MasTec North America, Inc. v. NextiraOne Federal, LLC

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1658
MASTEC NORTH AMERICA, INCORPORATED, a Florida
corporation,
Plaintiff - Appellant,
versus
NEXTIRAONE FEDERAL, LLC, a Delaware limited
liability company,
Defendant - Appellee.
No. 06-1717
MASTEC NORTH AMERICA, INCORPORATED, a Florida
corporation,
Plaintiff - Appellee,
versus
NEXTIRAONE FEDERAL, LLC, a Delaware limited
liability company,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:05-cv-01070-LMB)
Argued: October 31, 2007 Decided: February 22, 2008
Before WILKINSON and MOTZ, Circuit Judges, and Louise W. FLANAGAN,
Chief United States District Judge for the Eastern District of
North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Erik W. Scharf, Coconut Creek, Florida, for MasTec North
America, Incorporated, a Florida corporation. Michael Allen Gatje,
AKERMAN, SENTERFITT, WICKWIRE & GAVIN, Vienna, Virginia, for
NextiraOne Federal, LLC, a Delaware limited liability company. ON
BRIEF: Carter B. Reid, Vivian Katsantonis, Scott W. Kowalski,
WATT, TIEDER, HOFFAR & FITZGERALD, LLP, McLean, Virginia, for
MasTec North America, Incorporated, a Florida corporation. Donald
G. Gavin, Jeffrey G. Gilmore, AKERMAN, SENTERFITT, WICKWIRE &
GAVIN, Vienna, Virginia, for NextiraOne Federal, LLC, a Delaware
limited liability company.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
MasTec North America, Incorporated (“MasTec”), a contractor
for communications companies, utilities, and governments, brought
this action against NextiraOne Federal, LLC (“NextiraOne”), also a
communications contractor, alleging breach of a construction
contract. MasTec alleged that NextiraOne breached the contract by,
among other things, wrongfully terminating the contract and failing
to pay MasTec for the work performed and its costs. NextiraOne
counterclaimed, alleging, inter alia, breach of the same contract
for failure to perform. After a bench trial, the court found in
favor of NextiraOne on its breach of contract counterclaim, but
found that no damages were proved. Both parties now appeal the
court’s rulings. We affirm.
I
On November 27, 2002, NextiraOne entered into a prime contract
with the United States Department of the Army, promising to upgrade
and modernize its post at Fort Rucker, Alabama. The contract
involved three main categories of work: outside plant work (“OSP”),
inside plant work (“ISP”), and data network installation (“DNI”).
OSP work included excavation, the backfilling of trenches, and the
installation of fiber optic and copper cable, conduits, and other
equipment. ISP work involved the connection of the OSP cables to
individual buildings on the post. The contract contemplated that
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the DNI would occur after the completion of the OSP and ISP work.
(See J.A. at 2462, 2465-66.)
On January 27, 2003, NextiraOne entered into a subcontract
with MasTec. MasTec’s job was to provide the OSP and ISP work on
the project. (J.A. at 2323-61.) During the design phase,
NextiraOne paid MasTec for its work; under the subcontract’s
“milestone” payment schedule, MasTec was entitled to payment for
the construction phase of the project upon completion and
acceptance by the United States Army. (See J.A. at 2361.)
Completion of the construction phase included the proper
restoration of the construction areas, which paragraph 5.4.9 of the
subcontract defines as “[r]estoration to the same condition as
found prior to construction,” completed “within 72 hours for all
areas where no additional intrusion by heavy equipment is
required.” (J.A. at 2467.)
During the first half of 2004, United States Army
representatives informed NextiraOne and MasTec personnel, orally
and in writing, that MasTec was failing to adequately perform
restoration work. (See J.A. at 2829, 2834-35.)
On June 9, 2004, NextiraOne sent a cure notice to MasTec
stating that MasTec was failing to perform its subcontract
obligations regarding installation work generally and restoration
work particularly. (J.A. at 233.) In accordance with the
termination provision of the subcontract, Section H.12, NextiraOne
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notified MasTec that it was in breach of paragraph 5.4.9, the
restoration provision of the subcontract, and had ten (10) business
days from the date of the letter in which to cure the breach prior
to NextiraOne taking legal action.
After issuance of the cure notice, MasTec personnel were
informed, throughout June, July, and August of 2004, that MasTec
was failing to adequately perform under the terms of the contract.
(See J.A. at 2839-41, 2859, 2867-69, 244-55.) NextiraOne
terminated MasTec by letter dated August 18, 2004, for failure to
comply with the cure notice. (J.A. at 2669.)
In a decision issued from the bench upon conclusion of a five
day trial, the court found in favor of the defendant on its
counterclaim, and held that due to a “continuous and constant
series of restoration problems,” the “defendant therefore was
justified in the termination.” (J.A. at 2311.) Through
communications such as “to do” lists prepared by inspectors and
presented to MasTec, email communications between the parties, and
face-to-face communications, MasTec was well-aware of the
prevailing concerns. (See J.A. at 1579-97, 1926-31, 2829, 2839-
41.) Thus, the parties were apprised periodically, and at times
almost daily, of the “chronic and constant” difficulties, putting
MasTec on “clear notice [as required by the Federal Acquisition
Regulation, 48 C.F.R. § 52.249-8 (1984) (“F.A.R.”)].” (J.A. at
2309.) Therefore, the court found, MasTec received “an adequate
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cure notice as required under the [F.A.R.].” (J.A. at 2309.)
However, the district court, having found that “the evidence in
this record is all over the waterfront,” determined that neither
party “has proven by a preponderance of the evidence that it is
entitled to any compensation in this case.” (J.A. at 2311, 2315.)
II
We have reviewed the record, briefs, and applicable law, and
considered the oral arguments of the parties, and we are persuaded
that the district court reached the correct result. We therefore
affirm on the reasoning of the district court. See MasTec North
America, Inc. v. NextiraOne Federal, LLC, No. 1:05-CV-1070 (E.D.
Va. May 5, 2006).
AFFIRMED
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