In this civil action arising out of an interstate construction and paving project, Douglas Asphalt Company sued the Georgia Department of Transportation “DOT” for breach of contract, claiming that DOT wrongfully declared Douglas Asphalt to have defaulted on the contract and that DOT failed to pay for various project cost over-runs. DOT counterclaimed on breach-of-contract grounds, alleging that Douglas Asphalt had defaulted on its obligations under the contract. DOT appeals the trial court’s order partially granting Douglas Asphalt’s motion in limine to exclude evidence of DOT’s calculations of its damages, arguing that the court wrongly ruled on the sufficiency of its damages evidence rather than on its admissibility, and that its damages evidence, including evidence of attorney fees incurred, is admissible. For the reasons set forth below, we reverse. “The admission of evidence, including a ruling on a motion in limine, is a matter resting within the sound discretion of the trial court, and we will not disturb the exercise of that discretion absent evidence of its abuse.” Punctuation omitted. Mon Ami Intl., Inc. v. Gale .1 However, “by its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.” Citation omitted. Andrews v. Wilbanks .2 See Hand v. Pettitt .3
In this matter, the record shows that in 2000, DOT entered into a contract with Douglas Asphalt, in which the latter was hired to widen and re-pave parts of Interstate 75 in Crisp and Turner counties. Within a year or two after the highway improvement project’s commencement, some initial testing by DOT caused it to suspect that some of the hot-mix asphalt, which had been used by Douglas Asphalt for re-paving Interstate 75 and other similar projects, contained less than the minimum amount of hydrated lime required by the contract. Under the contract, hydrated lime was to be added to the asphalt mix at a minimum rate of 1 percent of the total dry aggregate weight. Because hydrated lime added to an asphalt mix containing granite helps to make the finished pavement less susceptible to moisture and thus more durable, this deficiency caused DOT to further test Douglas Asphalt’s product. Thereafter, an investigation and audit of various Douglas Asphalt records, including the records related to its Cordele, Georgia plant, indicated that in 2002, Douglas Asphalt had procured less than 58 percent of the hydrated lime that was required by the contract for the Crisp and Turner highway improvement project. Specifically, the contract’s specifications required 2,941.53 tons of lime for the asphalt mix produced at the Cordele plant in 2002. However, during that time, records indicated that only 1,652.3 tons of lime were delivered to the plant. Based on the assumption that the plant’s silo, which is capable of holding 40 tons of lime, was full at the beginning of 2002, the audit indicated that there was still a shortage of 1,249.23 tons 42 percent in the amount of required lime. As a result of this audit and additional testing, DOT informed Douglas Asphalt that any non-conforming asphalt used in the project would have to be replaced.
