880 F.2d 575 (1st Cir. 1989), 88-1870, Reliance Steel Products Co. v. National Fire Ins. Co. of Hartford

Docket Nº:88-1870.
Citation:880 F.2d 575
Case Date:May 25, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 575

880 F.2d 575 (1st Cir. 1989)




No. 88-1870.

United States Court of Appeals, First Circuit

May 25, 1989

Heard May 2, 1989.

Patrick J. Quinlan, Providence, R.I., for defendant, appellant.

Christopher C. Whitney with whom Peter Lawson Kennedy and Adler Pollock & Sheehan Inc., Providence, R.I., were on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, SELYA, Circuit Judge, and GRAY, [*] Senior District Judge.

SELYA, Circuit Judge.

We have read the hippopotamic record in this construction controversy and carefully considered the contestants' briefs and oral arguments. For the reasons which follow, we believe that the appeal comprises much cry, but little wool. Therefore, save in one relatively small respect, we affirm.


Like Leviathan from the vasty deep, this litigation arises out of a decision by the Rhode Island Turnpike and Bridge Authority (RITBA) to renovate portions of the Mt. Hope Bridge, a venerable but much-used structure connecting Bristol County with Aquidneck Island. 1 RITBA let the general contract to Dick Corporation (Dick). A payment bond was provided by defendant-appellant National Fire Insurance Company (Nafinco). Dick contracted with a number of materialmen, one of whom, plaintiff-appellee Reliance Steel Products Company (Reliance), was to supply certain specialty steel items.

Page 576

The project did not go smoothly, much delay ensuing. Suppliers, including Reliance, went unpaid at job's end. Dick demanded, unsuccessfully, that RITBA extend the contract completion date, rescind penalties for tardiness, and reimburse delay-related costs. RITBA granted some relief, but not to Dick's expectations. Meantime, Reliance decided to wait no longer for its money and sued the surety in federal district court, invoking diversity jurisdiction. 28 U.S.C. Sec. 1332(a).

After a bench trial, the district court issued a comprehensive 26-page opinion. Reliance Steel Products Co. v. Nafinco, No. 86-0465-B (D.R.I. July 28, 1988) (unpublished) (D.Ct.Op.). The court determined that Reliance neither caused nor materially contributed to any delays, id. at 16, but that Reliance did breach warranties by supplying some defective riser bars, id. at 19, and by misfabricating certain grid panels, id. at 20. The balance due Reliance for its goods was $508,000.74, id. at 5 & n. 1, as against which the court ordered setoffs of $53,804.64 ($33,897.90 for riser bar repairs and $19,906.74 for grid repairs). Id. at 23-25. Judgment entered for plaintiff for the net amount due ($508,000.74-$53,804.64 = $454,196.10). Nafinco appealed.


Having explored the record, we see little reason to linger. The controversy between the parties was fact-intensive. The evidence was in some conflict, featuring outright contradictions on some points and marked inconsistencies as to others. In those areas where the underlying facts were essentially undisputed, divergent inferences could often be drawn. Disputes of this nature are the staples of a trial court's diet, and comprise an unappetizing, usually unnourishing, bill of fare for appellate digestion. This case is no exception.

When a district court sits without a jury, the court of appeals cannot undertake to decide factual issues afresh. "We are not at liberty to prepare a palimpsest." Keyes v. Secretary of the Navy, 853 F.2d 1016, 1019 (1st Cir.1988). As the Civil Rules direct:

In all actions tried upon the facts without a jury ... the court shall find the facts specially and state separately its conclusions of law thereon.... Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

Fed.R.Civ.P. 52(a). When, as in this case, the clearly-erroneous standard guides our review of an appeal, the trier's "findings are to be set aside only if, on the entire evidence, we are 'left with the definite and firm conviction that a mistake has been committed.' " In re Tully, 818 F.2d 106, 109 (1st Cir.1987) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)). To make the cheese more binding, we note that the "clearly erroneous" rule has wide applicability: it governs findings of fact about (1) the significance of documentary evidence, see Anderson v. City of Bessemer City, 470 U.S. 564, 573-76, 105 S.Ct. 1504, 1511-13, 84 L.Ed.2d 518 (1985); RCI Northeast Services Div. v. Boston Edison Co., 822 F.2d 199, 202-03 (1st Cir.1987); (2) the factual meaning of contract provisions, id. at 203; Boston Five Cents Savings Bank v. Secretary of the Dep't of HUD, 768 F.2d 5, 8 (1st Cir.1985); and (3) what an actor intended. Anderson, 470 U.S. at 566, 105 S.Ct. at 1507; Keyes, 853 F.2d at 1019. Furthermore, "[w]here the conclusions of the [trier] depend on its election among conflicting facts or its choice of which competing inferences to draw from undisputed basic facts, appellate courts should defer to such fact-intensive findings, absent clear error." Irons v. FBI, 811 F.2d 681, 684 (1st Cir.1987).


Given the details of the instant record, we build easily on this foundation. Appellant purports to raise five issues, but they boil down to a pair. Nafinco says, in several different ways, that the district court was wrong in deciding that Reliance was blameless in regard to the delays

Page 577

which plagued rehabilitation of the bridge. It also says that the court took too narrow a view of the problems associated with off-quality goods supplied by plaintiff.

On the matter of delay, there is little we can add to the district court's thorough explication. See, e.g., D.Ct.Op. at 7-16. In a nutshell, the court's conclusions (1) that the work was arrested by a variety of delay-inducing problems not attributable to Reliance, see generally id., and (2) that Nafinco "failed to prove that Reliance caused delays to the bridge project which would warrant any offsets against the balance due to it," id. at 16, are amply supported by constitutive evidence. Whether or not we, sitting as a nisi prius court, would have reached the same conclusions is beside the point. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson, 470 U.S. at 574, 105 S.Ct. at 1511.

The matter of defective merchandise, for the most...

To continue reading