*1 USA, INC., Plaintiff- MURPHY OIL Appellant,
Appellee/Cross Inc., WOOD; Trivental,
Lawrence
Defendants-Appellants/Cross-
Appellees, Defendant-Appellee. Ramey,
Randall 04-6183, 04-6239.
Nos. Appeals, Court
United States Circuit.
Tenth
Feb. *3 (and Sheryl Young,
Robert W. Dace N. Taft, brief), him on McAfee & A with City, Corporation, Professional Oklahoma OK, Plaintiff-Appellee/Cross Appel- for lant. (Heather Hintz, N. L. on
Robert Sheets Whitmire, briefs, Lyndon W. with McFall, briefs), Phillips, him on the Murrah, P.C., McCaffrey, McVay & Okla- OK, City, Defendants-Appel- homa for lants/Cross-Appellees. SEYMOUR, EBEL,
Before KELLY, Judges. Circuit work, KELLY, JR., Judge. scope price, payment contract Circuit PAUL J. terms, date, completion and other matters Defendant-Appellant/Cross-Appellee in the addressed General Contract rel- (“Trivental”) Trivental, from appeals Inc.1 particular to that evant station. Trivental (“JMOL”) as a matter of law judgment Specific entered into Con- Plaintiff-Appellee/Cross-Appel- in favor of stations, gas tracts build four in these U.S.A., (“Murphy”) Inc. lant Oil Louisiana; Iberia, Hugo, locations: New (1) claim; of contract Murphy’s breach Tulsa, City, and Oklahoma Oklahoma. (2) of contract two of Trivental’s breach (3) claiming sued Trivental counterclaims; breach Wood, by failing its contract breached fiduciary duty claim. Lawrence Trivental, its subcontractors work done appeals also the dis- *4 officer City gas Aplt. the Oklahoma station. See judgment that he lacked stand- trict court App. Murphy argued at 82. further ing pursue his individual counterclaims. misappropriated Trivental had trust funds Finally, appeals Trivental the court’s paid Murphy, intended for the benefit attorney’s pre-judgment fees and award of subcontractors, in violation of Okla. in Murphy. interest favor of §§ Ann. tit. 153. Trivental Stat. judgment from a Murphy cross-appeals counterclaimed, arguing Murphy had in favor Trivental with jury on a verdict of fully failed to for compensate Trivental regard to a third breach of contract coun- performed sup- “extra work” and materials cross-appeals the Murphy terclaim. also Iberia, plied Hugo, at the and Tulsa denying judgment punitive district court ApltApp. at 88. stations. See Finally, cross-appeals damages. Murphy These counterclaims were submitted Murphy no't the determination relating jury. The claims to the Tulsa attorney’s regard to entitled to fees with Hugo and stations were decided under jurisdic- Trivental’s counterclaims. Our law, relating Oklahoma while the § tion arises under 28 U.S.C. and we the New Iberia station was decided in part, part. affirm in and reverse deliberation, Following Louisiana law. Background, damages in the jury awarded Trivental (1) $37,500 Tul- following amounts: for the operates gasoline owns and ser- (2) station, station, $40,000 Hugo for the sa stations, in including those Wal-Mart vice (3) $137,500 New Iberia sta- and for the locations, of the coun- throughout portions Aplee. Br. 5-6. tion. See into a try. Murphy and Trivental entered (“General later, Contract”), a month the district effective Over contract in favor 1, 2000, jury set aside the verdict January whereby partially Trivental was to Trivental, for Mur- granted for JMOL perform general work as the contractor stations, relating to the phy four of on the counterclaims building gasoline stations, ruling that Triven- in this Oklahoma litigation were relevant to the two which accepted negotiated tal had amounts case. Before the construction of indi- station, any right to money and therefore waived gas vidual Trivental and allegedly due on the particularized pursue contract the remainder would enter into a Contract”) at 478-9.2 The dis- ApltApp. outline the contract. (“Specific would pursue This is appeal his individual tort claims. Wood’s focuses on Defendant addressed below. standing rejection of his court's that Louisiana law
2. The district court ruled fiduciary punitive damages on its breach of trict court had not instructed (“There (4) claim, duty awarding Murphy is no See id. waiver. of contract attorney’s instruction on waiver on breach fees connection with Triven- claims.”). such, was awarded As counterclaims. tal’s $137,500in damages. Discussion
Next, the court entered JMOL on Mur- claim, awarding phy’s breach of contract (04-6183) Appeal A. Trivental’s $80,702.06 damages, actual $9,074.76 prejudgment additional 1. Waiver also interest. The district court entered argues that sufficient evidence Murphy’s fiduciary breach of JMOL existed, breach of contract claim, duty ruling managing that the offi- court erred in and therefore the district Trivental, Defendants cers of Wood on its coun- setting aside verdict Ramey, personally could be held liable for Trivental further terclaims. asserts of trust. The district court also breach granting the district court erred in JMOL attorney’s granted Murphy fees contending that grounds, on waiver waiver $77,040.75. amount *5 presents question jury.3 of fact for the argues that appeal, On ruling Murphy argues that the court’s (1) setting in district court erred aside the voluntarily proper because Trivental entering jury’s verdict and JMOL favor intentionally accepted partial payment pur- (2) stations, on the Oklahoma negotiated contract modification suant to a (3) waiver, reserving grant- the defense of thereby right its to claim waived on its ing JMOL favor remainder. (4) claim, fiduciary duty improp- breach of erly shifting proof diversity, on dam- a district court sits in it burden When (5) Trivental, ages failing required apply to to instruct the is to the most recent state theory, applicable on Trivental’s “first breach” ment of substantive state law as (6) failing pronounced by particular high to fraud state’s instruct on Trivental’s claims, failing Hampshire court. v. Phillips and constructive fraud est (10th (7) trial, Co., 1215, holding it a Ins. 263 F.3d grant to new 1218 Cir. 2001). standing proceed appeal, lacked on fraud On we use the “normal Wood (8) claims, appellate and tortious interference award- federal standards review (9) ing attorney’s Murphy, pro fees to examine the district court’s decision (internal awarding quota cess.” Id. citations and prejudgment Murphy. interest omitted). Thus, cross-appeal, Murphy argues In its tions we review a district (1) granting judgment the district court erred court’s decision on a motion for novo, applying JMOL or a trial or remittitur as a matter of law de new Okla Sholtis, Tanberg on contract claim on the New homa law. v. 401 Trivental’s F.3d (2) (10th Cir.2005). station, 1151, failing ap Iberia to submit Mur- 1156 This court (3) phy’s jury, plies applied by laches defense to the the same standard as that awarding Cummings it v. granting Murphy JMOL and the district court. See Gen. governed argues the New Iberia station counter- Trivental also court's claim, setting aside the verdict resulted in mislead- apply Aplt. and waiver did not there. ing jury right 478, instructions and denied it the App. at n.*. by jury. trial In view of our reversal other grounds, we need not address this issue.
1013 (10th 50(b), provides: R. P which Motors, of Fed. Civ. F.3d Corp., 365 “If, reason, .2004). the court does not for Cir judgment as a matter of grant a motion Procedure Rules of Civil The Federal to have law ... the court is considered JMOL, by jury a trial during “[i]f allow for jury subject to the action to the submitted fully on an issue has been heard party deciding legal ques- later the court’s sufficient evidentia- legally is no and there by the motion.” Fed.R.Civ.P. tions raised jury to find for a reasonable ry basis for 50(b). Fed.R.Civ.P. on that issue.” party 50(a)(1). such, appropriate As JMOL Oklahoma, In waiver is the vol way one points but only if “the evidence relinquishment of a untary and intentional infer- susceptible to no reasonable and is Baptist v. right. Barringer known opposing may support ences which Okla., P.3d Healthcare of Cummings, 365 party’s position.” (Okla.2001). such, the doctrine of waiv As at 949. F.3d party er focuses on the intention
Here,
the defense of
Murphy raised
asserted;
against whom the waiver is
to Trivental’s counter-
in its answer
waiver
is,
party must have the intent waive
in the
claim,
an issue identified
and was
Id.;
v.
right.
Bay
Corp.
Petroleum
68, 83. Mur-
Aplt.App. at
pretrial order.
(Okla.1953).
In
May, 264 P.2d
theory.
on its waiver
sought JMOL
phy
waiver,
agreement
of contractual
cases
at 1576-77. The district
Aplt.App.
upon
founded
valuable consider
must be
Appar-
it. Id. at 1577.
ruling
reserved
Minneapolis
Thresh
ation. See Smith
later,
confer-
ently
at a
instruction
Co.,
214 P.
Mach.
89 Okla.
ing
ence,
it was inclined to
the court indicated
(1923).
*6
theory as a bar to
accept Murphy’s waiver
expressly
can occur both
Waiver
breach of contract counterclaim
Trivental’s
Murphy’s position overlooks factual the to submit Trivental’s breach of contract dispute regarding (and whether Trivental im- jury counterclaims to the effectively plicitly rights waived its to full payment. deny Murphy’s JMOL motion at the time First, testimony, 50(b), there was albeit from Mr. supra), under Rule it was incum Wood, that partial payments from Murphy object bent on to to the instruc accepted were Murphy’s inability due to to tions as incomplete (lacking Murphy’s af pay waiver) the full amounts as a result of the firmative provide defense of and to
1015 thereof cannot seek performance hinders Fed.R.Civ.P. instruction. waiver a contracting par by the other performance Ins. 51(d)(1)(B); Maccabees Royal Life (10th & v. Everett A. Holseth ty. F.D.I.C. Choren, 1179 F.3d Co. v. 393 (10th Cir.1994); Co., (“Absent a Cir.2005) objection, 36 F.3d proper a (in- waived.”) Real Corp. v. Macerich Dayton Hudson is deemed argument party’s (10th omitted). Co., not Cir. Murphy did 812 F.2d Estate citation ternal 1987); Melody Mfg. not Home (“Murphy Townsend object. Aplt.App. (Okla.Ct.App. Co., the to instruct 541 P.2d failing in claiming error waiver”). 1975). “first breach” Having stood is the so-called This concerning evidence, the waiver defense. strength on court submitted district though the even First, to its failure Trivental’s now may jury, claims to a breach of constitutes subcontractors a retrial with to that it is entitled Murphy. Trivental with General Contract Had dis- instruction. proper waiver of contract Murphy’s breach contends that Mur- JMOL in merely granted trict court pro Tulsa and Iberia regarding the reversed, and we on this issue favor phy’s Both the its breach. jects precipitated on the that a trial question is no there Specific and the Con General Contract awith counterclaims of contract breach each oth incorporate and tracts reference appropriate. would be instruction waiver (The at 4038 General Aplt.App. er. See occurred here —the not what But that is com that “Prior to the provides Contract were counterclaims of contract breach any work GEN mencement objection was jury, and no tried CONTRACT, enter parties will ERAL to instruct waiver. to the failure made to cover CONTRACT into SPECIFIC work, scope matters such as Assigned Breach Contract comple payment, terms of price, contract Rights Contractual —Tulsa provided date, matters and other tion stations Hugo ....”) original); see (emphasis herein granted The (The City Spe Oklahoma also id. at that Trivental breach- its claims JMOL Contract, provided the others like all cific and contracts Contract the General ed “[cjontrac record, that the provides in the Tri- Murphy. assigned subcontractors materials, [etc.] labor tor shall furnish in not the court erred argues
vental expe- finish construct necessary ... jury, go allowing these issues manner and ditiously, in a workmanlike “first as to instruct failing herein- ... documents with the accordance argu- each We address breach” defense. [including General the] ... after listed in turn. ment 2005-05.”). parties have The Contract No. *8 do and so together the contracts that treated in Oklahoma It is well settled or we.4 prevents who party to a contract a reality the consistent with is this concept ed. Not rejects apparently
4. The dissent business, evi- also the but forming construction of the Specific Contracts of the General and Aplt.App. at 931- at trial. dence adduced "exchange promises,” see of an interrelated 4022, 942-43, 979-80, 34, Contracts, While (Second) § 237 of Restatement General Con- and the Specific Contracts incorporat- three (1981), referencing through and attenuated "separate” in some may be tract covers general contract ing The each other. manner, facilities,” we are reminded Aplt. or formalistic Murphy performed at "work agreement is not control- 4034, form perform- "[t]he course of the entire App. parties is bargain ling, the actual projects were interrelat- ance dictates that presented evidence that in- assignment cured a valid from claims ability pay to subcontractors,6 the subcontractors from various for Oklahoma law which this breach of contract claim derived is clear that the lien statutes are cumula- directly resulted the debt from tive, i.e., they preclude do not aggrieved incurred for the work that extra parties pressing claims, from alternative required perform Iberia, Hugo, such as breach of contract. Wyant v. 41^42; Aplt. Tulsa. Br. at ApltApp. Co., Davidson & Case Lumber 173 Okla. at 1409-1410. Trivental has present- also 467, (1935) (“[Tjhis 151, 49 P.2d court Murphy ed evidence that promised pay repeatedly has remedy held that the pro- Trivental for this work. ApltApp. extra at by vided statute in this state for foreclo- noted, course, It 1409-10. be should sure of mechanic’s or materialman’s lien is did find Trivental was a cumulative remedy.”); see also Love v. compensation entitled to from Murphy for 302, (1924) Caylor, 98, 99 Okla. 227 P. stations, extra performed work at those (“The plaintiff required was not to fore- and therefore support this evidence could close his lien and remedy exhaust his finding Murphy’s breach of the that manner before he could maintain a contract in not paying regard with to these personal against action the defendants to three stations constituted “first breach” indebtedness.”). recover the amount of this of the Oklahoma station contract. See But the JMOL upheld cannot be Townsend, such, P.2d 1374-75. As either, theory this for the subcontractors’ the district court erred in refusing to sub- breach of contract (validly assigned claims claim, mit Murphy’s breach of contract Murphy) implicate Murphy’s alleged re- defense, Trivental’s “first breach” work, fusal to just additional as jury.5 Murphy’s own breach of contract claim does, and still present questions
Murphy also of fact for claims that it is entitled to jury. As damages assignee, assignment based rights against claims against subject subcontractors had Tri- Trivental would be vental. The agreed, any setoffs or grant- Tri- counterclaims that ing Murphy might JMOL on the issue. vental Aplt. have against Murphy, and to App. at 475. It is true that se- defenses as a result of Murphy’s conduct. merely by not to be determined reference to 6. We note that the purported assignment to arising such separate prom- criteria as whether ... of claims under Okla. Stat. tit. invalid, §§ presumed 153 is single ises are as the writing contained ain or in prohibition against common-law assign- separate writings.” (Second) Restatement action, ment of a tort such as breach of a § Contracts cmt. d. fiduciary duty, pro- unless obtains otherwise Hunt, vided Dippel statute. See 517 P.2d 5. The Murphy's dissent contends as 444, 447 (Okla.Civ.App.1973). While Okla. pre-dated breach City the Oklahoma station §§ Stat. appear tit. 153 do to allow formation, contract’s it "would mean that Tri- claim, assignment of a valid lienable Mur- already vental failing had a defense to its phy surely against cannot file a lien its own pay” the entering before subcontractors into property against in order to recover Trivental. the Oklahoma contract. Dissent at 1025. case, any In does not need to stand But Trivental would not have had notion assignment press on this in order to that it had a "defense” to its breach with claim, fiduciary duty breach of because the *9 regard to the subcontractors at the time of the statutory provisions are construed to include formation, Oklahoma contract’s because trust, owners as provided of the beneficiaries going still believed that the existence of a valid lienable claim. See In Harris, promised. 710, for the extra work (Okla.2002). as re 49 P.3d 715-718
1017
152,
42, §§
tit.
(2d ed.1999);
Okla.
contractor. See
Stat.
Re-
§ 149
6 Am.Jur.2d
Harris,
at 716.
153;
re
49 P.3d
336(4).7
see also In
Contracts,
(Second)
§
of
statement
-however,
exists
fiduciary duty,
The
are lienable
the extent
that
there
claims
Fiduciary Duty
Breach
3.
of
or
by
building
of a
owing
reason
due
granted
court also
The
Harris,
49
re
remodeling contract.
In
claim that
breached
on its
JMOL
settled
the
at
It is also well
P.3d
716.
42,
under Okla. Stat. tit.
fiduciary duty
places trust
property
owner of real
who
153,
money entrusted
152,
by spending
§§
pursuant
general
contractor
funds with
pay-
other than
purposes
for
by Murphy
fund
trust
construction
to the Oklahoma
the subcontractors.8
of
ment of the invoices
statutory
beneficiary of the
is a
statutes
pre-
Murphy cannot
argues that
to the extent
lien scheme
construction
in order to ob-
this claim because
vail
the
arising from
any
claims
valid lienable
must exist
remedy there
statutory
tain the
gener-
and the
the owner
contract'between
at the time
a valid lienable claim
Harris,
at
In re
49 P.3d
al contractor.
the breach
Murphy argues
breach.
772 P.2d
716;
Tefertiller,
In re
also
see
trust
misapplication
upon the
occurs
(Okla.1989).
396, 397-98
filed
been
funds,
could have
and as liens
valid lienable
A subcontractor’s
time,
they are entitled
during that
of work
upon commencement
claim arises
remedy.
statutory
pursuant
furnishing
materials
or
law is clear that
Oklahoma
772 P.2d
Tefertiller,
In re
a subcontract.
con
general
399;
on a
Nat’l Loan &
statutory duty imposed
Fleharty & Co. v.
at
(1923).
Co.,
292,
P. 744
pay
in
for the
215
trust
Inv.
89 Okla.
to hold funds
tractor
onward,
this
lienable
fiduciary
point
creates a
From
ment of subcontractors
throughout
“inchoate”
remains
the owner and
relationship between
(Second) of Con-
Restatement
overly
because the
argues for an
narrow
dissent
7. The
thoughts
de-
336(4),
the dissent
yet despite
§
the situation
reading
tracts illustrated
Georgia
judge
in
illustration is
federal district
of one
does not mean that
scribes
Tennessee)
by
(sitting by designation
Indeed,
cited
perfect
.this
makes
rule
exclusive.
dissent,
explained in
rule is that
the better
allegations
given the
here
sense
—Trivental
Hogg,
Md.
535 A.2d
State
resulted in
conduct
contends
(1988) (overruled
grounds),
on other
934-35
breach of the subcontracts.
Trivental’s
by
listed
amply supported
the authorities
treatises,
therein, including
4 Cor-
see A.
two
part,
provides,
pertinent
8. Section 152
(1951);
bin,
§
at 527
on Contracts
Corbin
building
any
"payable
or
the amount
74.47,
Lord,
§
at 538
on Contracts
Williston
shall,
by
upon receipt
remodeling contract
ed.2005),
Hackley,
(4th
Winchester v.
subcontractor, be held as
any
or
contractor
(1805);
342, 343,
Cranch)
(2
tract. Id. appears that four claims paid by were Murphy to subcontractors for work per- If the subcontractor takes no action to formed at the Oklahoma station be- lien, enforce the or if the lien per- is not fore the ninety day period expired. These according statutory fected proce- (1) payments include to: those S.R. Dutch dures, then the “all lienable loses Construction, 26, paid on June 2002 in the vitality Tefertiller, and force.” In re (2) $16,002.22; amount of Metroplex Sprin- 399; Divine, 916, P.2d at Bohn v. 544 P.2d kler, paid 2, 2002, on July in the amount of (1975) (“Unless the lienable claim was (3) $7,347; and George Patrick’s Plumbing perfected days completion within 90 of Company, 9, paid July in the materials, the work or furnishing $2200; (4) amount of and Mustang Electric character the claim was longer no Company, $27,525.9 in the amount of ”). such, ‘lienable.’ As a subcontractor can ApltApp. 462; at Aplt. see also Br. Supp. only recover under the construction trust Thus, at 1-2.10 the district entry court’s fund statutes if perfected “there was a lien JMOL for Murphy inwas error.11 at Bohn, the time brought [it] suit.” Nevertheless, regardless of whether P.2d at 920. Murphy is proceed allowed to under the Murphy, project owner, as the is construction fund statutes on these four subject slightly to a more nuanced rule. A claims, (as has) may argue still it common reading sense of the statute that it “first breach” that would not require project a owner to file a precipitated Trivental’s breach of its fidu- lien on his own property, nor is good ciary duty is, to its contractors. That policy to require the ninety owner to wait jury question remains as to whether Mur- days paying before subcontractors. Okla. phy can show obliged it felt pay §§ Stat. Ann. tit. 153. Further subcontractors and its conduct vis-a-vis more, requiring a project owner to file a Trivental was not the precipitating cause lien on his own property title, could cloud of the non-payment.
even if temporarily, require and would 4. Mr. Wood’s Counterclaims eventual Therefore, release of the lien. project owners, who subcontractors Wood, Mr. a managing officer of within ninety day period in which the codefendant, Trivental and a appeals the lien, subcontractor could have filed a district court decision that he lacked Only 9. one perfected by lien was filed and payments other to subcontractors if those subcontractor, Mustang Company, Electric payments came after those subcontractors' $27,525. the amount of Aplt.App. lienable extinguished. claims became appearances, 1816-18. From Mustang all complied with § Okla. Stat. tit. 143's no- 11.The district court was correct insofar as it perfection procedures, tice and and the lien found that if any remedy entitled to timely claim was filed. Id. The relevance of trust, for breach of proceed against it can this, any, if will be taken into account individually. Trivental’s officers See Okla. jury on remand. 153(3) ("For § Stat. tit. purposes of this section, persons subject natural punish- noted, course, It should be ment recover, managing shall be the law, officers of [the] cannot as a matter of under the corporation...."). construction trust fund statutes for of its
1019 in jury the to find for evidence coun sufficient tort personal his standing pursue to error to favor, certainly “not it is her was correct. court The district terclaims. if instruction requested a give to against refuse counterclaimed Mr. Wood cov- adequately voluntarily subject matter is he the same monies recover seeking to F.D.I.C. general failed in the instructions.” ered Trivental when to advanced (10th Schuchmann, 1222 the to 235 F.3d pursuant Trivental to reimburse Cir.2000). court’s the district agreement. oral We review alleged Murphy-Trivental jury recov instruc- standing particular to a give have to not decision Wood does Mr. owed to Id. at obligation discretion. essentially an an abuse of is tion for what er Co., Inc. v. as a are Shea instructions considered See J.F. 1221. The Trivental. (7th they Cir. 749 whether F.2d to Chicago, 992 novo determine whole de 1993) gov- cannot assert employee informed of the (holding accurately the Indeed, corporation). at 1222. erning claims Id. law. by Mr. Trivental advanced amounts in this fraud instruction While very part in and included are
Wood preferred Trivental’s employ not case does itself by Trivental sought damages same verbatim, in fraud Oklahoma for wording Murphy. against Mur clearly spells out that the instruction different, presumably any Were this intentionally if it held liable could be phy required was anytime shareholder a to ob order misrepresentations made cash- to a a loan or make capital contribute or party advantage for one unjust tain “an shareholder corporation, strapped a loss or inconvenience to cause owed on monies to collect seek could then more at 424. This Aplt.App. other.” lia- result in This would corporation. law governing adequately states than recourse, in mayhem. Mr. Wood’s bility and Louisiana. for both Oklahoma of fraud with relationship direct absence As Schuchmann, at 1223. 235 F.3d Trivental. against lie Murphy, would fraud such, on jury instruction press standing to such, Wood lacks As Mr. error. Murphy. against claims individual his to Trivental’s regard With Fraud Constructive 5. Actual erroneously court the district claim that the district argues that Trivental fraud, we constructive to instruct failed claims relat- the fraud combining erred re fraud does constructive note that station and Hugo, Oklahoma ed to deceive; indeed, negli intent quire an one Iberia, Louisiana station misrepresentation innocent even gent or in- that this argues Trivental instruction. finding a the basis may provide fraud under Louisi- only states struction Kan Faulkenberry v. fraud. constructive differ- “substantial law, are there ana Co., 602 P.2d Ry. City S. sas and Oklahoma Louisiana ences” between Nevertheless, re in order to (Okla.1979). that the district argues also law. fraud, theory of constructive cover under failing instruct court erred relationship” be “special be a there must each fraud. address constructive We party requires the parties that tween the in turn. arguments these comply fraud with constructive charged duty. Silver statutory affirmative with an is party that a it is clear While (Okla.1988). Slusher, 770 P.2d theory of v. on her instruction entitled to to elucidate brief, failed In its a correct if the instruction case relationship” “special aof existence submitted has of law she statement LLC, (10th parties impose between the that would Cir.2005); F.3d *12 statutory duty Murphy upon which the see also Cummings, F.3d at 951. A claim for possibly constructive fraud could motion for a new trial on ground that such, Aplt. stand. Br. 44-45.12 As against the verdict weight is of the district court’s failure to instruct the presents fact, evidence question not of on constructive fraud was an abuse of law. See Patton Corp., v. TIC United its discretion. (10th Cir.1996). Thus, F.3d district court will not be reversed unless Burden, Shifting Fees,
6. Attorney’s clearly, verdict is decidedly, or over- Pre-Judgment Interest whelmingly against weight of the evi- (internal dence. See id. citations argues quo- that when the district omitted). tations required prove Trivental to that the extra work it fell outside the claimed Gen- The Louisiana oral modifica Contract, eral it erred in shifting the bur- requires tion statute contract, that an oral prove den to from damages Murphy to such as the one alleged by Trivental, here Trivental. argues Trivental also that the that exceeds in price, $500 “must be district court erred in awarding Murphy proved by at least one witness and other attorney’s Finally, fees. argues corroborating circumstances.” See La. that the district court erred awarding (1985). Civ.Code Ann. art. 1846 It is well Murphy pre-judgment interest. settled in Louisiana that party may We decline to arguments, address these qualify as its own prove witness to awards, the basis of any, these if will contract’s existence. See Suire v. Lafay be reevaluated on remand. City-Parish Gov’t, ette Consol. 907 So.2d (La.2005). The corroborating cir (04-6239) B. Murphy’s Cross-Appeal cumstances general, is, need be independent 1. proof every Breach detail Contract —New Iberia agreement required. Yet, station is not Id. corroborating circumstances must come On cross-appeal, Murphy argues that from someone than party other assert the district court erred neither granting ing the agreement’s Id.; existence. see its motion for JMOL nor granting its re- also La., Deubler Elec. Inc. v. Knockers of quest for a new regard trial with to the Inc., 665 So.2d 484 (La.Ct.App.1995). discussed, Iberia station. As the dis- trict court ruled that waiver did not apply regard With prong, first contract, to this because it was decided Trivental presented has evidence of an oral under Louisiana argues law. Trivental agreement. Mr. has Wilson testified that that there was sufficient evidence for the extra work was performed at the New jury to find itas did. station, Iberia and that it specifically above,
As noted is appropriate JMOL suggested by Murphy. See Aplt.App. at only if points the evidence way Further, but one 1205. Mr. Wilson testified that susceptible to no reasonable inferences required they keep workers may which support the opposing party’s onsite even when the weather conditions position. See Eby Realty Miller Group, precluded meaningful work. Id. at 1203. argues appeal Trivental also that the argument, We decline to this reach as Triven- instructing court erred in not tal by failing waived it on appeal object at on constructive fraud Louisiana law. Aplt.App. trial. 1630-31. an irresistible inference and to raise same oral to these Wood testified Mr. corruption or another prejudice, particular passion, Murphy, with modifications with the trial.” Id. improper cause invaded Id. Iberia station. the New emphasis on omitted). (internal quotations citations and such, Tri- it is As clear 1455-57. damages is traditional- awarding an As enough evidence provided vental jury, and the province of the ly con- within the jury’s for the existed agreement oral $137,500 certainly does jury’s award of sideration. conscience, thus affirm our we shock *13 Mur- prong, regard to the second With court’s of remittitur. denial corroborating that Trivental’s argues phy rep- from its own only come circumstances 3. Laches satisfy the resentatives, fail thereby Trivental argues that someone they arise from that requirement any delayed asserting in unreasonably contrary, To the party. than the other against Murphy, may it have had tes- Buzbee, representative, a Mr. in refusal to that the district court’s grad- in the if were errors tified that there to an on laches amounted struct site, then Trivental Iberia ing of the New in settled discretion. It is well abuse of extra work. perform required be would is prescription time for Louisiana that the Mr. Buzbee at 1244-45. Aplt.App. See by the character which “determined negotiation that after further testified that the pleadings and gives his plaintiff change order generally, or work extra prescription.” governs of the action form agree Murphy would specifically, Franichevich, 612, 167 184 La. v. Antoine contractor) (or the extra for (1936). to the Louisi According 99 So. Id. at 1244-46. costs. Court, pre no is Supreme “[t]here ana such, find that because As we by than that established scription other corroborating circumstances presented has State, 898 So.2d v. legislation.” Fishbein from its not come agreement that do (La.2005) La. Civ.Code (quoting with other combined representatives, own b). Indeed, “com Ann. art. cmt. two does, has satisfied evidence prevail of laches does mon law doctrine Louisiana required under the showing part may cre legislature in Louisiana and See La. Civ.Code and case law. statute shorten, prescrip ate, lengthen or abolish Suire, at 1846; also 907 So.2d Ann. art. see (holding discretion.” Id. periods tive Therefore, court did the district had left that other cases to the extent for denying Murphy’s motions in err applicability, of laches’ open possibility trial. or a JMOL new overruled as inconsistent those cases were scheme); statutory see with the state’s 2. Remittitur 1375, 1377 Lyons, Picone v. So.2d also the district Murphy claims Sutton, (La.1992); 446 So.2d v. Corbello grant its motion failing to by court erred (“The (La.1984) laches doctrine of a denial is entitled remittitur. Such state.”). the law this place has no will appeal. We deference considerable some is note there While we absent determination not disturb this statutory prescrip dispute regarding discretion. Sheets gross abuse of claims (10th for breach contract 1383, 1390 period tive County, 45 F.3d Lake Salt contractors, the Louisi Cir.1995). relating general an abuse of only find willWe “the law has held that Supreme Court exces ana jury award is “so if the discretion pre- that a contractor’s claim is clear judicial conscience ... to shock the sive as by years” scribed ten rather than the connection with the trial on remand in year period governs opinion. three a suit to accordance with this Antoine, past wages. recover So. regard to Murphy’s cross-appeal, With (noting by at 99 that suits contractors who judgment we affirm the on the verdict in performing furnish labor and materials in favor of Trivental on its counterclaim jobs agreement for another under a verbal for breach of contract for the New Iberia are governed article and not arti- station, any recovery punitive dam- 3538); cle see also La. Ann. arts. Civ.Code ages attorney’s or fees related to Triven- 3544, 3538. by Murphy may tal’s counterclaims be con- if sidered the need arises connection Even if the statute of limitations cover- with the trial on remand in accordance ing this breach of contract claim were opinion. with this years though, three Trivental would not be in part, AFFIRMED years barred REVERSED elapsed because less than two part, and such, REMANDED. before it suit. filed As the district *14 court did not err in refusing to instruct the EBEL, Judge, dissenting Circuit laches, jury on an affirmative defense that part. does not exist in Louisiana. agree I majority
While with much of the opinion, I must majority’s dissent from the Damages Attorney’s Punitive and decision to overturn the judgment as a Fees matter of law in Murphy’s entered favor Murphy argues that is it entitled to on its claim for breach of contract. Be- claim punitive damages JMOL I cause would conclude that the district Murphy’s from Trivental on claim for correctly Murphy determined that fiduciary of duty. Murphy breach also was entitled as a matter of law recover argues attorney’s that it is entitled to fees theories, on both its breach-of-contract I relating to Trivental’s counterclaims. Giv- respectfully portion dissent from that of disposition en our of the breach of fiducia- majority’s opinion. claims, ry duty we need not reach either of Murphy’s breach-of-contract these claims. sought to recover from Trivental for mon- ey Murphy paid unpaid Trivental’s subcon- Conclusion City tractors on the project. Oklahoma regard appeal, With to Trivental’s asserted two different theories (1) district court’s order on JMOL as to supporting this breach-of-contract claim. First, of waiver Trivental’s two breach of Murphy asserted that Trivental had (2) counterclaims, contract Murphy’s breached the General Contract between (3) claim, breach of contract Trivental, Murphy and expressly which re- claim, fiduciary duty breach of quired is reversed. pay Trivental to all subcontractors The district court shall reinstate the project it undertook for Murphy. verdict Second, favor of Trivental on that, its two by asserted failing counterclaims, breach of contract and con- subcontractors, City Oklahoma duct a trial in new accordance with this Trivental breached its contracts with those opinion. The district court’s award of at- subcontractors and Murphy, as the torney’s and pre-judgment subcontractors, fees to assignee interest of those is now reversed, Murphy are as these matters entitled to recover from Trivental for its may be if considered the need arises in breach. Trivental disputed has never (Second) § of Contracts statement pay some of Oklahoma failed (1981). that, recognized The Restatement required by both as subcontractors case, disputes this many “[i]n con- similar to and the individual Contract General of performance, parties over failure both and the subcon- between Trivental tracts that, performance, question enti- fail to finish light In is tractors. recover, justified in doing one of them is law to is whether a matter of tled as § by other Id. party’s so failure.” theory, for contract. either breach cmt. b. however, that a majority, concludes The defense, however, ap- de- This “first breach” Trivental’s should have considered breaches, only when the entities involved are premised plies on Mur-
fense these to the contract: Specific parties same “Under breach of the Contracts phy’s own 237], Iberia, Hugo breach] rule stated [first [§ Tulsa governing performances to respect of those duties with Murphy’s breach projects. While particular exchanged under ex- certainly provides be Specific Contracts three can, promises are affected a fail- change that it with a counterclaim duty A has, performances. it does ure of one those against Murphy, asserted affected.” separate to its under a contract with provide Trivental defense e; §id. cmt. d § 237 cmt. see also Contract and Id. breaching the General par- (noting protect rules “[t]he had with its Oklahoma contracts reason, performances I to be ex- For ties whose are this City subcontractors. *15 exchange promises changed an dissent. promises are ex- apply when Trivental’s asserted defense. I. contract”). part single a changed as a “first de- breach” Trivental asserts This is where Trivental’s “first breach” fense, earlier arguing Murphy’s its fails. Trivental seeks to excuse defense covering Contracts Specific breach of per- of the Contract as breach General Iberia, projects Hugo Tulsa the New paying to Trivental’s the Oklahoma tains Tri- provides Trivental with defense subcontractors, with City contracts later of its General Con- vental’s breach subcontractors, by re- City the Oklahoma although And Triven- Murphy. tract with other, sepa- Murphy’s breach lying on argument appeal, tal never makes the Iberia, addressing rate contracts same majority concludes this Hugo projects. and Tulsa apply to should also “first breach” defense Specific Contracts The General and claim that II. Murphy’s breach-of-contract single are not one contract. as- as the subcontractors’ Murphy asserts signee. parties’ business At the outset of en- defense, Trivental and relationship, mate- party’s one such a
Under That Gen- Contract. into General will excuse tered breach of a contract rial any not award Trivental eral Contract did reciprocal his party performing other from instead project, construction but specific due under that same contract. obligations project any construction contemplated that party’s remain- is a condition of each “[I]t undertook for performance to be to render ing duties by the both governed would be exchange the future promises exchanged under aby Contract General uncured material failure terms that there be no the de- that addressed Specific Contract to render such party the other pro- particular project. Each of that Re- tails at an earlier time.” performance due ject separate Specific had its own represent separate Con- tracts contracts be- Specific tract. While the General and tween Murphy, Trivental and the fact that related, certainly they Contracts were can- Murphy Specific breached the Contracts all be considered one contract. Nor Iberia, governing Hugo the New and Tulsa separate Specific can the Contracts be con- projects would excuse Trivental from together single sidered to create a con- paying the subcontractors under the sepa- tract. Specific rate Contract addressing the City project. Oklahoma contract, they
Because are not all one Murphy’s Specific breach of the Contracts To conclude otherwise and treat all Iberia, governing Hugo the New and Tulsa agreements these single pro- as a contract projects give cannot Trivental a defense Timewise, duces an anomalous result. its own breach of the General Contract. Murphy breached Specific Contracts required The General Contract that Tri- Iberia, concerning Hugo the New and Tul- pay the on all pro- subcontractors vental. projects sa before Trivental jects. But it did not include a reciprocal agreed to undertake the City Oklahoma provision requiring Murphy pay Triven- project.2 Viewing all these contracts as specific Rather, tal on each project. one, therefore, would mean that Trivental Specific governing Contract each particu- already had a failing defense to its pay lar project addressed Murphy’s duty to City the Oklahoma subcontractors before Therefore, pay Trivental. Murphy’s fail- parties agreed even Specific ure to Trivental in full for the New addressing Contract the Oklahoma Iberia, Hugo projects and Tulsa was a project. I accept cannot such a view of breach Specific governing Contracts Trivental’s and business rela- projects. each of those Murphy’s breach tionship. certainly give would Trivental a cause of action against to recover Murphy.1 But III. II. Trivental’s breach of the con- Murphy’s breach of Specific those Con- *16 City tracts with its Oklahoma sub- tracts would not amount to a breach of the contractors. General Contract. Even if
The result if the General and Specific is same even we as- Con- sume that Specific Contracts each in- tracts between Trivental Murphy and can corporate contract, the General be single Contract’s terms. considered a case, In that because Specific Con- by breach of that contract paying Tri- fees, 1. The paragraph General Contract's attorney’s 8 reit- any payment and from then erates this: due or thereafter to due to [Triven- become tal], withhold, [Murphy] right retains the to re- language This also further indicates that each tain, any payments set off due to and/or project governed by separate was a contract. any or [Trivental] this other transaction any or under contract such amounts as say exactly It is to difficult when [Murphy] protect deems sufficient to [Mur- orally Specific breached those modified Con- phy] property against any and by its claim tracts. agreed Trivental asserts that fabricators, employees, [Trivental's] materi- pay performed to for extra work Trivental on men, subcontractors, al suppliers, and projects through payments Murphy these later may workmen which could or become a would projects. make to Trivental on future against [Murphy] prop- lien or claim Nevertheless, or its say it safe seems to that Triven- erty. [Murphy] may any pay time and tal considered to have breached that discharge such lien or claim and deduct the promise agreed before Trivental ever to con- paid together amount so with with costs project. struct the Oklahoma D, good Iberia, rights pays to who value Hugo, his full on the New vental in assigns D Tri- and without notice. faith not excuse would still projects Tulsa E, A knows of fraud. cannot City sub- who its paying Oklahoma vental from E, against the contract as who avoid Trivental owed the amount contractors if E as- to D’s But rights. with had succeeded contracts Trivental separate C, power A’s will of avoidance telling signs It is these subcontractors. a on such revive. rely does even Trivental court. arguments to this in its
defense Id. illus. 15. suggestion that Trivental’s is no And there h illustra- 336’s comment Section be should its subcontractors contracts with oc- not at describe what tion 15 do all relation- of the contractual part considered Therefore, that section of curred here. Murphy. Trivental ship between not even arguably Restatement would Moreover, Trivental concedes if to this But even this apply situation. subcon- contracts with several breached its 336(4) beyond § interpreted apply in full failing them by tractors used com- language example therefore, as Murphy, project. 15, there is no h and its illustration ment aas assignee, is entitled subcontractors’ 336(4) § that an suggests indication Trivental for to recover from of law matter performance conduct in the a assignee’s with contracts breach its Trivental’s contract, separate occurring completely those subcontractors. assignment, give an would prior with providing In nevertheless such as defense obligor defense, upon majority relies assignor an who of a contract with breach (Second) of Contracts to that as- assigned rights Restatement his then later 336(4) (1981), that “[a]n § which indicates signee. against Murphy’s] right assignee’s [here is minimal case law Although there any subject to obligor [Trivental] 336(4), § the Restatement’s those applying his conduct arising from defense or nar- this part support the most cases for or a subject party as a or he to which 336(4). particu- § In interpretation of row notice.” because he had prior assignee Corpora- lar, Deposit Insurance Federal explains further § comment h But 336’s F.Supp. 362 Dempster, tion v. (E.D.Tenn.1986), careful “[a] held that Mur- the assignee [here conduct of [t]he indicates that the of Section 336 reading any like that of agents may, his phy] or against as- defenses assertion *17 claims rise to obligee, give defenses only in instances where the applies signee by him against may be asserted which underlying con- party is a to the assignee obligee An obligor Trivental]. [here the assignee the tract or where conduct subject to such a defense or who is assignment initial subsequent to the occurs position by assigning his improve cannot Id. 366 reassignment.” to a prior but assignee is not sub- to an who right added) on American (relying (emphasis claim and then the defense or ject to Servs., Union Inc. v. Commerce Training reassignment. take a (M.D.Tenn.1976), Bank, F.Supp. 415 1101 added). way (6th Cir.1979)); (emphasis By h see also
Id. cmt. F.2d 580 aff'd, 612 99, Manatt, this illustra- gives the comment 105 example, F.Supp. 723 v. F.D.I.C. (E.D.Ark.1989) and hold (following Berry tion: not “assert defenses B, litigant could by ing fraudulently induced A is assignee based the FDIC as C, assigns against goods to sell to C. C agent law, corporate actions taken FDIC in its matter of on Murphy’s breach-of-con- capacity to the tract prior assignment”); claim. 1475, Berry, 659 F.Supp.
F.D.I.C. v.
(E.D.Tenn.1987) In (followingDempster). conclusion,
reaching this the district
in Dempster “general princi- relied on the
ple assignment provides [that]
assignee assign- into the steps shoes upon assignment
or of the interest and assignment subject takes de- America, UNITED STATES of against assignor.” fenses assertable Plaintiff-Appellee, Dempster, F.Supp. But at 365-66. v. § permit read 336 to “actions Restatement by the assignee [occurring] prior HUBENKA, to the Defendant-Appellant. John assignment” subject improperly would Arapahoe Tribe, Northern Eastern Sho- assignee against not “to actions assertable Tribe, shone and National Wildlife the assignor assignee] and therefore [the Federation, Curiae. Amici would have additional characteristics not applicable assignor not would No. 05-8006. be, were, stepping as it into shoes of Appeals, United States Court of assignor taking or on the characteris- Tenth Circuit. assignor.”
tics Id. at 366. Feb. case, only contrary
The which does ex- pressly reject the reasoning Dempster Berry, Hogg, State Md. (1988),
A.2d 933-35 has been over- grounds.
ruled on other See Dawkins v.
Baltimore Police Md. Dep’t, 376 (2003).
827 A.2d 115-16 And Okla-
homa not appear courts do to have ever
adopted provi- or applied this Restatement
sion. light In of this I uncertainty, would 336(4) rely upon § to grant Trivental a
new upon theory trial based that Triven-
tal never argued this court.
IV. Conclusion
Because I do think that *18 pay
failure to Trivental in full on the New
Iberia, Hugo, projects and Tulsa Tri- gave
vental defense its failure to
subcontractors the later Oklahoma
project, I respectfully from dissent
majority’s decision to reverse the
court’s judgment for Murphy, entered as a