Shook & Fletcher Insulation Co. v. Central Rigging & Contracting Corp.

• Citation: 684 F.2d 1383
• Decision Date: 07 September 1982
• Docket Number: No. 81-7600,81-7600
• Parties: SHOOK & FLETCHER INSULATION COMPANY, a Corporation, Plaintiff-Appellee, Cross-Appellant, v. CENTRAL RIGGING & CONTRACTING CORPORATION, a Corporation; Fireman's Fund Insurance Company, a Corporation, Defendants-Appellants, Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1383

684 F.2d 1383

SHOOK & FLETCHER INSULATION COMPANY, a Corporation, Plaintiff-Appellee, Cross-Appellant, v. CENTRAL RIGGING & CONTRACTING CORPORATION, a Corporation;

Fireman's Fund Insurance Company, a Corporation,

Defendants-Appellants, Cross-Appellees.

No. 81-7600.

United States Court of Appeals, Eleventh Circuit.

Sept. 7, 1982.

Smith, Currie & Hancock, Burt R. Oastler, Griffin, Cochrane & Marshall, Rodney C. Jones, Atlanta, Ga., for defendants-appellants, cross-appellees.

Stokes & Shapiro, Ronald J. Garber, Ira J. Smotherman, Jr., Atlanta, Ga., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Northern District of Georgia.

Before INGRAHAM, ^* HATCHETT and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

In this diversity action, Shook & Fletcher Insulation Company ("Shook & Fletcher"), the appellee and cross-appellant, sued Central Rigging & Contracting Corporation ("Central Rigging") and Central Rigging's surety, Fireman's Fund Insurance Company, the appellants and cross-appellees, ¹ for several claims arising in connection with the construction of a cement factory in Demopolis, Alabama. Central Rigging was the general contractor in charge of this construction project and Shook & Fletcher was a subcontractor responsible for installing insulation. Shook & Fletcher in this lawsuit sought to recover additional compensation for extra work performed beyond the requirements of the subcontract. The district court initially granted partial summary judgment in favor of Shook & Fletcher and, after a two-day bench trial, rendered judgment in full for Shook & Fletcher on all of its claims.

Central Rigging challenges the district court's judgment with respect to only one of Shook & Fletcher's claims, a claim for $88,314.71 for the installation of 16,951 square feet of additional insulation. With respect to this claim, Central Rigging also attacks the district court's denials of motions for a new trial and to open the judgment and take new evidence. Shook & Fletcher cross-appeals from the district court's denial of prejudgment interest and refusal to apply an increased statutory post-judgment rate of interest.

We find that Central Rigging's assertions on appeal are devoid of merit and we therefore affirm the district court with respect to Central Rigging's appeal. On the cross-appeal, however, we must reverse the district court as we conclude that Shook & Fletcher is entitled to prejudgment interest and an increased rate of post-judgment interest.

I. CENTRAL RIGGING'S APPEAL

Central Rigging's major contention on appeal, as well as at trial, is that Shook & Fletcher failed to prove that Shook & Fletcher actually installed the extra insulation as opposed to merely purchasing the insulation or having it delivered to the job site. Central Rigging concedes that two witnesses for Shook & Fletcher testified at trial that they personally measured in the field and by diagrams the actual insulation installed and that their measurements establish that Shook & Fletcher installed 16,951 square feet of insulation more than the subcontract required. Central Rigging introduced no evidence at trial on the amount of insulation installed, and the district court, after hearing all the evidence and viewing the demeanor of the witnesses on cross and direct examination, credited the testimony of Shook & Fletcher's witnesses.

Central Rigging challenges this finding of fact and credibility choice by the district court. This claim is utterly without merit. The district court's "(f)indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses." Fed.R.Civ.P. 52(a). Dickens v. United States, 545 F.2d 886, 890 (5th Cir. 1977). The district court's findings of fact are in no way clearly erroneous, and indeed are amply supported by the record. We decline, as indeed the law commands we must, Central Rigging's invitation to second guess the credibility choices of the district court that had the opportunity to observe the witnesses' demeanor.

Similarly, we must reject Central Rigging's claim that its motion for a new trial on the ground that the verdict was against the great weight of the evidence was erroneously denied by the district court. A motion for a new trial is committed to the sound discretion of the district court and the district court's decision should not be reversed unless there is a showing that the district court abused its discretion. Ellis v. Chevron U.S.A., Inc., 650 F.2d 94, 97 (5th Cir. 1981). There is nothing in the record that even suggests that the district court abused its discretion in denying Central Rigging's motion for a new trial.

We also find no error in the district court's denial of Central Rigging's motion to open the judgment and to take new evidence. Central Rigging's "new evidence" consists of an affidavit by one Robert Skinner, who claims to have measured the insulation installed and who disputes the testimony offered on this issue by Shook & Fletcher. Central Rigging cannot complain about the district court's refusal to consider this evidence because Central Rigging, had it exercised due diligence, could have introduced this evidence at trial. See NLRB v. Jacob E. Decker & Sons, 569 F.2d 357, 363 (5th Cir. 1978); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 390-91 (5th Cir. 1977); Owens v. International Paper, 528 F.2d 606, 611 (5th Cir. 1976); Luhrsen v. Vantage Steamship Corp., 514 F.2d 105, 106 (5th Cir. 1975); United States v. 41 Cases, More or Less, 420 F.2d 1126, 1132 (5th Cir. 1970). ²

Central Rigging also contends that by virtue of the result in certain arbitration proceedings, Shook & Fletcher's claim is barred by the doctrines of res judicata, collateral estoppel, and equitable estoppel. The doctrines of res judicata and collateral estoppel cannot bar Shook & Fletcher's claim because Shook & Fletcher was not a party to this prior arbitration proceeding and there is no evidence in the record that Shook & Fletcher is in privity with any of the parties to the arbitration. Moreover, there is no evidence in the record that the issues or causes of action resolved by the arbitration are the same as those presented in this case. See Stevenson v. International Paper Co., 516 F.2d 103, 108-11 (5th Cir. 1975); Wheeler v. First Alabama Bank, 364 So.2d 1190, 1199 (Ala.1978); Teague v. Motes, 57 Ala.App. 609, 330 So.2d 434, 437-38 (1976). ³ The district court correctly found that Central Rigging had waived the affirmative defense of equitable estoppel because Central Rigging did not raise this defense in any pleading or in the pretrial order and only first asserted this defense in a post-trial brief. Moreover, our review of the record reveals no facts on which Central Rigging could make out a meritorious claim of equitable estoppel.

II. SHOOK & FLETCHER'S CROSS-APPEAL

The district court denied Shook & Fletcher's request for prejudgment interest because the court concluded that, under Alabama law, "prejudgment interest runs only on such sums that are certain or are capable of being made certain ... (and) Shook & Fletcher's claims did not represent sums certain prior to the determinations made on the issues at trial." Record on Appeal, vol. III, at 899-900. Regardless of whether Shook & Fletcher's claims represent "sums certain," we are convinced that Alabama law authorizes the award of prejudgment interest on Shook & Fletcher's claims.

Alabama Code Section 8-8-8 provides that:

All contracts, express or implied, for the payment of money, or other thing, or for the performance of any act or duty bear interest from the day such money, or thing, estimating it at money's value, should have been paid, or such act, estimating the compensation therefore in money, performed.

The cases establish that prejudgment interest is appropriate "when the damages are complete at a particular time and can be determined as of such time in accordance with fixed rules of evidence and known standards of value." Belcher v. Birmingham Trust National Bank, 488 F.2d 474, 477 (5th Cir. 1973). See Mobile & Ohio Railroad v. Williams, 219 Ala. 238, 121 So. 722, 730 (1929); Atlanta & Birmingham Air Line Railway v. Brown, 158 Ala. 607, 48 So. 73 (1908). There is no dispute in the present case that the damages were complete as of the date when Shook & Fletcher billed Central Rigging for the extra work performed. Central Rigging argues, however, that the unit price and the quantity of insulation installed were both contested at trial. Reply Brief of Appellant/Cross-appellee at 23.

Even if Central Rigging's assertion is true, this would not defeat Shook & Fletcher's right to recover prejudgment interest. The Alabama cases do not impose as a prerequisite to obtaining prejudgment interest that the amount of damages be beyond dispute; rather, the cases only require that the amount of damages be "ascertainable." Atlanta & Birmingham Air Line Railway v. Brown, 48 So. at 78 (emphasis added). In contract cases especially, the Alabama courts have not hesitated to award prejudgment interest, notwithstanding that the amount of damages may have been subject to considerable dispute at trial. In State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974), the Alabama Supreme Court, after characterizing a claim by an insured against his insurer for bodily injury caused by an uninsured motorist as a "contract action," id. at 102, rejected the insurance company's argument that prejudgment interest was inappropriate because "uninsured motorist claims are always unliquidated until final judgment ...." The court reasoned that:

Under appellant's reasoning, no uninsured motorist claim could become a liquidated debt due a policyholder until after full trial. This argument proves too much. Certainly, there may be disagreements...