Transpower Constructors, a Div. of Harrison Intern. Corp. v. Grand River Dam Authority

• Citation: 905 F.2d 1413
• Decision Date: 15 June 1990
• Docket Number: 89-5172,90-5023 and 89-5132,Nos. 89-5131,89-5137,s. 89-5131
• Parties: TRANSPOWER CONSTRUCTORS, A DIVISION OF HARRISON INTERNATIONAL CORPORATION, Plaintiff-Appellee/Cross Appellant, v. GRAND RIVER DAM AUTHORITY, an Oklahoma Public Corporation, Defendant-Appellant/Cross-Appellee, and Benham Group, Inc., a Delaware Corporation, Defendant. TRANSPOWER CONSTRUCTORS, A DIVISION OF HARRISON INTERNATIONAL CORPORATION, Plaintiff-Appellee, v. GRAND RIVER DAM AUTHORITY, an Oklahoma Public Corporation, Defendant, and Benham Group, Inc., a Delaware Corporation, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1413

905 F.2d 1413

TRANSPOWER CONSTRUCTORS, A DIVISION OF HARRISON

INTERNATIONAL CORPORATION, Plaintiff-Appellee/Cross Appellant, v. GRAND RIVER DAM AUTHORITY, an Oklahoma Public Corporation,

Defendant-Appellant/Cross-Appellee,

and

Benham Group, Inc., a Delaware Corporation, Defendant.

TRANSPOWER CONSTRUCTORS, A DIVISION OF HARRISON

INTERNATIONAL CORPORATION, Plaintiff-Appellee, v. GRAND RIVER DAM AUTHORITY, an Oklahoma Public Corporation, Defendant, and Benham Group, Inc., a Delaware Corporation, Defendant-Appellant.

Nos. 89-5131, 89-5137, 89-5172, 90-5023 and 89-5132.

United States Court of Appeals, Tenth Circuit.

June 15, 1990.

Edward H. Tricker of Woods & Aitken, Lincoln, Neb., for plaintiff-appellee/cross-appellant.

Rodney A. Edwards (Robert S. Erickson with him on the briefs) of Jones, Givens, Gotcher & Bogan, P.C., Tulsa, Okl., for defendant-appellant/cross-appellee.

Harry M. Crowe, Jr., of Crawford, Crowe & Bainbridge, Tulsa, Okl., for defendant-appellant.

Before MOORE and McWILLIAMS, Circuit Judges, and BRATTON, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

This appeal arises from the successful suit by Transpower Constructors against the Grand River Dam Authority (GRDA) in breach of contract and against The Benham Group, Inc., GRDA's construction manager, in negligence. GRDA contends that the verdict on the breach-of-contract claim should be reversed because the jury's award was speculative and because the contract as well as several non-contractual defenses bar Transpower's claim for damages. Benham asserts that reversal is necessary because Transpower failed to prove that Benham acted in bad faith, proof of which the contract imposes as a prerequisite to Benham's liability in tort. These claims are without merit.

GRDA and Benham also challenge the trial court's award of certain attorney's fees as well as the court's imposition of postjudgment interest on the fees awarded. Transpower cross-appeals the trial court's denial of prejudgment interest. We conclude that the trial court ruled properly on these issues and affirm.

I. FACTS

Transpower entered a contract to construct a transmission line for GRDA. The contract required Transpower to install the poles, wires, and accessories which GRDA furnished. GRDA awarded the contract to Transpower based on Transpower's bid of approximately $1.5 million, which included a unit price rock excavation bid of $50 per lineal vertical foot for an estimated 2500 lineal feet. The contract also provided that Benham would represent GRDA during construction and that it was responsible for certifying Transpower's applications for payment and requests for time extensions.

Under a separate contract with GRDA, Benham agreed to design, inspect, and administer the construction of the transmission line. GRDA also entered separate contracts for the clearance of the right of way and for the manufacture and delivery of the poles. Transpower subcontracted with Tri-State Drilling and Equipment Company for the excavation work.

Transpower's contract with GRDA required Transpower to complete construction of the line by April 30, 1985. Because of a delay in the delivery of the poles, GRDA, on Benham's recommendation, agreed to extend Transpower's deadline by 32 days and to pay it an additional $47,500. Transpower, Benham, and GRDA subsequently formalized this modification of the contract in Change Order No. 2.

Besides the late delivery of the poles, several other factors led to delays in the project, including bad weather, slow clearance of the right of way, unexpected subsurface rock conditions, and Tri-State's slow performance of the excavation work. Benham did not recommend that GRDA grant any of Transpower's requests for extension of the April 30 deadline based on these other delays until after Transpower had completed the project. Instead, after a progress meeting in January 1985, GRDA ordered, upon Benham's recommendation, that Transpower accelerate its progress and place sufficient people and equipment on the job to meet the contract deadline. Pursuant to this order, Transpower increased the number of workers and amount of equipment on the project as well as the number of hours and days worked.

Near the project's completion, Transpower submitted to Benham a claim for additional compensation to cover the cost of the accelerated work schedule. It also submitted a claim for additional compensation on behalf of Tri-State. After GRDA, following Benham's recommendation, rejected all of Transpower's claims, Transpower filed this action against GRDA and Benham, seeking $1,808,621.95 from GRDA for breach of contract, including $481,980.50 on behalf of Tri-State, and $1,326,441.45, plus punitive damages, from Benham for negligence. Transpower alleged that GRDA was responsible for the additional costs which Transpower and Tri-State had incurred in meeting GRDA's acceleration order because GRDA had failed to meets its contractual obligations for timely material deliveries and speedy right-of-way clearance, delaying the construction schedule and thus creating the conditions which ultimately required the acceleration order. Transpower alleged that Benham had negligently administered the contract by failing to grant any of its requests for extensions of the April 30 deadline, other than the extension granted in Change Order No. 2, until after the project had been completed and by certifying that Transpower's slow performance was the reason for GRDA's acceleration order.

The jury awarded Transpower $1,124,312.49 against GRDA and $663,220.72 against Benham. The trial court entered judgment against GRDA and Benham, jointly and severally, on Transpower's negligence claim. It subsequently denied GRDA's and Benham's motions for a directed verdict, judgment n.o.v., to alter or amend the verdict, and for a new trial. It also denied Transpower's motion for prejudgment interest but granted its motion to tax attorney's fees and for postjudgment interest on those fees. GRDA and Benham claim that the trial court erroneously denied their post-trial motions, improperly calculated the award of fees, and erroneously imposed postjudgment interest on the fees awarded. Transpower asserts that the trial court erred in denying its motion for prejudgment interest.

II. GRDA's APPEAL

A.

GRDA contends that the trial court erred in denying its motions for a directed verdict and for judgment n.o.v. We review rulings on motions for a directed verdict and for judgment n.o.v. under the same standard. Hurd v. American Hoist and Derrick Co., 734 F.2d 495, 498 (10th Cir.1984). We will reverse the trial court's denial of either motion only if, after a de novo review, we determine that the evidence taken in the light most favorable to the nonmoving party and all reasonable inferences to be drawn therefrom point but one way, in favor of the moving party. Mitchell v. Mobil Oil Corp., 896 F.2d 463, 467 (10th Cir.1990).

Oklahoma law defines the measure of damages in a breach-of-contract action as "the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom." Okla.Stat.Ann. tit. 23, Sec. 21 (West 1987). Although the jury may not speculate about the fact of damages, Hardesty v. Andro Corp.-Webster Div., 555 P.2d 1030, 1034 (Okla.1976), uncertainty about their exact amount will not preclude recovery. Larrance Tank Corp. v. Burrough, 476 P.2d 346, 350 (Okla.1970); Firestone Tire & Rubber Co. v. Sheets, 178 Okl. 191, 62 P.2d 91, 93 (1936). Once a party has established the fact of damages, moreover, " 'it is proper to let the jury determine what the loss is from the best evidence the nature of the case admits.' " Hardesty, 555 P.2d at 1035 (quoting Southwest Ice & Dairy Prods. Co. v. Faulkenberry, 203 Okl. 279, 220 P.2d 257, 261 (1950)). This evidence need not support a mathematically precise measure of damages. Fiedler v. McKea Corp., 605 F.2d 542, 547 (10th Cir.1979) (applying Oklahoma law). A reasonable approximation of the loss will suffice. Hoffer Oil Corp. v. Carpenter, 34 F.2d 589, 592 (10th Cir.1929), cert. denied, 280 U.S. 608, 50 S.Ct. 158, 74 L.Ed. 651 (1930).

GRDA asserts that Transpower's evidence of damages was insufficient because Transpower established only the difference between its total costs and the contract price without apportioning responsibility for the cost overruns between itself, Tri-State, and GRDA and without establishing the share of the cost overruns attributable to each alleged breach. GRDA contends that without such evidence, the jury could only speculate about the proper measure of damages. As a result, the trial court should have either withheld Transpower's breach-of-contract claim from the jury or else granted judgment in GRDA's favor notwithstanding the jury's verdict.

GRDA's argument ignores the rule in Oklahoma that the prohibition against the recovery of damages because of uncertainty applies to the fact of damages and not to their amount. Hardesty, 555 P.2d at 1034. Our review of the record indicates that there was sufficient evidence from which the jury could reasonably approximate Transpower's loss. Besides the extensive and detailed evidence of Transpower's total costs, the record includes documentary evidence and testimony concerning the claims of Transpower and Tri-State against each other. Indeed, the jury must have considered this evidence since its award compensates Transpower for only a little more than sixty percent of its total claim.

GRDA also complains that Transpower's evidence of damages was insufficient because it would not permit the jury to allocate damages on a claim-by-claim basis or to determine the exact percentage of the cost overruns for which Transpower was responsible. Oklahoma law, however, requires only that the evidence be the best which the nature of the case admits. Id. at 1035. Transpower introduced ample...