Information Systems v. City of Kansas City ( 1998 )


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  •                    United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 97-3043
    ___________
    Information Systems and              *
    Networks Corporation,                *
    *
    Plaintiff-Appellant      *
    *   Appeal from the United States
    v.                             *   District Court for the Western
    *   District of Missouri
    City of Kansas City, MO,             *
    *
    Defendant-Appellee       *
    *
    ___________
    Submitted: April 13, 1998
    Filed: June 18, 1998
    ___________
    Before FAGG and HANSEN, Circuit Judges, and STROM,1 Senior District Judge.
    ___________
    STROM, Senior District Judge.
    1
    The HONORABLE LYLE E. STROM, Senior United States District Judge for the
    District of Nebraska, sitting by designation.
    Information Systems and Networks Corporation (ISN) appeals from a judgment
    entered in the district court2 following a jury verdict finding for the City of Kansas City
    (the City) and awarding damages on its counterclaim. ISN argues that the district court
    erred in allowing the jury to assess damages not recognized under Missouri law. ISN
    also asserts that the district court committed reversible error in admitting a certain
    damage estimate. For the reasons set forth below, we affirm.
    I.       BACKGROUND
    In May of 1991, ISN entered into a contract with the City to provide and
    install an automated access control security system at the Kansas City International
    Airport. The contract required that the security system be completely installed and
    operational by March 15, 1992. The contract included a liquidated damages clause that
    provided for varying per day damage amounts if five progression dates (milestones)
    were not met. The contract also contained a default and termination clause which
    provided as follows:
    All costs and charges incurred by the City,
    together with the cost of completing the work
    under the contract, will be deducted from any
    monies due or which may become due to
    [ISN]. If such expense exceeds the sum which
    would have been payable under the contract,
    then [ISN] and the surety shall be liable and
    shall pay to the City the amount of such
    excess.
    2
    The HONORABLE JOHN T. MAUGHNER, Chief Magistrate Judge, United
    States District Court for the Western District of Missouri, to whom the case was
    referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).
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    In late 1991, ISN began having difficulties completing the project and requested
    an extension. On January 3, 1992, the parties agreed to a change order that extended
    the contract completion date by thirty days and increased the number of milestones and
    corresponding liquidated damage amounts from five to twelve. For various reasons,
    ISN failed to meet the contract milestones and complete the project by the April 15,
    1992, deadline. On January 21, 1993, the City ordered ISN off the job and ultimately
    terminated the contract on March 1, 1993. Subsequently, the City decided not to
    complete the security system called for in the contract, but instead decided it would
    install a more advanced system.
    ISN filed this suit against the City for breach of contract and the City
    counterclaimed. The case was tried to a jury which found for the City on both ISN's
    breach of contract claim and on the City's counterclaim and awarded the City
    $1,686,630 in damages. ISN does not appeal any decision regarding its performance
    under the contract. It appeals only the type of damages the jury was allowed to award
    and the admission of a damage estimate.
    II.   DISCUSSION
    A.    Cost to Complete Damages
    ISN's first argument on appeal is that the district court erred in allowing the City
    to recover "cost to complete" damages. ISN asserts that recovery of non-incurred
    completion costs is contrary to Missouri law and to the contract's termination clause.
    We review the district court's interpretation of Missouri law de novo. Transit Cas. Co.
    v. Selective Ins. Co. of Southeast, 
    137 F.3d 540
    , 543 (8th Cir. 1998).
    Under Missouri law, it “is well settled where a contractor has partially performed
    the work promised, the owner’s damages are the cost of completion.” Stege v.
    Hoffman, 
    822 S.W.2d 517
    , 520 (Mo. App. 1992). “Where the contractor’s
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    performance is defective, the owner’s damages are either cost of completion according
    to the contract terms or the difference in the value of the [project] as constructed and
    the value it should have if constructed according to the specifications.” 
    Id. However, the
    preferred measure is the cost to complete, which may include not only the cost to
    complete the project, but also the cost to repair and replace defective construction.
    County Asphalt Paving Co. Inc. v. The 1861 Group, Ltd., 
    908 S.W.2d 184
    (Mo. App.
    1995); 
    Stege, supra
    . This is true even if the owner does not complete the work. White
    River Development Co. v. Meco Systems, Inc., 
    806 S.W.2d 735
    (Mo. Ct. App. 1991).
    Thus, the district court did not err in its determination that Missouri law allows the City
    to recover cost to complete damages even if the completion costs are not incurred.
    ISN also asserts that the district court misinterpreted the contract. It contends
    that the phrase in the termination clause, "together with the cost of completing the
    work," makes cost to complete damages a direct subcategory of "all costs incurred by
    the City." As such, the City must incur the cost of completing the project before they
    can recover those costs as damages.
    Interpretation of the contract's termination clause is a question of law that we
    review de novo. Lamb Eng’g & Constr. Co. v. Nebraska Pub. Power Dist., 
    103 F.3d 1422
    (8th Cir. 1997). The phrase "together with the cost of completing the work" is
    unambiguous. "Together with" is a conjunctive phrase, meaning that damages under
    the contract are not limited to the incurred costs, but are expanded to also include the
    cost to complete, the form of damages preferred under Missouri law. If the contract
    was intended to be contrary to law, it would have had to limit the City's damages to the
    incurred costs only and require the City to finish the project.
    With respect to ISN's remaining arguments regarding the award of cost to
    complete damages, the Court has considered these arguments and finds them to be
    without merit.
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    B.    Liquidated Damages.
    ISN's also argues that the contract's liquidated damages clause constituted a
    penalty. Under Missouri law liquidated damages clauses are valid and enforceable,
    while penalty clauses are invalid. Taos Constr. Co. v. Penzel Constr. Co., 
    750 S.W.2d 522
    , 525 (Mo. App. 1988). The validity of the liquidated damages clause must be
    viewed at the time the contract was executed. Southwest Eng’g Co. v. United States,
    
    341 F.2d 998
    (8th Cir. 1965), cert. denied, 
    382 U.S. 819
    (1965).
    In order that a liquidated damages clause be valid: (1) the amount fixed as
    damages must be a reasonable forecast for the harm caused by the breach; and (2) the
    harm that is caused by the breach must be of a kind difficult to accurately estimate.
    Southwest Eng'g 
    Co., supra
    ; Grand Bissell Towers v. John Gagnon Enters., Inc., 
    657 S.W.2d 378
    , 379 (Mo. App. 1983).
    ISN contends that the liquidated damages clause's purpose was to offset
    potential Federal Aviation Administration (FAA) penalties assessed against the City
    and any additional costs the City's consulting engineer incurred as result of ISN's failure
    to complete the project on schedule. ISN claims that these purposes were improper
    because the amount of the FAA fine and the amount of the consulting engineer's
    additional costs were easily determinable. ISN also contends that the liquidated
    damages clause that provides for a damage amount of $1500 per day "or FAA imposed
    penalty, whichever is larger," is penal. The Missouri Court of Appeals dealt with these
    same arguments in 
    Taos, supra
    , and rejected them. In Taos, a subcontractor was suing
    the general contractor of a state roads project claiming the liquidated damages
    provision in the subcontract was a penalty. The liquidated damages clause provided
    that the subcontractor would be liable to the general contractor for the full amount of
    any penalty assessed by the Missouri Highway and Transportation Commission
    (Commission) plus ten percent for any delays the subcontractor caused. The
    Commission and the contractor agreed that the penalty would be $200 per day. The
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    subcontractor caused delay and was assessed liquidated damages that totaled two-
    thirds of its contract price. The Missouri Court of Appeals held, first, the $200 per day
    penalty was a reasonable forecast by the Commission of potential damages, and, even
    if this was not the case, “in a public works project, the public entity may recover
    damages solely upon proof of a violation of the contract.” 
    Taos, 750 S.W.2d at 526
    ,
    (citing, inter alia, Southwest 
    Eng'g, supra
    .) Second, the fact that the amount of the
    liquidated damages to the subcontractor was a function of the Commission’s penalty
    and, therefore, easy to calculate, did not make the clause a penalty. The subcontractor
    “agreed that it would be liable to [the general] for liquidated damages it caused or to
    which it contributed.” 
    Id. at 527.
    Finally, the court recognized that "it is proper for a
    prime contractor to ‘pass on’ to a subcontractor liquidated damages caused by a
    subcontractor.” 
    Id. In this
    case, the amount of liquidated damages was $250 per day for failure to
    complete certain preliminary milestones, $500 per day for failure to meet certain
    intermediate milestones, and $1500 per day “or FAA imposed penalty, whichever is
    larger,” for failure to complete the project by April 15, 1992. The contract also stated
    that the liquidated damages “shall not be deducted as a penalty but shall be considered
    a liquidation of a reasonable portion of damages that will be incurred by the City should
    [ISN] fail to complete the work in the time provided in [its] contract." At the time these
    amounts were negotiated in the original contract and renegotiated in the change order,
    the parties knew there was a possibility that the FAA would assess a $1000 per day
    penalty against the City for failure to complete the security system on time and knew
    that the City would have to expend additional funds to supervise the project if it was
    delayed. The exact amount of these costs was difficult to estimate and the parties
    agreed in the contract that these amounts were a “reasonable portion” of the damages
    the City would incur. The fact that the FAA penalty was not imposed is irrelevant
    because proof of actual damages at the time of the breach is not required in public
    works contracts, 
    Taos, supra
    , Southwest 
    Engineering, supra
    , notwithstanding, the City
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    did present evidence of other actual damages in this case. Furthermore, the passing on
    of the FAA fine is clearly analogous to the passing on of the penalty in the Taos case.
    Finally, in support of its claim that the alternative nature of the “$1500 per day
    or FAA imposed penalty, whichever is larger" is penal, ISN relies on Jennings v. First
    National Bank of Kansas City, 
    30 S.W.2d 1049
    (Mo. App. 1930). The contract in
    Jennings was a lease agreement in which the landlord had the right to determine at the
    time of the breach whether to assess liquidated damages or actual damages. 
    Id. at 1053.
    The court found that the parties to the lease had never agreed upon the amount of
    probable damages and the landlord’s “option to take a sum certain or actual damages
    and to make the election at the time of the breach work[ed] oppressively” and was
    therefore penal in nature. 
    Id. Jennings is
    inapposite because here the parties agreed that
    damages would be difficult to ascertain and thus determined the amount of probable
    damages at the time the contract was made.
    C.    The Ryn Estimate
    ISN's final argument on appeal is that the district court erred in admitting Exhibit
    954, the Ryn estimate, into evidence. "The admission of evidence is committed to the
    sound discretion of the district court." Bevan v. Honeywell, Inc., 
    118 F.3d 603
    , 612
    (8th Cir. 1997). We review only for a clear abuse of discretion, "and a ruling on
    admissibility will not be reversed on appeal absent a clear and prejudicial abuse of
    discretion." Scheerer v. Hardee’s Food Sys., Inc., 
    92 F.3d 702
    , 706 (8th Cir. 1996).
    Having reviewed the record, we find that the admission of the Ryn estimate was not a
    clear abuse of discretion.
    CONCLUSION
    Accordingly, we affirm the district court's judgment.
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    A true copy.
    ATTEST:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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