Hutton Contracting Co. v. City of Coffeyville, 05-3223.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation487 F.3d 772
Docket NumberNo. 05-3223.,05-3223.
PartiesHUTTON CONTRACTING COMPANY, INC., Plaintiff-Appellant, v. CITY OF COFFEYVILLE, Defendant-Appellee.
Decision Date30 April 2007

Bryan W. Smith, Cavanaugh, Smith & Lemon, P.A., Topeka, KS, for Plaintiff-Appellant.

Justice B. King (Richard Petersen-Klein with him on the brief), of Fisher, Patterson, Sayler & Smith, LLP, Topeka, KS, for Defendant-Appellee.

Before HARTZ, EBEL, and O'BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

Hutton Contracting Company, Inc., a North Dakota corporation based in Colorado, contracted to construct a power line and a fiber-optic line for the City of Coffeyville, Kansas. Upon completion of the project the City refused to pay the final $110,159.47 out of the contract price of $1,131,947.12, claiming that it was entitled to these funds as liquidated damages because of Hutton's delays. Hutton sued the City in the United States District Court for the District of Kansas to obtain the unpaid amount of the contract price. See 28 U.S.C. § 1332 (diversity jurisdiction). After a jury trial the court ordered the City to pay Hutton $24,659.47—the retainage of $110,159.47 minus $85,500.00 in liquidated damages to which the City was entitled.

Hutton appeals from this judgment, challenging four holdings by the district court: (1) that the contract's force-majeure clause did not excuse Hutton for delays caused by late deliveries from its pole supplier; (2) that the contract's liquidated-damages provision was enforceable; (3) that the liquidated-damages provision allowed the court to apportion delays between Hutton and the City; and (4) that Hutton was not entitled to prejudgment interest on its damages. Hutton also challenges (5) a special interrogatory asking the jury whether the parties had modified their contract and (6) the court's responses to questions from the jury. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND
A. Contract and Performance

The contract between Hutton and the City is dated March 28, 2000. The engineer designated for the project was Allgeier, Martin & Associates, Inc. (the Engineer). Rather than specifying when construction was to begin, the contract contained the following provision:

[Hutton] agrees to commence construction on the Project on a date (hereinafter called the "Commencement Date") which shall be determined by the Engineer after notice in writing of approval of the Contract by the [City] and notice in writing from [Hutton] that [Hutton] has sufficient materials to warrant commencement and continuation of construction, but in no event will the Commencement Date be later than * (See Special Conditions) calendar days after date of approval of the Contract by the [City].

Aplt.App. Vol. IV at 933. (The cross-referenced Special Conditions provide that "[t]he starting date shall be no later than May 1, 2000," id. at 969, but this date never figures explicitly in the parties' arguments.) The contract contemplated completion of construction within 45 days of commencement (excluding Sundays), with flexibility for bad weather:

[Hutton agrees] to prosecute diligently and to complete construction phases as described in strict accordance with the Plans, Specifications and Construction Drawings within Forty-five (45) calendar days (excluding Sundays) after Commencement Date; Provided, however, that [Hutton] will not be required to perform any construction on such days when in the judgment of the Engineer snow, rain, or wind or the results of snow, rain or frost make it impracticable to perform any operation of construction and to extent of the time lost due to the conditions described herein and approved in writing by the Engineer, the time of completion set out above will be extended if [Hutton] makes a written request therefor to the [City]. . . .

Id. at 933. A provision that both parties call a force-majeure clause gave Hutton more time to complete the project in exceptional circumstances, provided that it submitted requests for extensions in writing:

The time for Completion of Construction shall be extended for the period of any reasonable delay which is due exclusively to causes beyond the control and without the fault of [Hutton], including Acts of God, fires, floods and acts or omissions of the [City] with respect to matters for which the [City] is solely responsible: Provided, however, that no extension of time for completion shall be granted [Hutton] unless within ten (10) days after the happening of any event relied upon by [Hutton] for such an extension of time [Hutton] shall have made a request therefor in writing to the [City], and provided further that no delay in such time of completion or in the progress of the work which results from any of the above causes or from any changes in construction which may be made pursuant to Subsection "d" of this Section 1 [which allowed the City to modify the construction plans and provide extensions therefor] shall result in any liability on the part of the [City]. Time extensions due to weather will be considered only when [Hutton] is on site.

Id.

The contract required the City to pay Hutton within 90 days of the project's completion:

Upon completion by [Hutton] of the construction of the project, the Engineer will prepare an inventory of the Project showing the total number and character of Construction Units and, after checking such Inventory with [Hutton], will certify it to the [City] together with a certificate of the total cost of the construction performed. Upon the approval of such certificates by the Engineer, the [City] shall make payment to [Hutton] of all amounts to which [Hutton] shall be entitled thereunder which shall not have been paid, provided, however, that such final payment shall be made not later than ninety (90) days after the date of Completion of Construction of the Project as specified in the Certificate of Completion, unless withheld because of the fault of [Hutton].

Id. at 936. But the amount owed would be reduced by $500 in liquidated damages for each day by which the completion of the project was late:

The time of the Completion of Construction of the Project is of the essence of the Contract. Should [Hutton] neglect, refuse or fail to complete the construction within the time herein agreed upon, after giving effect to extensions of time, if any, herein provided, then, in that event and in view of the difficulty of estimating with exactness damages caused by such delay, the [City] shall have the right to deduct from and retain out of such monies which may be then due, or which may become due and payable to [Hutton], the sum of FIVE HUNDRED DOLLARS ($500.00) per day for each and every day that such construction is delayed on its completion beyond the specified time, as liquidated damages and not as a penalty.

Id. at 943.

The parties have disputed the contractual commencement date, the completion date, and the number of days of excused delay. Both agree that a commencement date of August 9, 2000, was set at a preconstruction conference on August 4, 2000. But Hutton asserts that the City set the date "arbitrarily," Aplt. Br. at 4, and therefore contrary to the contract. In any event, Hutton began clearing the construction site—the first step in the construction process—on August 10, 2000.

Four days later Hutton sent a letter to the Engineer stating that some utility poles would not be available before late October. The letter requested "that the commencement date be adjusted to October 23, 2000, due to the insufficient material being on hand. The delivery of steel poles has been the cause of this delay." Aplt.App. Vol. IV at 1066.

The Engineer eventually responded to this letter on October 10, 2000, agreeing to the proposed start date on condition that the project be completed within 45 days:

You have requested to begin construction on October 23, 2000. We will arrange to have an inspector there on that day. You have further requested the contract commencement day be moved to October 23, 2000. We have discussed this with Mr. Jeff Tullis at the City of Coffeyville and reiterate their position stated during the preconstruction conference and again with you by telephone. The City of Coffeyville is willing to forgo liquidated damages provided that the project is entirely completed within 45 days as defined in the contract, with construction beginning on October 23, 2000. Should the project not be completed within that time, each day that the project extends past the 45 day construction period would be subject to liquidated damages. Days used for clearing [i.e., those during which Hutton performed its original clearing work, before the new "commencement" date of October 23] would also then be included in the liquidated period.

Id. at 1069. Hutton commenced construction on October 23.

Hutton noticed in November that some of the poles that had been delivered were defective. (Delivery of poles had started in mid-September.) On December 7 it requested another extension—this time for 30 days—because of the late delivery of the remaining poles. It also submitted several requests for extensions due to weather conditions.

The lines were ready for use by March 22, 2001. But for more than a year the parties disputed whether the project had been completed. In a fax on April 20, 2001, the Engineer sent Hutton a list of clean-up tasks that it needed to perform. Hutton responded on May 4, 2001, asserting that all tasks had been accomplished. A November 28, 2001, fax from the City to Hutton stated that cleanup was not yet complete. Finally, on August 5, 2002, the City sent Hutton a notice that it was retaining the balance due of $110,159.47. It attached a letter from the Engineer asserting that work was just completed on July 9, 2002, and claimed that it was entitled to further liquidated damages for delay; but it offered to settle by paying $34,159.47 of the retainage.

B. Court Proceedings

Seeking the...

To continue reading

Request your trial
26 cases
  • Lake Hills Invs. LLC v. Rushforth Constr. Co.
    • United States
    • Washington Court of Appeals
    • September 14, 2020
    ...(citing Gen. Ins. Co. v. Commerce Hyatt House, 5 Cal. App. 3d 460, 85 Cal. Rptr. 317 (1970) )).51 Hutton Contracting Co., Inc. v. City of Coffeyville, 487 F.3d 772, 785-86 (10th Cir. 2007) (citing cases); see Bramble & Callahan , supra, § 11.09 (explaining the modern process for apportionin......
  • Hysten v. Burlington Northern Santa Fe Ry. Co.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 7, 2008
    ...the amount of damages from becoming liquidated. This is incorrect as a matter of Kansas law. See Hutton Contracting Co., Inc. v. City of Coffeyville, 487 F.3d 772, 786 (10th Cir.2007) (good faith dispute as to liability does not preclude grant of prejudgment interest); Green Constr. Co., 1 ......
  • Boone Coleman Constr., Inc. v. Vill. of Piketon
    • United States
    • Ohio Supreme Court
    • February 24, 2016
    ...an agreement as to a per diem amount for delays. Carrothers Constr. Co. at 757, 207 P.3d 231. See also Hutton Contracting Co., Inc. v. Coffeyville, 487 F.3d 772, 781 (10th Cir.2007), quoting Kelly v. Marx, 428 Mass. 877, 881, 705 N.E.2d 1114 (1999) (recognizing that prospective analysis “ ‘......
  • MARKHAM v. BTM Corp.
    • United States
    • U.S. District Court — District of Kansas
    • March 30, 2011
    ...generally summarily denies or excludes all arguments and issues first raised in reply briefs.")); cf. Hutton Contracting Co. v. City of Coffeyville, 487 F.3d 772, 788 (10th Cir. 2007) ("[W]e do not consider arguments raised for the first time on appeal in a reply brief."). Despite the defen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT