Waldinger Corp. v. WorldCom, Inc. (In Re WorldCom, Inc.) , 466 F. App'x 28 ( 2012 )

11-1975
In Re: WorldCom, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8th day of March, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 IN RE: WORLDCOM, INC.
14
15 WALDINGER CORPORATION,
16 Creditor-Appellant,
17
18 -v.- 11-1975
19
20 WORLDCOM, INC.,
21 Debtor-Appellee.
22 - - - - - - - - - - - - - - - - - - - -X
23
24 FOR APPELLANT: Bennette D. Kramer, Schlam Stone
25 & Dolan LLP, New York, N.Y.;
26 James B. Cavanagh (on the
27 brief), Lieben, Whitted,
1
1 Houghton, Slowiaczek & Cavanagh,
2 P.C., Omaha, Neb.
3
4 FOR APPELLEES: Mark S. Carder, Stinson Morrison
5 Hecker LLP, Kansas City, Mo.;
6 David C. McGrail (on the brief),
7 McGrail & Bensinger LLP, New
8 York, N.Y.
9
10 Appeal from a judgment of the United States District
11 Court for the Southern District of New York (Sullivan, J.).
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14 AND DECREED that the judgment of the district court be
15 AFFIRMED.
16
17
18 The Waldinger Corporation (“Waldinger”) appeals the
19 affirmance of the bankruptcy court’s (1) reclassification of
20 its claim against WorldCom, Inc. (“WorldCom”) as unsecured
21 and (2) quantum meruit calculation, as modified by the
22 district court. We assume the parties’ familiarity with the
23 underlying facts, the procedural history, and the issues
24 presented for review.
25
26 “In an appeal from a district court’s review of a
27 bankruptcy court decision, we review the bankruptcy court
28 decision independently, accepting its factual findings
29 unless clearly erroneous but reviewing its conclusions of
30 law de novo.” In re AroChem Corp., 176 F.3d 610, 620 (2d
31 Cir. 1999).
32
33 “A person who furnishes services or materials pursuant
34 to a real estate improvement contract has a construction
35 lien . . . to secure the payment of his or her contract
36 price.” Neb. Rev. Stat. § 52-131(1). “To create a
37 contract, there must be both an offer and an acceptance;
38 there must also be a meeting of the minds or a binding
39 mutual understanding between the parties to the contract.”
40 Tilt-Up Concrete, Inc. v. Star City/Federal, Inc., 255 Neb.
41 138, 147, 582 N.W.2d 604, 610 (1998). The bankruptcy court
42 found that WorldCom did not assent to the installation of
43 three air handling units. Waldinger fails to show that this
44 finding is clearly erroneous.1 Although WorldCom may have
1
“Whether a contract exists is a question of fact.”
Gerhold Concrete Co. v. St. Paul Fire & Marine Ins. Co. , 269
2
1 assented to its pre-installation preparations and to its
2 upgrade of a fourth unit, Waldinger does not show that the
3 bankruptcy court clearly erred in holding that there was no
4 meeting of the minds to contract for this scope of work, or
5 the price to be paid for it. Cf. Tilt-Up Concrete, 225 Neb.
6 at 146-48, 582 N.W.2d at 610-11 (finding a contract--even
7 though the parties did not agree on the price of some
8 “extras” to be performed by the contractor--because the
9 parties “had a meeting of the minds sufficient to establish
10 a lump-sum contract for [the contractor’s] normal scope of
11 work, plus the extra . . . work”).
12
13 The bankruptcy court did not clearly err in excluding
14 salary paid to a Waldinger manager and Waldinger’s overhead
15 from its quantum meruit calculation. Waldinger did not
16 establish that either was an actual cost incurred in the
17 project. See S. A. Sorenson Constr. Co. v. Broyhill, 165
18 Neb. 397, 406, 85 N.W.2d 898, 904 (1957) (denying recovery
19 for a supervisor’s work when there was “no evidence as to
20 the amount required or reasonable value”). The bankruptcy
21 court did not err in excluding Waldinger’s projected profits
22 from its quantum meruit calculation. See Gee v. City of
23 Sutton, 149 Neb. 603, 609, 31 N.W.2d 747, 751 (1948)
24 (“Generally, the courts will not allow profits which might
25 have been obtained if the contract had been legal and valid
26 . . . but confine[] recovery to such sum as will reasonably
27 compensate the party whose services or property have been
28 devoted to the advantage of the other.”).
29
30 Finding no merit in Waldinger’s remaining arguments, we
31 hereby AFFIRM the judgment of the district court.
32
33 FOR THE COURT:
34 CATHERINE O’HAGAN WOLFE, CLERK
35
36
Neb. 692, 696, 695 N.W.2d 665, 670 (2005); see also Connolly
v. Clark, 457 F.3d 872, 875 (8th Cir. 2006).
3