*1 1057 Clisby intelligent people some has failed to show us that he pert explain that less suffered prejudice, make bad decisions.3 even we were to times assume inade- if quate performance part on the of his defense Thus, testimony if Dr. Beidleman’s even counsel. there is no reasonable presented, had been would have probability that the outcome The denial of relief is AFFIRMED. is, that changed; that our confidence imposed would still have been penalty death KRAVITCH, Judge, specially Circuit Strickland, way in no undermined. See concurring: 694-96, 104 at 2068-69. In at S.Ct. 466 U.S. in concur the result. cases, prejudice penalty Strickland’s death inquiry sanitary, academic exercise —we is no that, reality, in almost some eases
are aware
certainly cannot be won defendants. and several of our cases reflect
Strickland reality penalty litigation: some death just lawyering, not reasonable
times the best senteneer to
lawyering, cannot convince the or, overlook the facts of brutal murder — CORPORATION, MARRIOTT Plaintiff- even, a brutal murder for which there is less Counter-Defendant-Appellee, 696, strong guilt in fact. Id. at evidence 2069; Thompson v. 104 at see also S.Ct. v. (11th Wainwright, 787 F.2d 1453 Cir. COMPANY, DASTA CONSTRUCTION 1986) (“Nothing lawyer] pre could have [the Defendant-Counter-Claimant- testimony sented would have rebutted Appellant. concerning Thompson’s participation murder.”); Daugherty Dug v. brutal torture No. 92-2981. (11th Cir.1988) 1426, 1432 (“giv ger, F.2d Appeals, United States Court of severity aggravating circum en the Eleventh Circuit. stances,” present psychiatric failure to testi mony prejudicial). not was July Clisby He killed his had killed before. axe, brutally an
victim this ease argues
victim’s own house. He that the sen- Clisby
tencer should have been told
unintelligent in- not retarded and not —but competent that his “anti- to stand trial —and personality by his
social” was made worse
drug aggrava- and alcohol abuse. Given the factors, Clisby
ting mitigating nothing put
has forth undermines our confidence sentencing proceeding.
the outcome of his record, sentencing. judges drug highly Beidle- and alcohol abuse as at As we see view activity. predictive propensity Clisby testimony helped of a for criminal man's would have not (“Sub- Sentencing § (Dr. U.S. Guideline 5H1.4 experts Poythress and Dr. all: the State's Cf. stance abuse is highly correlated to an increased McClaren) generally agreed with Beidleman’s But, crime.''). propensity to commit we doubt (thus undercutting significance conclusions many sentencers view substance abuse as a that strong offering important criti- of his while testimony), mitigating Cf., Rogers, 13 F.3d at factor. example, Poythress Dr. testified that cisms. For ‘ (noting lawyers' fear that reasonableness of person Clisby antisocial” such as is not nec- an drug voluntary and alcohol use could defendant's essarily to control himself—nonconfor- unable "perceived by jury aggravating instead "prefer- mance be a matter of "choice” mitigating”) (emphasis original). ence;" pointed facts McClaren to several Dr. deliberately indicating Clisby quite acted addition, testimony likely Beidleman’s night of the murder. disputed had been offered would have been if it *2 Company,
ed with Dasta Construction appellant, perform portions certain built, work. After the hotel was brought this suit the district court payments recover it had made on Dasta’s *3 behalf to Dasta suppliers. subcontractors and counterclaimed, contending that Mar- only riott not carry had failed to out its obligations, contractual but also had inter- performance. fered jury with Dasta’s A found for Marriott on its claims and awarded paid Marriott the sums it had Dasta subcon- counterclaim, suppliers. tractors and On the jury found for Dasta and awarded $4,659,390.90. subsequent- The district court ly granted judgment Marriott’s motion for verdict, notwithstanding dismissing Das- limiting ta’s counterclaim on the merits and Marriott’s award to its costs of action. Dasta appeals, seeking now reinstatement of the jury’s Finding any verdict. in no merit of arguments, we affirm. I. early began construction complex, “mega
on an elaborate resort hotel,” Orlando, in Florida.1 The Marriott (“Resort”) Orlando World Resort was to con- building segments, tain fourteen different in- Braude, Margulies, Herman M. Braude & tower; cluding twenty-eight story guest Jones, DC, Roger Washington, appel- C. rooms, restaurants, numerous convention lant. ballrooms; outbuildings and several courses, swimming pools, golf and tennis Lau, Lau, Lane, Mary Applegate Pieper, & complexity courts. Due to the size and of Asti, FL, Tampa, appellee. undertaking Marriott’s the time of com- —at pletion, largest building the Resort was the square footage in of in the of terms state Florida —construction was divided into sever- projects requiring al distinct the coordination DUBINA, TJOFLAT, Judge, Before Chief of numerous contractors and subcontractors. *, Judge, Circuit and PAINE Senior District Judge. Dasta became involved with the Resort year approximately one after construc-
TJOFLAT, Judge: Chief time, began. tion At that Dasta was one building largest case of the construction of the five contractors Kan- This arises out Orlando, Missouri, City, specializing types in all Corporation a Marriott hotel sas Marriott, appellee, commercial and industrial construction and Florida. acted as general manager handling average an annual contract volume both the owner and million. project. capacity, In that Marriott contract- of between Vincent $30 $20 * Paine, reviewing grant judg- Because we Honorable James C. Senior U.S. District are evidence, n.o.v., Florida, ment we consider the and state Judge sitting for the Southern District of light part opinion, the facts in this designation. most favorable to Dasta. potential relationship president and chairman between Marriott company’s board, degrees drawings specifications possessed advanced and Dasta. only administration in the Resort bids were be- engineering
civil and business included twenty-five years however, percent complete,4 as well as more than 50 and 80 tween business. experience being in the construction built on a because the Resort “fast method, track track” basis. Under the fast first learned of the Marriott Resort building begins on a before a construction Hall, project through the owner of William fully plans complet- final set of coordinated contracting company, City another Kansas Rather, plans spec- the architectural ed. Although had Hall-Missouri. never designed ifications are and modified as the Marriott,2 Hall-Mis- performed work for building’s progresses. actual construction on three Marriott hotel souri had worked *4 method, advantage track as of the fast and familiar with projects construction was opposed building plans completed from at building practices.3 ap- Hall Marriott’s outset, is that it enables construction to proached suggested that the two Dasta and begin stage project. at a much earlier join forces to solicit work on the contractors disadvantage The method’s results from in- advantageous Resort. The combination difficulty scheduling in coordi- creased and companies possessed as Dasta both nating project since the construction experience large-scale size and to handle the progress schedule must be modified to ac- contracts, Resort while Hall-Missouri offered plan changes. count for constant Notwith- history working a of successful relations with difficulties, however, standing these Marriott fact, appeared Marriott. In it doubtful that employed had fast track construction in a company capable either would have been smaller, prior, number of albeit hotel con- winning a contract for the Resort on its own. projects, including struction the three on which Hall-Missouri had been involved. 4, 1984, May On Marriott invited Dasta competitive and Hall-Missouri to submit bids May In reviewing after the bid docu- drywall for the exterior skin and work ments, Vincent Dasta and Hall con- William guest majority Resort’s tower. The of the pre-bid investigations project ducted of the affixing lay- exterior skin work consisted of visit, During in site Orlando. their both men stucco, plaster, water-proofing ers of and inspected progress, in the work reviewed the guest onto cement block walls of the project paperwork, engaged “fairly and in drywall tower. The work consisted of the lengthy specific discussion and discussion application drywall finishing boards and sequencing scheduling about the and guest ceilings materials to the tower’s and work” to be done Dasta. Hall William inner walls. Case Concrete Contractors had participated in special also a critical series of already begun to construct the concrete walls planning hosted At sessions Marriott. provide that would the basis for the exterior meetings, days these which lasted several skin the time that Dasta and Hall-Mis- working and which all of the contractors then bidding souri became involved the Resort attended, on the Resort Marriott and the process. engaged in contractors detailed discussions about current con- packages state the Resort The bid invitation for the Re- projected drywall projects sort’s struction and the construction exterior skin each At drawings, contained a set a schedule. the conclusion of these ses- of architectural (who sions, planning plans specifications, set of and a list of an outside consultant general meetings) conditions defined the nature of also attended the converted the 4.Although drawings incomplete, they 2. Dasta had submitted a bid for on an were work earlier, project, unrelated but did not it they had “is- nonetheless indicated been secure the contract for that work. drawings construction." The also in- sued] for dicated on their face when and how numerous performed drywall contracting 3. Hall-Missouri revisions had been made. similar, smaller, work on a number of Marriott hotel construction albeit Virginia, projects Colorado, and Missouri. meetings from the into the Re- stated that was “for [Dasta’s] information use sched- (“CPM”). Method uling Critical Path determining sort’s crew sizes and work per Speci- areas as General Conditions of the testimony According to trial of both 6]C, page fications item 6A [and 5.”5 Marriott, a is a standard Dasta and CPM “plan construction device used activi- According company to Vincent project logical in a ties of construction good concluded that the CPM “was sched- orderly sequencing citing manner durations adequate accomplish ule and the exterior beginning from for the different activities efficient, skin in an production-type work job A to the end.” CPM is created manner, working optimum normal hours with dividing project the entire into discrete and 2,1984, July crew sizes.” formally On turn, steps; step quantifiable each is allot- perform contracted with Marriott to the ex- completion. ted an estimated time for Ulti- terior lump price skin work for a sum mately, step arranged each into a chrono- $3,109,850. All of the documents from the logical sequence, revealing anticipat- thus original package including bid the draw- — length ed and structure the entire con- ings, specifications, general conditions— serving In struction schedule. addition incorporated were into the final contract. roadmap for the contractors to determine when and where their work fits into the mid-July, Dasta’s construction team ar- *5 sequence, overall construction the CPM also rived project at the site and learned that assessing hiring in assists contractors their operating construction was least five purchasing and material needs. months behind schedule. The was 1, 1984, “extremely caused poor quality”
On June Dasta and Hall-Missouri (hereinafter “Dasta”) jointly work, referred to as Case’s concrete which contributed to a submitted bids under the Dasta moniker for collapse concrete in the Resort’s tower area drywall both the exterior skin and contracts. in mid-May. The defective concrete work priced Dasta the exterior skin contract on particular was of concern to Dasta since enough “manpower accomplish to that work much of its exterior skin work had to be eight-hour day on an 40-hour basis and be placed directly work, onto Case’s concrete time,” done on and submitted the successful any problems such that with the concrete price. low bid Dasta was awarded that con- directly problems would translate into with tract, drywall but failed to win the contract. Although the exterior skin. Dasta had planned working “to be full force” immedi- Shortly bids, submitting after its site, ately upon arrival at the construction copy developed received of the CPM at the prevented the defective concrete it from do- planning meetings. essentially The CPM re- ing so. Dasta related these concerns to Mar- scheduling stated the information that Dasta riott, in turn which assured Dasta that Case visit; during had received the site going fix the to defective work and that anticipated that the exterior skin work would worry Dasta should not Dasta was mid-July because commence in 1984 and continue in a going responsible [any “not to logical fashion for be other fifteen months before con- cluding September problems].” 1985. The also CPM contractor’s fail, portion opinion, neglect relevant of the referenced General er's otherwise refuse or provided Conditions as follows: supply to sufficient labor material in and/or Progress Work, Schedule prosecution Owner shall agrees comply A. The Contractor the to with (1) right have the to direct Contractor to progress schedule established furnish such additional labor material and/or Owner, thereof, agrees revision and may, opinion, required in the Owner's prosecuted regularly, that Work shall be comply progress with the schedule or diligently specified. uninterrupted, within the time diligently prosecute the Work.... otherwise specifically Owner reserves the Any pursuant costs incurred Owner to the right modify progress schedule as re- rights paragraph exercise of its under this quired by the conditions of work. shall be borne the Contractor and shall not increase the Contract Sum. comply C. Should the Contractor fail to or, progress schedule in the Own- concrete, upon begin the tower work its arrival faulty Dasta would
In addition to begin until July, of other difficulties Dasta was unable to a number experienced during prosecution January finally put up of its con- when Marriott First, fast obligations. Marriott’s tractual the net. sig- frequent approach track resulted Despite performance indications that these the architectur- to both nificant modifications might obligations contractual be more of its progress schedule. These plans and the al believed, originally than it difficult proceed- Dasta from prevented modifications greater responsibility on gradually undertook antici-
ing orderly sequence that was project. Resort In October after CPM, thereby causing pated by original faulty repeatedly Case failed to correct its significant additional costs due Dasta to incur work, agreed Marriott and Dasta concrete labor. inefficiency and under-utilized perform' repairs. Das- that Dasta would total, changes hundreds of Marriott issued work, repair prices ta submitted unit for the drawings progress sched- the Resort’s a written and Dasta and drafted ule.6 “Change encompass order to of Contract” Second, provide ade- failure to Marriott’s procedure the additional work. The for han- safety quate transportation and mea- vertical dling change provided of contract was placed Dasta further behind schedule. sures original the General Conditions Naturally, performance upper on the Dasta’s accepted exterior skin contract.7- Dasta also depended upon ability get tower areas assignments from other work Marriott that up men and materials to its work areas. to Dasta’s contract were unrelated base work however, by hampered, were Dasta’s efforts twenty sepa- and that resulted in more than shortage of elevators and hoists and Contract, Changes increasing rate of- Marriott’s use of the lifts. When Dasta $3,255,591.75. compensation by total bring, fered to its own hoist onto the con- *6 Moreover, 1985, January roughly six efficiency, site to increase Marriott struction began working Dasta at the months after experienced it. Dasta simi- refused to allow Resort, competitive Dasta submitted another delays lar due to Marriott’s belated erection drywall for the Resort’s non-tower con- bid safety required by Occupational net of a (to Again, priced logi- a tract. its bid on Safety and Health Act standards catch manner, orderly “production-type cal and falling being from work done on the debris levels). hours;” 15, working January upper Although original normal on Mar- tower’s the anticipated contract to a progress schedule that Dasta riott awarded the Dasta for any change, changes plans progress making charge to the and the C.In the 6. The First, originated change schedule from two sources. credit of contract will be deter- changes directly many were issued mined as follows: engineering and staff that full-time architectural request proposal A for a shall be issued in Second, employed job site. addi- Marriott on writing to the the owner. The Contractor changes input tional were- based on cultivated shall, working days 7 Contractor within daily weekly progress meetings reports and from receipt request, propos- of such submit a that were attended each Resort contractor. requested change al for the to the Owner. proposal quantity survey shall contain a part, provision provided, 7. The in relevant as calculations, including quantity area calcula- follows: tions, hours, prices, unit labor rates and 17. CHANGES IN WORK necessary provide other information to changes ... order in the A. The Owner owner, opinion, in the Owner's with a com- general scope of the contract work within the prehensive understanding propos- additions, consisting sions, deletions or other revi- of contract sum al.... being adjusted ap- as that Marriott was If the contractor believed changes plicable. All such in the work shall requiring perform a it to extra work without change a of contract.... authorized order, permitted change the contract the con- Change B. A of Contract is a written order order, change provided tractor to initiate a ..., signed by to the Contractor the Owner proposed change submit its order contract, the contractor the execution of the au- issued after (7) days Marriott’s [of to Marriott “within seven thorizing change adjust- work or an a work], complete detailed perfor- order for the extra ment of the contract sum or the time costs.” mance .... labor material $1,749,050. Although lump price According and reasonable settlement. sum to contract, separate its drywall contract was Marriott instructed Dasta to submit “efficiency conditions were identical to the formal claim”10 terms and for its additional contract, parties skin and both treat- costs. Dasta relied on exterior Marriott’s assurances contracts as one at all times.8 and borrowed than million in ed the two more order $1.5 obligations. meet its contractual 23,1985, January one week after Dasta On contract, drywall Notwithstanding into the Marriott entered additional borrowed funds, At pay hosted a second CPM session. the meet- Dasta remained unable to all of its subcontractors; proposed advancing suppliers the Resort ing, accordingly, Marriott months, completion April payments date three Marriott made several on behalf of 28,1986, represented February Each contractor was at Dasta. On under Dasta’s direction, (including $292,000 meeting paid directly William Hall for Das- ta) agreed suppliers and each contractor to the acceler- Dasta’s subcontractors and result, imme- equal ation.9 As the new CPM was subtracted an amount from the out- effect, diately put standing into and Dasta continued balance due Dasta on the contracts. Furthermore, perform 24, 1986, contract September work. after Dasta had left work site and the Resort clear, however, eventually It became opened public, to the Marriott was up February Dasta was not to the task.. In payments forced to make additional to Dasta completion the Resort’s date drew suppliers subcontractors order to dis- near, resulting delays from the cost overruns charge they certain liens that had recorded progress Das- the Resort schedule caused against suppliers the Resort. The and sub- money. consequence, ta to run out of As a contractors filed the liens because Dasta had longer compensate Dasta could no its subcon- neglected pay them for services rendered suppliers. tractors and Vincent Dasta met at the Resort. February with Marriott on 3 to discuss “the incurring time, approximately additional costs Dasta was due to At the same acceleration, work, disruption, presented efficiency overtime in- claim that Marriott sizes, time, February etc.” At that had it to creased crew Mar- invited submit at the important thing meeting. sought riott told Mr. Dasta that the several million dol- get completed compensation was to the Resort in time and lars as for the additional costs performing that afterwards Marriott would discuss a fair it incurred in the contract work.11 drywall 8. Dasta suffered on the contract 10.Marriott denies that it instructed Dasta to experienced similar to those it skin contract. on the exterior submit a claim for its additional costs. Because Although drywall work could *7 reviewing propriety we are of the district prosecuted only tight temp- under "water and n.o.v., entry judgment disregard court’s we conditions, erature controlled” such conditions true, accept, Marriott's denial and Dasta's place were not in until several months after below, proceedings version of the events. In the originally begin dry- Dasta was scheduled to appeal, and on Dasta labeled its claim for the wall work. additional costs it incurred on account of “efficiency as an claim.” As discussed in the text trial, everyone 9. At Vincent Dasta denied that infra, the costs associated meeting agreed this claim includes to the acceleration. Vincent Dasta, however, meeting; condensing performance, ac- did not attend the with Dasta’s time of cordingly, testimony point pro- his on this lacked e.g., manpower due additional increased costs simply self-serving hearsay. bative value and was pay. opinion, and we overtime In this when meeting who attended the and testified at Those the the acceleration. claim, efficiency discuss Dasta's we refer to this any opposition trial the existence denied of the claim. formulation claim, prepare efficiency 11.A letter written the outside consultant that Dasta hired to its included in Marriott, Dasta's claim to stated as follows: interferences, experienced disruptions, project. analysis etc. [Resort] Our shows that Dasta on the compensable damages regard in this are as follows: 1,069,168.44 1. Labor Inefficiencies 60,032.15 Equipment 2. Extended Costs 377,787.60 Outstanding Change 3. Orders 85,069.14 4. Extended Jobsite Overhead 79,996.45 5. Extended Home Office Overhead 268,796.00 Interest on Borrowed Monies Legal/Accounting Expenses 210,460.00 2,151,309.78 $ TOTALAMOUNT $2,452,311.00, unpaid balance due recover II. contracts, $2,207,079.90,’ the dam- on the pay Dasta’s negotiate Rather than ages by reason of Marriott’s Dasta suffered claim, this suit the United filed Marriott perfor- interference with Dasta’s deliberate District for the Middle District Court States contracts, along accumu- mance complaint, In its Marriott of Florida. lated interest. first, Dasta for sought, indemnification from judg- thereafter moved for either Marriott satisfy the mechanics’ paid it had the sums or, alternative, a new ment n.o.v.13 by Dasta sub- against the Resort liens filed gave judgment, Marriott set trial. The court and, second, a dec- suppliers, contractors Dasta, jury’s verdict for and award- aside the for the amount that it was not liable laration $369,402.02. In an ed Marriott the sum of efficiency claim. of Dasta’s accompanying ruling, the court opinion its Dasta answered On November no that observed that there was evidence complaint and filed a counterclaim Marriott’s Marriott had committed the contractual $3,933,502.20. pleadings, In these alleged or that Marriott breaches Dasta had support of law to advanced several theories interfered, in contractual had violation of its nothing position that it owed Marriott contrary, perfor- duty to the with Dasta’s purportedly paid on the sums Marriott had mance of the contract work. it entitled to Dasta’s behalf and that damages sought. Among other recover the III. (1)
things, alleged at the time contracts, misrepre- Dasta bid the Dasta asks us to reinstate the progress of the overall con- sented both jury’s court verdict and to direct the district and conditions of struction and terms therewith, judgment in conformance enter undertaking, misrepresentations that Dasta’s or, alternatively, to order a new trial. Ac substantially to induced Dasta underbid cording properly the district court (2) job; and Marriott breached the contracts its breach of contract claim to the submitted by unduly delaying performance.12 Dasta’s erred, however, held, jury; the court when it conference, pre-trial At the the district court n.o.v., judgment con on motion for reduced Dasta’s numerous theories of recov- recovery. precluded tract documents ery to a claim for breach of contract. precluded Dasta’s the contracts Whether jury. eight unanticipated The case was tried to a After claims for the additional trial, found, days jury by special expenses performing work ver- incurred law, dict, pure question to be answered that Marriott was entitled to recover the $369,402.02 examining language contracts paid suppliers it had *8 Zaklama v. Mount Sinai subcontractors and that Dasta was entitled to themselves.14 alternative, claimed, in the that Marriott was 12.Dasta’s counterclaim contained nine counts. essentials, expenses Reduced to their claimed, these counts liable to it for the additional meruit, collectively, that Dasta was entitled to theory quantum incurred under the of money damages recover from Marriott for the unnecessary unanticipated expenses and it in- trial, moved for a directed verdict 13. At Marriott prosecuting curred in fraudulently, its work because Marriott district at the close of all the evidence. The or, alternative, negligently, pending ruling court withheld its on the motion misrepresented of the condition and status the jury’s the return of the verdict. project; plans specifica- Resort Marriott's tions, warranted," "impliedly which it were inac- work; curate; negligently supervised Marriott the claim this case that we must 14. There is no in made oral assurances to Dasta Marriott beyond to deter- look the contract documents (thus modifying the terms of the written con- rights obligations parties. the of the mine tracts), progress, that while the work was in it expenses when would reimburse Dasta for such the project completed. Finally,
1065 (11th Ctr., F.2d 652 In the Medical 906 Cir. General Condition entitled PROG- 1990). fraudulently SCHEDULE, parties Marriott or RESS which the Whether incor- contracts, porated into misrepresented progress of their negligently “specif- the ically right modify reserve[d] of the Resort or the the to prog- the overall construction the required by undertaking, of Dasta’s ress schedule as terms and conditions conditions of however, fact, work,” questions part, “agree[d] are of to be an for its while comply to by examining progress with the swered evidence adduced schedule estab- Owner, by light any trial in the most favorable to Dasta. lished or revision there- See, Further, of.” e.g., Snapper Equip., Norton v. Power General Condition 6A.15 Gen- (11th Cir.1987). provided F.2d eral Condition 6C that: [sjhould comply the Contractor fail to with analysis of in Our the contract documents schedule, progress or in the Owner’s inescapable leads us to the conclu- this case fail, opinion, neglect otherwise or refuse to claim, that Dasta has no under those sion supply a sufficient amount of labor or ma- documents, injuries purportedly for the prosecution Work, in terial Own- suffered at the hands of Marriott. Our anal- (1) right er shall have the direct Con- ysis of the evidence leads us to the identical tractor to furnish such additional labor any conclusion: Dasta has no claim under may, materials as in the Owner’s and/or recovery it advances. the theories opinion, required comply be with the progress schedule or diligently otherwise A. (2) work, prosecute the or furnish such additional may labor materials as and/or Resort, although unique not an required comply with said schedule. Marriott, undertaking represented one of Any by pursuant costs incurred Owner largest Marriott’s and most ambitious con rights para- the exercise under this projects. struction Inherent in the scale and graph shall be borne the Contractor and project complexity potential was the shall not increase the Contract Sum. delay phases the various of its con added.) (Emphasis In addition to the fore- potential struction. This was enhanced III, going, Article section 3.1 of both the Marriott’s use of the fast track construction contracts, drywall exterior skin and the enti- method, began such that construction tled TIME OF COMMENCEMENT AND specifications plans neither a final set of COMPLETION, right reiterated Marriott’s progress completion nor a firm schedule or modify progress schedule: Presumably, date. contractors involved with project provision the Resort made TIME THE IS OF ESSENCE OF THIS presented contingencies risks such in two AGREEMENT. The Owner sustain first, ways: by setting prices high any if project part their bid financial loss or enough they delayed to absorb the “additional costs” thereof is because the Contractor (includ might performing any perform part incur the work fails to the work documents, ing costs Dasta seeks to recover this accordance with the contract case); and, second, limitation, by negotiating including, contract without a failure to designed comply project, terms and conditions to minimize with the schedule for this case, present parties thereof, such costs. revision established thoroughly begin addressed and allocated the risks Owner. The Contractor shall project. inherent in the Resort work at the time directed the Owner Moreover, price. Nor is it contended that one or more contract bid in the Critical Path Method *9 provisions ambiguous subject are thus submitting and to that Dasta received after its exterior parol parties’ evidence to discern the intent. bid, formally contracting per- skin to but before analysis solely Our therefore is limited to an work, specifically form the cautioned Marriott examination of the contract documents. scheduling “in and Dasta that the use of the CPM determining and work areas” was crew sizes See, earlier, supra gen- note 5. As stated expressly subject "General Conditions of to the part were skin eral conditions the exterior bid 6A, 6B, 6C, Specifications page item 5.” package, such that Dasta was aware of these prior submitting conditions to its exterior skin shall be borne Contractor.” Un- obligations under this elements its perform
and arrangement, lump known as pricing der this diligence and sufficient with agreement pricing, Dasta bore the risks associated sum progress of the manpower to maintain underestimating failing price its or to Owner, de- without as scheduled work unexpected additional costs.16 At account for or areas of work. laying other contractors time, however, reap Dasta would all the same Owner, the Contrac- request of the At the any savings, in cost of the benefits parts the work perform certain tor shall completed that the Resort was at an event manpower, parts, extra or other add before manner, date, in more earlier or efficient comply labor in order to order overtime originally anticipated. than (or thereof), any revision with the schedule the contract any increase in all without familiar with this form of con- Dasta was sum. pricing. Dasta was also aware of both tract potential delay project in and the added.) III, for this Finally, in (Emphasis Article not be entitled to demand fact that would 3.2, required that “the Dasta certified section compensation from Mar- additional manpower be] available [would materials upon completion. Despite riott this knowl- in accordance with prosecute the work edge, priced its contracts under the short, In Marriott had com- such schedule.” expectation unrealistic that there would be adjust as well plete discretion schedule progress no modifications to the schedule comply to demand that Dasta with such prosecuted, and that the work would be ac- additionally compensat- adjustments without Dasta, cording to “in an efficient Vincent ing Dasta. manner, production-type working normal prices, arriving at its bid Dasta had the optimum hours with crew sizes.” opportunity to account Marriott’s broad powers, compensate as to itself for as well Dasta, Notwithstanding that in for delay, by increasing prices risk of its mulating prices, protect its bid failed to itself assuming. fairly to reflect the risks it was here, delays pro from the occasioned it still V, 5.2, addressing contracts, Article section the Con- itself, against unfore tected Sum, specifically control, advised Dasta that its tract delays beyond including its seen costs, in price should include “all increases neglect” those caused the “act or of Mar unforeseen, including ... foreseen or labor or Marriott’s subcontractors or from riott damage loss or “changes scope “[a]ll and materials” and in work.” ordered any through contracts, arising from of the work unfore- in provision A known as a “no obstructions, damage gave difficulties or Dasta the seen or unusual for delay” prosecu- specific right seek an extension of its time which be encountered Dasta, work, through performance delay; tion of the the action of the the event of thorough investigation project argues 16. Dasta that it was not aware of the risks on-site project with the Resort because Mar- engaged lengthy associated discussions with both Mar- fraudulently negligently misrepresented riott personnel already riott and other contractors aspects or concealed material of the Resort con- working on the Resort. Dasta also attended the According misrep- struction. meetings progress CPM which the Resort's resented the fact that the Resort was a fast track developed. Finally, schedule was the uncontra- by issuing they project plans that stated were dicted evidence at trial indicated that William construction,” actuality "issue[d] for when in employed the Hall was aware that Marriott fast Additionally, they incomplete. were old and projects. track method in hotel construction Dasta cites Marriott's failure to reveal Case’s misrep- Accordingly, Dasta’s claims of fraud and severely concrete deficient and several work have no basis fact. resentation months behind. Had Marriott revealed these facts, argument, In a related Dasta claims that it is argues, it would have accounted for theory under a entitled to recover its increasing price. them its bid warranty misrepre- implied based on Marriott's argument unavailing. is There is no plans specifica- sentations that the Resort that Marriott restricted indication in the record complete and issued for construction. tions were investigate project Dasta's freedom to the Resort support likewise finds no in the rec- This claim or that Marriott failed to reveal information ord, plainly aware- inconsistent with Dasta’s obligated After that it was to disclose Dasta. employed that Marriott a fast track mode of containing ness the documents the al- Dasta received construction, rejected. leged misrepresentations, Dasta conducted a hotel and is therefore
1067
right, agreed
delay
for this
not to
for
clause located in
as consideration
General Condition
7A,
delay.
Item
damages
such
The no dam-
contracts between Marriott
seek
for
clause,
independent
Dasta contained an
delay
Con-
Gen-
age for
located General
7B,
required
eral
7A,
Condition Item
that
as follows:
dition Item
states
request detailing
submit a written
delayed
any
If
is
time in
the Contractor
length
delay,
cause and
of the
as well as the
progress
by any act or
of the Work
length
requested
of the
extension.19 The
neglect
by any
or
contractor
of Owner
required
condition also
request
that the
be
Owner,
by
employed by
changes
or
or-
days
submitted within seven
of the com-
Work,
fire,
by
scope
or
dered
delay.
mencement of the
reasonably
not
adverse weather conditions
utility
The
request,
a written
or its
anticipated,
any
beyond
or
other causes
equivalent,
functional
is that it would have
Contractor,
the control of the
then the
provided
meaningful oppor-
Marriott with a
required completion
or
date
duration set
tunity
legitimacy
to evaluate the
of Dasta’s
progress
forth in the
schedule shall be
claim, and to determine whether Dasta’s re-
by
extended
the amount of time that the
quest
rejected.
should be
or
honored
This
delayed
Contractor shall have been
there-
requirement
particularly impor-
notice
However,
by.
permit-
to the fullest extent
only
tant because Dasta was
entitled to re-
law,
by
Corpora-
ted
Owner and Marriott
damages if
grant
cover
Marriott’s refusal to
agents
employees
tion and their
shall
Pertun,
wrongful.
a time extension was
See
responsible
any
not be held
for
loss or
(refusing
ta’s 675; apparent hardship of an nole, parties from the at see also Southern 828 F.2d (no damage delay improvident bargain.” Physicians v. 459 for Steiner Gulf, 238 at So.2d Fund, 1064, delay knowing 1066 is and Protective Trust 388 So.2d clause ineffective where (Fla. Dist.Ct.App.1980) (quoting v. Beach sufficiently egregious); McIntire Green- 3d Communities, Inc., 197, Wieder, 659, Corp. 318 So.2d 199- Tree Resort Hotel v. 79 So.2d (Fla. (delay (Fla.1955)). Dist.Ct.App.1975) clause 200 2d 663 which where “circumstances ineffective brought delay were about
caused the B. but con and were even foreseen [owner] when the contract was [owner] cealed unnecessary It to determine is made”). damage exceptions to the no These actively whether Marriott interfered with delay premised upon an “im for clause are performance, because Dasta waived obligation not to hinder or plied promise and application damage delay for of the no performance.” Newberry Square impede by failing proper request a clause to make Inc., Landmark, Corp. v. 578 Dev. Southern required by for an extension time as (Fla. Dist.Ct.App.1991). 752 1st So.2d trial, testified, contracts.20 At Vincent Dasta examination, follows: on direct as
Thus, con under the terms tracts, authority Q: Marriott had absolute Mr. time in the Now schedule, modify job you personally the construction while Das course of this did sub- obligated request in ta was to abide Marriott’s mit a written to Marriott for an Although these terms seem structions. extension of time?
one-sided, provi Dasta was aware of these No, only A: verbal. contracts, at the time it bid the and had sions proposed Q: your knowledge, Bill opportunity to increase its con To did Hall [Das- prices project for the risks it would or Ed executive] tract account ta’s Matthews assuming. upon project manager] Dasta failed to seize this [Dasta’s submit written and, hindsight, pair opportunity, request made a for extension of time? an improvident bargains from which we are They may A: have. don’t have direct powerless grant It is not the func relief. knowledge of it. of the courts to “rewrite a contract or tion Q: you seeing [a] interfere with the freedom of contract or Do recall ever written judgment request their for that of the for an extension of time? substitute Relying upon holding ing legitimate request cases for an extension of time. series of Florida pre damage delay "do[] for clauses not See General Condition 7B. no recovery delays resulting party’s from a clude for view, Thus, explained infra, it is our fraud, concealment, or active interference delay Dasta is not entitled to recover for its contract,” performance post, at under the damages comply because it failed to with the the dissent would hold that Marriott's active in independent requirement, notice not because the provi terference invalidated the entire contract exempting money damages clause Marriott from governing delays, including provision sion is enforceable. The dissent failed to account for requiring request Dasta to an extension of time required the additional which that, despite damage delay. It is true the no prompt request for submit a and detailed written contract, delay Dasta would be clause delay- an extension of time before Marriott’s able to recover under Florida law if inducing conduct would become actionable. deliberately per interfered with Dasta’s Moreover, matter, practical Seminole, 675; as a the dissent's e.g., formance. See 828 F.2d at approach McIntire, untenable because it would frustrate Davis, 538; 400 So.2d at C.A. bargained-for agreement parties. delay provision in this So.2d at 199-200. The case, however, encouraging mitigate Rather than Dasta to just provided for more than im early Rather, damages by providing Marriott with the munity money damages. from in addi problems opportunity Dasta, alleged to address the damage clause contained tion to the no 7A, approach would en- delay provi the dissent's have in General Condition Item case, couraged about the Dasta to remain silent in this unlike those in each of the sion dissent, clearly upon by and sue at a later time—an effect that condi Florida cases relied delay upon parties. first mak- never intended tioned remedies for Dasta's *12 one, seeing yes, job.” Despite knowledge this on that I have recalled A: I you tell when saw it or when adopted position I can’t Marriott a that but had was But, may have. conduct, it was written. wrongful under the Dasta failed to any steps enforcing take affirmative toward testimony Obviously, was insufficient this legitimate right request its contractual to an presented that Dasta Mar- to demonstrate Instead, accept extension. Dasta decided to request for an extension with a written riott because, generalized Marriott’s Moreover, statements none of Dasta’s verbal of time.21 Dasta, according to Marriott was sufficient to to Vincent it “relied on communications equivalent the functional of a writ- portion specifi- constitute another contract which of time. request for an extension Vin- ten cally states that there is a trust and confi- that he and other Dasta cent Dasta testified relationship parties dence between and that employees “made numerous verbal com- parties ... both have to have mutual trust ments, notices, you to call however want and confidence in each other.” portray being that Dasta was them or them” persuaded by explana- We are not Dasta’s job. delayed by The the conditions tion.23 In the face of a clear contractual Dasta, however, by exchanges referred to provision directly addressing right its to re- grumblings to little more than amounted situation,24Dasta, given light lief in the of gen- met with complaints Dasta were that sophistication experience, Marriott Dasta simply assurances from that its eralized any delays. responsible rely not be held for permitted general would not to on notions of identify, exchanges, In Dasta did not these good dealing. faith and mutual fair More- any degree particularity, cause or of over, is no indication that there Marriott’s length any alleged delays. of As of its wrongful actions or in Al- were bad faith. such, notices Dasta these comments and though might have been entitled to an legally pro- to were insufficient activate delayed if extension of time it was in fact delay damage no for clause.22 tection of the actions, Marriott’s Marriott had a contractual right engage in to the course of conduct it argues requested an never pursued. Despite complaints indicated to the extension because had contrary, legitimate given that “no extensions of time were to the exercise of a contrac- trial, presenting In its evidence at Dasta intro- nonetheless would fail for want of consideration. 21. City Fryd Corp., Beach v. duced no document that could have served as See Miami Constr. 13, (Fla. Dist.Ct.App.1972). request. 264 So.2d 15 3d such a similarly unpersuaded by Dasta's theory recovery, 23. We are separate a as that, light unequivocal claim Marriott’s generalized serts that the assurances that it re extension, refusing grant any statements to ceived from Marriott constituted oral modifica duty request reasons, a time was released from its to to the written contracts. For two tions a law because such an act extension as matter of reject Initially, we Dasta's claim. the statements Compare would have been futile. Craddock v. legally upon which Dasta relies were insufficient Co., 111, (5th 423 F.2d 115 Greenhut Constr. Cir.1970). binding agreement to create a either oral Dasta, however, cannot demonstrate by estoppel. of a written contract or modification request an extension of time would that a for Cahill, 916, Corp. Ins. v. 90 So.2d Cf.Professional 918 futile, presented no have been because Dasta 1956) (Fla. (refusing permit oral modifica validly evidence that Marriott ever refused except of a written contract where an oral tion noted, request. aptly As the district court made upon agreement "accepted been and acted has to ask for or to seek an extension "[a] failure parties as would work a in such manner damages give does not rise to claim it”); party fraud on either to refuse enforce grant [one].” failure to Services, Inc., 547 W.R. Grace & Co. v. Geodata 919, (Fla.1989) (quoting Geodata Ser So.2d 925 Co., vices, provi presence express v. W.R. Grace & 526 So.2d Inc. contractual J., claims, (Fla. Dist.Ct.App.1988) (Campbell, addressing directly 2d dis includ 930 sions Dasta's senting)) estoppel argument ing damage (rejecting because forecloses the no recovering quantum expectations upon representa meruit based oral Dasta from "mere Turnberry Harding Realty, regarding rights parties Inc. v. to a con claim. See tions future (Fla. Corp., 3d Dist. specific Towers 436 So.2d [is] tract in its terms insufficient written omitted). action”) (citations (recognizing Ct.App.1983) rule of Florida support settled cause of Second, inappropriate quantum where meruit is were suffi law that even if Marriott's statements exists). contracts, express modify Dasta's claim a valid contract cient $2,452,311.00, is to recover” is simply not amount to a Dasta entitled right does tual fact, agree along parties the actual amount wrongful This with Dasta’s act.25 $509,- time, owed Dasta on the contracts totals request extensions of failure to undisputed Also is the fact that Das- to Dasta’s claim for due 358.49. fatal “inefficiency.”26 expressly ta authorized Marriott to reduce delay, “impact,” and short, only remedy owed under the contracts to re- defined the the amount the contracts *13 $292,000 Dasta, payments that Marriott pursue and Dasta failed to flect the available to directly remedy. made to Dasta subcontractors that Thus, parties agree suppliers. both that the owing final Dasta on the con- amount left IV. $217,358.49.27 tracts totals final issue for our determination $292,000 payments of entitlement to the In addition to the concerns Dasta’s claim Dasta, however, outstanding amounts on its contracts with credited Marriott demon- jury Although paid found that “the strated at trial that an additional Marriott. $278,114.2828 directly to unpaid amount of the contract balance that Dasta subeontrae- Moreover, entitled, delay damages damage delay and that the no for 25. the fact that Marriott was contracts, engage type recovery. under the be a bar clause cannot to its challenged by conduct Dasta also is fatal to Das- matter, disagree. preliminary We As Harde- negligent supervision. ta’s claim of plainly distinguishable man because it ad- complained-of dressed a situation in which attempt applica- In a final to circumvent the regardless delay costs would exist occurred; here, of whether a clause, damage delay tion of the no hand, on the other Dasta’s dam- inapplicable claims that the clause is in the in- and, hence, ages delay pre- were due to the are stant case because Dasta's are for "inef- cisely type damage addressed the no costs, ficiency "impact” of labor” rather brief, delay In its own clause. Dasta states that "delay” According than costs. there delayed it was due to Marriott’s actions and that delay damages can no "unless there is delays, by impacting upon these Dasta’s time of performance prolongation beyond the antici- performance, Hardeman, caused the labor inefficiencies that pated completion.” date of Paul Inc. States, 1357, 1361, subject are the of Dasta's claim. We are un- v. United 406 F.2d 186 Ct.Cl. (1969). attempt completed perfor- moved Dasta's creative to label its Since Dasta time, way damage mance on it reasons that there were no the no around trial, presented following accounting 27. At as the final of its contracts Marriott: A. VC-109 Exterior Skin: $3,109,850.00 Original Contract 3,086,342.16 Adjustments Plus 1-19) (Change of Contract (5,791,214.65) Payments Less (Direct Dasta) $404,977.51 Subtotal A Drywall: B. VC-125 P.S. $1,749,050.00 Original Contract 169,249.59 Adjustments Plus 20-22) (Change of Contract LESS: (1,813,918.61) Payments
(Direct Dasta) 104,380.98 Subtotal B 509,358.49 Subtotal A & B LESS (292,000.00) Payment by
Authorized Marriott to Dasta Sub- Suppliers contractors $217,358.49 TOTAL Resort; however, agree paid they disagree, on the Dasta and Marriott that Marriott $570,114.28 percentage suppliers either to Dasta and sub- of this amount that was "authorized” satisfy placed contractors or to the various liens Dasta. Because Marriott is credited for all extinguish Accordingly, grant liens the district suppliers in order to court’s tors and judgment notwithstanding after Dasta failed to the verdict is AF- placed on the Resort pro- compensate for their work on the FIRMED. them asserts,
ject. and the district court IT IS SO ORDERED. found, applied amount should be that this outstanding contract balances a set-off to the PAINE, Judge, dissenting: Senior District agree. owed to Dasta. We agree I majority’s holding with the According to Condition Item General properly interpreted the trial court the no- permit agreed not to its subcontrac- damages-for-delay clause of the contract. any suppliers place liens on the tors and join majority and would affirm on this Moreover, property. “in the event Resort only if it issue were the issue before this filed, [Dasta] such hen shall be However, court for consideration. because *14 steps necessary proper agrees to take all the issue of whether Dasta has established discharge of such hen ... for the release and recognized exception to enforcement of the obhgation, performing and in default of such no-damage-for-delay clause is also before the Owner, demand, agrees to reimburse the court, majority I cannot concur with the paid by releasing, for all monies Owner opinion. exception. It fails to address the satisfying, discharging of such hens.” majority I opinion dissent from the be- obhgated bo Accordingly, Dasta was re- majority cause the affirms the district court’s placed hens on the Re- move ah mechanics’ entry judgment notwithstanding of ver- the by supphers and subcontractors. sort its part upon finding dict which was based in the by provision, Dasta failed to abide this sup- that there was insufficient evidence to paid the additional amounts Mar- because port jury’s factual conclusion that Mar- outstanding owed riott exceed balances deliberately per- riott with interfered Dasta’s Dasta, Marriott is entitled to set-off the en- majority formance. The does not address outstanding remaining amount of the tire the issue of deliberate interference with Das- balances.29 contract performance, ta’s which would constitute legally permissible exception to the enforce- V. no-damages-for-delay clause ment of the Rather, majority comply against contrac- Dasta. holds Dasta’s failure to with the unnecessary Das- that it is to determine whether tually-provided measures for rehef bars actively per- recovering delay, impact, for its and Marriott interfered with Dasta’s ta from matter, formance, because, preliminary inefficiency damages. cannot re- as a Dasta also time, outstanding request Dasta failed to an extension of cover its contract balances be- no-damage-for- by pay- required by the contract’s cause those amounts offset wére delay my opinion, majority’s behalf. clause.1 In ments made Marriott on Dasta’s otherwise, issue, analysis reading payments, a close of the or the distinc- of this authorized opinion tion is immaterial. reveals that it does offer a conclusion Specifically, majority respect with thereto. - $217,358.49 $278,114.28 liens) (unpaid concludes: = contracts) $60,- (outstanding balances on not take a cross- 755.79. Because Marriott did appeal analysis documents in this Our of the contract judg- against on its Dasta from claim inescapable leads us to the conclusion case court, district under which ment entered claim, under those docu- that Dasta has no ments, Marriott was not entitled to recover amount injuries purportedly suffered for the it balance, paid we it in excess of the contract need analysis Our at the hands of Marriott. Marriott, fact, whether could not determine to the identical conclusion: evidence leads us $60,755.79 have recovered the additional from no claim under the theories Dasta has Dasta. advances, [emphasis recovery added] it conclusion, agree can- the former While I with majority thought it was unneces- 1. Because the agree I conclude that not with the latter because sary, analysis undertake an of the it did not one of the has a claim under at least exception to interference enforcement deliberate wit, advances, pursu- However, recover theories it no-damages-for-delay clause. recognized legally deliberate interfer- majority opinion provide an ant to the does not while 1072 notes, majority correctly limited Dasta’s correctly found court
holding that the district
remedy under the contract to an extension of
relief
its contractual
that Dasta failed
seek
prohibited Marriott’s liabili-
time and further
not determinative
of time is
of an extension
money damages sustained as
ty to Dasta for
majority’s
conclu-
this entire case.2
occasioned Marriott.3
result
not
single issue does
obviate
sion on this
However, it
in Florida that a
is well settled
entry
court’s
duty
the district
to review
no-damages-for-delay
pre-
clause does not
notwithstanding the verdict on the
judgment
recovery
delays resulting
clude
from a
exception,
the district
wherein
issue
fraud, concealment,
party’s
or active interfer-
of the facts for
its version
court substituted
performance
with
under the contract.
ence
deliberately
jury’s
verdict that Marriott
States
the Use and
See United
performance
Dasta’s
under
interfered with
Benefit of
Inc.,
Company
Seminole Sheet Metal
v. SCI
contention
The real issue of
the contract.
(11th
Davis,
Cir.1987);
As noted
this Circuit in Seminole Sheet
Metal,
exceptions
these valid
to the no-dam-
Legal Analysis
ages-for-delay clause are
with and
consistent
Jury’s
Liability
The
Verdict on
Should
predicated
contracting party’s implied
upon a
Stand
promise
party’s
not to hinder the other
abili-
subject
ty
perform
obligation.
The
contract contained an enforce-
to
its contractual
which,
Metal,
no-damages-for-delay
able
clause
as Seminole Sheet
garding the jury and the ver under the contracts therefore, is, contrary great to the
dict
weight of the evidence. above,
Further, despite jury’s as noted separate amounts of
attempted delineation interrogatory requested
damages as form, that the parties suggested both verdict America, STATES of UNITED of dam- figures amount separate two —the Plaintiff-Appellee, and the amount the contracts ages due under delay/aeceleration/impact from the due v. together to de- not be added claim—should CAMARGO-VERGARA, Ricardo Elias to Dasta from the total amount due termine Sanchez, Efrain Antonieta Maria Santos urging Apparently the court Marriott. Dominguez, Defendants-Appellants. damages on jury’s award of simply ignore the claim, Dasta delay/aeceleration/impaet No. 92 - 4159. the amount of verdict suggested that $2,452,311.00, jury the amount the should be Appeals, United States Court owing to erroneously to be due and deemed Eleventh Circuit. contracts, plus pre-judg- Dasta under attempt to tailor interest. Dasta’s ment July speculation way require in this would verdict further jury’s and would to the intent give effect to a verdict require that this court clearly supported record not
which suggestion that Marriott’s
evidence. equally together is an be added
sums not obviously attempt reconcile an
arbitrary
inconsistent verdict. form that appear from the verdict
It would mistakenly totalled sums for each jury of dam- duplicated the award
claim and then *18 However, nei- because
ages on each claim. district court has this court nor the
ther jury amount the attrib-
way knowing what exactly how it arrived to each claim or
uted factually unsupport- inconsistent and
at these damages, I would remand verdicts on
ed to hold a new district court
matter to the damages. v. Ard South-
trial on the issue reflect the the contracts to parties owed under majority, amount $292,000 correctly noted 9. As $509,- direct- payments Marriott made dispute entitled to that Dasta was do not Thus, suppliers. ly Dasta subcontractors unpaid on its contracts was left 358.49 that amount left parties agreed that the final both undisputed the fact that Dasta Marriott. Also $217,358.49. owing totals on the contracts to reduce expressly authorized Marriott