ROBERTS & SCHAEFER CO., Plaintiff-Counter-Defendant-Appellee, Cross-Appellant, versus HARDAWAY CO., a Georgia corporation, Defendant-Counter-Claimant, Appellant-Cross-Appellee. HARDAWAY CO., a foreign corporation, Plaintiff-Appellant, Cross-Appellee, versus ROBERTS & SCHAEFER COMPANY, a foreign corporation, Defendant-Appellee, Cross-Appellant.
No. 97-2664
United States Court of Appeals for the Eleventh Circuit
August 31, 1998
[PUBLISH] D. C. Docket Nos. 95-590-CIV-T-17E 95-623-CIV-T-25B
Appeals from the United States District Court for the Middle District of Florida
(August 31, 1998)
MARCUS, Circuit Judge:
This diversity case arises out of three contracts between Roberts & Schaefer Company (“R & S“), a general contractor, and The Hardaway Company (“Hardaway“), a subcontractor, concerning construction of a phosphate beneficiation plant for Mobil Mining & Minerals Co. (“Mobil“). Following a jury trial before the magistrate judge, the court entered judgment for Hardaway on two of the contracts, and judgment for R & S on the third. On appeal, Hardaway contends that the magistrate judge erred in permitting R & S to take advantage of the unilateral mistake doctrine with respect to one of the contracts and further asserts that the trial court incorrectly applied the doctrine in this case. R & S, meanwhile, cross-appeals and challenges the damages awarded to Hardaway on one of the other contracts. We find that the magistrate judge acted within his discretion when he applied the unilateral mistake doctrine in this case. We also conclude that the damages award to Hardaway is not in error. Accordingly, we affirm the judgment.
I.
A.
A detailed review of the facts is necessary to understand our holding. Mobil engaged R & S to design and build a phosphate beneficiation plant for an initial lump sum of approximately $44,300,000. In accordance with Mobil‘s arrangement with R & S, construction was to proceed on a “fast track.” In the construction business, this means that construction commences under a schedule of simultaneous design, building, and
Consistent with fast-track construction, prior to finishing the design of the plant, R & S awarded three subcontracts to Hardaway. Specifically, and in the order of award, R & S and Hardaway entered into subcontracts for (1) structural steel/mechanical erection (“703 Contract“), (2) underground piping (“707 Contract“), and (3) above-ground piping (“712 Contract“). Although only the 712 and 703 Contracts are at issue on appeal, we review formation of all three contracts to establish the parties’ pattern of doing business.
Each of the three Contracts awarded contained engineering plans and specifications comprising hundreds of pages. The substance of the agreement between the parties, however, was contained within the Construction Agreement, which was nearly identical in all three Contracts. Among other relevant provisions, the Construction Agreements provided as follows:
ARTICLE II: PERFORMANCE OF THE WORK BY CONTRACTOR
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2.3 Contractor shall employ sufficient labor and supervision to work as many shifts per week as necessary to complete the various components of the work by the interim completion dates specified in the agreed upon Schedule. . . .
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ARTICLE V: WORK SCHEDULE
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5.1 Contractor shall submit to Company a proposed Work Schedule for the Work set out in a form in conformance with the Specifications.
5.2 After review and approval of the proposed Work Schedule by Company, the Schedule shall be binding on both parties, and shall be changed only in conformance with the provisions of this Agreement.
5.3 It is further agreed that time is of the essence of each and every portion of this Agreement and of the Specifications wherein a definite and certain length of time is fixed for the performance of any act whatsoever; and, where an additional time is allowed for the completion of any Work, the new time limit fixed by such extension shall be of the essence of this Agreement. If Contractor fails to meet any deadline set forth in the Contract Documents, Contractor shall be liable to Company for any excess costs incurred which are attributed to Contractor‘s failure.
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ARTICLE VII: CHANGES, DELETIONS AND EXTRA WORK
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7.1 Company may, at any time, make additions, deletions, or changes in the Work of either a major or a minor nature. All such modifications shall be authorized by written change orders.
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7.9 If any dispute shall arise under this Agreement, Contractor shall continue to execute the work pending determination thereof unless requested by the Construction Manager or Company to suspend or terminate the Work or any portion thereof.
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ARTICLE XII: TERMINATION ON CONTRACTOR‘S DEFAULT
12.1 Company may, without limitation or exclusion of any other remedy, terminate Contractor‘s right to perform the Work, if:
(a) Contractor shall fail to:
a. Make such progress with the Work as reasonably to conform with the Approved Work Schedule, or
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(vii) Perform any other material obligation required by this Agreement,
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12.5 If the Company terminates Contractor‘s right to perform the Work asserting one of the grounds set out in Paragraph 12.1 and those grounds are subsequently determined to be inapplicable, Company‘s action shall then be deemed to be a termination pursuant to Article XIII.
ARTICLE XIII – TERMINATION FOR COMPANY‘S CONVENIENCE
13.1 Company may terminate this Agreement for its convenience on giving written notice to Contractor. Contractor shall stop all Work on the date specified in the notice, and Company shall pay Contractor for:
(a) All Work satisfactorily performed to date of termination, and
(b) All actual and reasonable costs incurred by Contractor as a consequence of the termination.
Company shall [] not be liable to pay any bonus, damage or other claim asserted by Contractor for its expected profit on the uncompleted portion of the Work.
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1. The 703 Contract
The 703 Contract was bid and accepted on a lump-sum basis. For a lump sum, Hardaway was to employ all sufficient labor and supervision to work as many shifts as necessary to complete the work by the interim completion dates. Hardaway agreed to submit a critical path method (“CPM“) schedule. A CPM is a standard construction device used to plan the activities of a construction project in a logical, orderly sequencing manner citing durations for the different activities from the beginning of the job to the end. A CPM is created by dividing the entire project into discrete and quantifiable steps; in turn, each step is allotted an estimated time for completion. Ultimately, each step is arranged into a chronological sequence, thus revealing the anticipated length and structure of the entire construction schedule. In addition to serving as a road map for the contractors to determine when and where their work fits into the overall construction sequence, the CPM also assists contractors in assessing their hiring and material purchasing needs. All milestones and deadlines set for the 703 Contract were to have been set and maintained in Hardaway‘s CPM
Under the terms of the 703 Contract, R & S had the right to terminate Hardaway‘s performance on the project for cause or for convenience. If R & S elected to terminate Hardaway for cause and the grounds for termination were later determined to be inapplicable, the wrongful termination of Hardaway for cause automatically became one of convenience under Article XIII of the 703 Contract. Under such circumstances, Hardaway was entitled to receive compensation for all work satisfactorily completed, plus all actual and reasonable costs incurred as a consequence of the termination.
2. The 707 Contract
For the 707 Contract, Hardaway submitted its written, signed bid for $922,000 on April 11, 1994. Within the bid, Hardaway set out its written exceptions to the bid drawings and specifications. R & S and Hardaway held a post-bid/pre-award meeting, and, by signed letter dated April 27, 1994, R & S awarded the 707 Contract to Hardaway. The letter indicated that a formal letter would follow. Hardaway commenced work before signing the formal construction agreement, filing a pay application for $200,000 for work through May 31. On June 6, 1994, Hardaway signed the formal 707 Contract. The effective date of the agreement was April 27, 1994, the same date of the 707 Contract award letter.
3. The 712 Contract
As in the case of the 703 and 707 Contracts, R & S and Hardaway held a post-bid/pre-award meeting. Hardaway claims that from the outset of negotiations, it informed R & S that it did not wish to assume the duty to provide hangers and supports for above-ground pipes six inches in diameter or larger that were not shown in the original bid drawings because Hardaway did not have the engineering expertise necessary to design these hangers and supports and because it had not factored the engineering and installation of these hangers and supports into its bid for the above-ground piping work. R & S, however, asserts that Hardaway made no exception to the requirement in the bid and contract specifications that it supply and install all pipe hangers and supports, including “engineered” supports.
By letter dated September 21, 1994, Don Carlson of R & S sent three sets of the formal contract documents to Hardaway for signature. The effective date of the agreement was to be June 21, 1994, the same date as the award letter for the 712 Contract. Within the September 21, 1994 contract documents was a document entitled “Roberts & Schaefer Contract Clarifications,” which was derived from notes taken by R & S‘s Frank Anderson at the post-bid/pre-award meeting between R & S and Hardaway. Point 14 provided, “The contractor shall furnish and install all supports shown on the drawings and as required for proper support of the pipe. The customer will provide assistance to the Contractor in the design of major pipe supports and supports not shown on the drawings. All supports are part of the Scope of the Work and are included in the Original Proposal.” On behalf of Hardaway, Richard Dei, Vice President, signed three sets of the construction agreements sent by R & S and transmitted them back to Carlson by letter dated October 17, 1994. Dei placed an asterisk beside his signature, which read, “Contingent on acceptance of ‘Agreement Clarification Attachment.‘” The Attachment, in turn, revised point 14 of R & S‘s Contract Clarifications to read, “The contractor shall furnish and install only the supports shown on
R & S had a contract review process in place in which the project team was first supposed to review the contract, and, once the team leadership was satisfied, the team was to take the contract to an individual with signing authority to sign the contract. In this case a project team staff member, Elisabeth Johnson, brought the contracts to Bruce Hale, who had signature authority for R & S. Although neither Don Carlson nor Frank Anderson, the leaders of the project team, had agreed to the Attachment, and, indeed, both had qualms about the Attachment, Johnson, for reasons that are not explained in the record, provided Hale with both the original contract and the Attachment, which bore stickers indicating where Hale should sign. Believing that he was signing the original contract R & S had sent Hardaway and documents that had been approved by Anderson and/or Carlson, Hale signed the agreement and the Attachment. In fact, the project leadership had not approved the Attachment pursuant to its formal contract-reviewing and signing procedures. On November 2, 1994, R & S sent one signed contract back to Hardaway‘s office in Tampa by Federal Express. In a telephone conversation between Carlson and Hale the following day, Carlson advised Hale that he should not have signed the contract because the project team had not approved the Hardaway Attachment.
That same day, November 3, Hale called Dei, who was in Virginia, and advised him that the project people at R & S had not reviewed and approved the contract at the time of
This letter is written to confirm our telephone conversation of this date regarding the formal contract for the piping work at the South Fort Meade Project. I signed the contract with the understanding that our Mr. Don Carlson and Mr. Frank Anderson had reviewed the document prepared by Hardaway titled “Agreement Clarification Attachment.” Subsequent to my signing the contract on October 28, 1994 it came to my attention that neither Mr. Carlson nor Mr. Anderson had reviewed the “Agreement Clarification Attachment.” Therefore, as we discussed on this date my signature is void. I request that the original signed sheets be returned to me at your earliest opportunity to avoid any misunderstandings later on.
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The essence of our conversation on this date was that we both agreed that the work is to be performed in accordance with the bid documents, clarifying telephone conversations and the discussions held in our office between Messrs. Bruce Hale, Don Carlson and Frank Anderson of Roberts & Schaefer Company and Messrs. Dick Dei[,] Dick Snyder and Tim Haverland of the Hardaway Company.
Please acknowledge this letter at your earliest convenience.
The record is devoid of any evidence indicating any kind of response to Hale‘s letter from Dei or anyone else at Hardaway.
On March 13, R & S offered Hardaway $1,000,000 if Hardaway would work the hours necessary to guarantee a new completion date of April 21. Although Hardaway claimed 90% completion, it declined to accept the offer. To meet its contractual requirements with Mobil, R & S supplemented Hardaway forces by hiring The Industrial Company (“TIC“) on March 15. On April 15, 1995, R & S terminated Hardaway. The letter of termination invoked Article XII of the Contract and stated that Hardaway was terminated
On April 18, 1995, R & S filed suit against Hardaway, alleging that Hardaway had breached Contracts 703, 707, and 712, and seeking damages and an accounting. Hardaway filed a separate lawsuit claiming that the termination was wrongful because Hardaway had never agreed to engineer and install the hangers and supports on the 712 Contract. The district court consolidated the two cases. After extensive discovery, a jury trial was conducted by consent before the magistrate judge.
The jury trial began on January 21, 1997, and lasted fourteen days. With respect to Contract 712, the magistrate judge instructed the jury as follows:
As to Contract 712, the parties dispute what actually constitutes the agreement. This Court has determined that the parties’ agreement encompassed – in regards [sic] to Contract 712, this Court has determined that the parties’ agreement encompassed the bid documents as modified by other communications by and between the parties which were mutually agreed to by the parties, including clarifications mutually agreed to - or mutually agreed upon.
In determining the scope of this contract, keep in mind that for a valid contract there must be an offer by one party to another and an acceptance of the offer by the party who received it. There must exist a meeting of the minds as to the terms of the agreement. If there is not such a meeting of the minds, there is no agreement or contract.
During the second full day of deliberations, on February 12, 1997, the jury submitted questions to the magistrate judge, which the magistrate judge characterized as follows:
THE COURT: It says: The Contract 712, Judge‘s instruction to jury . . . starts out by quoting the instructions . . . : As you know . . . this Court has determined that the parties’ agreement
encompassed the bid doc as modified by other communication, and that was underlined . . . .” And then there are these questions. The first question says: Does . . . “communication” . . . mean bid and bid clarifications?
Two, question two: Does it include bid, . . . bid clarification, signed contract, and the contract clarifications?
Three: Is Mr. Hale‘s request for voiding of his signature on Contract 712 considered legally voided . . . ?
In considering his response to the jury‘s questions, the magistrate judge stated:
The import on [sic] my ruling on the matter of unilateral mistake was that the written contract and contract clarifications for 712 was not the operative contract. What was the operative contract were those bid documents and other communications, including clarifications agreed upon. Those were the controlling documents. And as I say, this question from the jury doesn‘t allow me to revisit that issue.
The magistrate judge then revealed to the parties his response to the jury‘s question:
Okay. What I‘ve written on this jury note says: Please carefully consider all of the Court‘s instructions on these contracts . . . . As stated at page 10, Contract 712 is composed of the bid documents, . . . as modified by subsequent communications by and between the parties . . . . which you find . . . . by a preponderance of the evidence, . . . were mutually agreed upon by the parties. . . .
The jury returned a verdict for Hardaway on Contracts 703 and 707, awarding Hardaway $1,512,064 and $160,493, respectively. With regard to Contract 712, the jury returned a verdict for R & S, awarding $3,243,268. Hardaway timely filed a motion for judgment as a matter of law and, alternatively, for a new trial and to reduce the verdict. R & S also filed a timely motion for a new trial, or alternatively, for remittitur, challenging the
II.
A. The 712 Contract
Hardaway contests the magistrate judge‘s jury instructions regarding the composition of the 712 Contract. Specifically, Hardaway contends that the magistrate judge erred in excusing Hale‘s signature to the Agreement Clarification Attachment under the unilateral mistake doctrine and removing the document from the jury‘s consideration. Under Florida law, which we are bound to apply by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), application of the unilateral mistake doctrine is a matter of equity subject to review for abuse of discretion and sufficiency of the evidence. See Maryland Cas. Co. v. Krasnek, 174 So.2d 541, 542-43 (Fla. 1965) (describing unilateral mistake doctrine as equitable and holding that where there is “substantial evidence to support [a finding of unilateral mistake],” the trial court‘s conclusion should not be disturbed on appeal.); Florida Cranes, Inc. v. Florida East Coast Properties, Inc., 324 So.2d 721, 722 (Fla. Dist. Ct. App. 1976) (“[E]quity can correct a unilateral mistake . . . .“); Alberts v. Federal Home Loan Mortg. Corp., 673 So.2d 158, 159 (Fla. Dist. Ct. App. 1996) (in judicial sale cases involving the same facts regarding unilateral mistake, courts may permissibly reach different results because standard of review is abuse of discretion).
The first requirement -- that a mistake “go[] to the substance of the agreement” -- is compelled by the rule that a meeting of the minds must occur in order to create a contract. Where one party misunderstands, or otherwise makes a mistake that goes to the substance of the agreement into which it enters, no meeting of the minds occurs, and thus, no contract exists. See Langley v. Ironsland & Dev. Co., 114 So. 769, 771 (Fla. 1927). Thus, as Florida courts have interpreted the standard, a mistake may be found to “go[] to the substance of the agreement” where, among other circumstances, an employee of a party enters into a contract or releases another party from a contract under the mistaken belief that he is authorized to do so or that the contract pertains to something other than it does.
In Bethlehem Steel Corp. v. Centex Homes Corp., 327 So.2d 837 (Fla. Dist. Ct. App. 1976), for example, Bethlehem Steel Corporation (“Bethlehem“) transmitted a proposal to Centex Homes Corporation (“Centex“) whereby Bethlehem would furnish, fabricate, and deliver steel to Centex at its job site on Miami Beach for a specified price. Although Centex
The instant case is very similar to Bethlehem Steel. Just as McCooey mistakenly signed the agreement, Hale likewise signed the Attachment in error. The manner in which the mistake occurred is not important when we are determining whether the error goes to the substance of the agreement. Rather, the inquiry focuses on whether the mistake prevented a meeting of the minds from occurring, and thus, a contract from forming. In this case, the magistrate judge acted within his discretion in determining that it did. Frank Anderson, a project team leader for R & S, testified that R & S had not authorized Hale to enter into the Attachment because the Attachment stated, among other things, that Hardaway would be responsible for providing “only the supports shown on drawings for large bore piping and all supports required for proper support of small bore piping. [R & S] will provide design and
The second factor that must be satisfied in order to receive relief under the unilateral mistake doctrine requires the party that made the mistake to demonstrate that the error did
not result from an inexcusable lack of due care. Florida courts have interpreted this standard generously to the benefit of the erring party. In Maryland Cas. Co. v. Krasnek, 174 So. 2d 541, 543 (Fla. 1965), for example, the Supreme Court of Florida considered a case where an insured submitted a claim to his carrier and the insurance company issued a check to the insured. As it turned out, however, the insured had allowed his policy to lapse. When the insurance agency discovered its error, it stopped payment on the check. The formerly insured individual instituted suit. The Supreme Court of Florida held that it was appropriate to apply the unilateral mistake doctrine under the circumstances. Noting that “mistakes do not ordinarily result from the exercise of due care,” the court concluded that “this kind of mistake, whether by clerical error, bad communications, or otherwise,” did not amount to inexcusable lack of care sufficient to prohibit application of the unilateral mistake doctrine. Id.
Likewise, returning to Bethlehem Steel, the appellate court determined that a question of fact existed as to whether McCooey had engaged in excusable neglect when he accidentally signed the purchase order, and the court remanded the matter to the trial court to make factual findings on the issue. Put another way, McCooey‘s accidental signature did not so plainly demonstrate a lack of due care by Bethlehem under Florida law that the appellate court could affirm the entry of summary judgment without factual inquiry by the trial court.
Indeed, this interpretation is consistent with the pronouncements of Florida courts that the equitable doctrine of unilateral mistake is appropriate for correcting a “mistake ...
Similarly, in State Bd. of Control v. Clutter Constr. Corp., 139 So. 2d 153 (Fla. Dist. Ct. App.), cert. denied, 146 So. 2d 374 (Fla. 1962), the State Board of Control (“Board“) solicited bids to build a classroom building at the University of South Florida. To submit a bid, each bidder had to file with his bid a good-faith check in the sum of $80,000. Clutter Construction Corporation (“Clutter“) determined it would submit a bid. To calculate the amount of the bid, Clutter sent two employees to Tampa, the location of the construction site, to receive bids from local sub-contractors to incorporate in its bid. In adding up the sub-contractors’ bids on a computing machine, due to an error, the employees arrived at a bid that was $100,000 less than Clutter intended. Soon after Clutter submitted its bid, it learned that
As in Maryland Casualty, Bethlehem, Florida Cranes, and Clutter, in the instant case, an employee of R & S committed the mistake. Moreover, although the system did not work in this case, the fact that R & S created and used a system designed to prevent unauthorized
Finally, we consider whether Hardaway relied to its detriment on Hale‘s error. In so doing, we note that in order for the unilateral mistake doctrine to be barred on this ground, Hardaway must have “so changed [its] position in reliance upon [R & S‘s] undertaking that it would be unconscionable to rescind the contract or that it would be impossible to restore him to the status quo.” Maryland Cas. Co., 174 So. 2d at 543. Based on the record, again we find that sufficient evidence exists to support the magistrate judge‘s conclusion that Hardaway did not detrimentally rely on Hale‘s mistake. First, we note that Hardaway conducted work on the 712 Contract for four months, from the end of June through October, in the absence of the Attachment. Second, on the very day that Hardaway should have received the Attachment with Hale‘s signature, Hale called Dei and told him that he was not authorized to sign the Attachment. Consequently, there was virtually no opportunity for Hardaway to rely on Hale‘s signature to the Attachment before it knew that R & S had not authorized entry into the Attachment. Third, Hale immediately followed up his telephone conversation with a letter in which he confirmed the telephone conversation. Fourth, Dei engaged in meetings with Carlson beginning on November 8, less than a week after Hale‘s telephone conversation with Dei, in which the two discussed and attempted to negotiate the
Hardaway next argues that even if the unilateral mistake doctrine applies, the result of this conclusion is that the Attachment is rescinded, and the magistrate judge should have instructed the jury that the parties never entered into a contract for the installation of above-ground piping. We apply a deferential standard of review to a trial court‘s jury instructions. Eskra v. Provident Life & Accident Ins. Co., 125 F.3d 1406, 1415 (11th Cir. 1997) (citations omitted). If the instructions accurately reflect the law, the trial judge is given wide discretion as to the style and wording employed in the instruction. Id. Under this standard, we examine “whether the jury charges, considered as a whole, sufficiently instructed the jury so that the jurors understood the issues and were not misled.” Carter v. DecisionOne Corp., 122 F.3d 997, 1005 (11th Cir. 1997) (citation omitted). We will reverse the trial court because of an erroneous instruction only if we are “left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” Id. (citation omitted). And we will find reversible error in the refusal to give a requested instruction only if (1) the requested instruction correctly stated the law, (2) the instruction dealt with an issue properly before the
Hardaway is correct in its assertion that a unilateral mistake rescinds the contract and returns the parties to the status quo. Langley v. Irons Land & Dev. Co., 114 So. 769, 771 (Fla. 1927). “Upon a rescission, the contract is annihilated so effectively that in contemplation of law it has never had any existence, even for the purpose of being broken.” Hyman v. Cohen, 73 So. 2d 393, 397 (Fla. 1954). Rescinding the Attachment, however, does not mean that no contract existed for the above-ground piping. Rather, under Florida law, a contract exists upon the award of a bid, even though no formal writing exists. See Schloesser v. Dill, 383 So. 2d 1129, 1131 (Fla. Dist. Ct. App. 1980); American Recycling Co. v. County of Manatee, 963 F. Supp. 1572, 1582 (M.D. Fla. 1997). Consequently, when R & S accepted Hardaway‘s bid, a contract was formed under Florida law. Moreover, we note that where parties act as though a contract exists, there is a contract, even though no formal writing exists. See Block v. Drucker, 212 So. 2d 890, 891 (Fla. Dist. Ct. App. 1968). In this case, following R & S‘s acceptance of Hardaway‘s bid and several negotiation meetings and discussions, Hardaway submitted pay applications and received payment for several months of above-ground pipe work on the 712 Contract before it sent R & S the Attachment. By this standard, too, then, a contract existed under Florida law prior to the creation of the Attachment. Because a contract existed even after the rescission of the Attachment, Hardaway‘s suggested instruction that no contract existed did not constitute an accurate statement of the law, and the magistrate judge did not err in rejecting it.
B. 703 Contract
In R & S‘s cross-appeal, R & S makes several challenges to the damages award to Hardaway on the 703 Contract.3 First, R & S argues that Article XIII of the Contract precludes the award of any damages other than those caused by the April 17 lockout and those due Hardaway for its substantial performance. In this regard, R & S first notes that the parties agreed in Article XII, section 12.5, that if R & S terminated Hardaway for cause that was later determined to be wrongful, the termination would automatically become one for convenience under Article XIII. Article XIII provides, in relevant part:
13.1 Company may terminate this Agreement for its convenience on giving written notice to Contractor. Contractor shall stop all Work on the date specified in the notice, and Company shall pay Contractor for:
All Work satisfactorily performed to date of termination, and - All actual and reasonable costs incurred by Contractor as a consequence of the termination.
Company shall not be liable to pay any bonus, damage or other claim asserted by Contractor for its expected profit on the uncompleted portion of the Work.
Claiming that all but the award for retention and the April 17 lockout are prohibited by this provision, R & S argues that the damages award is in error.
Two significant problems with this contention exist. First, although Article XIII precludes the recovery of “expected profit,” as R & S concedes, Hardaway did not seek anticipated profit; rather, it sought payment as permitted by paragraphs (a) and (b) of section 13.1 of Article XIII. In addition, as discussed in more detail below, see infra, Hardaway sought damages for R & S‘s independent breaches of the 703 Contract beyond its wrongful termination of Hardaway. Article XIII does not bar recovery of such damages.
Next, R & S argues that because the 703 Contract was awarded on a lump-sum basis, it included payment for all overtime and extra costs associated with overtime, such as premium time and overtime inefficiencies, and consequently, Hardaway should not be able to recover damages for such items. In support of this argument, R & S cites to Marriott Corp. v. Dasta Constr. Co., 26 F.3d 1057 (11th Cir. 1994). In Marriott Dasta subcontracted with Marriott to perform the exterior skin and drywall work on a fast-track project on which Marriott was serving as general contractor. Among other provisions, the contract advised Dasta that its price should include “all increases in costs, foreseen or unforeseen, including
Contract cases, however, are very contract-specific, and each case turns on the language of the contract and the facts before the court. Unlike the contract in Marriott, the 703 Contract did not place the risk of “[a]ll loss or damage arising from any of the work through unforeseen or unusual obstructions, difficulties or delays which may be encountered in prosecution of the work” on the subcontractor here. Nor did the 703 Contract relieve R & S of responsibility for “any loss or damage sustained ... through delay caused by ... [the general contractor].” Because of the substantial differences between the facts in Marriott and
Third, R & S asserts that the 703 Contract precludes Hardaway‘s entitlement to damages caused by the muddy lay-down site, misalignments of the bolt holes, and bad foundations and incomplete designs. With regard to the muddy site, R & S points to specification 01560 §1.01A, which provides, “[Hardaway] will be responsible for dust control, site dewatering, surface water control, and erosion and sedimentation control within its work area until work is completed.” R & S contends that this provision placed the risk for muddy site conditions on Hardaway, and thus, R & S is not responsible for damages
As for the damages occasioned by the misalignments of bolt holes, R & S relies on specification 01020 §§1.04C.1.c & e, which provide:
- For equipment supported on structures which are not being erected by the Contractor (equipment supported on tanks, etc.), the Contractor shall verify fit-up of all connections in advance. Misalignment problems which require changes to structural members shall be brought to the attention of the Construction Manager as soon as possible so corrective measures may be initiated. No delays in schedule will be granted for changes required due to not checking equipment and materials in advance.
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- Contractor shall straighten and align anchor bolts as required for equipment installation.
R & S argues that these sections placed the burden on Hardaway to correct misalignments of bolt holes, and thus, R & S cannot be held responsible for damages resulting from the misalignment of bolt holes. There are two problems with this argument. First, the 703 Contract addresses both equipment installation and structural construction. The sections identified by R & S deal only with equipment installation, not structural construction. Second, with respect to equipment installation, neither subsection c nor e burdens Hardaway with bearing the responsibility for bringing faultily-holed materials into alignment. Rather,
With respect to the damages caused by the poor foundation and design errors, R & S contends that Hardaway should have included anticipated costs for these factors in its bid, as Hardaway knew the project was being built on a fast-track schedule. Our review of the 703 Contract, however, simply has not revealed any provision that indicates that Hardaway bargained to take the risk that R & S would provide a poor foundation or improper designs. Nor has R & S pointed us to such a provision. Consequently, we cannot conclude that Hardaway bargained in entering into the 703 Contract to accept the risk that R & S would supply bad foundations and designs replete with mistakes.
Finally, R & S makes a number of arguments that can best be described as contentions that the evidence was not sufficient to sustain the damages awarded. Of these assertions, R & S first argues that Hardaway did not use a CPM, so “it is impossible to ascertain the
Hardaway presented ample evidence which, if believed by the jury (as it obviously was), was sufficient to prove that R & S‘s actions and inactions were the proximate causes of determinable damages to Hardaway. First, Lasater testified that R & S repeatedly made late steel deliveries that were often out of sequence. R & S‘s failure to deliver the steel in the proper sequence led to a two-to-three week delay in the structural steel work in the raw feed area and inefficiencies in the installation work in the washer area. Moreover, in order to overcome the delays caused by R & S, Hardaway had to use three “raising gang” crews to complete the 703 Contract instead of the one crew Hardaway had planned to use. Lasater further testified that in the flotation area, Hardaway was forced to stop work because R & S had not delivered crucial steel columns. As a result, structural steel erection that should have
The jury was entitled to believe this evidence. We find that accepting all of this testimony as true, the jury could have found, as it did, that Hardaway sufficiently proved the
III.
We conclude that the magistrate judge acted within his discretion in applying the unilateral mistake doctrine to the facts involving the 712 Contract. Moreover, the magistrate judge did not commit reversible error in instructing the jury on the 712 Contract. Finally, the magistrate judge did not err in denying R & S‘s motion for remittitur. Accordingly, the judgment of the district court must be, and is, AFFIRMED.