A Kan. Corp.. v. Mohawk Constr.
| Citation | 702 F.Supp.2d 1304 |
| Decision Date | 16 March 2010 |
| Docket Number | Case No. 06-1043-JTM. |
| Parties | The LAW COMPANY, INC., A Kansas Corporation, Plaintiff, v. MOHAWK CONSTRUCTION AND SUPPLY COMPANY, INC., A Pennsylvania Corporation, Defendant. |
| Court | United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas |
OPINION TEXT STARTS HERE
Charles E. Millsap, Lyndon W. Vix, Ron L. Campbell, Fleeson, Gooing, Coulson & Kitch, LLC, Wichita, KS, for Plaintiff.
David E. White, Richard W. Saxe, Babst Calland Clements & Zomnir, PC, Pittsburgh, PA, Joshua C. Dickinson, Spencer Fane Britt & Browne, LLP, Omaha, NE, for Defendant.
This matter is before the court on The Law Company, Inc.'s motion for summary judgment, seeking dismissal of most of the damages defendant Mohawk Construction and Supply Company seeks in its Counter-claim.
The court previously granted plaintiff's motion in an Order (Dkt. 54) which excluded much of the evidence presented by Mohawk in its Opposition to the motion. The Court of Appeals reversed this decision, and remanded the matter for further proceedings. Law Co. v. Mohawk Constr. & Supply, 577 F.3d 1164 (2009). In its Supplemental Brief submitted to this court, Law has stated that it “will not object to the Court's consideration of all the exhibits attached to Mohawk's response, or to the affidavits of Cybulski or Kowcheck.” (Dkt. 72, at 6).
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. “In the language of the Rule, the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
On May 8, 2003, The Law Company, Inc. entered into a contract with Cessna Aircraft Company in which Law agreed to build a Cessna C-10 Citation Service Center in Wichita, Kansas. The original contract was for the sum of $44,854,000. The work consisted of approximately 458,000 square feet with an office area, commonly referred to as “Building D,” along with five aircraft service center hangars, commonly referred to as Buildings A and C, on the south side of Building D, and Buildings E, F and G on the north side on Building D.
The work was to be completed within 540 calendar days, i.e., November 3, 2004. The contract provided for liquidated damages payable to Cessna in the amount of $5,000.00 for every day the project was late. Article 4.3 of the Cessna Contract stated:
Extension of time shall be the Contractor's sole remedy for delay unless the same shall have been caused by Cessna's intentional interference with the Contractor's performance of the work, and then only after the Contractor's notice to Cessna of such interference. Changes in the scope of work, suspension of the work, and correction of defective work shall not be construed as intentional interference with the Contractor's performance.
On or about May 13, 2003, Law entered into a subcontract with Steel Service Corporation, in which Steel Service agreed to fabricate and erect the structural and miscellaneous steel, metal deck, and bar joists for the project. The contract provided that erection of structural steel would begin in mid-August 2003 and would be substantially complete within four months, or by Christmas 2003. The parties agreed that erection would start in Building D and then proceed essentially simultaneously in both hangar bay wings (north and south of Building D).
On or about May 21, 2003, Law and Mohawk entered into a subcontract in which Mohawk agreed to install all metal wall panels, interior liner panels, hangar doors, draft stops, and exterior enclosure fences on the project.
Section 3 of the Mohawk Subcontract contained the following provisions:
3.1 Contractor shall prepare the construction Schedule for the Project and revise the Schedule as work progresses to achieve the earliest possible completion of the Project. Subcontractor shall immediately furnish all information pertaining to the Subcontract Work requested by Contractor for implementation and revision of the Schedule. Subcontractor recognizes that revisions will be made to the Schedule and agrees to comply with such revisions without additional compensation. Subcontractor shall attend all on-site Project meetings regularly scheduled, or specially called by Contractor's project manager or superintendent with not less than three (3) days' written, facsimile or telephoned notice to Subcontractor. In the event of the absence of Subcontractor at any such Project meeting, Subcontractor shall be bound by any decisions or directives issued by Contractor at such meeting
concerning the Schedule and/or the progress of the Project.
Citing the deposition testimony of Mark Cybulski, Law submits as a fact that Mohawk does not contend that Law intentionally interfered with its work. (Cybulski Dep. at 41-43). In its Response, however, Mohawk states that it does allege that Law “either through its actions or inactions, intentionally or actively interfered” with Mohawk's performance, and that the other subcontractors “intentionally or actively interfered,” and references a list of over a dozen paragraphs from its supplemental statement of facts.(Dkt. 46 at 3, ¶ 7, citing SSOF ¶¶ 32-37, 40-41, 50-51, 55-56, 67, 93, 97). The cited facts, however, fail to supply any evidence that Law intentionally sought to interfere in Mohawk's completion of the project.
The Mohawk Subcontract contains certain Supplementary Conditions which are “intended to adapt the Base Agreement to this specific Project.” Section 4.4 of the Subcontracts Supplementary Conditions provides as follows:
Subcontractor specifically acknowledges that extension of time shall be Subcontractor's sole remedy for delay unless the same shall have been caused by Owner's or Contractor's intentional interference with the Subcontract Work, and then only after Subcontractor has provided timely notice to Contractor and Owner has approved such request for extension. In accordance with Subparagraph 4.3 of the General Contract, changes in the scope of the Subcontract Work, suspension of the Subcontract Work, and correction of defective Subcontract Work shall not be construed as intentional interference with Subcontractor's performance.
(Emphasis added). Mohawk objects to this requested finding of fact as being merely the interpretation of counsel, but the language cited above, including the statement of intent, is accurately quoted from the Subcontract.
Section 27 of the Mohawk Subcontract provides as follows:
Entirety of Subcontract. This Subcontract, Schedule A and Schedule B, and the provisions thereof, represent the entire agreement of the parties as to the Subcontract Work to be performed by Subcontractor and may not be amended, altered, modified or terminated (except as provided in § 11.) except by the written
agreement of the parties. In the event of any conflict between any of the Contract Documents and the provisions of...
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