out the location of the proposed sewer line on the plans drawn up by SBT's engineers for the cable relocation. He further testified that based upon KDOT specifications and SBT's resultant engineering plan, the SBT cable was to be relocated at a minimum depth of 36 inches, unless otherwise noted. SBT's engineers and its contractor, Radell Construction Company, relocated the cable outside of the public right-of-way and the area where the sewer line was to be built, except for two locations.

First, the cable remained within the public right-of-way at the eastern location but was lowered to a depth of 10 feet in accordance with SBT's engineering plans. This depth was approximately 5 to 6 feet below Beachner's subsequent trench and was not damaged by Beachner during construction. When Ghram was effectively asked whether SBT engineers could only avoid the storm sewer at this eastern location by drafting plans to bury the cable at 10 feet, he replied, "That sounds correct." 4

Second, at the western location, SBT abandoned an older portion of cable and instead installed new cable. While SBT was able to place the majority of the new cable outside the right-of-way, a 30-foot "jog" of cable was simply relocated within the right-of-way, at a depth of 3 feet, to avoid conflict with an adjacent private landowner's circle drive. A portion of this jog was the part damaged during construction by Beachner.

KDOT held a preconstruction conference between state and city officials involved in the project, and utility companies were invited to attend. The purpose of the conference was to discuss issues involved with the project, including traffic concerns and utility conflicts. When Radell Construction Company attended the preconstruction conference on SBT's behalf, its cable relocation for SBT was already complete.

Before Beachner began construction, it called the Kansas One Call notification center pursuant to K.S.A. 66-1801 et seq. SBT was notified of the call. Both parties agree that SBT then accurately marked with orange paint the "tolerance zone" of its cable at the east and west locations where Beachner would be operating. The tolerance zone is a lateral marking of a 24inch area in all directions from where the cable is located underground. K.S.A. 66-1802(p). The marking does not provide information regarding the depth of the cable.

Ron Vyhlidal (Vyhlidal), Beachner's construction foreman on the project, saw the SBT tolerance zone markings at the east and west locations. He testified he knew that Beachner would be digging within both zones during construction, i.e., according to the plans, the cable was in the area where the sewer trench was to be dug and the line was to be laid. Prior to any digging, Vyhlidal asked SBT's Ghram about the depth of SBT's cable at the east location. Ghram replied that the cable at the east location was 9 or 10 feet deep. Vyhlidal did not ask Ghram about the depth of SBT's cable at the west end of the project. After receiving this information, Beachner began sewer line construction at the east end of the project and progressed west. Beachner excavated 7 feet deep in SBT's eastern tolerance zone and did not encounter the cable.

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When Beachner reached the west end tolerance zone, Vyhlidal knew that the SBT cable was underneath the paint marking and that the construction project would cross the cable. Vyhlidal testified that when the depth of a utility is unknown, the standard procedure is to use a backhoe to excavate 18 inches and then dig by hand to expose the cable. However, he knew that SBT was to have received the construction plans which provided that utility companies were scheduled to relocate their utilities prior to the construction to avoid any conflicts. He therefore assumed that the west end of the cable was located at the same depth, 9 to 10 feet, as the east end because "that's the way it jogged out into our excavation." Accordingly, Beachner used a backhoe to trench 6 feet deep. The backhoe, which had a 30-inch-wide bucket, "just nicked" the side of SBT's 3 to 3 1/2-foot-deep cable on the extreme southern boundary of the trench. Vyhlidal estimated that the alternative of hand digging to this depth would have taken 1 hour.

SBT filed suit to recover the cable repair cost. After a bench trial, the district court determined the duty and fault of each party. The court determined that Beachner breached the statutorily imposed duty to exercise reasonable care by failing to ascertain the depth of SBT's cable prior to excavation with a backhoe. See K.S.A. 66-1809(a) (Upon receiving information from the utility of the tolerance zone of the underground utilities, "an excavator shall exercise such reasonable care as may be necessary for the protection of any underground facility in and near the construction area when working in close proximity to any such underground facility."). It also determined that SBT breached no duty. It found Beachner 100% at fault and awarded full damages of $4,365.13 to SBT. ANALYSIS Issue: The district court erred in holding that SBT's duty in relocating its cable was solely to avoid any conflicts after completion of construction. The district court decision

The district court determined that SBT was required only "to relocate its cable 'to avoid any conflicts' because of K.S.A. 17-1902(l)." The court further determined that this phrase, which came solely from the KDOT plans, only required SBT to avoid any conflicts with the city's sewer line after completion of its construction.

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The district court began by quoting the KDOT construction plans, which do not appear in the record on appeal:

"'Utility Companies located within the City's right-of-way have been furnished with construction plans. Utility Companies are scheduled to relocate their utilities prior to the roadway construction to avoid any conflicts. The Contractor is responsible to have utilities located prior to construction to avoid damage. The Contractor will be required to work around the existing utilities within the right-of-way, which do not conflict with the proposed construction.'" (Emphasis added.)

The court proceeded with its analysis by observing that the plans required SBT "to relocate [its] utilities prior to the roadway construction to avoid any conflicts." The court then noted that the contractor, Beachner, "is responsible to have utilities located prior to construction to avoid damage." The court heavily emphasized this latter obligation and treated it as essentially superseding SBT's obligation "to avoid any conflicts" by strictly limiting SBT's obligation to those conflicts occurring after construction. It expressly rejected the proposition that SBT was required "to relocate its cable to avoid any conflict with the excavation necessary to construct the sewer line."

Because the sewer line eventually was to be buried at a depth (5 to 6 feet) below the cable (approximately 3 feet), the district court found no postconstruction conflict. The court effectively determined that Beachner could have worked around the shallow SBT cable when trenching 2 to 3 feet beneath it for the sewer installation. Accordingly, the court held that SBT did not breach its duty.

Beachner's position

Beachner contends the district court improperly substituted the construction plans' requirement for SBT "to avoid any conflicts" for SBT's duty imposed by K.S.A. 17-1902(l). Subsection (l) generally provides that at the request of the city, the utility must remove or relocate its cable "in order to accomplish construction . . . activities." Beachner further claims that SBT breached this statutory duty. When SBT placed its western section of cable within the 7

right-of-way, it should have dug deeper than the 5 to 6 feet that the construction plans required Beachner to bury the sewer line there. In the alternative, Beachner argues that SBT should have avoided interference with Beachner's required construction in that location by burying all of its cable completely outside of the work area--regardless of depth.

SBT's position

SBT essentially responds that the district court was correct in both defining SBT's obligation as "avoiding any conflicts" only after completion of construction and also in holding that SBT met this obligation. It argues that the evidence is undisputed that its cable did not conflict with the sewer line as constructed: "[a]t the point of damage, the sewer line was buried at a depth of 6 feet, and Plaintiff's cable was buried at a depth of 3 to 4 feet." From this information SBT argues that "[t]he sewer line simply needed to go below Plaintiff's cable."

SBT also argues in the alternative. It contends that if the district court should have applied K.S.A. 17-1902(l) instead, SBT nevertheless met this statutory obligation as well.

"The evidence concerning whether Plaintiff's cable prevented the Defendant from 'accomplishing construction' of the storm sewer, as this phrase is used in K.S.A. 17-1902(l) was conflicting, although the weight of the evidence showed that the Defendant could have installed the sewer without hitting Plaintiff's cable."

As more fully discussed below, we agree with Beachner: The duty properly imposed upon SBT arises from K.S.A. 17-1902.

Discussion

When, as here, a city plans to repair or maintain a public right-of-way, it can require a provider such as SBT to adjust or remove its facilities to permit the city's activity. K.S.A. 171902(l) provides:

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"If requested by a city, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety and welfare of the public, a provider shall promptly remove its facilities from the public right-of-way or shall relocate or adjust its facilities within the public right-of-way at no cost to the political subdivision. Such relocation or adjustment shall be completed as soon as reasonably possible within the time set forth in any request by the city for such relocation or adjustment. Any damages suffered by the city or its contractors as a result of such provider's failure to timely relocate or adjust its facilities shall be borne by such provider." (Emphasis added.)

Beachner argues that the italicized language imposes a duty of care on SBT. More specifically, because the street project was an improvement for the public, SBT was obligated to remove, relocate, or adjust its facilities, i.e., cable, to the extent necessary for Beachner to accomplish its construction goals of installing the sewer line. Beachner essentially contends that SBT's actions needed to be reasonable if Beachner were to accomplish its goals.

We independently observe that because SBT admits that it was "furnished with construction plans" before construction began, the district court's ruling effectively authorized SBT to relocate its cable to a place which it knew, or should have known, could interfere with Beachner's future actions to install the sewer line. These actions included, inter alia, digging the trench, fitting and laying the pipe, and refilling the trench. The only prohibition was the physical interference of SBT's relocated cable with the subsequently completed sewer line, e.g., the cable could not block the sewer line.

Our standard of review when interpreting statutes is well settled. Interpretation of a statute is a question of law, and our review is unlimited. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, Syl.

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