UNITED STATES of America for the Use and Benefit of Val
GREENHALGH and George Piper, d/b/a Acme Granite
and Tile, Plaintiff-Appellant and Cross-Appellee,
v.
F.D. RICH COMPANY, INCORPORATED, a corporation doing
business in the State of Washington, and American
Surety Company, Defendants-Appellants
and Cross-Appellants,
and
B & G Constructors, Incorporated, et al., Defendants-Appellees.
Nos. 73-1431, 73-1432.
United States Court of Appeals, Ninth Circuit.
July 8, 1975.
Ralph B. Potts (argued), Seattle, Wash., for appellants.
John E. Ederer (argued), Seattle, Wash., Lyle L. Iversen (argued), Seattle, Wash., for appellee.
OPINION
Before DUNIWAY and CHOY, Circuit Judges, and Skopil,* District Judge.
DUNIWAY, Circuit Judge:
This is the second appeal in this case, see
By agreement, the issues of liability and damages were separated for trial. Only the liability issues were tried to a jury; the damages issues were referred to a special master by stipulation.
There were two principal liability issues. The first was whether Acme had committed a substantial breach justifying termination of the subcоntract by Rich (the termination issue). This sub-sumed three sub-issues: whether Acme had committed a substantial breach by (1) failing to discover and report framing defects before placing its work over the frame;2 (2) failing to resume work at Rich's written order;3 and (3) repudiating thе contract. The second issue was whether Acme's placing its work over the defective framing, and other defects in Acme's work unrelated to the framing, constituted insubstantial or partial breaches rendеring Acme liable to Rich in damages for the costs of corrective work performed by a substitute subcontractor after Acme's termination (the partial breach issue).
The trial judge fully instructed the jurors on the law applicable to both issues and submitted the case on a form of special verdict which had been extensively discussed and approved by all counsel. The verdict was as follows:
We, the jury in the abоve-entitled cause do find our verdict as follows:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
TABLE
Acme's victory was short-lived. The trial judge entered judgment for Rich and the other defendants notwithstanding the verdict, and also entered an order conditionally granting thеir motion for a new trial, to take effect only if the judgment n. o. v. were to be reversed on appeal.
In addition, it was called to the court's attention that the special verdict form had omitted the issuе of partial breach. Under Rule 49(a), F.R.Civ.P., this meant that the parties were deemed to have waived jury trial pro tanto and that the issue was submitted to the court for decision. The trial judge found Acme liable for рartial breach. Thereafter, the damages issues were referred to a master, who was instructed to make findings and compute damages on the alternative assumptions (1) that the judgment n. o. v. would be sustained оn appeal; and (2) that the jury verdict would be reinstated. With minor modifications, the court adopted the master's findings and entered final judgment.
On the first appeal, we reversed the judgment n. o. v. on the termination issue, but affirmed the conditional order granting a new trial, expressly declining to reinstate the jury verdict. See
On remand, the original trial judge was unavailable to retry the case and it was reassigned. The new judge, believing himself nоt bound by his predecessor's new trial order, rescinded it, reinstated the jury verdict, and entered judgment for Acme on the termination issue. Rich now argues, and we agree, that this action was foreclosed by this court's mаndate on the first appeal, which directed retrial. Acme has also appealed, assigning as error a ruling on damages by the original trial judge and contending that our previous mandate requires retriаl not only of the termination issue, but of the partial breach issue as well. Neither point is well taken.
As a general rule, an order for a new trial, being interlocutory, is subject to modification or rescission by the trial judge at any time before entry of final judgment. Bateman v. Donovan, 9 Cir.,1942,
Acme, howеver, questions the scope of the new trial, contending that our first opinion requires retrial of both liability issues. This is not the case. The last sentence of that opinion directs a remand "for a second trial in accordance with the order granting the motion for new trial."
Acme does not here challenge thе trial judge's findings on partial breach as clearly erroneous, and it did not do so on the first appeal either. Accordingly, we have no occasion to pass on them. Having been finally adjudicated, the issue of partial breach may not be retried on remand.
Damages issues should also be excluded from the retrial. These issues have already been extensively tried by stipulation before a master, and the master's findings have been fully reexamined and with minor modifications approved by the original trial judge. Damages have been computed in the alternative, depending on the ultimate outcome of the tеrmination issue. Regardless of which party prevails, the trial judge need then only enter judgment in accordance with the appropriate findings.
On the first appeal Acme raised several objections to some of these findings, but our opinion did not discuss any of them, presumably because we found no merit in them. On this appeal Acme has abandoned all but one of these arguments.4 We seriously doubt whether the issue remаins open, but note briefly our reasons for rejecting Acme's argument.
After Acme was terminated, Rich engaged another contractor to finish Acme's work. because the new contractor would not do the work for the same price, Rich withdrew the portion of its offer which covered the work, which the Army had not yet accepted, and submitted a higher offer. Eventually the Army agreed to increase Rich's contract by approximately $77,000. Acme claims that this amount should be added to the fact of the subcontract in computing the lost profits to which it will be entitled should it prevail on the termination issue. Not so. The purpоse of awarding damages is "to place the plaintiff, as nearly as possible, in the position he would be in had the contract been performed." Platts v. Arney, 1957,
The judgment of the district court is reversed and the cause remanded for a partial new trial in accordance with this opinion.
Notes
The Honorable Otto R. Skopil, Jr., United States District Judge for the District of Oregon, sitting by designation
After the action was filеd in its name, Acme was dissolved. On the first appeal we hdld, inter alia, that its owners and transferees, Val Greenhalgh and George Piper, should be substituted in its stead. Nonetheless, we continue to refer to them as Acme for convenience
The written subcontract obligated Acme to inspect the framing, report any defects to Rich or the Army Corps of Engineers, and to await corrective work before proceeding with its own work. The subcontract also incorporated standard specifications which state that starting work implies acceptance of the surface on which tile is to be placed
Whеn the Army Corps of Engineers inspector rejected a large portion of both Acme's and B & G's work, Rich and Acme mutually agreed to suspend work. About three weeks later, however, after negotiations had failed to resolve the dispute, Rich ordered Acme to resume work. This was in accord with provisions in the parties' contract requiring Acme to proceed on Rich's written order at any time, regardless of any dispute about payment or any claim by Acme that the work ordered was "extra" or required additional compensation. We noted in our previous opinion that the scope of this contractuаl provision is an issue that would have to be determined on remand. See
An apрendix to Acme's opening brief states fourteen of these arguments, but the body of the brief devotes itself to only one. Failure to argue an issue presented for review is a waiver of the issue on appeal. Iob v. Los Angeles Brewing Co., 9 Cir.,1950,